Milliken & Company

Patent Trials and Appeals Board

Jan 5, 2021

2020001013 (P.T.A.B. Jan. 5, 2021)

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.
14/801,899 07/17/2015 Sara A. Arvidson 6780A 9718
25280 7590 01/05/2021
Legal Department (M-495)
P.O. Box 1926
Spartanburg, SC 29304
EXAMINER
JUSKA, CHERYL ANN
ART UNIT PAPER NUMBER
1789
MAIL DATE DELIVERY MODE
01/05/2021 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 SARA A. ARVIDSON, XIN LI, WALTER A. SCRIVENS,
NATHAN A. MEHL, ANDREW M. HONOHAN, DALE R. WILLIAMS,
BRANDON T. ROBERTS, FRANKLIN S. LOVE, and
PAUL A. RUNDQUIST
Appeal 2020-001013
Application 14/801,899
Technology Center 1700
Before JOSEPH L. DIXON, BEVERLY A. FRANKLIN, and
DONNA M. PRAISS, Administrative Patent Judges.
DIXON, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Pursuant to 35 U.S.C. § 134(a), Appellant1 appeals from the
Examiner’s decision to reject claims 51 and 54. See Final Act. 1. Claims 1–
50, 52, and 53 are cancelled. We have jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM.

1 We use the term “Appellant” to refer to “applicant” as defined in 37 C.F.R.
§ 1.42 (2018). Appellant identifies the real party in interest as Milliken &
Company. Appeal Br. 2.
Appeal 2020-001013
Application 14/801,899
2
CLAIMED SUBJECT MATTER
The claims are directed to a carpet tile with polyolefin secondary
backing where the modular carpet tiles have at least one layer of polyolefin-
containing thermoplastic polymer in the secondary backing of the carpet tile.
By modifying the composition of the carpet tiles in this manner, the carpet
tiles are able to withstand the high temperatures associated with surface
printing of the tiles, while still maintaining cold temperature flexibility.
(Abstract.) Claim 54, reproduced below, is illustrative of the claimed
subject matter:2
54. A carpet tile comprising the following sequential layers:
(1) a layer of pile yarns tufted through a primary backing;
(2) a layer of hot-melt adhesive or latex;
(3) a layer of blended polymer comprising:
(a) 5% to 80% by weight of a first polymer having
a propylene monomer content in the range from 50% to
91%,
(b) 1% to 20% by weight of a second polymer,
wherein the second polymer is an isotactic polypropylene
with an isotactic index of greater than 0.95, and wherein a
weight ratio of first polymer to second polymer is in the
range from 1 to 1 and 10 to 1; and
(c) a bulking agent,
wherein the layer of blended polymer is comprised of a
majority by weight of the bulking agent;
(4) a layer of fiberglass material;
(5) a layer of blended polymer comprising:
(a) 5% to 80% by weight of a first polymer having
a propylene monomer content in the range from 50% to
91%,

2 We note that the Claims Appendix indicates that in claim 54 the sub-steps
are 5 (a), (c), (d), but the newly filed claim 54, filed on May 24, 2018,
indicates the labels as steps 5 (a), (b), (c). Appeal Br. 9. We treat this as
harmless error.
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Application 14/801,899
3
(b) 1% to 20% by weight of a second polymer,
wherein the second polymer is an isotactic polypropylene
with an isotactic index of greater than 0.95, and wherein a
weight ratio of first polymer to second polymer is in the
range from 1 to 1 and 10 to 1; and
(c) a bulking agent,
wherein the layer of blended polymer is comprised of a
majority by weight of the bulking agent; and
(6) optionally, a layer of foam material.
REFERENCES
The prior art relied upon by the Examiner is:
Name Reference Date
Keith US 2003/0232171 A1 Dec. 18, 2003
Giannopoulos US 2008/0233336 A1 Sept. 25, 2008
Tsuruya3 JP 05132870 A May 28, 1993

REJECTION

Claim(s) Rejected 35 U.S.C. § Reference(s)/Basis
51, 54 103 Tsuruya, Keith,
Giannopoulos

OPINION
We have reviewed the Examiner’s rejection and Appellant’s
arguments, and Appellant has not persuaded us that the Examiner erred. As
consistent with the discussion below, we adopt the Examiner’s reasoning,
findings, and conclusions in the Final Action and the Examiner’s Answer.

3 Computer translation dated Aug. 16, 2017.
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4
With respect to independent claim 54, Appellant contends that the
references teach away from the invention as claimed by Appellant. Appeal
Br. 4. Appellant further contends that the Tsuruya reference teaches
propylene content in the range from 0 to 30 parts by weight, and Tsuruya
teaches that amounts more than this range result in too much flexibility of
the tile carpet. Appeal Br. 4. Appellant repeats steps 3 (a) and (b) and 5 (a)
and (b) and generally contends that the instant claim recites 100% total
amounts of propylene/polypropylene in two different layers, “which is a
much larger amount than the limit of 30 taught by Tsuruya.” Appeal Br. 5.
Appellant also argues that Tsuruya teaches atactic polypropylene at
paragraph 9, and claim 54 recites isotactic polypropylene, where atactic is
amorphous, while isotactic is crystalline. Appeal Br. 5. Therefore,
Appellant contends, the Tsuruya reference alone teaches away from that
which is claimed by Appellant in claim 54. Appeal Br. 5.
Appellant further contends that the Keith reference
teaches away from a carpet tile having the recited polymer blend
of propylene and isotactic polypropylene. Appellant has shown
in Table 2 [in the Specification at ¶ 127], for example, that
flexibility of the carpet tile is a desired component of the claimed
invention. In contrast, Keith teaches away from such a flexible
carpet tile and instead teaches hardback carpet tile (Paragraph
0016, for instance).
Appeal Br. 5.
The Federal Circuit has held “[a] reference may be said to teach away
when a person of ordinary skill, upon reading the reference, would be
discouraged from following the path set out in the reference, or would be led
in a direction divergent from the path that was taken by the applicant.” In re
Kahn, 441 F.3d 977, 990 (Fed. Cir. 2006) (quoting In re Gurley, 27 F.3d
Appeal 2020-001013
Application 14/801,899
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551, 553 (Fed. Cir. 1994)). On this record, we find Appellant has not
provided sufficient evidence or persuasive argument that the references
relied upon teach away from the path taken by Appellant. The mere fact that
there is a (different) way, does not amount to a “teaching away.”
The Examiner finds that Appellant merely repeats similar arguments
advanced throughout the prosecution, and Appellant did not address the
Examiner’s responses to those arguments in the Appeal Brief. Ans. 6. With
regards to the teaching away argument, the Examiner finds that Appellant’s
argument is based upon a misunderstanding of the Tsuruya reference. Ans.
6. The Examiner explains the Examiner’s reliance upon the teachings of the
Tsuruya reference correlates Tsuruya’s 0–30 parts by weight of crystalline
polypropylene component (c) to Appellant’s 1–20% by weight of a second
polymer being isostatic polypropylene. Ans. 6–7. Responding to
Appellant’s argument that Tsuruya teaches atactic polypropylene instead of
the presently claimed isostatic polypropylene, the Examiner finds that
Appellant’s argument is based upon a misunderstanding of Tsuruya’s
teachings. Ans. 7. The Examiner clarifies that component (a) of Tsuruya’s
composition correlates to Appellant’s first polymer rather than Appellant’s
second polymer. Ans. 7.
In response to Appellant’s argument concerning the Keith reference
teaching a hardback carpet tile that teaches away from the present carpet tile
which is desirably flexible, the Examiner finds Appellant’s argument is
directed to unclaimed subject matter regarding the flexibility of carpet tile.
Ans. 7. Appellant’s argument fails because the argument is not
commensurate with the scope of claim 54. See In re Self, 671 F.2d 1344,
1348 (CCPA 1982) (“[A]ppellant’s arguments fail from the outset because
. . . they are not based on limitations appearing in the claims.”); see also In
Appeal 2020-001013
Application 14/801,899
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re Hiniker Co., 150 F.3d 1362, 1369 (Fed. Cir. 1998) (“[The] proffered facts
. . . are not commensurate with the claim scope and are therefore
unpersuasive.”). The Examiner further clarifies the Keith reference is relied
upon to teach a primary base rather than the secondary backing of the carpet
tile, and the Keith reference alternatively teaches hardback carpet tiles and
cushion back carpet tiles which differ in the secondary backing. Ans. 7–8.
As a result, Appellant’s arguments have not shown any error in the
Examiner’s factual findings or ultimate conclusion of obviousness of
independent claim 54, and we sustain the rejection of independent claim 54.
With respect to dependent claim 51, Appellant argues that those
having ordinary skill in the art of printing would recognize that an image on
a carpet tile that has been placed there by a digital printing machine would
have a visually observable different appearance than an image that has been
placed on a carpet tile by other methods such as screen printing. Appeal Br.
7.
The Examiner finds that the method of printing (i.e., “digitally
printed”) is not necessarily given patentable weight at this time since a
claimed carpet tile does not depend upon its method of making/printing a
pattern thereon. The Examiner also finds that the Keith reference teaches
and suggests jet dyeing or injection dyeing in paragraphs 53, 55, and 99,
which would be digital printing methods. Final Act. 5. Appellant does not
address the teachings of the Keith reference regarding the digital printing in
the Appeal Brief and does not file a Reply Brief to further respond to the
Examiner’s reliance thereon. As a result, Appellant’s argument does not
show error in the Examiner’s factual findings or conclusion of obviousness
of dependent claim 51, and we sustain the rejection of claim 51.
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CONCLUSION

The Examiner’s decision rejecting claims 51 and 54 is AFFIRMED.

DECISION SUMMARY
Claim(s)
Rejected
35 U.S.C. § Reference(s)/Basis Affirmed Reversed
51, 54 103 Tsuruya, Keith,
Giannopoulos
51, 54

RESPONSE
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a). See 37 C.F.R.
§ 1.136(a)(1)(iv
AFFIRMED