Michiels, Dany et al.

Patent Trials and Appeals Board

Feb 18, 2020

14580325 - (D) (P.T.A.B. Feb. 18, 2020)

UNITED STATES PATENT AND TRADEMARK OFFICE
UNITED STATES DEPARTMENT OF COMMERCE
United States Patent and Trademark Office
Address: COMMISSIONER FOR PATENTS
P.O. Box 1450
Alexandria, Virginia 22313-1450
www.uspto.gov
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR ATTORNEY DOCKET NO. CONFIRMATION NO.
14/580,325 12/23/2014 Dany Michiels 6455D 1316
25280 7590 02/18/2020
Legal Department (M-495)
P.O. Box 1926
Spartanburg, SC 29304
EXAMINER
FISCHER, JUSTIN R
ART UNIT PAPER NUMBER
1749
MAIL DATE DELIVERY MODE
02/18/2020 PAPER
Please find below and/or attached an Office communication concerning this application or proceeding.
The time period for reply, if any, is set in the attached communication.
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________

Ex parte DANY MICHIELS, SHULONG LI, and
SOFIE A. CHRISTIAENS1
____________

Appeal 2019-000601
Application 14/580,325
Technology Center 1700
____________

Before ROMULO H. DELMENDO, MICHELLE N. ANKENBRAND, and
CHRISTOPHER C. KENNEDY, Administrative Patent Judges.

KENNEDY, Administrative Patent Judge.

DECISION ON APPEAL
This is an appeal under 35 U.S.C. § 134(a) from the Examiner’s
decision rejecting claims 1–12, 16, and 17. We have jurisdiction under
35 U.S.C. § 6(b). We AFFIRM.
BACKGROUND2
The subject matter on appeal relates to “tacky finishes and to . . .
textile materials and articles treated with the tacky finishes.” E.g.,

1 We use the word “Appellant” to refer to “applicant” as defined in
37 C.F.R. § 1.42(a). The Appellant identifies the real party in interest as
Milliken & Company. See Br. 2.
2 The Appellant states that it is not aware of any related appeals. Br. 2.
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Spec. 1:16–16; Claim 1. The Specification discloses that “[t]he textile
materials and articles may be used as rubber reinforcing materials, such as
automotive tire cap ply, single end tire cord, carcass reinforcement and side
wall reinforcement.” Id. at 1:18–20. Claim 1 is reproduced below from
page 15 (Claims Appendix) of the Appeal Brief:
1. An article comprising:
(A) at least one layer of coated textile material comprising:
(1) a woven, knit, or nonwoven fabric;
(2) disposed on at least one surface of the fabric, a first layer
of a composition (a) comprising a resorcinol-
formaldehyde-latex; and
(3) disposed on the first layer, a second layer of a tacky
finish (b) comprised of
(i) at least one tacky resin selected from phenol-
containing resins, aromatic resins, hydrocarbon
resins, terpene resins, indene resins, coumarone
resins, rosin-based resins, and mixtures thereof;
(ii) at least one unvulcanized rubber selected from
polybutadiene, polyisoprene, synthetic trans-
rich polyisoprene or cis-rich polyisoprene,
natural rubber, poly( styrene-co-butadiene),
poly(acrylonitrile-cobutadiene), chloroprene,
hydrogenated styrene-butadiene rubber,
hydrogenated nitrile-butadiene rubber, butyl
rubber, polyisobutylene copolymer rubber, halo-
butyl rubber, and mixtures thereof, and
(iii) at least one adhesion promoter selected from
formaldehyde-resorcinol condensate and/or

However, on April 4, 2019, an appeal brief was filed in parent Application
14/148,876, filed January 7, 2014 (Appeal 2019-005480). That application
is a divisional of Application 13/107,027, filed May 13, 2011, which
matured into United States Patent 8,651,157 B2, issued February 18, 2014.
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resin, formaldehyde-phenol condensate, novolac
resins, resole resins, multifunctional epoxy
resin, novolac modified epoxy resin, isocyanate
compounds, blocked isocyanate resin or
compounds, halogenated resorcinol-
formaldehyde resin, phenolic resins,
halogenated phenolic resins, melamine-
formaldehyde resins, vinyl pyridine rubber latex,
methylene donors, organofunctional silanes, and
mixtures thereof;
(B) a layer of outer tread rubber; and
(C) at least one layer of inner belt ply;
wherein (A) is in direct contact with (B) and (C).
REJECTIONS ON APPEAL
The claims stand rejected under 35 U.S.C. § 103(a) as follows:
1. Claims 1–4, 6, 10, and 11 over Ando (EP 1 371 618 A1, published
Dec. 17, 2003) and US Rubber Company (GB 559,986, dated March 14,
1944);
2. Claims 5 and 9 over Ando, US Rubber Company, and Hercules
(GB 1,324,900, published July 25, 1973);3
3. Claims 6 and 7 over Ando, US Rubber Company, and Barth
(GB 1,082,549, published Sept. 6, 1967);
4. Claims 1–4, 6, 10–12, 16, and 17 over Kuwajima
(US 2006/0225824 A1, published Oct. 12, 2006); Ando; Richards

3 In the Final Action, the Examiner lists this as two separate rejections. See
Final Act. 3, 4. We understand that the Examiner’s reference on page 3 to
“Hercules (GB 1,324,980. of record)” (emphasis added) includes a
typographical error, and that the correct patent number for Hercules is
GB 1,324,900.
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(US 2006/0124221 A1, published June 15, 2006); and Hartford Rubber
(GB 259,540, dated June 9, 1927), Cole (US 3,608,605, issued Sept. 28,
1971), and/or Neville (US 3,956,546, issued May 11, 1976);
5. Claims 1–6, 8–12, and 16 over Collins (US 4,463,120, issued July
31, 1984); Davis (US 5,563,217, issued Oct. 8, 1996) and/or Smith
(EP 0 775 719 A2, published May 28, 1997); Hartford Rubber, Cole, and/or
Neville; and Ando and/or Wintzer (WO 2006079297, published Aug. 3,
2006).
6. Claims 6 and 7 over Collins; Davis and/or Smith; Hartford Rubber,
Cole, and/or Neville; Ando and/or Wintzer; and Barth.
ANALYSIS
After review of the cited evidence in the appeal record and the
opposing positions of the Appellant and the Examiner, we determine that the
Appellant has not identified reversible error in the Examiner’s rejections.
Accordingly, we affirm the rejections for reasons set forth below, in the
Final Action dated Feb. 6, 2018, and in the Examiner’s Answer.
Rejections 1–3
The Appellant argues the claims as a group and does not present
separate arguments for the claims subject to Rejections 2 and 3. We select
claim 1 as representative, and the remaining claims subject to Rejections 1–3
will stand or fall with claim 1.
The Examiner’s rejection appears at pages 2–3 of the Final Action.
Of particular relevance to the issues that the Appellant raises in this appeal,
the Examiner finds that Ando teaches each element of claim 1 except that
“Ando fails to specifically describe [Ando’s cord assembly, which the
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Examiner finds corresponds to the textile material of claim limitation (A)] as
a ‘woven, knit, or nonwoven fabric.’” Final Act. 2. The Examiner finds,
however, that “it is well recognized that tire components, including carcass
plies and belt plies, are conventionally formed as an assembly of parallel
cords or as woven structures, as shown for example by US Rubber
Company.” Id. The Examiner determines that it would have been obvious
“to form the cord assembly of Ando as a woven structure, for example,
given that such an arrangement is consistent with conventional tire design.”
Id. at 3.
The Appellant argues that “Ando teaches away from that which is
taught by US Rubber Company” because “Ando teaches that using sulfur as
a vulcanizer” is inadequate, while “US Rubber company teaches the
inclusion of sulphur in the rubber compositions.” Br. 4.
That argument is unpersuasive because it does not meaningfully
address or otherwise show error in the Examiner’s rationale. See In re Jung,
637 F.3d 1356, 1365 (Fed. Cir. 2011) (“[I]t has long been the Board’s
practice to require an applicant to identify the alleged error in the examiner’s
rejections . . . .”). As the Examiner explains in the Answer, the Examiner
relies on US Rubber Company only to show “the common arrangement of
fiber reinforcing materials in tire components.” Ans. 4. The Appellant’s
argument fails to identify any aspect of either Ando or US Rubber Company
that teaches away from the use of woven structures in tire components, as
claimed, and the Appellant fails to identify any reason that the disclosures
concerning sulfur would have dissuaded a person of ordinary skill in the art
from making the combination that the Examiner proposes.
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The Appellants also argue that “[t]here is no teaching of the
interchangeability of the elements of the references,” and that the proposed
combination would result in “the inoperability of” Ando. Br. 4–5.
Those arguments are unpersuasive because the Examiner is not
proposing, e.g., the substitution of US Rubber Company’s fabrics for Ando’s
fibers. See id. at 4. As the Examiner explains in the Answer, “US Rubber
Company evidences the conventional arrangement of reinforcing fibers,
independent of fiber material, in tire components.” Ans. 5. The Examiner
also finds that Ando is not limited to glass fibers but also encompasses other
fiber materials. Id. The Appellant does not file a Reply Brief to contest
those findings.
As to alleged inoperability, that argument relies on the disclosures
concerning sulfur discussed above. See Br. 5. As above, that argument is
unpersuasive because the Examiner is not proposing the use of sulfur in
Ando in view of US Rubber Company. The Appellant provides no reason
that the use of a known woven configuration in Ando’s cord assembly, as
the Examiner proposes, would have rendered Ando inoperable.
The Appellant also argues that the Examiner has given no reason to
combine Ando and US Rubber Company. Id. at 6.
That argument is unpersuasive. The Examiner’s proposed
combination is the use of a known conventional tire assembly (i.e., use of
woven structures) in the tire assembly of Ando, which does not expressly
specify a woven assembly for its cords. The use of known elements
according to their established functions typically does not result in
nonobvious subject matter. See KSR Int’l Co. v. Teleflex Inc., 550 U.S. 398,
416–21 (2007) (“The combination of familiar elements according to known
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methods is likely to be obvious when it does no more than yield predictable
results.”); see also id. at 416 (“[W]hen a patent claims a structure already
known in the prior art that is altered by the mere substitution of one element
for another known in the field, the combination must do more than yield a
predictable result.”). The Appellant does not dispute that woven
arrangements were well known in tire assemblies. Nor does the Appellant
allege that a person of ordinary skill in the art would not have understood a
woven structure to be suitable for Ando’s cord assembly. On this record, we
are not persuaded of reversible error in the Examiner’s rejection of claim 1.
See Jung, 637 F.3d at 1365.
Rejection 4
The Appellant argues the claims as a group. We select claim 1 as
representative, and the remaining claims subject to Rejection 4 will stand or
fall with claim 1.
The Examiner’s rejection appears at pages 5–7 of the Final Action.
Of particular relevance to the issues that the Appellant raises in this appeal,
the Examiner finds, inter alia, that Kuwajima teaches a tire comprising tread
1, plurality of belt plies 3, and belt reinforcing layer 4 that may be made of
organic fiber cords such as nylon. Final Act. 5; see also Kuwajima Figure 1
(showing reinforcing layer 4 sandwiched between tread 1 and belt plies 3).
The Examiner finds that Kuwajima “is silent with respect to the inclusion of
adhesives in the belt reinforcing layer [4].” Final Act. 5. The Examiner
finds, however, that “[i]t is extremely well known to include adhesives when
including cord reinforcement in tire assemblies” in order to “provide[] a high
degree of bonding without increasing production costs,” and the Examiner
cites Ando’s disclosure of a cord assembly and adhesive composition. Id.
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The Examiner determines that it would have been obvious “to include the
adhesive composition of Ando in the tire of Kuwajima for the benefits
detailed above.” Id.
The Appellant acknowledges that Kuwajima teaches “an outer tread
portion 1, followed by a reinforcement layer comprised of tire cords 4,
followed by two belt layers 3.” Br. 9. The Appellant argues, however, that
“the Examiner fails to point out where the combination of references teaches
a coated woven, nonwoven or knit layer (layer A) in direct contact with both
layers (B) and (C).” Id. at 10.
That argument is not persuasive because, as the Appellant
acknowledges, Kuwajima teaches “an outer tread portion 1 [i.e., claim layer
(B)], followed by a reinforcement layer comprised of tire cords 4 [i.e., claim
layer (A)], followed by two belt layers 3 [i.e., claim layer (C)].” Br. 9.
Thus, the Appellant acknowledges that what the Examiner finds as
corresponding to claim layer (A) is sandwiched immediately between what
the Examiner finds as corresponding to claim layers (B) and (C). Id. It is
unclear how that arrangement falls beyond the scope of claim 1, and the
Appellant’s argument amounts to little more than a naked assertion that the
prior art does teach or suggest the recited claim limitation. See Jung, 637
F.3d at 1365; In re Lovin, 652 F.3d 1349, 1357 (Fed. Cir. 2011) (“[T]he
Board reasonably interpreted Rule 41.37 to require more substantive
arguments in an appeal brief than a mere recitation of the claim elements and
a naked assertion that the corresponding elements were not found in the
prior art.”).
The Appellant also argues that the Examiner has given no reason to
combine the prior art. Br. 10.
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That argument is unpersuasive because it fails to acknowledge or
otherwise show error in the Examiner’s specific findings and conclusions
concerning reason to combine. See Final Act. 5–6; see also Jung, 637 F.3d
at 1365. For example, as set forth above, the Examiner finds that “[i]t is
extremely well known to include adhesives when including cord
reinforcement in tire assemblies” in order to “provide[] a high degree of
bonding without increasing production costs,” and that a person of ordinary
skill in the art would have been motivated to include Ando’s adhesive
composition in Kuwajima’s belt reinforcing layer 4 to improve bonding
between Kuwajima’s tire layers. See Final Act. 5.
On this record, we are not persuaded of reversible error in the
Examiner’s rejection of claim 1.
Rejections 5 and 6
The Appellant argues the claims as a group. We select claim 1 as
representative, and the remaining claims subject to Rejections 5 and 6 will
stand or fall with claim 1.
The Examiner’s rejection appears at pages 7–8 of the Final Action.
Of particular relevance to the issues that the Appellant raises in this appeal,
the Examiner finds, inter alia, that Collins discloses a tire construction “in
which textile fabrics are coated with an aqueous adhesive composition”
similar to that of claim 1 but that Collins’ adhesive composition lacks a
resorcinol-formaldehyde (RF) resin. Final Act. 7. The Examiner finds,
however, that “RF resins are well recognized as being conventional
tackifying additives in adhesive compositions in general,” and that it was
“extremely well known and conventional to apply adhesive compositions
directly to a fabric structure or apply an initial RFL [resorcinol-
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formaldehyde-latex] composition prior to application of said adhesive, as
shown for example by Ando and/or Wintzer.” Id. at 8. In view of those and
other findings, the Examiner concludes that the subject matter of claim 1
would have been obvious.
The Appellant first argues that Wintzer does not adequately teach a
structure in which (1) an RFL is applied to a fabric structure and (2) an
adhesive is applied to the RFL layer. Br. 12.
That argument is not persuasive because, even assuming that the
Appellant is correct about Wintzer, the Examiner alternatively relies on
Ando for the disclosure of the claimed layer structure, see Final Act. 7–8,
and the Appellant does not assert error in the Examiner’s findings
concerning Ando, which provide an independent basis for affirmance of the
Examiner’s rejection.
The Appellant also argues that the Examiner has given no reason to
combine the prior art. Br. 12.
That argument is unpersuasive because it fails to acknowledge or
otherwise show error in the Examiner’s specific findings and conclusions
relevant to reason to combine. See Final Act. 7–8 (finding, e.g., that certain
tackifying agents are interchangeable and that the proposed combination is
the use of well known elements according to their well established
functions).
On this record, we are not persuaded of reversible error in the
Examiner’s rejection of claim 1.
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CONCLUSION
In summary:
Claims
Rejected
35
U.S.C. § References Affirmed Reversed
1–4, 6, 10,
11 103(a)
Ando, US Rubber
Company
1–4, 6, 10,
11
5, 9 103(a) Ando, US Rubber Company, Hercules 5, 9
6, 7 103(a) Ando, US Rubber Company, Barth 6, 7
1–4, 6, 10–
12, 16, 17 103(a)
Kuwajima, Ando,
Richards, Hartford
Rubber, Cole, Neville
1–4, 6, 10–
12, 16, 17
1–6, 8–12,
16 103(a)
Collins, Davis, Smith,
Hartford Rubber,
Cole, Neville, Ando,
Wintzer
1–6, 8–12,
16
6, 7 103(a)
Collins, Davis, Smith,
Hartford Rubber,
Cole, Neville, Ando,
Wintzer, Barth
6, 7
Overall
Outcome
1–12, 16,
17
No time period for taking any subsequent action in connection with this
appeal may be extended under 37 C.F.R. § 1.136(a).
AFFIRMED