UNITED STATES PATENT AND TRADEMARK OFFICE
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`BEFORE THE PATENT TRIAL AND APPEAL BOARD
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`TIETEX INTERNATIONAL, LTD.
`Petitioner,
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`v.
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`PRECISION FABRICS GROUP, INC
`Patent Owner.
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`U.S. Patent No. 8,796,162
`IPR Case No.: Unassigned
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`DECLARATION OF BRIAN CALLAWAY IN SUPPORT OF
`PETITION FOR INTER PARTES REVIEW UNDER
`35 U.S.C. § 311 ET SEQ. AND 37 C.F.R. § 42.100 ET SEQ.
`(CLAIMS 1-30 OF U.S. PATENT NO. 8,796,162)
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`Tietex International, Ltd. 1002
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`BEFORE THE PATENT TRIAL AND APPEAL BOARD
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`TIETEX INTERNATIONAL, LTD.
`Petitioner,
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`v.
`
`PRECISION FABRICS GROUP, INC
`Patent Owner.
`
`U.S. Patent No. 8,796,162
`IPR Case No.: Unassigned
`
`DECLARATION OF BRIAN CALLAWAY IN SUPPORT OF
`PETITION FOR INTER PARTES REVIEW UNDER
`35 U.S.C. § 311 ET SEQ. AND 37 C.F.R. § 42.100 ET SEQ.
`(CLAIMS 1-30 OF U.S. PATENT NO. 8,796,162)
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`Tietex International, Ltd. 1002
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`I.
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`INTRODUCTION
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`A. Engagement
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`1. My name is Brian Callaway. I have been retained by counsel for
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`Tietex International, Ltd. (“Tietex”) as an expert witness in the above-
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`captioned proceeding. I have been asked to provide analysis and my opinion
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`about the state of the art of the technology described in U.S. Patent No.
`8 , 7 9 6 , 1 6 2 (the ޖ162 patent”) and on the patentability of claims 1-30 (“the
`challenged claims”) of the ޖ162 patent.
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`B.
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`2.
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`Background and Qualifications
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`I hold a degree in Textile Engineering from the Nottingham
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`Technical College in England.
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`3.
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`For 10 years I worked for Fryml Fabrics in development and
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`production of knitted and stitch-bonded fabrics. I worked for Milliken &
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`Company for a total of 23 years (over two different periods) in development and
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`production of knitted and stitch bonded fabrics. I also worked for the Petitioner,
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`Tietex International, Ltd. for a period of approximately 18 months in between
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`my periods of employment with Milliken & Company.
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`4.
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`I hold the following US patents: U.S. Patent 4,863,777; U.S. Patent
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`5,474,838; U.S. Patent 5,520,022; U.S. Patent 5,569,430; U.S. Patent 5,638,703;
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`U.S. Patent 7,181,933; U.S. Patent 7,285,505; U.S. Patent 7,294,383; U.S. Patent
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`7,294,384; U.S. Patent 7,300,691; and U.S. Patent 7,549,303.
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`5.
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`By virtue of my education and work experience, I am thoroughly
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`familiar with the stitch-bonding process and have extensive hands-on experience
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`with non-woven stitch-bonded fabrics and stitch-bonding equipment including
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`Arancne, Liba and Malimo type machines.
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`6.
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`I also have a general understanding of flame retardants and various
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`types of available chemical treatments used to impart flame resistance to textiles,
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`including intumescent chemical treatments.
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`7.
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`I am currently retired, but continue to work in the textile industry at
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`a reduced schedule as a consultant.
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`C. Compensation
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`8.
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`I am being compensated at a rate of $150.00 per hour to provide
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`analysis and
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`testimony
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`in
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`this
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`inter partes
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`review proceeding. My
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`compensation is not contingent on the outcome of any matter or the specifics
`of my testimony. I have no financial interest in the Petition or in the ޖ162 patent.
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`D. Materials and Information Considered
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`9. My findings, as explained below, are based on my years of
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`education, experience, and background in the fields discussed above, as well as
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`my investigation and study of relevant materials. In forming my opinions, I
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`have considered the materials I identify in this declaration.
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`10. Additionally, I am aware of information generally available to,
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`and relied upon by, persons of ordinary skill in the art at the relevant times,
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`including technical dictionaries and technical reference materials (including
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`textbooks, manuals, technical papers and articles); some of my statements below
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`are expressly based on such awareness.
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`11. The grounds of unpatentability discussed herein are based solely on
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`prior patents and other printed publications. I understand that Petitioner
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`reserves all rights to assert other grounds for unpatentability or invalidity, not
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`addressed herein, at a later time. Thus, the absence of discussion of such
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`matters here should not be taken as an indication that there are no such
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`additional grounds for unpatentability and invalidity of the ޖ162 patent.
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`II. LEGAL STANDARDS FOR PATENTABILITY
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`A. General
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`12.
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`In expressing my opinions and considering the subject matter of
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`the challenged claims of the ޖ162 patent, I am relying upon certain basic legal
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`principles that have been provided to me.
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`13.
`I understand that in this proceeding T i e t e x has the burden of
`proving that the challenged claims of the ޖ162 patent are unpatentable by a
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`preponderance of the evidence. I understand that under “a preponderance of the
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`evidence” standard, Tietex must show that a fact is more likely true than it is not.
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`14.
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`I understand that for an invention claimed in a patent to be
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`found patentable, it must be, among other things, new and not obvious from
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`what was known before the invention was made.
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`15.
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`I understand the information that is used to evaluate whether a
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`claimed invention is patentable is generally referred to as “prior art” and
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`includes, for purposes of the Petition, patents and printed publications (e.g.,
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`books, journal publications, articles on websites, product manuals, etc.).
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`16.
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`I understand that there are two ways in which prior art may render
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`a patent claim unpatentable. First, the prior art can be shown to “anticipate”
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`the claim. Second, the prior art can be shown to have made the claimed
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`invention “obvious” to a person of ordinary skill in the art. My understanding
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`of the two legal standards is set forth below.
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`B.
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`Priority Dates for Claimed Subject Matter
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`17.
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`I understand that in order to be considered “prior art" for the
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`purposes of the present Petition, patents or printed publications must predate the
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`pertinent priority dates for the subject matter claimed in the ޖ162 patent.
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`18.
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`I have been informed that a patent is only entitled to a priority
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`date based on an earlier filed application if the earlier filed application meets the
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`requirements of 35 U.S.C. §112. Specifically, I have been informed that 35
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`U.S.C. § 112, ¶1 requires that the specification of a patent or patent
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`application must “contain a written description of the invention, and the
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`manner and process of making and using it, in such full, clear, concise, and
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`exact terms as to enable any person skilled in the art to which it pertains, or
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`with which it is most nearly connected, to make and use the invention . . . .”
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`I understand that the requirements of this provision are commonly called the
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`written description requirement and the enablement requirement.
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`19.
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`I have been informed that compliance with both
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`the written
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`description requirement and enablement requirement must be determined as of
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`the effective filing date of the application for which priority is sought.
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`20.
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`I have been informed that to satisfy the written description
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`requirement a patent’s specification should reasonably convey to a person of
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`ordinary skill in the art that the inventor had possession of the claimed
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`invention as of the effective filing date of the application.
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`C. Claim Construction Standard
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`21.
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`I understand that in this proceeding, the claims must be given
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`their broadest reasonable interpretation consistent with the specification.
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`The claims after being construed in this manner are then to be compared to
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`the information in the prior art, which for this proceeding is limited to
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`patents and printed publications. I also understand that, at the same time,
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`absent some reason to the contrary, claim terms are typically given their
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`ordinary and accustomed meaning as would be understood by one of ordinary
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`skill in the art.
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`22. I understand that in other forums, such as in federal courts,
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`different standards of proof and claim interpretation control, which are not
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`applied by the U.S. Patent and Trademark Office in this proceeding.
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`D. Anticipation
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`23.
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`I understand that the following standards govern the determination
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`of whether a patent claim is “anticipated” by the prior art.
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`24.
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`I understand that, for a patent to be “anticipated” by the prior art,
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`each and every limitation of the claim must be found, expressly, implicitly or
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`inherently,
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`in a single prior art reference. I further understand that the
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`requirement of strict identity between the claim and the reference is not met
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`if a single element or limitation required by the claim is missing from the
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`applied reference.
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`25.
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`I understand that claim limitations that are not expressly described
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`in a prior art reference may still be there if they are implicit or inherent to the
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`thing or process being described in the prior art. I have been informed that
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`to establish inherency, the extrinsic evidence must make clear that the
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`missing descriptive matter is necessarily present in the thing described in
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`the reference and that it would be so recognized by persons of ordinary skill in
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`the art. I have been informed that inherency cannot be established just
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`because a certain thing may result from a given set of circumstances.
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`26.
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`I understand that it is acceptable to consider evidence other than
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`the information in a particular prior art document to determine if a feature is
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`necessarily present in or inherently described by that reference.
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`E. Obviousness
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`27.
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`I understand that for a single reference or a combination of
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`references to render obvious a claimed invention, a person of ordinary skill in
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`the art must have been able to arrive at the claimed invention by modifying
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`and/or combining the applied references.
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`28.
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`I have been informed that a patent claim can be found unpatentable
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`as obvious where the differences between the subject matter patented and the
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`prior art are such that the subject matter as a whole would have been obvious at
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`the time the invention was made to a person of ordinary skill in the relevant
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`field. Specifically, I understand that the obviousness question involves a
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`consideration of:
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`• the scope and content of the prior art;
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`• the differences between the prior art and the claims at issue;
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`• the knowledge of a person of ordinary skill in the pertinent art;
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`and
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`• whatever objective factors indicating obviousness or non-
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`obviousness may be present in any particular case –
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`referred to as “secondary considerations.”
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`29.
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`I understand that such secondary considerations include: (a)
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`commercial success of a product due to the merits of the claimed invention; (b)
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`a long-felt, but unmet need for the invention; (c) failure of others to find the
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`solution provided by the claimed invention; (d) deliberate copying of the
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`invention by others; (e) unexpected results achieved by the invention; (f) praise
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`of the invention by others skilled in the art; (g) the taking of licenses under the
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`patent by others and (h) the patentee proceeded contrary to the accepted wisdom
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`of the prior art. I have been informed that secondary considerations are relevant
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`where there is a connection, or nexus, between the evidence and the claimed
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`invention.
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`30.
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`In addition, I understand that the obviousness inquiry should not
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`be done in hindsight, but must be done using the perspective of a person of
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`ordinary skill in the relevant art as of the effective filing date of the patent claim.
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`31.
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`I understand that in order for a claimed invention to be
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`considered obvious, there must be some rationale for combining cited references
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`as proposed; that obviousness may also be shown by demonstrating that it would
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`have been obvious to modify what is taught in a single piece of prior art to
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`create the patented invention; and that obviousness may be shown by
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`establishing that it would have been obvious to combine the teachings of
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`more than one item of prior art. I have been told that, in determining whether
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`a piece of prior art could have been combined with other prior art or with other
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`information within the knowledge of one of ordinary skill in the art, the
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`following are examples of approaches and rationales that may be considered:
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`(A) Combining prior art elements according to known methods to
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`yield predictable results;
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`(B) Simple substitution of one known element for another to
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`obtain predictable results;
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`(C) Use of a known technique to improve similar devices (methods
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`or products) in the same way;
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`(D) Applying a known technique to a known device (method or
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`product) ready for improvement to yield predictable results;
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`(E) Applying a technique or approach chosen from a finite number of
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`identified, predictable solutions, with a reasonable expectation of success;
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`(F) Known work in one field of endeavor may prompt variations of it
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`for use in either the same field or a different one based on design
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`incentives or other market forces if the variations would have been
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`predictable to one of ordinary skill in the art; or
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`(G) Some teaching, suggestion, or motivation in the prior art that
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`would have led one of ordinary skill to modify the prior art reference or to
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`combine prior art reference teachings to arrive at the claimed invention.
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`I also understand that this suggestion or motivation may come from such
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`sources as explicit statements in the prior art, or from the knowledge or
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`common sense of one of ordinary skill in the art.
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`32.
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`I understand that an invention that might be considered an
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`obvious variation or modification of the prior art may be considered non-
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`obvious if one or more prior art references discourages or lead away from the
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`line of inquiry disclosed in the reference(s). However, I have been informed
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`that a reference does not “teach away” from an invention simply because the
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`reference suggests that another embodiment of the invention is better or
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`preferred. My understanding of the doctrine of teaching away requires a clear
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`indication that the combination should not be attempted (e.g., because it
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`would not work or explicit statement saying the combination should not be
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`made).
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`III. THE PERSON OF ORDINARY SKILL IN THE RELEVANT
`FIELD AND IN THE RELEVANT TIMEFRAME
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`33. Based on my review of these materials, I believe that the
`relevant field for purposes of the ޖ162 patent is thermally protective non-woven
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`fabric.
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`34. As described above, I have extensive experience in the relevant
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`field of stitch-bonded fabrics and am familiar with flame retardant treatments
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`for such fabrics. Based on my e d u ca ti on and experience, I th e r e f o r e
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`have an established understanding of the relevant field.
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`35.
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`I understand that a “person of ordinary skill in the art” is one who
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`is presumed to be aware of all pertinent art as of the relevant timeframe, thinks
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`along conventional wisdom in the art, and is a person of ordinary creativity. I
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`understand that the level of o r d i n a r y skill in the art is evidenced by the
`prior art references. It is my understanding that the ޖ162 patent is to be
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`interpreted based on how it would be read by a person of ordinary skill in the
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`art. It is my understanding that factors such as the education level of those
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`working in the field, the sophistication of the technology, the types of problems
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`encountered in the art, the prior art solutions to those problems, and the speed at
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`which innovations are made may help establish the level of skill in the art. I
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`understand that a person of ordinary skill in the art is not a specific real
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`individual, but rather is a hypothetical individual having the qualities reflected by
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`the factors above.
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`36.
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`I understand the relevant timeframe for evaluating a claim is at
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`the time of the invention, which is based on the effective filing date of each
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`claim, or the date at which the subject matter of the claim was first disclosed in
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`an application in such full, clear, concise, and exact terms as to enable the
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`person skilled in the art to make and use the claimed invention.
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`37.
`I h a v e b e e n a d v i s e d t h a t the effective filing date of the
`claims of the ޖ162 patent is May 14, 2001.
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`38. My opinion is that one of ordinary skill in the art would have an
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`undergraduate degree in a discipline such as chemistry, materials science, textile
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`engineering, or textile or paper chemistry, or related disciplines. Such a person
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`would be familiar with man-made and natural fibers and flame retardant
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`treatments for substrates.
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`39. Based on my experience, I have an understanding of the
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`capabilities of a person of ordinary skill in the relevant field as of May 14,
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`2001.
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`IV. THE STATE OF THE ART IN THE RELEVANT FIELD AND
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`IN THE RELEVANT TIMEFRAME
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`40. Prior to the relevant date of May 14, 2001, thermal protective
`fabrics were known in the art. (“ޖ162 patent”, col.1:25-31)
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`41. Prior to the relevant date, coatings formed from one or more
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`intumescent compositions had been used to absorb heat and had been used on
`textiles. (“ޖ162 patent”, col.1:57-61)
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`42. Prior to the relevant date, phosphorous-based flame retardants had
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`been used to treat nonwoven, single layer, stitch-bonded webs containing
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`cellulosic and/or polyester fibers and having a basis weight of from 50 to 500
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`grams per square meter (i.e., 1.5 to 14.7 ounces per square yard) and thicknesses
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`of from 100 to 3000 microns (i.e., 0.004 to 0.12 inches). (U.S. Patent No.
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`6,436,528 "Külper", at 2:49 – 3:28; 5:47-52; 5:32-36.)
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`43. Prior to the relevant date, many commercial flame-retardant
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`products were available for use on fabric and some of the products are listed in
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`Table 2 of the ޖ162 patent.
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`44. Prior to the relevant date, intumescent coatings were available for
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`use on fabric to provide thermal protection and some of those intumescent
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`coatings are listed in Table 3 of the ޖ162 patent.
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`45. Prior to the relevant date, phosphorous-based intumescent coatings
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`were known to be applied to stitch-bonded fabrics containing cellulosic and
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`aramid fibers. (GB Patent Application No. 2,293,572 “Rowan” at 7:26 - 8:10;
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`and 9:18-20).
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`46.
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` Prior to the relevant date, single layer nonwoven webs having a
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`basis weight of from 15 to 200 grams per square meter (i.e., 0.4 to 5.9 ounces
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`per square yard) and containing cellulosic, and/or thermoplastic fibers had been
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`coated with a phosphorus-containing flame retardant coating in amounts ranging
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`from 15 to 35 weight % solids. (Patent No. 5,912,196 “Radwanski”, at 10:2-3;
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`13-15; 29-53; and at 12: 51-55; 16: 41-42)
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`47. Prior to the relevant date, it was known to apply flame retardant
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`intumescent coatings onto non-woven webs containing cellulosic and polyester
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`fibers and heat resistant fibers such as asbestos and metal fibers and being from
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`0.005 to 1.0 inch. (U.S. Patent No. 3,934,066 “Murch”, at 4:6-12, 15-19; 10:13-
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`15)
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`48. Prior to the relevant date, one of ordinary skill in the art would have
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`found it obvious to construct a flame retardant, intumescent fabric in accordance
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`with the teachings of the prior art with a thermal protective performance value
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`of at least 4.5. This finding was made in USPTO Board of Patent Appeals and
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`Interferences Appeal Decision 2011-001870 dated 7 September 2011 (“USPTO
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`Appeal Decision”) in patent application 12/172,681 which eventuated as the
`ޖ162 patent. (“USPTO Appeal Decision” p.3:17 through p.4:2)
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`V. THE ޖ162 patent
`A. Background of the ޖ162 patent
`49. The ޖ162 patent relates generally to a commercially available
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`nonwoven fabric of stitch-bonded construction treated with a commercially
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`available intumescent flame retardant finish.
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`50.
`In my opinion, the technology of the challenged claims 1 - 3 0 of
`the ޖ162 patent was the result of the combination of two well known and
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`commercially available components (i.e. known, off-the-shelf intumescent
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`finishes such as those listed in Table 3 of the written description and known
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`stitch-bonded fabrics containing blends of well known fibers) resulting in a
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`fully predictable flame retardant product. Any person of ordinary skill in the
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`art recognizing that there had been at least a limited degree of success using
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`intumescent compounds in the field of textiles (Ex. 1001 at 1: 60-61) would
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`have been motivated to make the claimed invention by applying any one of the
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`numerous available flame retardant finishes to a known stitch-bonded fabric
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`and to have optimized the details of that combination to yield desired
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`performance characteristics.
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`51.
`In my opinion it would have been obvious to arrive at the
`combination claimed in the ޖ162 patent based on the recognized benefits of
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`intumescent finishes in providing thermal protection to stitch-bonded fabrics as
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`taught by “Rowan”. (“Rowan”, 7:26 through 8:10).
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`52. As best understood, the ޖ162 patent does not specify any unique
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`treatment conditions, fiber percentages, yarn types or stitching details necessary
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`to realize the benefit of the claimed combination.
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`B.
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`53.
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`Prosecution History of the ’639 Patent
`I understand that the ޖ162 patent was issued on August 5, 2014
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`from U.S. Patent Application No. 12/172,681 filed on July 14, 2008.
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`54.
`I also understand that the patentees allowed the patent
`application which resulted in the ޖ162 patent to become abandoned for a
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`period of time during prosecution.
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`55.
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`I understand that U.S. Patent Application No. 12/172,681 was a
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`continuation of application 10/143,833 filed May 14, 2002 which claims priority
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`to provisional application 60/290,352.
`It was known prior to the priority date of the ޖ162 patent to apply to
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`56.
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`fabrics, such as nonwoven stitch-bonded fabrics, intumescent materials that
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`included an acid source, a carbonific material, a spumific compound, and a skin-
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`forming soft resin binder. (“Rowan”, p.7:26 through p.8:10)
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`57.
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`In my opinion, the patent examiner's allowance of the ޖ162 patent
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`indicates a possible lack of understanding of the teachings in “Rowan” as the
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`feature of treating a single layer stitch-bonded fabric with a phosphorous
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`containing intumescent finish is clearly taught in that reference. (“Rowan”, FIG.
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`1; p.7:26 through p.8:10)
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`C.
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` Construction of Terms in the Challenged Claims
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`58.
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`I understand in proceedings before the U.S. Patent and Trademark
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`Office that the broadest reasonable interpretation of the claims in light of
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`the specification is to be used to determine what the claims encompass. I also
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`understand that, at the same time, absent some reason to the contrary, claim
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`terms are typically given their ordinary and accustomed meaning as would be
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`understood by one of ordinary skill in the art. I have used this standard in
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`evaluating what the claims define, as well as terms used in the claims.
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`D. Effective Filing Date of the Challenged Claims
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`59.
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`I understand that the effective filing date of the challenged claims
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`of the ’’162patent should be M a y 1 4 , 2 0 0 1 .
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`VI. PATENTABILITY ANALYSIS OF THE CHALLENGED CLAIMS
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`A. Overview of the Prior Art
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`1.
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`U.S. Patent 6,436,528 to Külper et al.
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`60. U.S. Patent 6,436,528 (“Külper”) discloses a stitch-bonded
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`nonwoven material for use in construction of a tape. (“Külper”, col. 3:13-21).
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`61.
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` In “Külper” the starting materials for the textile are disclosed to be
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`polyester fibers, polypropylene fibers, viscose (i.e. rayon) fibers or cotton fibers.
`
`“Külper” further discloses that a large number of further fibers can be used to
`
`produce the webs which are evident to the person skilled in the art without the
`
`need for an inventive step. (“Külper”, col. 3:22-28).
`
`62.
`
`“Külper” discloses that the textile web may be flameproofed by the
`
`addition of phosphorus-containing flame retardants such as ammonium
`
`polyphosphate and or/the selection of suitable fibers of low or zero flammability.
`
`(“Külper”, col. 5:47-52).
`
`63. Aramid fibers are common low or zero flammability fibers.
`
`64.
`
`“Külper” further discloses basis weights for the nonwoven web of
`
`50 grams per square meter to 500 grams per square meter, which equates to 1.5
`
`to 14.7 ounces per square yard, and web thicknesses of from 100 μm to 3000
`
`μm, which equates to 0.004 to 0.12 inch. (“Külper”, col. 5:31-36).
`
`2. UK Patent Application GB 2293572
`
`65. UK Patent Application GB 2293572 in the name of J&D Wilkie
`
`Limited (“Rowan”) specifically discloses a single layer stitch-bonded fabric
`
`sheet (“Rowan” FIG. 1) incorporating a combination of cellulosic viscose rayon
`
`
`
`19
`
`
`
`
`
`fibers (“Rowan”, p.6:21-25) and aramid fibers (“Rowan”, p.9: 19-20). This
`
`fabric sheet is treated with an intumescent finish to provide thermal protection.
`
`(“Rowan”, pp.7:26 through 8:19). Moreover, the intumescent composition
`
`disclosed in “Rowan” corresponds precisely
`to
`the description of
`the
`intumescent system set forth in the ޖ162 patent. In particular, “Rowan” discloses
`
`that the organic intumescent material may comprise an acid source, a carbonific
`
`material, a spumific compound and a skin-forming soft resin binder. Moreover,
`
`“Rowan” discloses that the acid source may be, for example mono- or di-
`
`ammonium phosphate, ammonium polyphosphate, melamine phosphate, guanyl
`
`phosphate, and urea phosphate. (“Rowan”, p. 8:5-13).
`
`
`
`
`
`20
`
`
`
`
`
`
`
`3.
`
`US Patent 5,912,196 to Radwanski
`
`66. United States Patent 5,912,196
`
`(“Radwanski”) discloses a
`
`nonwoven web which may have cellulosic and thermoplastic constituents and
`
`which is treated with a phosphorus-containing flame retardant. The flame
`
`retardant composition is applied in amounts of preferably 15-35 weight %
`
`solids add on based on the weight of the nonwoven web. (“Radwanski”, col.
`
`16:41-42). “Radwanski” discloses that the nonwoven web can comprise
`
`thermoplastic or thermosetting fibers. (“Radwanski”, col. 10:2-3). “Radwanski”
`
`further discloses that the nonwoven web can comprise cellulosic fibrous
`
`material. (“Radwanski”, col. 10:48-51).
`
` “Radwanski” discloses that the
`
`nonwoven can have a basis weight of 15-200 grams per square meter.
`
`(“Radwanski”, col. 10:52-53). “Radwanski” discloses the use of a flame
`
`retardant composition
`
`incorporating a phosphorous compound such as
`
`ammonium phosphate for application to a nonwoven. (“Radwanski”, col. 3:56-
`
`67).
`
`4. U.S. Patent 3,934,006 to Murch
`
`67. U.S. Patent No. 3,934,066 (“Murch”) discloses a fire retardant
`
`material which comprises a porous substrate similar to “Radwanski” which is
`
`impregnated with an intumescent composition. (“Murch”, col. 3:48-50).
`
`“Murch” further discloses that the porous substrate may c o m p r i s e blends of
`
`
`
`21
`
`
`
`
`
`natural and synthetic fibers, wherein the natural fibers can be cellulosic fibers
`
`such as rayon and the polymeric fibers can be polyester fibers. (“Murch”, col.
`
`4:16-27).
`
`B. Ground 1: Claims 1-30 are invalid under 35 U.S.C. § 103(a) over
`U.S. Patent 6,436,528 to Külper et al. in view of GB 2293572
`(“Rowan”)
`
`
`Claim 1
`
`68. Claim 1 of the ޖ162 patent recites the following elements:
`
`• A fabric consisting of a single layer of a non-woven substrate;
`
`• wherein the non-woven substrate comprises cellulosic fibers,
`
`polyester fibers and aramid fibers;
`
`• wherein the non-woven substrate is treated with an intumescent,
`
`flame retardant finish comprising one or more compounds
`
`comprising phosphorous and/or nitrogen;
`
`• wherein the non-woven substrate has a basis weight
`
`ranging from 2.0 to 15.0 ounces per square yard;
`
`• wherein the non-woven substrate is a non-woven, stitch-bonded
`
`substrate; and
`
`• wherein the fabric has a thickness ranging from 0.01 to 0.15 inches.
`
`69.
`
`“Külper” discloses a single layer nonwoven material for use in
`
`construction of a tape. “The invention accordingly provides an adhesive tape
`
`
`
`22
`
`
`
`
`
`having a tapelike backing of nonwoven material … the untreated web being a
`
`fibre web which in a first step is mechanically consolidated, for example, by
`
`needling, stitching or air- or water-jet treatment.” (“Külper”, col.2:49-55).
`
`70.
`
`“Külper” specifically discloses that stitch bonded textiles are
`
`suitable constructions. “Finally, stitchbonded webs are also suitable as an
`
`intermediate for forming an adhesive tape of the invention” (“Külper”, col.3:14-
`
`22).
`
`71.
`
`In “Külper”, the starting materials for the nonwoven web are
`
`polyester fibers, polypropylene fibers, viscose (i.e. rayon) fibers or cotton fibers.
`
`(“Külper”, col.3:22-28). Thus, “Külper” discloses the use of polyester and
`
`cellulosic fibers.
`
`72. Külper” discloses that the textile web may be flameproofed by the
`
`selection of suitable fibers of low or zero flammability. (“Külper”, col. 5:47-52).
`
`73. Aramid fibers are common low or zero flammability fibers.
`
`74.
`
`“Külper” also discloses
`
`that
`
`the nonwoven web may be
`
`flameproofed by the addition of phosphorus-containing flame retardants such as
`
`ammonium polyphosphate. (“Külper”, col. 5:47-52).
`
`75.
`
`“Külper” discloses basis weights for the nonwoven web of 50
`
`grams per square meter to 500 grams per square meter, which equates to 1.5 to
`
`
`
`23
`
`
`
`
`
`14.7 ounces per square yard, and web thicknesses of from 100 μm to 3000 μm,
`
`which equates to 0.004 to 0.12 inch. (“Külper”, col. 5:31-36).
`
`76.
`
`“Külper” thus discloses a single layer of a non-woven, stitch
`
`bonded substrate containing cellulosic fibers and/or polyester fibers, in
`
`combination with fibers of low or zero flammability wherein the nonwoven
`
`substrate is treated with a flame retardant phosphorus-containing compound,
`
`wherein the non-woven substrate has a basis weight within the range of from 2.0
`
`and 15.0 ounces per square yard, and having a thickness within the range of
`
`from 0.1 and 0.15 inches.
`
`77.
`
`“Rowan” discloses application of a phosphorus-containing
`
`intumescent finish as defined by the '162 patent to a nonwoven fabric for fire and
`
`heat resistance. (“Rowan”, p.1:16-20) (“Any suitable and appropriate organic
`
`intumescent material may be employed. The organic intumescent material may
`
`comprise an acid source, a carbonific material, a spumific compound, and a skin-
`
`forming soft resin binder to prevent the escape of generated gases from the
`
`organic intumescent filler.”) (“Rowan”, p.8:5-10).
`
`78.
`
`“Rowan” discloses that the fabric may be a stitch-bonded fabric.
`
`(“Generally, any of the conventional techniques of fabric production may be
`
`employed to produce the fabric of the present invention, including weaving,
`
`
`
`24
`
`
`
`
`
`knitting, needle punching, stitch bonding and adhesive bonding.”) (“Rowan”,
`
`pp. 7:26 through 8:4).
`
`79.
`
`“Rowan” discloses
`
`that
`
`the nonwoven fabric
`
`treated with
`
`intumescent may incorporate a cellulosic organic fiber component as follows:
`
`“The organic fibres may comprises[sic] a flame-retarded cotton viscose or wool
`
`fibre.” (“Rowan”, p.5:6-8).
`
`80.
`
`“Rowan”, also discloses that the nonwoven fabric treated with
`
`intumescent may incorporate an aramid fiber component as follows: “The fabric
`
`of the present invention may comprise incompatible organic fibres organic
`
`fibres… The use of the incompatible organic fibres may help to prevent the
`
`fabric of the present invention to remain fire and heat resistant at higher
`
`temperatures than it would otherwise do.” (“Rowan”, p.9:1-8). “Where
`
`incompatible organic fibres are employed, these may be novoloid or polyaramid
`
`fibres.” (“Rowan”, p.9: 19-21).
`
`81.
`
`“Rowan” thus discloses a non-woven, stitch bonded, substrate (FIG.
`
`1) containing cellulosic (i.e. Rayon) fibers and aramid fibers treated with an
`
`intumescent finish in the form of a coating comprising flame retardant
`
`phosphorous compounds.
`
`82. One of ordinary skill in the art would properly combine the
`
`teachings of “Külper” and “Rowan”, because both disclose nonwoven, stitch-
`
`
`
`25
`
`
`
`
`
`bonded, cellulose-containing webs that are coated with phosphorus-containing
`
`flame retardants for heat and flame resistance.
`
`83.
`
`It would have been obvious to a person of ordinary skill in the art,
`
`to utilize in “Külper” a single layer non-woven substrate containing cellulosic
`
`fibers and polyester fibers and coated with a phosphorus-containing flame
`
`retardant and having a basis weight within the range of 2.0 to 15.0 ounces per
`
`square yard, and having a thickness within the range of from 0.1 and 0.15 inch
`
`and wherein the non-woven substrate is a non-woven stitch-bonded substrate all
`
`as taught by “K
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