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Court Affirms Board, Finding Patent Applicant’s Assertions a “Stretch” in Elastic Netting Case

February 09, 2001

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Last Month at the Federal Circuit - March 2001

Judges: Bryson (author), Clevenger, and Schall

In In re Hans O. Cederblad & Jan D. Seppala, No. 00-1336 (Fed. Cir. Feb. 9, 2001) (nonprecedential decision), the Federal Circuit affirmed-inpart, vacated-in-part, and remanded a decision by the Board that had sustained a final rejection of the appealed claims of a patent application to Hans O. Cederblad as being anticipated under 35 U.S.C. § 102.

The claims at issue related to an extruded plastic netting having unidirectional elasticity, i.e., where the longitudinal extruded strands were formed from a material with different elasticity than the material of the transverse extruded strands, thus permitting the netting to stretch more in one direction than in the other. During prosecution, the Examiner rejected all the claims over a variety of references. On appeal, the Board reversed all of the rejections except a rejection of claims 1, 3, 4, 6, 11, and 13 under section 102(b) over U.S. Patent No. 4,636,419 to Madsen (“Madsen”). The Cederblad application described a fiber-formation process for creating extruded plastic netting, while Madsen teaches variation of a film-formation process. Madsen also disclosed a netting comprising a matrix in which filaments are embedded so that the matrix stretches only in one direction. The materials making up the longitudinal filaments of Madsen’s netting differed in elasticity from those making up the transverse filaments.

Cederblad made three basic assertions on appeal: (1) that its process, using fiber formation, differs from and has inherent advantages over Madsen’s film-formation process; (2) that its netting has certain characteristics in the crosspoint joints that are not shown in Madsen; and (3) that Madsen’s process cannot produce two sets of strands with different compositions since Madsen’s “filaments” are not extruded strands.

The Federal Circuit held that none of these assertions justified reversal of the Board’s decision. With respect to Cederblad’s first assertion, the Federal Circuit found that Cederblad’s reliance on the different process used by Madsen was unavailing because all of the rejected claims were product claims, not process or product-by-process claims. The Federal Circuit further found that even if, as Cederblad urged, the claim term “extruded strands” was construed as reciting a process limitation (thus creating a product-by-process claim), the
process of “extrusion” was still anticipated by Madsen.

Cederblad’s second assertion, that the characteristics of its crosspoint joints distinguish the application over Madsen, also failed. The Federal Circuit noted that there was no mention of the strand crosspoints or their characteristics in Cederblad’s claims, and specifically upheld the Board’s finding that any characteristics of the crosspoints inherent in Cederblad were also inherent in Madsen.

Cederblad’s third argument, that Madsen’s filaments were not strands, was held to be unavailing as well. As the Federal Circuit pointed out, Madsen’s filaments were made from a material specifically mentioned by Cederblad and were disclosed as being produced in extrusion streams.

Although it affirmed the rejection of claims 1 and 11, the Court remanded the case to the Board for further consideration of dependent claims 3, 4, 6, and 13, which it held were erroneously treated together with claims 1 and 11 without any additional analysis by the Board.