NIKE, INC.

Patent Trials and Appeals Board

Dec 8, 2021

2020006610 (P.T.A.B. Dec. 8, 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.
15/403,945 01/11/2017 Meggin B. Alex 279849/150901US02 2390
78342 7590 12/08/2021
Shook Hardy & Bacon LLP (NIKE, Inc.)
2555 Grand Boulevard
Kansas City, MO 64108
EXAMINER
MCKINNON, LASHAWNDA T
ART UNIT PAPER NUMBER
1789
NOTIFICATION DATE DELIVERY MODE
12/08/2021 ELECTRONIC
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.
Notice of the Office communication was sent electronically on above-indicated "Notification Date" to the
following e-mail address(es):
ipdocket@shb.com
nike_docketing@cardinal-ip.com
shbdocketing@shb.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte MEGGIN B. ALEX and MARTIN WRAGG
Appeal 2020-006610
Application 15/403,945
Technology Center 1700
Before ADRIENE LEPIANE HANLON, KAREN M. HASTINGS, and
N. WHITNEY WILSON, Administrative Patent Judges.

HASTINGS, 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 1, 3–6, 8–13, 15, and 18–20. See Final
Act. 1. 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. Appellant identifies the real party in interest as NIKE, Inc. Appeal Br. 1.
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CLAIMED SUBJECT MATTER
Claim 1, reproduced below, is illustrative of the claimed subject
matter (emphasis added to highlight the key limitation in dispute):
1. A woven element, the woven element comprising:
a first plurality of warp threads extending in a first
direction, the first plurality of warp threads being integrated
into a first surface of a first layer on a front side of the woven
element;
a second plurality of warp threads extending in the first
direction, the second plurality of warp threads being integrated
into a second surface of a second layer on a back side of the
woven element;
a first weft thread extending in a second direction, the
first weft thread having a first denier, wherein a first portion of
the first weft thread is positioned in front of at least two
consecutive warp threads of the first plurality of warp threads to
form at least a portion of a graphic image on the first surface of
the first layer on the front side of the woven element, and
wherein a second portion of the first weft thread is positioned
between the first plurality of warp threads and the second
plurality of warp threads; and
a second weft thread, the second weft thread having a
second denier greater than the first denier of the first weft thread,
wherein the second weft thread comprises one of a
thermopolymer or a thermoplastic polymer material with a
melting point lower than a melting point of the first plurality of
warp threads, the second plurality of warp threads, and the first
weft thread, wherein a first portion of the second weft thread is
positioned behind at least two consecutive warp threads of the
second plurality of warp threads to form at least a portion of the
second surface of the second layer on the back side of the woven
element.

Independent claim 9 recites a woven textile element similar to that of
claim 1, but rather than recite that the second weft is behind two consecutive
warp threads, claim 9 recites that a second thermoreactive weft thread has an
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exposed portion on the back side of “greater than 50% of a length of the
second thermoreactive weft thread” (Appeal Br. 17, Claims App.).
Independent claim 18 recites an article comprising a woven element similar
to that of claim 9 in combination with a base fabric (Appeal Br. 19-20,
Claims App).
REJECTION
Claims 1, 3–6, 8–13, 15, and 18–20 are rejected under 35 U.S.C. §
103 as being unpatentable over Cross et al. (US 2013/0186506 A1; July 25,
2013).
OPINION
Upon consideration of the evidence relied upon in this appeal and
each of Appellant’s contentions as set forth in the Appeal Brief, we
determine that Appellant has not identified reversible error in the
Examiner’s rejection (see generally Ans.). In re Jung, 637 F.3d 1356, 1365–
66 (Fed. Cir. 2011) (explaining the Board’s long-held practice of requiring
Appellant(s) to identify the alleged error in the Examiner’s rejection). We
sustain the rejection for the reasons expressed by the Examiner in the Final
Office Action and the Answer.
We add the following primarily for emphasis.
While Appellant discusses the different wording of claim 1 (that is,
weft being under 2 warps) versus claims 9 and 18 (that is, over 50% of weft
on back), Appellant de facto argues all the claims as a group, and does not
argue any of the dependent claims (Appeal Br. generally). Thus, we select
claim 1 as representative, while also addressing the specific language of
claims 9 and 18.
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The Supreme Court has established that “the [obviousness] analysis
need not seek out precise teachings directed to the specific subject matter of
the challenged claim, for a court can take account of the inferences and
creative steps that a person of ordinary skill in the art would employ.” KSR
Int’l Co. v. Teleflex Inc., 550 U.S. 398, 418 (2007); see also In re Fritch, 972
F.2d 1260, 1264–65 (Fed. Cir. 1992) (a reference stands for all of the
specific teachings thereof as well as the inferences one of ordinary skill in
the art would have reasonably been expected to draw therefrom).
The sole issue in dispute is whether one of ordinary skill in the art
would have used “a first portion of the second weft thread [ ] positioned
behind at least two consecutive warp threads” (claim 1) or “wherein the
exposed portion [of the second weft thread] is exposed on the back surface
and comprises greater than 50% of a length of the second thermoreactive
weft thread” (claims 9 and 18) in the woven product of Cross. There is no
dispute that Cross teaches or suggests all the limitations of the independent
claims except for the above noted language regarding the specific weaving
configuration. The Examiner relies upon Cross to further establish that
weaving of the weft thread (and the concomitant weave pattern) is a result
effective variable (e.g., Ans. 15, 18; Final Act. 10).
Appellant contends that the teachings of Cross (1) do not “rise to the
level of teaching or suggesting the specific weaving configuration recited” in
each independent claim (Appeal Br. 11) and (2) that configuring the
weaving pattern to have a greater percentage of the thermoreactive weft
yarns on the second surface solves various problems discussed in the
Specification such that it is improper for the Examiner to rely upon
obviousness based on routine experimentation (Appeal Br. 12, 13).
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These arguments are not persuasive of reversible error in the
Examiner’s obviousness determination for reasons explained by the
Examiner in the Answer (Ans. 13–20). Appellant’s arguments do not take
into account the teachings of Cross as a whole and the inferences one of
ordinary skill in the art would have made therefrom.
The law is replete with cases in which the difference between the
claimed invention and the prior art is the claimed range or other variable
within the claims. These cases have also consistently held that the Appellant
must show that the particular range is critical, generally by showing that the
claimed range achieves unexpected results relative to the prior art range. See,
e.g., In re Peterson, 315 F.3d 1325, 1329 (Fed. Cir. 2003) (“In cases
involving overlapping ranges, we and our predecessor court have
consistently held that even a slight overlap in range establishes a prima facie
case of obviousness.”); In re Woodruff, 919 F.2d 1575, 1578 (Fed. Cir.
1990). The burden rests with Appellant to establish (1) that the alleged
unexpected results are, in fact, unexpected, (2) that the comparisons are to
the disclosure of closest prior art, and (3) that the supplied evidentiary
showing is commensurate in scope with the claimed subject matter. See In re
Klosak, 455 F.2d 1077, 1080 (CCPA 1972).
Moreover, it is well settled that it would have been obvious for an
artisan with ordinary skill to develop workable or even optimum ranges for
result-effective parameters. In re Woodruff, 919 F.2d at 1577; In re Boesch,
617 F.2d 272, 276 (CCPA 1980); In re Aller, 220 F.2d 454, 456 (CCPA
1955).
One of ordinary skill in the art would have readily inferred from the
overall teachings of the applied prior art that a weave pattern of the
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thermoreactive weft yarn is a result effective variable and that having more
of the fusible thermoreactive weft yarn on one surface may be useful in a
range such as that recited in claims 9 and 18 (that is, more than 50%) or in
the specific weave pattern of claim 1 (weft under two warps which de facto
results in more than 50% of the thermoreactive weft yarn length on one
surface) in order to secure it to another layer. Appellant does not dispute the
Examiner’s finding that Cross teaches using the woven fabric in articles that
would include a base fabric layer (e.g., Final 7).
Furthermore, “[a] recognition in the prior art that a property is
affected by the variable is sufficient to find the variable result-effective.” In
re Applied Materials, Inc., 692 F.3d 1289, 1297 (Fed. Cir. 2012). As pointed
out by the Examiner, Cross explicitly teaches that the placement of the
thermoreactive weft yarns is a result effective variable (Ans. 15) (e.g., Cross
¶¶ 121, 47, 51, 87–88).2
Appellant does not persuasively dispute the Examiner’s finding that
one of ordinary skill in the art would have readily inferred from Cross that
the weave pattern would have been a result effective variable, as it is a
natural consequence of determining workable weft placement and/or
optimizing the placement of the thermoreactive “fusable” (sic, fusible) weft
yarns of Cross (Cross ¶ 47). Indeed, Appellant does not directly address the
Examiner’s finding that weft yarn placement/weave pattern is a result
effective variable (Appeal Br. generally). One of ordinary skill, using no
more than ordinary creativity, would have placed more of the fusible weft
yarn on the back side to provide more fusible area and better bonding to any

2 Cross also contemplates removal of warp threads that are not interwoven
with weft threads (Cross, ¶ 122).
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future substrate (e.g., Ans. 19). One of ordinary skill would have readily
appreciated that more surface area of the fusible weft yarns by weaving
under two warps or otherwise increasing the surface area for bonding (e.g.,
larger diameter fusible weft yarn than the diameter of the non-fusible warp
yarn).
Accordingly, a preponderance of the evidence supports the
Examiner’s obviousness determination of the recited weave pattern of the
second weft thread under two warps as recited in claim 1 and the range of
“greater than 50%” of a length of the second weft thread on the back side as
recited claims 9 and 18 based on the overall teachings of Cross and the
reasonable inferences one of ordinary skill would have made therefrom.
Having determined that the Examiner has established a prima facie
case of obviousness, the issue becomes whether Appellant has established
any criticality to the claimed weave pattern as recited in claim 1 or claim 9
or claim 18. Appellant, however, does not rely upon sufficient objective
evidence of criticality or unexpected results from the claimed weave
pattern(s). As pointed out by the Examiner, Cross has the same benefit as
discussed in the Specification of providing bonding within the woven
structure (Ans. 19; Spec. ¶ 151; Appeal Br. 12). The mere statement that a
woven element “in accordance with the described embodiments” had more
breathability and less weight is insufficient to establish criticality absent
further objective evidence (Spec. ¶156; Appeal Br. 12; Ans. 19–20).
Likewise, the mere statement that “present embodiments may . . . [have]
reduc[ed] . . . wash puckering” is insufficient to establish criticality absent
further objective evidence (Spec. ¶157; Appeal Br. 12–13). For example,
Appellant has not shown that having 51% of the weft yarn on the second
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surface provides any surprising or critical results versus 50%. Furthermore,
claims 1, 9, and 18 are open-ended to many other materials, layers, and/or
weave patterns such that Appellant has not met the burden of showing
and/or explaining how the evidence and statements relied upon are
commensurate in scope with the claim. In any event, as discussed above, one
of ordinary skill in the art would have reasonably expected that having more
of the thermoreactive fusible weft threads on the backside would provide
better bonding from the express teachings of Cross.
In light of these circumstances, we affirm the Examiner’s § 103
rejection of all the claims on appeal.
CONCLUSION
The Examiner’s rejection is AFFIRMED.

DECISION SUMMARY
Claim(s)
Rejected
35 U.S.C.
§
Reference(s)/Basis Affirmed Reversed
1, 3–6, 8–13,
15, 18–20
103 Cross 1, 3–6, 8–13,
15, 18–20

TIME PERIOD FOR 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) (2013).
AFFIRMED