COMMISSIONER'S DECISION
UNOBVIOUS (SECTION 45(4)): No Teaching by Prior Art.
Contrary to the construction on which the Final Action is based;
the expression in the single citation "at least a portion of said
threads being prepared from ribbon yarn of a polymer of a 1-ole-
fin" applies to the portion of the threads distinguished by the
polymer material; not their ribbon shape. There is no teaching
of the prerequisite of the invention under rejection that a
portion of the threads (weft) must be "round", or even non-ribbon,
in cross-section.
FINAL ACTION: Reversed.
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This decision deals with a request for review by the Commiss-
ioner of Patents of a refusal of claims C13 to C18 inclusive
of patent application 005,341. The refusal was made under
Section 42 of the Patent Act, by an Office letter dated Feb. 7,
1973 issued as the result of re-examination of the claims under
Section 45(4) during conflict proceedings.
The application was filed on November 17, 1967, in the name of
Henry D. Dawbarn, and refers to "Tufted Pile Fabric Backing."
Mr. W. Mace represented the applicant at the Hearing conducted
by the Patent Appeal Board on June 26, 1974.
The application relates to backings for carpets. To form the
backing, ribbon-shaped warp yarns are interwoven at right angles
with round-shaped weft yarns. Such a construction is purported
to improve the stability of the backing.
The prosecution terminated with the Office letter refused claims
C13 to C18 for lack of inventive subject matter over the following
reference:
Belgian Patent
653,594 March 25, 1965
This patent describes backings in which ribbon-shaped polyolefin
fibres are used.
The Office letter stated (in part):
Applicant's arguments have been carefully considered
but it is still maintained that claims C13 to C18
inclusive are unpatentable in view of the above
reference and are refused. Applicant points out that
claim C13 specifically claims that one of the yarns is
substantially uniform ribbon shaped and the other is
substantially round in cross section. The Belgian patent
discloses a carpet backing of the same or similar
materials wherein a number of the warp and or weft
threads are made from yarns having a rectangular cross
section. This implies that some of the threads are not
rectangular in cross section and if not what shape might
they be? The most obvious shape for a thread of yarn is
round and therefore it is deemed that the other shape
implied would be one having a cross section substantially
round. It is also again reiterated that the expression,
"closely spaced together", is so vague as to include the
embodiment in the cited patent. After all said expression
does not distinctly specify that the yarns are so close
as to be touching, said expression could include a distance
of 1/8", 1/4" etc.
The applicant in his response to the Office letter dated May 4, 1973
stated (in part):
.... It is Applicant's intention that by spacing the yarns apart
from each other and also by utilizing round mono-filament
or multi-filament yarns whereby if such round yarn is
pierced they do not break as the multi-filament will separate
and allow the needle to pass through and the mono-filament
will move aside. The piercing of the tufting needle will
occur only, or substantially only, in the warp or flat yarns
which can withstand the force much more readily than the
fill yarns.
It is further pointed out that Claim C-13 (Applicant's
Claim 1) specifically calls for "a plurality of continuous
substantially uniform warp yarns comprised of a polyolefin ---
a plurality of substantially uniform fill yarns also comprised
of a polyolefin". In addition it is specifically stated
that "one of said plurality of substantially uniform yarns is
relatively ribbon shaped and is closely spaced together
and the other of said pluralities of substantially uniform
yarns is relatively round in cross section". It is
respectfully pointed out that not only is the warp and fill
yarns of different shape, ribbon shaped and round in cross
section but furthermore that both yarns are comprised of the
polyelefin. In contrast thereto, Belgian Patent 653,594
although using a ribbon shaped yarn is completely silent
with respect to the shape of the other yarn which is
ŠŠ employed in the backing. In addition, only the ribbon
shaped yarn is composed of a polymer of a one-olefin.
Presumably, in accordance with the teachings of the Belgian
Patent, both the warp and weft yarns may be ribbon shaped
and in those circumstances both are of a polymer of a
one-olefin. in the event that only the warp yarn is ribbon
shaped and of a polymer of a one-olefin there is no
teaching whatsoever that the weft yarn would be relatively
round in cross section nor that the weft yarn is a poly-
olefin yarn of relatively round cross section. As previously
pointed out if a non-ribbon form of yarn is employed it would
in all likelihood be of the prior art jute material as there
is certainly no teaching whatsoever in the Belgian Patent
that the non-ribbon yarn would be also a polyolefin.
It is respectfully submitted that the broadest teaching
that could be drawn from Belgian Patent 653,594 is that
either the warp and weft yarns of the backing are of a ribbon
form of yarn obtained from a polymer of a one-olefin or the
warp yarn is a ribbon form of yarn obtained from a polymer
of a one-olefin and the weft yarn is left to conjecture only.
It is thus submitted that in accordance with such teachings
only the ribbon form of yarn is of a one-olefin polymer.
To attempt to apply such teachings as a basis for rejecting
Clai~ C-13 is in Applicant's opinion interpreting the Belgian
Patent far beyond the scope of the concept disclosed therein
and can be arrived at only by applying Applicant's own
teachings contained in the instant application against Claim
C-13.
The Belgian patent 653,594 relates to polyolefin ribbon yarn for
carpet backing and to tufted fabrics and, more particularly, to improved
backings for such fabrics. Claim 1 reads:
A backing for a rug containing transverse and longitudinal
threads, at least a portion of said threads being prepared
from ribbon yarn of a polymer of a 1-olefin.
The question we must decide is whether the subject matter of the
application lacks patentable subject matter over the reference cited.
Claim C13 reads:
Woven fabric adapted for use as primary backing in tufted
pile fabrics comprising a plurality of continuous sub-
stantially uniform warp yarns comprised
of a polyolefin, interwoven at substantially right
angles with a plurality of substantially uniform
fill yarns also comprised of a polyolefin; wherein
one of the said plurality of substantially uniform
yarns is relatively ribbon shaped and is closely spaced
together and the other of said pluralities of sub-
stantially uniform yarns is relatively round in cross
section.
On considering the difference between the prior art cited and
the subject matter covered by the claims, it is observed that
claim C13 requires a woven fabric comprising a plurality of sub-
stantially uniform warp yarns interwoven at right angles with a
plurality of substantially uniform fill yarns, wherein one
plurality of yarns is relatively ribbon shaped and the other
plurality is relatively round in cross-section. This structure,
in our view, is neither disclosed nor suggested in the patent
cited.
First, although drawings are only illustrative of an invention,
Figures 1 and 2 of the patent indicate that the warp and weft yarns
are of the "same dimensions," and are "ribbon shaped." This teaches
away from warp and weft yarns of "different cross-sectional shapes,"
particularly ribbon warp yarn and round weft yarn.
The disclosure of the patent makes no reference to round yarn, but
states on page 6, line 6, that: "The ribbon yarn employed in this
invention is prepared by slitting or otherwise dividing into narrow
strips, a film of polymer, and drawing the strips to sizes preferably
having a width...."
It is observed that claim 1 of the patent refers to "at least a
portion of said threads being prepared from ribbon yarn of a
polymer of a 1-olefin:" On this point the examiner states: "The
Belgian patent discloses a carpet backing of the same or similar
materials wherein a number of the warp and or weft threads are made
of yarns having a rectangular cross section. This implies that
some of the threads are not rectangular in cross section and if not
what shape might they be?" Construing the specification as a whole,
in our view, the reference distinguishes the threads by means of
"material" rather than "shape." The patentee intended that where his
invention utilizes only some of the yarns comprising "polyolefin
strips," the remaining threads or yarns could be any "other material"
known in the prior art as jute or the like. The different cross-
sectional shape of the yarns are irrelevant to his subject matter
and its object in the art.
Moreover, the disclosure of the patent, page 5, refers to the warp
and weft threads "as being 'loosely' interwoven in any known
manner," as opposed to claim C13 which specifically requires that
the warp and the weft be "closely spaced together."
Also in the reference, last para. page 3, there are statements to
the effect that synthetic fibrous yarns have been applied in the
backing materials but have been found to be easily broken by the
needles, and that fibrous yarn backing does not provide a flat
surface. It is thus seen that there is no teaching in the reference
of the use of warp and weft yarn of different cross-sectional
forms of which one must be "round," or even non-ribbon.
There are no reasons apparent why we should disagree with the
applicant's argument that several important and unobvious advantages
flow from the concept of employing a relatively "flat cross section"
yarn for the warp, and a relatively "round cross section"
multifilament yarn in the weft. For example, the applicant maintains
that his backing has a lower weight per unit area, a lower cost,
a better balance of strength and the fact that the piercing of the
tufting needle will occur only, or substantially only, in
the warp or flat yarns which can withstand the force much
more readily than the round weft yarns.
Accordingly, the Board is satisfied that the patent cited does
not teach nor suggest the combination explicitly circumscribed
by claim C13. Consequently the rejection of Claims C14 to C18,
which depend directly or indirectly on claim C13, is also tra-
versed.
The Board therefore recommends that the Office letter refusing
claims C13 to C18 be withdrawn.
The clarifying amendment to claim C13 suggested by the applicant
need not be entered at this time, and may be deferred until con-
elusion of conflict proceedings.
J.F. Hughes,
Assistant Chairman,
Patent Appeal Board.
I concur with the findings of the Patent Appeal Board and with-
draw the Office letter of February 7, 1973. The application is
returned to the examiner for resumption of prosecution.
Decision accordingly,
A.M. Laidlaw,
Commissioner of Patents.
Dated at Hull, Quebec
this 17th. day of
July, 1974.
Agent for Applicant
Gowling, MacTavish, Osborne
& Henderson