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Outdry Technologies Corp. v. Geox S.p.A.

United States Court of Appeals, Federal Circuit

June 16, 2017

GEOX S.P.A., Appellee

         Appeal from the United States Patent and Trademark Office, Patent Trial and Appeal Board in No. IPR2014-01244.

          Nicholas (Nika) Fremont Aldrich, Jr., Schwabe, Williamson & Wyatt, Portland, OR, argued for appellant. Also represented by Steven J. Prewitt, Sara Kobak.

          Steven Paul Weihrouch, Rothwell, Figg, Ernst & Manbeck, P.C., Washington, DC, argued for appellee. Also represented by Jennifer Nock, Soumya Panda.

          Before Dyk, Moore, and Reyna, Circuit Judges.

          Moore, Circuit Judge.

         Outdry Technologies Corp. ("Outdry") appeals from the Patent Trial and Appeal Board's ("Board") inter partes review decision holding that claims 1-15 of U.S. Patent No. 6, 855, 171 ("the '171 patent") would have been obvious over a combination of prior art. For the reasons discussed below, we affirm.


         The '171 patent claims methods of waterproofing leather, particularly for the manufacture of shoes, clothes, or leather accessories. '171 patent at 1:12-14. The specification discloses prior art methods of waterproofing leather shoes, including sewing a fabric lining and a semi-permeable film to the interior surface of the leather or gluing a semi-permeable membrane inside the leather around the membrane's perimeter. Id. at 1:20-26, 36-38. It states these prior art methods allowed a water cushion to form in which water penetrates the leather and becomes trapped between the membrane and interior surface of the leather. Id. at 1:27-31, 39-42. The '171 patent sought to overcome this issue by "directly pressing" a semi-permeable membrane onto the leather via a dotted glue pattern:

1. A process for waterproofing leather (1), comprising directly pressing on an internal surface of the leather (1) at least one semi-permeable membrane (2) whose surface contacting the leather (1) is provided with a discontinuous glue pattern to adhere the leather to the semi-permeable membrane, wherein the glue pattern is formed of a multiplicity of dots having a density included between 50 dots/cm2 and 200 dots/cm2.

'171 patent at claim 1 (emphasis added). Claim 9, the only other independent claim, is identical to claim 1 but for reciting the size of the dots instead of the density: "a multiplicity of dots having a diameter included between 0.1 mm and 0.8 mm."

         The Board found U.S. Patent No. 5, 244, 716 ("Thornton") discloses all elements of claims 1 and 9 except the density of the dots (claim 1) and the sizes of the dots (claim 9). Thornton is directed to "waterproof but breathable articles of clothing" including stockings, gloves, and hats. J.A. 250 at 1:5-10, 20-23. It discloses a waterproof and breathable glove consisting of three layers: an inner knitted lining, a middle layer of film 105, and an outer water permeable layer, such as leather. J.A. 260 at 21:1-14. It discloses placing adhesive dots on the "outer surface of film 105 in spaced apart locations" to "secure the barrier component of the glove" by heatwelding. Id. at 21:31-44. The Board construed "directly pressing" to mean "applying pressure without any intervening materials or layers other than the recited adhesive" and determined "Thornton explicitly describes drawing the membrane barrier component over a former, applying adhesive to the outer surface of the film, drawing the outer glove layer onto the former, and bonding the layers by pressing." J.A. 10, 16 (citing J.A. 260 at 21:64- 22:8).

         For disclosure of the density and sizes of the dots, the Board relied on "Coated and Laminated Fabrics" in Chemistry of the Textiles Industry ("Scott") and U.S. Patent No. 6, 139, 929 ("Hayton"). Scott discloses adhering a waterproof, vapor permeable membrane to fabric for rainwear in which there is "sufficient adhesive to bond the hydrophobic 'non-stick' film to a textile fabric, but the adhesive dot coverage has to be kept low to minimize the area of blocked micropores." J.A. 517. Hayton discloses socks having an inner knitted sock, a water impermeable and vapor permeable barrier component 100, and an outer knitted sock. J.A. 302 at 12:34-39. It discloses "the barrier component 100 is attached to the inner surface 201 of the outer sock 200 . . . by spaced apart dots of adhesive." Id. at 12:43-46. It teaches that the adhesive is "preferably applied as dots 0.2 to 1 mm e.g. 0.5 to 0.8 mm preferably 0.55 to 0.65 mm in diameter and a density of 10 to 100 dots, preferably 15 to 75, more preferably 20 to 60 dots per square cm." J.A. 299 at 6:24-27.

         The Board found that a person of ordinary skill in the art would have been motivated to combine Thornton with Scott and Hayton. It found the petitioner, Geox S.p.A. ("Geox"), "provided a rational underpinning for combining the disclosures of Scott and Hayton, which provide guidance for the density and size of adhesive dots to adhere a semi-permeable membrane to a porous layer." J.A. 15. It held that claims 1, 2, 5-11, 14, and 15 would have been obvious over Thornton, Scott, and Hayton and that the remaining claims would have been ...

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