DETAILED ACTION
Notice of Pre-AIA or AIA Status
The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA .
Claim Rejections - 35 USC § 112
The following is a quotation of 35 U.S.C. 112(b):
(b) CONCLUSION.—The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the inventor or a joint inventor regards as the invention.
The following is a quotation of 35 U.S.C. 112 (pre-AIA ), second paragraph:
The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the applicant regards as his invention.
Claims 1-26 are rejected under 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), second paragraph, as being indefinite for failing to particularly point out and distinctly claim the subject matter which the inventor or a joint inventor (or for applications subject to pre-AIA 35 U.S.C. 112, the applicant), regards as the invention.
Claims throughout the claims listing use parentheses in the claims. Parentheses in claims are reserved for referenced to actual drawing element reference numerals. Items in claims in parentheses raise a question as to whether the items in the parentheses are actually required actively stated limitations of the instant invention. The claims and recitations in the parentheses will be addressed to the extent they are understood by the examiner.
Claims 3, 4, 23, and 24, all recite ‘yarns’ with a ‘count of’ some integer number. However, yarn count in textiles usually refers to the yarn’s linear density. Further, the claim appears to be attempting to recite yarn density in the fabric. Yarn density is presented in yarns per distance. The claims only recite ‘yarn count’ and subsequently an integer. It is not clear if the applicant is reciting a yarn count/yarn linear density or a fabric’s yarn density or a fabric’s total number of yarns. This limitation in claims 3, 4, 23 and 24 can not be ascertained and until clarified has not been addressed.
Claim 6 states water flow rate per ASTM-4491 in a unit that is not the accepted units for ASTM-4491. “Gallons per minute” is not a unit that results from ASTM-4491. Gallons per minute per square foot is an accepted unit that results from ASTM-4491. The claim is examined as if the claim is referring to the accepted unit of ASTM-4491 Gallons per minute per square foot.
Claim Rejections - 35 USC § 103
In the event the determination of the status of the application as subject to AIA 35 U.S.C. 102 and 103 (or as subject to pre-AIA 35 U.S.C. 102 and 103) is incorrect, any correction of the statutory basis (i.e., changing from AIA to pre-AIA ) for the rejection will not be considered a new ground of rejection if the prior art relied upon, and the rationale supporting the rejection, would be the same under either status.
The following is a quotation of 35 U.S.C. 103 which forms the basis for all obviousness rejections set forth in this Office action:
A patent for a claimed invention may not be obtained, notwithstanding that the claimed invention is not identically disclosed as set forth in section 102, if the differences between the claimed invention and the prior art are such that the claimed invention as a whole would have been obvious before the effective filing date of the claimed invention to a person having ordinary skill in the art to which the claimed invention pertains. Patentability shall not be negated by the manner in which the invention was made.
Claim(s) 1-, is/are rejected under 35 U.S.C. 103 as being unpatentable over US 10829873 (Jones et al.).
Regarding claim 1, ‘873 discloses: a woven silt fence fabric [fig. 1 woven fabric; this “silt fence” statement is in the preamble of the claim and has no patentable weight; if it did, the woven fabric is capable of use as a silt fence] configured to provide a combined hydraulic–mechanical performance [this “configured to” statement is in the preamble of the claim and has no patentable weight; if it did, the fabric of ‘873 does inherently provide combined hydraulic-mechanical performance], the woven silt fence fabric comprising:
warp yarns [40, fig. 1; par. 15] extending in a machine direction (MD) [par. 1; fig. 1], the warp yarns including monofilament yarns of 500 to 1800 denier [warp yarns 40; about 1000 to about 1500 denier in par. 15; 1500 denier is a datapoint within the claimed range and therefore discloses the claimed denier range]; and
fill yarns [20 and 30, fig. 1] extending in a cross-machine direction (CMD) [fig. 1, par. 15] and including alternating groups [fig. 1, 20 and 30 shown ‘alternating’] of round monofilament yarns [30, fig. 1; par. 14] of 500 to 2000 denier [par. 14, “about 400 to about 1600 denier”; 1600 denier is a datapoint within the claimed range, therefore disclosing the claimed range] and
fibrillated tape yarns [20, fig. 1; par. 12] of 2000 to 6000 denier [par. 12, “about 500 to about 6500 denier” and “about 4600 denier” is a datapoint within the claimed range disclosing the claimed range] inserted substantially parallel with each other in the CMD [fig. 1];
wherein the woven silt fence fabric is configured to have: an apparent opening size (AOS) per ASTM D-4751 of 30 to 70 U.S. standard sieve [par. 4, brief description, “the fabric can have an apparent opening size (AOS) of at least 30 as measured in accordance with ASTM International Standard D475”];
permittivity (per ASTM D-4491) of at least 0.35 s⁻¹ [par. 4, brief description, “the fabric can have a water flow rate of at least 75 gpm/ft.sup.2 as measured in accordance with ASTM International Standard D449”; this value converts to .167s-1; these ranges overlap which establishes prima facie obviousness per MPEP 2144.05 ]; and
a wide width tensile strength (per ASTM D-4595) of at least 1500 lbs/ft at 5% strain in the CMD [par. 4, brief description, “the fabric has a tensile strength of at least 200 lb/in at 5% strain in both the warp and weft directions as respectively measured in accordance with ASTM International Standard ASTM International Standard D4595.”; 200lb/in converts to 1200 lb/ft; at least 1200 encompasses and overlaps with at least 1500 which establishes prima facie obviousness per MPEP 2144.05].
The limitations not explicitly disclosed are to the claimed shape of warp yarn monofilament and the exact claimed ranges of permittivity and wide width tensile strength.
With respect to the prima facie obviousness of changes in shape MPEP 2144.04 is clear:
B.Changes in Shape
In reDailey, 357 F.2d 669, 149 USPQ 47 (CCPA 1966) (The court held that the configuration of the claimed disposable plastic nursing container was a matter of choice which a person of ordinary skill in the art would have found obvious absent persuasive evidence that the particular configuration of the claimed container was significant.).
With respect to the prima facie obviousness of claimed ranges MPEP 2144.05 is clear:
I. OVERLAPPING, APPROACHING, AND SIMILAR RANGES, AMOUNTS, AND PROPORTIONS
In the case where the claimed ranges “overlap or lie inside ranges disclosed by the prior art” a prima facie case of obviousness exists. In reWertheim, 541 F.2d 257, 191 USPQ 90 (CCPA 1976); In reWoodruff, 919 F.2d 1575, 16 USPQ2d 1934 (Fed. Cir. 1990) (The prior art taught carbon monoxide concentrations of “about 1-5%” while the claim was limited to “more than 5%.” The court held that “about 1-5%” allowed for concentrations slightly above 5% thus the ranges overlapped.); In re Geisler, 116 F.3d 1465, 1469-71, 43 USPQ2d 1362, 1365-66 (Fed. Cir. 1997) (Claim reciting thickness of a protective layer as falling within a range of “50 to 100 Angstroms” considered prima facie obvious in view of prior art reference teaching that “for suitable protection, the thickness of the protective layer should be not less than about 10 nm [i.e., 100 Angstroms].” The court stated that “by stating that ‘suitable protection’ is provided if the protective layer is ‘about’ 100 Angstroms thick, [the prior art reference] directly teaches the use of a thickness within [applicant’s] claimed range.”). See also In re Bergen, 120 F.2d 329, 332, 49 USPQ 749, 751-52 (CCPA 1941) (The court found that the overlapping endpoint of the prior art and claimed range was sufficient to support an obviousness rejection, particularly when there was no showing of criticality of the claimed range).
Similarly, a prima facie case of obviousness exists where the claimed ranges or amounts do not overlap with the prior art but are merely close. Titanium Metals Corp. of Americav.Banner, 778 F.2d 775, 783, 227 USPQ 773, 779 (Fed. Cir. 1985) (Court held as proper a rejection of a claim directed to an alloy of “having 0.8% nickel, 0.3% molybdenum, up to 0.1% iron, balance titanium” as obvious over a reference disclosing alloys of 0.75% nickel, 0.25% molybdenum, balance titanium and 0.94% nickel, 0.31% molybdenum, balance titanium. “The proportions are so close that prima facie one skilled in the art would have expected them to have the same properties.”).
Instantly no showing of unexpected results/criticality are shown as arising from the claimed shape of the monofilament nor from the claimed ranges of permittivity and wide width tensile strength.
The ranges of permittivity and wide width tensile strength disclosed do overlap with the claimed ranges and therefore per MPEP 2144.05 the case of prima facie obviousness is established.
Therefore it would have been obvious to one of ordinary skill in the art prior to filing the invention to modify the teachings of the woven geosynthetic fabric of ‘873 to modify the shape of the monofilament warp to any desired shape as a matter of engineering design choice per MPEP 2144.04 as noted above and further to modify the range of permittivity and wide width tensile strength values of the ‘873 fabric to arrive at the desired levels of permittivity and wide width tensile strength of a woven geosynthetic fabric for a given end use application.
Regarding claim 2, ‘873 discloses: the alternating groups are arranged in a repeating sequence in the CMD such that a group of round monofilament ends alternates with a group of fibrillated tape ends along a full width of the woven silt fence fabric [shown explicitly in fig. 1].
Regarding claim 3, ‘873 discloses: the warp yarns [40] comprise 1200 denier monofilament [par. 15, “about 1200 denier”; ]; and the fill yarns [30] comprise 700 denier round monofilament [“circular” in par. 14, ‘about 700 den’ is within the range ‘about 400 to about 1600 denier’].
Instantly no showing of unexpected results/criticality are shown as arising from the claimed shape of the monofilament nor from the claimed ranges yarn denier.
The ranges of yarn denier disclosed do overlap with the claimed ranges and therefore per MPEP 2144.05 the case of prima facie obviousness is established.
Therefore it would have been obvious to one of ordinary skill in the art prior to filing the invention to modify the teachings of the woven geosynthetic fabric of ‘873 to modify the shape of the monofilament warp to any desired shape as a matter of engineering design choice per MPEP 2144.04 as noted above and further to modify the range of yarn denier values of the ‘873 fabric to arrive at the desired yarn deniers of a woven geosynthetic fabric for a given end use application.
Regarding claim 4, ‘873 teaches: the warp yarns [40] comprise ‘about 1500 denier’ monofilament [par. 15]; the fill yarns [30] comprise ‘about 1600’ denier round monofilament [30, par. 14] and 2700-denier fibrillated tape [20, 2700 is within the range about 500 to about 6500 denier disclosed in par. 12].
Instantly no showing of unexpected results/criticality are shown as arising from the claimed shape of the monofilament nor from the claimed ranges yarn denier.
The ranges of yarn denier disclosed do overlap with the claimed ranges and therefore per MPEP 2144.05 the case of prima facie obviousness is established.
Therefore it would have been obvious to one of ordinary skill in the art prior to filing the invention to modify the teachings of the woven geosynthetic fabric of ‘873 to modify the shape of the monofilament warp to any desired shape as a matter of engineering design choice per MPEP 2144.04 as noted above and further to modify the range of yarn denier values of the ‘873 fabric to arrive at the desired yarn deniers of a woven geosynthetic fabric for a given end use application.
Regarding claim 5, ‘873 discloses: the woven silt fence fabric is configured to have a wide width tensile strength (per ASTM D-4595) of at least 800 lbs/ft at 2% strain in both the MD and CMD [par. 4, brief description “the fabric has a tensile strength of at least 100 pounds/inch (lb/in) at 2% strain in both the warp and weft directions as respectively measured in accordance with ASTM International Standard D4595.”; at least 100lb/in converts to at least 1200lb/ft; 1200 lb/ft is a datapoint that discloses the claimed range].
Regarding claim 6, ‘873 discloses: the woven silt fence fabric exhibits a water flow rate (per ASTM D-4491) of at least 25 gallons per minute [par. 4, brief description, “the fabric can have a water flow rate of at least 75 gpm/ft.sup.2 as measured in accordance with ASTM International Standard D449.”].
Regarding claim 7, ‘873 teaches: the warp yarns [40] comprise monofilament warp yarn having about 1000 denier and a cross-sectional shape [par. 15], the monofilament warp yarn extends or runs in a machine direction substantially parallel with a length of the woven silt fence fabric [fig. 1]; the fill yarns comprise: fibrillated tape fill yarn [20] having about 4000 denier [‘4000 den’ is within the range about 500 to 6500 den in par. 12] and a general rectangular cross-sectional shape that will conform to the woven structure of the woven silt fence fabric into which the fibrillated fill yarn is inserted [rectilinear shape, par. 12 and ‘conforming’ nature in the fabric is shown in fig. 1 and inherent to the woven structure as the wefts must inherently ‘conform’ to the fabric during the weaving process]; and monofilament fill yarn [30] having about 1000 denier [‘about 1000 denier’ is within or at the very least close to the range ‘about 400 to about 925 denier’ in par. 14] and round cross-sectional shape [par. 14]; the monofilament fill yarn and the fibrillated tape fill yarn extend or run in a cross machine/transverse direction substantially parallel with each other and with an installed height [shown explicitly and inherent to fabric in fig. 1; nothing precludes the fabric from being installed with weft yarns parallel to the ground or medium into which the fabric is installed].
Instantly no showing of unexpected results/criticality are shown as arising from the claimed shape of the yarn nor from the claimed range of yarn denier.
The ranges of yarn denier disclosed do overlap or are close enough to be expected to have the same properties with the claimed ranges and therefore per MPEP 2144.05 the case of prima facie obviousness is established.
Therefore it would have been obvious to one of ordinary skill in the art prior to filing the invention to modify the teachings of the woven geosynthetic fabric of ‘873 to modify the shape of the monofilament warp to any desired shape as a matter of engineering design choice per MPEP 2144.04 as noted above and further to modify the range of yarn denier values of the ‘873 fabric to arrive at the desired yarn deniers of a woven geosynthetic fabric for a given end use application.
Regarding claim 8, ‘873 teaches: the warp yarns [40] comprise monofilament warp yarn having about 1500 denier and a cross-sectional shape [par. 15; about 1500 denier is broadly equal to “about 1600 denier” and is at the very least close enough to expect the properties to be the same per MPEP 2144 as cited above], the monofilament warp yarn extends or runs in a machine direction substantially parallel with a length of the woven silt fence fabric [shown in fig.1]; the fill yarns comprise: fibrillated tape fill yarn [20] having about 2700 denier [par. 12, 2700 den is within the range 500-6500] and a general rectangular cross-sectional shape that will conform to the woven structure of the woven silt fence fabric into which the fibrillated fill yarn is inserted [rectilinear shape, par. 12 and ‘conforming’ nature in the fabric is shown in fig. 1 and inherent to the woven structure as the wefts must inherently ‘conform’ to the fabric during the weaving process]; and monofilament fill yarn [30] having about 1600 denier and round cross-sectional shape [par. 14, ‘about 1700 den’ denier is broadly equal to “about 1600 denier” and is at the very least close enough to expect the properties to be the same per MPEP 2144 as cited above]; the monofilament fill yarn and the fibrillated tape fill yarn extend or run in a cross machine/transverse direction substantially parallel with each other and with an installed height [shown explicitly and inherent to fabric in fig. 1; nothing precludes the fabric from being installed with weft yarns parallel to the ground or medium into which the fabric is installed].
Instantly no showing of unexpected results/criticality are shown as arising from the claimed shape of the yarn nor from the claimed range of yarn denier.
The ranges of yarn denier disclosed do overlap or are close enough to be expected to have the same properties with the claimed ranges and therefore per MPEP 2144.05 the case of prima facie obviousness is established.
Therefore it would have been obvious to one of ordinary skill in the art prior to filing the invention to modify the teachings of the woven geosynthetic fabric of ‘873 to modify the shape of the monofilament warp to any desired shape as a matter of engineering design choice per MPEP 2144.04 as noted above and further to modify the range of yarn denier values of the ‘873 fabric to arrive at the desired yarn deniers of a woven geosynthetic fabric for a given end use application.
Regarding claim 9, ‘873 teaches: the warp yarns [40] comprise tape warp yarn [par. 9 detailed description, the yarns of the ‘shed’s’ of the fabric can be monofilament, fibrillated tape or both. A ‘shed’ is defined by warp and weft yarns] having about 1000 denier and a cross-sectional shape [‘about 800 denier’ is close enough to the range taught by ‘873 to expect the same properties per MPEP 2144 as cited above], the tape warp yarn extends or runs in a machine direction substantially parallel with a length of the woven silt fence fabric [fig. 1]; the fill yarns comprise: fibrillated tape fill yarn [20] having about 4000 denier [about 4000 den is within range taught by ‘873 about 500 to 6500 denier] and a general rectangular cross-sectional shape that will conform to the woven structure of the woven silt fence fabric into which the fibrillated fill yarn is inserted [rectilinear shape, par. 12 and ‘conforming’ nature in the fabric is shown in fig. 1 and inherent to the woven structure as the wefts must inherently ‘conform’ to the fabric during the weaving process]; and monofilament fill yarn [30] having about 1000 denier and round cross-sectional shape [par. 14, ‘about 925 denier’ taught is broadly equal to “about 1000 denier” and is at the very least close enough to expect the properties to be the same per MPEP 2144 as cited above]; the monofilament fill yarn and the fibrillated tape fill yarn extend or run in a cross machine/transverse direction substantially parallel with each other and with an installed height [shown explicitly and inherent to fabric in fig. 1; nothing precludes the fabric from being installed with weft yarns parallel to the ground or medium into which the fabric is installed].
Instantly no showing of unexpected results/criticality are shown as arising from the claimed shape of the yarn nor from the claimed range of yarn denier.
The ranges of yarn denier disclosed do overlap or are close enough to be expected to have the same properties with the claimed ranges and therefore per MPEP 2144.05 the case of prima facie obviousness is established.
Therefore it would have been obvious to one of ordinary skill in the art prior to filing the invention to modify the teachings of the woven geosynthetic fabric of ‘873 to modify the shape of the monofilament warp to any desired shape as a matter of engineering design choice per MPEP 2144.04 as noted above and further to modify the range of yarn denier values of the ‘873 fabric to arrive at the desired yarn deniers of a woven geosynthetic fabric for a given end use application.
Regarding claim 10, ‘873 teaches: the warp yarns [40] comprise monofilament warp yarn having about 975 denier and a cross-sectional shape [about 1000 is broadly equivalent to about 975 and is at the very least close enough to expect the properties to be the same per MPEP 2144 as cited above; par. 15], and tape warp yarn [par. 9 detailed description, the yarns of the ‘shed’s’ of the fabric can be monofilament, fibrillated tape or both. A ‘shed’ is defined by warp and weft yarns] having about 1000 denier and a cross-sectional shape [‘about 800 denier’ is close enough to the range taught by ‘873 to expect the same properties per MPEP 2144 as cited above]; the monofilament warp yarn and the tape warp yarn extend or run in a machine direction substantially parallel with each other and with a length of the woven silt fence fabric [fig. 1]; and the fill yarns comprise fibrillated tape fill yarn [20] having about 4000 denier [about 4000 den is within range taught by ‘873 about 500 to 6500 denier] and a general rectangular cross-sectional shape that will conform to the woven structure of the woven silt fence fabric into which the fibrillated fill yarn is inserted [rectilinear shape, par. 12 and ‘conforming’ nature in the fabric is shown in fig. 1 and inherent to the woven structure as the wefts must inherently ‘conform’ to the fabric during the weaving process], the fibrillated tape fill yarn extends or runs in a cross machine/transverse direction substantially parallel with an installed height [shown explicitly and inherent to fabric in fig. 1; nothing precludes the fabric from being installed with weft yarns parallel to the ground or medium into which the fabric is installed].
Regarding claim 11, ‘873 teaches: the warp yarns [40] comprise monofilament warp yarn having about 975 denier and a cross-sectional shape [about 1200 is broadly equivalent to about 975 and is at the very least close enough to expect the properties to be the same per MPEP 2144 as cited above; par. 15], and tape warp yarn [par. 9 detailed description, the yarns of the ‘shed’s’ of the fabric can be monofilament, fibrillated tape or both. A ‘shed’ is defined by warp and weft yarns] having about 1000 denier and a cross-sectional shape [‘about 800 denier’ is close enough to the range taught by ‘873 to expect the same properties per MPEP 2144 as cited above]; the monofilament warp yarn and the tape warp yarn extend or run in a machine direction substantially parallel with each other and with a length of the woven silt fence fabric [fig. 1]; and the fill yarns comprise fibrillated tape fill yarn [20] having about 5000 denier [about 5000 den is within range taught by ‘873 about 500 to 6500 denier] and a general rectangular cross-sectional shape that will conform to the woven structure of the woven silt fence fabric into which the fibrillated fill yarn is inserted [rectilinear shape, par. 12 and ‘conforming’ nature in the fabric is shown in fig. 1 and inherent to the woven structure as the wefts must inherently ‘conform’ to the fabric during the weaving process], the fibrillated tape fill yarn extends or runs in a cross machine/transverse direction substantially parallel with an installed height [shown explicitly and inherent to fabric in fig. 1; nothing precludes the fabric from being installed with weft yarns parallel to the ground or medium into which the fabric is installed].
Regarding claim 12, ‘873 teaches: the warp yarns [40] comprise monofilament warp yarn having about 1000 to about 1500 denier and a cross-sectional shape [about 1600 is broadly equivalent to about 1500 and is at the very least close enough to expect the properties to be the same per MPEP 2144 as cited above; par. 15], and tape warp yarn [par. 9 detailed description, the yarns of the ‘shed’s’ of the fabric can be monofilament, fibrillated tape or both. A ‘shed’ is defined by warp and weft yarns] having about 1000 to 1500 denier and a cross-sectional shape [‘about 1900 denier’ is close enough to the range taught by ‘873 to expect the same properties per MPEP 2144 as cited above]; the monofilament warp yarn and the tape warp yarn extend or run in a machine direction substantially parallel with each other and with a length of the woven silt fence fabric [fig. 1]; and the fill yarns comprise fibrillated tape fill yarn [20] having about 5000 denier [about 5000 den is within range taught by ‘873 about 500 to 6500 denier] and a general rectangular cross-sectional shape that will conform to the woven structure of the woven silt fence fabric into which the fibrillated fill yarn is inserted [rectilinear shape, par. 12 and ‘conforming’ nature in the fabric is shown in fig. 1 and inherent to the woven structure as the wefts must inherently ‘conform’ to the fabric during the weaving process], monofilament fill yarn having [30] about 1600 denier and round cross-sectional shape [par. 14, “about 1700 den” is close enough to the range taught by ‘873 to expect the same properties per MPEP 2144 as cited above], the monofilament fill yarn and the fibrillated tape fill yarn extend or run in a cross machine/transverse direction substantially parallel with each other and with an installed height [shown explicitly and inherent to fabric in fig. 1; nothing precludes the fabric from being installed with weft yarns parallel to the ground or medium into which the fabric is installed].
Regarding claim 13, ‘873 does not disclose a different colored yarn in the fabric adjacent other yarns.
The MPEP 2144.04 is clear:
I. AESTHETIC DESIGN CHANGES
In re Seid, 161 F.2d 229, 73 USPQ 431 (CCPA 1947) (Claim was directed to an advertising display device comprising a bottle and a hollow member in the shape of a human figure from the waist up which was adapted to fit over and cover the neck of the bottle, wherein the hollow member and the bottle together give the impression of a human body. Appellant argued that certain limitations in the upper part of the body, including the arrangement of the arms, were not taught by the prior art. The court found that matters relating to ornamentation only which have no mechanical function cannot be relied upon to patentably distinguish the claimed invention from the prior art.).
Instantly, there is no showing of any mechanical function arising from the change of color of a yarn in the body of a woven fabric.
It is wholly expected that one of ordinary skill in the art of textiles would have within their knowledge that a change in color of a yarn in woven fabric would provide a desired visual mark or marking on the fabric.
Therefore it would have been obvious to one of ordinary skill in the art prior to filing the invention to modify the color of a yarn on a woven fabric to provide a visual mark/marking on the fabric.
Regarding claim 14, ‘873 teaches: the warp yarns [40] include oval or flat monofilament yarns of 800 to 1600 denier [par. 15, “about 1000 denier” discloses the claimed range; ]; and the fill yarns [30] include alternating groups of round monofilament yarns of 700 to 1800 denier [“circular” in par. 14, ‘about 700 den’ is within the range ‘about 400 to about 1600 denier’] and fibrillated tape yarns [20] of 2700 to 5000 denier [par. 12, “about 500 to 6500 den” discloses the claimed range and overlaps with the claimed range] inserted substantially parallel with each other in the CMD [fig. 1];
wherein the woven silt fence fabric is configured to have: an apparent opening size (AOS) per ASTM D-4751 of 30 to 70 U.S. standard sieve [par. 4, brief description, “the fabric can have an apparent opening size (AOS) of at least 30 as measured in accordance with ASTM International Standard D475”];
permittivity (per ASTM D-4491) of at least 0.85 s⁻¹ [par. 4, brief description, “the fabric can have a water flow rate of at least 75 gpm/ft.sup.2 as measured in accordance with ASTM International Standard D449”; this value converts to .167s-1; these ranges overlap which establishes prima facie obviousness per MPEP 2144.05 ]; and
a wide width tensile strength (per ASTM D-4595) of at least 3000 lbs/ft at 5% strain in the CMD [par. 4, brief description, “the fabric has a tensile strength of at least 200 lb/in at 5% strain in both the warp and weft directions as respectively measured in accordance with ASTM International Standard ASTM International Standard D4595.”; 200lb/in converts to 1200 lb/ft; at least 1200 encompasses and overlaps with at least 3000 which establishes prima facie obviousness per MPEP 2144.05].
The limitations not explicitly disclosed are to the claimed shape of warp yarn monofilament and the exact claimed ranges of permittivity and wide width tensile strength.
With respect to the prima facie obviousness of changes in shape MPEP 2144.04 is clear:
B.Changes in Shape
In reDailey, 357 F.2d 669, 149 USPQ 47 (CCPA 1966) (The court held that the configuration of the claimed disposable plastic nursing container was a matter of choice which a person of ordinary skill in the art would have found obvious absent persuasive evidence that the particular configuration of the claimed container was significant.).
With respect to the prima facie obviousness of claimed ranges MPEP 2144.05 is clear:
I. OVERLAPPING, APPROACHING, AND SIMILAR RANGES, AMOUNTS, AND PROPORTIONS
In the case where the claimed ranges “overlap or lie inside ranges disclosed by the prior art” a prima facie case of obviousness exists. In reWertheim, 541 F.2d 257, 191 USPQ 90 (CCPA 1976); In reWoodruff, 919 F.2d 1575, 16 USPQ2d 1934 (Fed. Cir. 1990) (The prior art taught carbon monoxide concentrations of “about 1-5%” while the claim was limited to “more than 5%.” The court held that “about 1-5%” allowed for concentrations slightly above 5% thus the ranges overlapped.); In re Geisler, 116 F.3d 1465, 1469-71, 43 USPQ2d 1362, 1365-66 (Fed. Cir. 1997) (Claim reciting thickness of a protective layer as falling within a range of “50 to 100 Angstroms” considered prima facie obvious in view of prior art reference teaching that “for suitable protection, the thickness of the protective layer should be not less than about 10 nm [i.e., 100 Angstroms].” The court stated that “by stating that ‘suitable protection’ is provided if the protective layer is ‘about’ 100 Angstroms thick, [the prior art reference] directly teaches the use of a thickness within [applicant’s] claimed range.”). See also In re Bergen, 120 F.2d 329, 332, 49 USPQ 749, 751-52 (CCPA 1941) (The court found that the overlapping endpoint of the prior art and claimed range was sufficient to support an obviousness rejection, particularly when there was no showing of criticality of the claimed range).
Similarly, a prima facie case of obviousness exists where the claimed ranges or amounts do not overlap with the prior art but are merely close. Titanium Metals Corp. of Americav.Banner, 778 F.2d 775, 783, 227 USPQ 773, 779 (Fed. Cir. 1985) (Court held as proper a rejection of a claim directed to an alloy of “having 0.8% nickel, 0.3% molybdenum, up to 0.1% iron, balance titanium” as obvious over a reference disclosing alloys of 0.75% nickel, 0.25% molybdenum, balance titanium and 0.94% nickel, 0.31% molybdenum, balance titanium. “The proportions are so close that prima facie one skilled in the art would have expected them to have the same properties.”).
Instantly no showing of unexpected results/criticality are shown as arising from the claimed shape of the monofilament nor from the claimed ranges of permittivity and wide width tensile strength.
The ranges of permittivity and wide width tensile strength disclosed do overlap with the claimed ranges and therefore per MPEP 2144.05 the case of prima facie obviousness is established.
Therefore it would have been obvious to one of ordinary skill in the art prior to filing the invention to modify the teachings of the woven geosynthetic fabric of ‘873 to modify the shape of the monofilament warp to any desired shape as a matter of engineering design choice per MPEP 2144.04 as noted above and further to modify the range of permittivity and wide width tensile strength values of the ‘873 fabric to arrive at the desired levels of permittivity and wide width tensile strength of a woven geosynthetic fabric for a given end use application.
Regarding claim 15, ‘873 discloses: the woven silt fence fabric is configured to have a wide width tensile strength (per ASTM D-4595) of at least 1000 lbs/ft at 2% strain in both the MD and CMD [par. 4, brief description “the fabric has a tensile strength of at least 100 pounds/inch (lb/in) at 2% strain in both the warp and weft directions as respectively measured in accordance with ASTM International Standard D4595.”; at least 100lb/in converts to at least 1200lb/ft; 1200 lb/ft is a datapoint that discloses the claimed range]; and/or the woven silt fence fabric exhibits a water flow rate (per ASTM D-4491) of at least 65 gallons per minute [par. 4, brief description, “the fabric can have a water flow rate of at least 75 gpm/ft.sup.2 as measured in accordance with ASTM International Standard D449.”].
Regarding claim 16, ‘873 discloses: a woven silt fence fabric [fig. 1 woven fabric; this “silt fence” statement is in the preamble of the claim and has no patentable weight; if it did, the woven fabric is capable of use as a silt fence] configured to provide a combined hydraulic–mechanical performance [this “configured to” statement is in the preamble of the claim and has no patentable weight; if it did, the fabric of ‘873 does inherently provide combined hydraulic-mechanical performance],
the woven silt fence fabric comprising: warp yarns [40, fig. 1; par. 15] extending in a machine direction (MD) [par. 1; fig. 1], the warp yarns including monofilament yarns of 500 to 1800 denier [warp yarns 40; about 1000 to about 1500 denier in par. 15; 1500 denier is a datapoint within the claimed range and therefore discloses the claimed denier range]; and
fill yarns [20 and 30] extending in a cross-machine direction (CMD) [fig. 1], the fill yarns including alternating groups inserted substantially parallel with each other in the CMD, the alternating groups [20 and 30; shown in fig.1 parallel and alternating] including round monofilament fill yarns [30] having a denier within a range from 500 to 2000 denier [1600 denier in par. 14 discloses the claimed range] and
fibrillated tape fill yarns [20] having a denier within a range from 2000 to 6000 denier [par. 12, 3000 denier is a datapoint disclosing the claimed range]; wherein the alternating groups are arranged in a repeating sequence in the CMD such that a group of round monofilament ends alternates with a group of fibrillated tape ends along a full width of the woven silt fence fabric [shown explicitly in fig. 1].
Instantly no showing of unexpected results/criticality are shown as arising from the claimed shape of the monofilament nor from the claimed ranges yarn denier.
The ranges of yarn denier disclosed do overlap with the claimed ranges and therefore per MPEP 2144.05 the case of prima facie obviousness is established.
Therefore it would have been obvious to one of ordinary skill in the art prior to filing the invention to modify the teachings of the woven geosynthetic fabric of ‘873 to modify the shape of the monofilament warp to any desired shape as a matter of engineering design choice per MPEP 2144.04 as noted above and further to modify the range of yarn denier values of the ‘873 fabric to arrive at the desired yarn deniers of a woven geosynthetic fabric for a given end use application.
Regarding claim 17, ‘873 teaches: the woven silt fence fabric is configured to have: an apparent opening size (AOS) per ASTM D-4751 of 30 to 70 U.S. standard sieve [par. 4, brief description, “the fabric can have an apparent opening size (AOS) of at least 30 as measured in accordance with ASTM International Standard D475”];
permittivity (per ASTM D-4491) of at least 0.35 s⁻¹ [par. 4, brief description, “the fabric can have a water flow rate of at least 75 gpm/ft.sup.2 as measured in accordance with ASTM International Standard D449”; this value converts to .167s-1; these ranges overlap which establishes prima facie obviousness per MPEP 2144.05 ];
a wide width tensile strength (per ASTM D-4595) of at least 1500 lbs/ft at 5% strain in the CMD [par. 4, brief description, “the fabric has a tensile strength of at least 200 lb/in at 5% strain in both the warp and weft directions as respectively measured in accordance with ASTM International Standard ASTM International Standard D4595.”; 200lb/in converts to 1200 lb/ft; at least 1200 encompasses and overlaps with at least 3000 which establishes prima facie obviousness per MPEP 2144.05];
a wide width tensile strength (per ASTM D-4595) of at least 800 lbs/ft at 2% strain in both the MD and CMD [par. 4, brief description “the fabric has a tensile strength of at least 100 pounds/inch (lb/in) at 2% strain in both the warp and weft directions as respectively measured in accordance with ASTM International Standard D4595.”; at least 100lb/in converts to at least 1200lb/ft; 1200 lb/ft is a datapoint that discloses the claimed range]; and a water flow rate (per ASTM D-4491) of at least 25 gallons per minute [par. 4, brief description, “the fabric can have a water flow rate of at least 75 gpm/ft.sup.2 as measured in accordance with ASTM International Standard D449.”; at least 75 is a datapoint within the claimed range at least 25, disclosing the claimed range].
The limitations not explicitly disclosed are to the claimed shape of warp yarn monofilament and the exact claimed ranges of permittivity and wide tensile strength.
With respect to the prima facie obviousness of changes in shape MPEP 2144.04 is clear:
B.Changes in Shape
In reDailey, 357 F.2d 669, 149 USPQ 47 (CCPA 1966) (The court held that the configuration of the claimed disposable plastic nursing container was a matter of choice which a person of ordinary skill in the art would have found obvious absent persuasive evidence that the particular configuration of the claimed container was significant.).
With respect to the prima facie obviousness of claimed ranges MPEP 2144.05 is clear:
I. OVERLAPPING, APPROACHING, AND SIMILAR RANGES, AMOUNTS, AND PROPORTIONS
In the case where the claimed ranges “overlap or lie inside ranges disclosed by the prior art” a prima facie case of obviousness exists. In reWertheim, 541 F.2d 257, 191 USPQ 90 (CCPA 1976); In reWoodruff, 919 F.2d 1575, 16 USPQ2d 1934 (Fed. Cir. 1990) (The prior art taught carbon monoxide concentrations of “about 1-5%” while the claim was limited to “more than 5%.” The court held that “about 1-5%” allowed for concentrations slightly above 5% thus the ranges overlapped.); In re Geisler, 116 F.3d 1465, 1469-71, 43 USPQ2d 1362, 1365-66 (Fed. Cir. 1997) (Claim reciting thickness of a protective layer as falling within a range of “50 to 100 Angstroms” considered prima facie obvious in view of prior art reference teaching that “for suitable protection, the thickness of the protective layer should be not less than about 10 nm [i.e., 100 Angstroms].” The court stated that “by stating that ‘suitable protection’ is provided if the protective layer is ‘about’ 100 Angstroms thick, [the prior art reference] directly teaches the use of a thickness within [applicant’s] claimed range.”). See also In re Bergen, 120 F.2d 329, 332, 49 USPQ 749, 751-52 (CCPA 1941) (The court found that the overlapping endpoint of the prior art and claimed range was sufficient to support an obviousness rejection, particularly when there was no showing of criticality of the claimed range).
Similarly, a prima facie case of obviousness exists where the claimed ranges or amounts do not overlap with the prior art but are merely close. Titanium Metals Corp. of Americav.Banner, 778 F.2d 775, 783, 227 USPQ 773, 779 (Fed. Cir. 1985) (Court held as proper a rejection of a claim directed to an alloy of “having 0.8% nickel, 0.3% molybdenum, up to 0.1% iron, balance titanium” as obvious over a reference disclosing alloys of 0.75% nickel, 0.25% molybdenum, balance titanium and 0.94% nickel, 0.31% molybdenum, balance titanium. “The proportions are so close that prima facie one skilled in the art would have expected them to have the same properties.”).
Instantly no showing of unexpected results/criticality are shown as arising from the claimed shape of the monofilament nor from the claimed ranges of permittivity and wide width tensile strength.
The ranges of permittivity and wide width tensile strength disclosed do overlap with the claimed ranges and therefore per MPEP 2144.05 the case of prima facie obviousness is established.
Therefore it would have been obvious to one of ordinary skill in the art prior to filing the invention to modify the teachings of the woven geosynthetic fabric of ‘873 to modify the shape of the monofilament warp to any desired shape as a matter of engineering design choice per MPEP 2144.04 as noted above and further to modify the range of permittivity and wide width tensile strength values of the ‘873 fabric to arrive at the desired levels of permittivity and wide width tensile strength of a woven geosynthetic fabric for a given end use application.
Regarding claim 18, ‘873 discloses: the warp yarns [40] comprise polypropylene monofilament [par. 16, monofilament yarns are polypropylene monofilament; par. 15 warps are monofilament]; and the fill yarns comprise polypropylene monofilament [par. 16, monofilament yarns are polypropylene monofilament; par. 14 wefts are monofilament] and polypropylene fibrillated tape [par. 16, tape yarns are polypropylene; par. 14 wefts are fibrillated tape yarns].
Regarding claim 19, ‘873 does not disclose a different colored yarn in the fabric adjacent other yarns.
The MPEP 2144.04 is clear:
I. AESTHETIC DESIGN CHANGES
In re Seid, 161 F.2d 229, 73 USPQ 431 (CCPA 1947) (Claim was directed to an advertising display device comprising a bottle and a hollow member in the shape of a human figure from the waist up which was adapted to fit over and cover the neck of the bottle, wherein the hollow member and the bottle together give the impression of a human body. Appellant argued that certain limitations in the upper part of the body, including the arrangement of the arms, were not taught by the prior art. The court found that matters relating to ornamentation only which have no mechanical function cannot be relied upon to patentably distinguish the claimed invention from the prior art.).
Instantly, there is no showing of any mechanical function arising from the change of color of a yarn in the body of a woven fabric.
It is wholly expected that one of ordinary skill in the art of textiles would have within their knowledge that a change in color of a yarn in woven fabric would provide a desired visual mark or marking on the fabric.
Therefore it would have been obvious to one of ordinary skill in the art prior to filing the invention to modify the color of a yarn on a woven fabric to provide a visual mark/marking on the fabric.
Regarding claim 20, ‘873 teaches: the warp yarns [40] include monofilament yarns of 800 to 1600 denier [par. 15, “about 1000 denier” discloses the claimed range; ]; and the fill yarns [30] include alternating groups of round monofilament yarns of 700 to 1800 denier [“circular” in par. 14, ‘about 700 den’ is within the range ‘about 400 to about 1600 denier’] and fibrillated tape yarns [20] of 2700 to 5000 denier [par. 12, “about 500 to 6500 den” discloses the claimed range and overlaps with the claimed range] inserted substantially parallel with each other in the CMD [fig. 1].
Instantly no showing of unexpected results/criticality are shown as arising from the claimed shape of the monofilament nor from the claimed ranges yarn denier.
The ranges of yarn denier disclosed do overlap with the claimed ranges and therefore per MPEP 2144.05 the case of prima facie obviousness is established.
Therefore it would have been obvious to one of ordinary skill in the art prior to filing the invention to modify the teachings of the woven geosynthetic fabric of ‘873 to modify the shape of the monofilament warp to any desired shape as a matter of engineering design choice per MPEP 2144.04 as noted above and further to modify the range of yarn denier values of the ‘873 fabric to arrive at the desired yarn deniers of a woven geosynthetic fabric for a given end use application.
Regarding claim 21, ‘873 teaches: the woven silt fence fabric is configured to have: an apparent opening size (AOS) per ASTM D-4751 of 30 to 70 U.S. standard sieve [par. 4, brief description, “the fabric can have an apparent opening size (AOS) of at least 30 as measured in accordance with ASTM International Standard D475”];
permittivity (per ASTM D-4491) of at least 0.85 s⁻¹ [par. 4, brief description, “the fabric can have a water flow rate of at least 75 gpm/ft.sup.2 as measured in accordance with ASTM International Standard D449”; this value converts to .167s-1; these ranges overlap which establishes prima facie obviousness per MPEP 2144.05 ];
a wide width tensile strength (per ASTM D-4595) of at least 3000 lbs/ft at 5% strain in the CMD [par. 4, brief description, “the fabric has a tensile strength of at least 200 lb/in at 5% strain in both the warp and weft directions as respectively measured in accordance with ASTM International Standard ASTM International Standard D4595.”; 200lb/in converts to 1200 lb/ft; at least 1200 encompasses and overlaps with at least 3000 which establishes prima facie obviousness per MPEP 2144.05];
a wide width tensile strength (per ASTM D-4595) of at least 1000 lbs/ft at 2% strain in both the MD and CMD [par. 4, brief description “the fabric has a tensile strength of at least 100 pounds/inch (lb/in) at 2% strain in both the warp and weft directions as respectively measured in accordance with ASTM International Standard D4595.”; at least 100lb/in converts to at least 1200lb/ft; 1200 lb/ft is a datapoint that discloses the claimed range]; and a water flow rate (per ASTM D-4491) of at least 65 gallons per minute [par. 4, brief description, “the fabric can have a water flow rate of at least 75 gpm/ft.sup.2 as measured in accordance with ASTM International Standard D449.”; at least 75 is a datapoint within the claimed range at least 25, disclosing the claimed range].
The limitations not explicitly disclosed are to the claimed shape of warp yarn monofilament and the exact claimed ranges of permittivity and wide tensile strength.
With respect to the prima facie obviousness of changes in shape MPEP 2144.04 is clear:
B.Changes in Shape
In reDailey, 357 F.2d 669, 149 USPQ 47 (CCPA 1966) (The court held that the configuration of the claimed disposable plastic nursing container was a matter of choice which a person of ordinary skill in the art would have found obvious absent persuasive evidence that the particular configuration of the claimed container was significant.).
With respect to the prima facie obviousness of claimed ranges MPEP 2144.05 is clear:
I. OVERLAPPING, APPROACHING, AND SIMILAR RANGES, AMOUNTS, AND PROPORTIONS
In the case where the claimed ranges “overlap or lie inside ranges disclosed by the prior art” a prima facie case of obviousness exists. In reWertheim, 541 F.2d 257, 191 USPQ 90 (CCPA 1976); In reWoodruff, 919 F.2d 1575, 16 USPQ2d 1934 (Fed. Cir. 1990) (The prior art taught carbon monoxide concentrations of “about 1-5%” while the claim was limited to “more than 5%.” The court held that “about 1-5%” allowed for concentrations slightly above 5% thus the ranges overlapped.); In re Geisler, 116 F.3d 1465, 1469-71, 43 USPQ2d 1362, 1365-66 (Fed. Cir. 1997) (Claim reciting thickness of a protective layer as falling within a range of “50 to 100 Angstroms” considered prima facie obvious in view of prior art reference teaching that “for suitable protection, the thickness of the protective layer should be not less than about 10 nm [i.e., 100 Angstroms].” The court stated that “by stating that ‘suitable protection’ is provided if the protective layer is ‘about’ 100 Angstroms thick, [the prior art reference] directly teaches the use of a thickness within [applicant’s] claimed range.”). See also In re Bergen, 120 F.2d 329, 332, 49 USPQ 749, 751-52 (CCPA 1941) (The court found that the overlapping endpoint of the prior art and claimed range was sufficient to support an obviousness rejection, particularly when there was no showing of criticality of the claimed range).
Similarly, a prima facie case of obviousness exists where the claimed ranges or amounts do not overlap with the prior art but are merely close. Titanium Metals Corp. of Americav.Banner, 778 F.2d 775, 783, 227 USPQ 773, 779 (Fed. Cir. 1985) (Court held as proper a rejection of a claim directed to an alloy of “having 0.8% nickel, 0.3% molybdenum, up to 0.1% iron, balance titanium” as obvious over a reference disclosing alloys of 0.75% nickel, 0.25% molybdenum, balance titanium and 0.94% nickel, 0.31% molybdenum, balance titanium. “The proportions are so close that prima facie one skilled in the art would have expected them to have the same properties.”).
Instantly no showing of unexpected results/criticality are shown as arising from the claimed shape of the monofilament nor from the claimed ranges of permittivity and wide width tensile strength.
The ranges of permittivity and wide width tensile strength disclosed do overlap with the claimed ranges and therefore per MPEP 2144.05 the case of prima facie obviousness is established.
Therefore it would have been obvious to one of ordinary skill in the art prior to filing the invention to modify the teachings of the woven geosynthetic fabric of ‘873 to modify the shape of the monofilament warp to any desired shape as a matter of engineering design choice per MPEP 2144.04 as noted above and further to modify the range of permittivity and wide width tensile strength values of the ‘873 fabric to arrive at the desired levels of permittivity and wide width tensile strength of a woven geosynthetic fabric for a given end use application.
Regarding claim 22, ‘873 teaches: A woven silt fence fabric [fig. 1 woven fabric; this “silt fence” statement is in the preamble of the claim and has no patentable weight; if it did, the woven fabric is capable of use as a silt fence] comprising: tape warp yarns [par. 9 detailed description, the yarns of the ‘shed’s’ of the fabric can be monofilament, fibrillated tape or both. A ‘shed’ is defined by warp and weft yarns] having a denier within a range from 800 to 1900 denier [par. 15 about 1000 denier discloses the claimed range]; and alternating groups of round monofilament fill yarns [30] having a denier within a range from 1100 to 1700 denier [par. 14, about 1600 discloses the claimed range] and fibrillated tape fill yarns [20] having a denier within a range from 4000 to 5000 denier [par. 12, 4600 denier discloses the claimed range]; wherein the woven silt fence fabric is configured to have a wide width tensile strength (per ASTM D-4595) of at least 1500 lbs/ft at 5% strain in the CMD [par. 4, brief description, “the fabric has a tensile strength of at least 200 lb/in at 5% strain in both the warp and weft directions as respectively measured in accordance with ASTM International Standard ASTM International Standard D4595.”; 200lb/in converts to 1200 lb/ft; at least 1200 encompasses and overlaps with at least 1500 which establishes prima facie obviousness per MPEP 2144.05].
Instantly no showing of unexpected results/criticality are shown as arising from the claimed shape of the monofilament
The range of wide width tensile strength disclosed do overlap with the claimed ranges and therefore per MPEP 2144.05 the case of prima facie obviousness is established.
Therefore it would have been obvious to one of ordinary skill in the art prior to filing the invention to modify the teachings of the woven geosynthetic fabric of ‘873 to modify the shape of the warp to any desired shape as a matter of engineering design choice per MPEP 2144.04 as noted above and further to modify the range of permittivity and wide width tensile strength values of the ‘873 fabric to arrive at the desired levels of permittivity and wide width tensile strength of a woven geosynthetic fabric for a given end use application.
Regarding claim 23, ‘873 teaches: the tape warp yarns are 800 denier [tape warp yarns and 800 denier warps are taught as stated above in rejection to claim 22]; and the round monofilament fill yarns [30] are 1100 denier [round monofilament weft yarns and 1100 denier warps are taught as stated above in rejection to claim 22].
Regarding claim 24, ‘873 teaches: the tape warp yarns [tape warp yarns are taught as stated above in rejection to claim 22] are 1900 denier [warp yarns are taught in par. 15 as about 1000 to about 1500 denier; ‘about 1500 denier’ is at the very least close enough to the claimed denier to expect them to have the same properties; further there is no showing of critical results arising from claimed yarn denier]; the fibrillated tape fill yarns [20] are 5000 denier [5000 denier is within the range of denier disclosed by ‘873 in par. 12]; and the round monofilament fill yarns [30] are 1700 denier [par. 14 teaches about 1600 denier which is broadly equivalent to 1700 denier or at the very least close enough to be expected to have the same properties per 2144 as noted above] alternating with the ends of the 5000-denier fibrillated tape fill yarns [fig. 1].
Instantly no showing of unexpected results/criticality are shown as arising from the claimed ranges yarn denier.
The ranges of yarn denier disclosed do overlap or come close to the claimed ranges and therefore per MPEP 2144.05 the case of prima facie obviousness is established.
Further, MPEP 2144.04 is clear:
A.Changes in Size/Proportion
In re Rose, 220 F.2d 459, 105 USPQ 237 (CCPA 1955) (Claims directed to a lumber package “of appreciable size and weight requiring handling by a lift truck” were held unpatentable over prior art lumber packages which could be lifted by hand because limitations relating to the size of the package were not sufficient to patentably distinguish over the prior art.); In re Rinehart, 531 F.2d 1048, 189 USPQ 143 (CCPA 1976) (“mere scaling up of a prior art process capable of being scaled up, if such were the case, would not establish patentability in a claim to an old process so scaled.” 531 F.2d at 1053, 189 USPQ at 148.).
In Gardnerv.TEC Syst., Inc., 725 F.2d 1338, 220 USPQ 777 (Fed. Cir. 1984), cert. denied, 469 U.S. 830, 225 USPQ 232 (1984), the Federal Circuit held that, where the only difference between the prior art and the claims was a recitation of relative dimensions of the claimed device and a device having the claimed relative dimensions would not perform differently than the prior art device, the claimed device was not patentably distinct from the prior art device.
Therefore it would have been obvious to one of ordinary skill in the art prior to filing the invention to modify the teachings of the woven geosynthetic fabric of ‘873 to modify the range of yarn denier values of the ‘873 fabric to arrive at the desired yarn deniers of a woven geosynthetic fabric for a given end use application.
Regarding claim 25, ‘873 does not disclose a different colored yarn in the fabric adjacent other yarns.
The MPEP 2144.04 is clear:
I. AESTHETIC DESIGN CHANGES
In re Seid, 161 F.2d 229, 73 USPQ 431 (CCPA 1947) (Claim was directed to an advertising display device comprising a bottle and a hollow member in the shape of a human figure from the waist up which was adapted to fit over and cover the neck of the bottle, wherein the hollow member and the bottle together give the impression of a human body. Appellant argued that certain limitations in the upper part of the body, including the arrangement of the arms, were not taught by the prior art. The court found that matters relating to ornamentation only which have no mechanical function cannot be relied upon to patentably distinguish the claimed invention from the prior art.).
Instantly, there is no showing of any mechanical function arising from the change of color of a yarn in the body of a woven fabric.
It is wholly expected that one of ordinary skill in the art of textiles would have within their knowledge that a change in color of a yarn in woven fabric would provide a desired visual mark or marking on the fabric.
Therefore it would have been obvious to one of ordinary skill in the art prior to filing the invention to modify the color of a yarn on a woven fabric to provide a visual mark/marking on the fabric.
Regarding claim 26, ‘873 discloses: a wide width tensile strength (per ASTM D-4595) of at least 1500 lbs/ft at 5% strain in the CMD [par. 4, brief description, “the fabric has a tensile strength of at least 200 lb/in at 5% strain in both the warp and weft directions as respectively measured in accordance with ASTM International Standard ASTM International Standard D4595.”; 200lb/in converts to 1200 lb/ft; at least 1200 encompasses and overlaps with at least 1500 which establishes prima facie obviousness per MPEP 2144.05].
Therefore it would have been obvious to one of ordinary skill in the art prior to filing the invention to modify the wide width tensile strength of a woven geotextile fabric as desired to arrive at a fabric with appropriate tensile strength for the specific end use application.
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure. Numerous geotextile fabrics have been attached to establish the general state of the prior art.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to ROBERT H MUROMOTO JR whose telephone number is (571)272-4991. The examiner can normally be reached M-Th 730-1730.
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/ROBERT H MUROMOTO JR/Primary Examiner, Art Unit 3732
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