In re Cederblad

4 F. App'x 914
CourtCourt of Appeals for the Federal Circuit
DecidedFebruary 9, 2001
DocketNo. 00-1336
StatusPublished
Cited by1 cases

This text of 4 F. App'x 914 (In re Cederblad) is published on Counsel Stack Legal Research, covering Court of Appeals for the Federal Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re Cederblad, 4 F. App'x 914 (Fed. Cir. 2001).

Opinion

BRYSON, Circuit Judge.

Hans O. Cederblad and Jan Seppala (collectively “Cederblad”) appeal from the decision of the United States Patent and Trademark Office’s Board of Patent Appeals and Interferences sustaining a final rejection of six claims of Cederblad’s patent application No. 08/295,635. We affirm in part, vacate in part, and remand.

I

Cederblad’s application claims an extruded plastic netting having unidirectional elasticity. The netting is; formed in a grid [915]*915with one set of strands running longitudinally and another set of strands running perpendicularly to the longitudinal strands. The longitudinal strands are formed from a material with different elasticity than the material of the transverse strands, thus permitting the netting to stretch more in one direction than in the other.

Cederblad’s application included 25 claims. The examiner rejected all 25 under a variety of references. The Board reversed all of the examiner’s rejections except those for claims 1, 3, 4, 6,11 and 13, which stand rejected under 35 U.S.C. § 102(b) as anticipated by U.S. Patent No. 4,636,419 issued to Madsen (“Madsen”). The Board specifically addressed the application of Madsen to independent claim 1 and then held that dependent claims 3, 4, 6, 11, and 13 stood together with independent claim 1 as a group, thus obviating the need to address the dependent claims individually. Cederblad challenges the rejection of claim 1 as well as the grouping of claims 1, 3, 4, 6,11, and 13.

The rejected claims recite:

1. A bicomponent elastomeric extruded netting having unidirectional elasticity, said bicomponent elastomeric extruded netting comprising extruded strands consisting essentially of a relatively inelastic resin component and transverse extruded strands consisting essentially of a relatively elastic resin component.
3. The netting of claim 1 wherein the elastic strands are of a styrenic block copolymer composition.
4. The netting of claim 2 wherein the strands of the polyolefin resin extend in the machine direction and the strands of the elastic resin extend in the transverse direction.
6. The netting of claim 3 wherein the elastic resin is a styrene-butadiene-styrene resin.
11. The netting of claim 1 wherein the strands of the elastic resin extend in the machine direction and the strands of the inelastic resin extend in the transverse direction.
13. The netting of claim 11 wherein the elastic resin is a styrene butadienestyrene resin.

Madsen discloses two processes for creating extruded plastic netting. In the first process (film formation), a film sheet is extruded and then converted into netting with additional processes such as stretching, slitting, or fibrillating the film. In the second process (fiber formation), the strands of the net are formed directly at the output of the extrusion with the cross-points of the netting being created by the extrusion process. Madsen uses a variation of the film formation process in its described and claimed embodiments. The Cederblad application describes a fiber formation process.

The examiner rejected the appealed claims as being anticipated by Madsen. The examiner stated that Madsen discloses a netting comprising a matrix in which filaments are embedded within the matrix so that the matrix stretches in only one direction. Figure 10 from Madsen is depicted below.

[916]*916[[Image here]]

The examiner stated that Madsen discloses that the materials making up filaments A are different from the materials of B and Bl. For example, Madsen recites that A can be made of inelastic materials such as polyamide and B can be made of elastic materials such as polystyrene-butadiene block copolymers. See Madsen, col. 2, II. 20-26; col. 10, II. 4-5. The Board upheld the examiner’s rejection based on Madsen.

II

Because anticipation is a question of fact, see In re Schreiber, 128 F.3d 1473, 1477, 44 USPQ2d 1429, 1431 (Fed.Cir.1997), we must uphold the Board’s decision if there is substantial evidence in the record to support it, see Dickinson v. Zurko, 527 U.S. 150, 119 S.Ct. 1816, 144 L.Ed.2d 143, 50 USPQ2d 1930 (1999); In re Gartside, 203 F.3d 1305, 1315, 53 USPQ2d 1769, 1775 (Fed.Cir.2000). Moreover, during examination proceedings, claims are given their broadest reasonable interpretation consistent with the specification. See In re Graves, 69 F.3d 1147, 1152, 36 USPQ2d 1697, 1701 (Fed.Cir.1995); In re Etter, 756 F.2d 852, 858, 225 USPQ 1, 5 (Fed.Cir.1985) (en banc). That approach “serves the public interest by reducing the possibility that claims, finally allowed, will be given broader scope than is justified,” In re Yamamoto, 740 F.2d 1569, 1571, 222 USPQ 934, 936 (Fed.Cir.1984), and it is not unfair to applicants, because “before a patent is granted the claims are readily amended as part of the examination process,” Burlington Indus., Inc. v. Quigg, 822 F.2d 1581, 1583, 3 USPQ2d 1436, 1438 (Fed.Cir.1987).

On appeal, Cederblad makes three basic assertions: (1) that its process (using fiber formation) differs from and has inherent advantages over Madsen’s film formation process; (2) that it discloses a net with well-bonded crosspoint joints, which Madsen does not show; and (3) that Mad-sen’s process cannot produce two sets of strands with different compositions since Madsen’s “filaments” are not extruded strands. None of these assertions justifies reversal of the Board’s decision.

Cederblad’s reliance bn the different process used by Madsen is unavailing because all of the rejected claims are product claims, not process or product-by-process claims. Nor does Cederblad’s recitation of the process’s advantages save these claims. “The method of manufacture, even when cited as advantageous, does not of itself convert product claims into claims limited to a particular process.” Vanguard Prods. Corp. v. Parker Hannifin Corp., 234 F.3d 1370, 1372, 57 USPQ2d 1087, 1089-90 (Fed.Cir.2000); In re Thorpe, 777 F.2d 695, 697, 227 USPQ 964, 966 (Fed.Cir.1985) (“I the product in a product-by-process claim is the same as or obvious from a product of the prior art, the claim is unpatentable even though the prior product was made by a different process.”).

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4 F. App'x 914, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-cederblad-cafc-2001.