Debra RodmanDownload PDFPatent Trials and Appeals BoardNov 24, 20202020000912 (P.T.A.B. Nov. 24, 2020) Copy Citation UNITED STATES PATENT AND TRADEMARK OFFICE UNITED STATES DEPARTMENT OF COMMERCE United States Patent and Trademark Office Address: COMMISSIONER FOR PATENTS P.O. Box 1450 Alexandria, Virginia 22313-1450 www.uspto.gov APPLICATION NO. FILING DATE FIRST NAMED INVENTOR ATTORNEY DOCKET NO. CONFIRMATION NO. 14/750,401 06/25/2015 Debra Rodman RR-794 8262 20427 7590 11/24/2020 RODMAN RODMAN 10 STEWART PLACE SUITE 2CE WHITE PLAINS, NY 10603 EXAMINER BAILEY, AMANDA LEE ART UNIT PAPER NUMBER 3673 NOTIFICATION DATE DELIVERY MODE 11/24/2020 ELECTRONIC Please find below and/or attached an Office communication concerning this application or proceeding. The time period for reply, if any, is set in the attached communication. Notice of the Office communication was sent electronically on above-indicated "Notification Date" to the following e-mail address(es): charles@rodman-rodman.com phil@rodman-rodman.com rodrod@rodman-rodman.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE ____________ BEFORE THE PATENT TRIAL AND APPEAL BOARD ____________ Ex parte DEBRA RODMAN Appeal 2020-000912 Application 14/750,401 Technology Center 3600 ____________ Before BIBHU R. MOHANTY, PHILIP J. HOFFMANN, and KENNETH G. SCHOPFER, Administrative Patent Judges. SCHOPFER, Administrative Patent Judge. DECISION ON APPEAL Pursuant to 35 U.S.C. § 134(a), Appellant1 appeals from the Examiner’s decision to reject claims 2–4 and 6–11. We have jurisdiction under 35 U.S.C. § 6(b). We AFFIRM. 1 We use the word “Appellant” to refer to “applicant” as defined in 37 C.F.R. § 1.42. Appellant identifies the real party in interest as Debra Rodman. Appeal Br. 2. Appeal 2020-000912 Application 14/750,401 2 BACKGROUND The Specification discloses: This invention is directed to an infant support system for nursing mothers or infant breastfeeders and more particularly to a novel system of support pillows for positioning and supporting a breastfeeding baby to enhance the effectiveness of the nursing activity and also enhance the comfort of the nursing mother and baby during breastfeeding. The invention is also directed to a method for enabling a nursing mother to breastfeed a baby without using the mother’s hands to hold the baby. Spec. ¶ 1. CLAIMS Claims 8 and 9 are the independent claims on appeal. Claim 8 is illustrative of the appealed claims and recites: 8. A method for enabling a nursing mother to breastfeed a baby without using the mother’s hands to hold the baby comprising, a) positioning the nursing mother in a seated position such that the mother's legs are bent to define the mother’s lap, b) providing a base support pillow with a predetermined length that is sized to span the mother's lap and extend slightly beyond the extremities of the mother’s chest and placing the base support pillow across the mother’s lap, and further providing the base support pillow with a filler material that can be manually fluffed and has a predetermined thickness before being fluffed, and further providing that the filler material enable the base support pillow upon being manually fluffed to be shaped or compressed to form an impression, contour or a change of thickness after being fluffed, c) providing a first mini-pillow with a first predetermined length smaller than the predetermined length of the base support pillow and placing the first mini-pillow on the base support pillow below the nursing breast of the nursing mother when the nursing mother is in the seated position, and further providing Appeal 2020-000912 Application 14/750,401 3 the first mini-pillow with a filler material that can be manually fluffed and has a first predetermined thickness before being fluffed, and further providing that the filler material enable the first mini-pillow upon being manually fluffed to be shaped or compressed to form an impression, contour or change of thickness after being fluffed, positioning a baby on its side on the base support pillow such that one facial side of the baby’s head faces downwardly, and the opposite facial side of the baby’s head faces upwardly, and the downward facial side of the baby's head rests on top of the first mini-pillow such that the baby’s head is elevated toward the nursing breast of the nursing mother, e) fluffing or shaping the base support pillow and the first mini-pillow to modify the thickness, shape or contour of the base support pillow and the first mini-pillow and thereby adjust the elevation of the baby's head relative to the nursing nipple of the seated nursing mother, such that the baby's mouth is properly aligned with the nursing nipple for a proper latch-on of the baby's mouth to the nursing nipple, f) providing a second mini-pillow with a second predetermined length smaller than the predetermined length of the base support pillow and placing the second mini-pillow against the baby's back to help stabilize the position of the baby while the baby is properly latched onto the nursing mother's nursing nipple, and further providing the second mini-pillow with a filler material that can be manually fluffed and has a second predetermined thickness before being fluffed, and further providing that the filler material enable the second mini-pillow, upon being manually fluffed, to be shaped or compressed to form an impression, contour or change of thickness after being fluffed, wherein all of the pillows that are provided to elevate the baby’s head with respect to the mother's nursing nipple to enable a proper latch-on of the baby’s mouth onto the mother's nursing nipple and to stabilize the baby's back when the baby is properly latched onto the mother's nursing nipple are manually fluffable to provide proper alignment of the baby's mouth with the mother’s nursing nipple and to provide back-side stability of the baby while the baby is properly latched onto the mother’s nursing Appeal 2020-000912 Application 14/750,401 4 nipple such that the nursing mother is enabled to nurse the baby without holding the baby. Appeal Br., Claims App. A-1–A-2. REJECTIONS2 1. The Examiner rejects claims 2, 4, 8, and 10 under 35 U.S.C. § 103 as unpatentable over Fang3 in view of Bartner4 and Official Notice.5 2. The Examiner rejects claims 2, 4, 8, and 10 under 35 U.S.C. § 103 as unpatentable over Fang in view of Bartner, Official Notice, and Leifermann.6 3. The Examiner rejects claim 3 under 35 U.S.C. § 103 as unpatentable over Fang in view of Bartner, Official Notice, and Alanna.7 4. The Examiner rejects claim 3 under 35 U.S.C. § 103 as unpatentable over Fang in view of Bartner, Official Notice, Leifermann, and Alanna. 5. The Examiner rejects claims 6, 7, 9, and 11 under 35 U.S.C. § 103 as unpatentable over Fang in view of Bartner, Official Notice, and Rieber.8 2 We list the rejections in the order presented by the Examiner. However, because we do not reach certain rejections in this Decision, we do not discuss them in this order below. 3 Fang, US 2015/0101125 A1, pub. Apr. 16, 2015. 4 Bartner et al., US 2006/0075563 A1, pub. Apr. 13, 2006. 5 As evidence for taking official notice, the Examiner relies on Vitale (US 2016/0073799 A1, pub. Mar. 17, 2016), Schaefer et al. (US 4,726,087, iss. Feb. 23, 1988), Broaddus (US 5,104,725, iss. Apr. 14, 1992), and My Bamboo Pillow Care & Use, www.psmarketing.co.nz/files/111/file/My- Bamboo-Pillow-Care, Mar. 28, 2014. 6 Leifermann et al., US 2007/0044239 A1, pub. Mar. 1, 2007. 7 Alanna, Breastfeeding Multiples, http:/ivf.ca/forums/topic/26118- breastfeeding-multiples, Oct. 23, 2011. 8 Rieber, US 2010/0058538 A1, pub. Mar. 11, 2010. Appeal 2020-000912 Application 14/750,401 5 6. The Examiner rejects claim 6, 7, 9, and 11 under 35 U.S.C. § 103 as unpatentable over Fang in view of Bartner, Official Notice, Leifermann, and Rieber. DISCUSSION Rejections of Claims 2–4, 8, and 10 in View of Leifermann With respect to claim 8, the Examiner finds that Fang discloses a method as claimed except that Fang “does not explicitly disclose [either] fluffing the pillow to modify the thickness . . .” or “providing a second mini- pillow with a second predetermined length as claimed.” Final Act. 12–13. However, the Examiner finds that Fang discloses a padded pillow with filler material, and the Examiner “takes official notice that fluffing a pillow formed of a filler material for the purpose of positioning a user’s head is old and well known in the art and it would have been obvious to fluff or shape any of the pillows of” Fang. Id. at 13–14 (citing My Bamboo Pillow Care & Use; Schaefer; Vitale). The Examiner further relies on Bartner as teaching the use of a second pillow as claimed, and the Examiner again relies on official notice that it was old and well known to fill a pillow with material capable of being fluffed to show that it would have been obvious to use Bartner’s pillow with such a material. Id. at 14–15. Finally, the Examiner relies on Leifermann as teaching a pillow filled with material that can be fluffed. Id. (citing Leifermann ¶¶ 50, 55). In view of Leifermann’s teaching, the Examiner determines One having ordinary skill in the art at the time the invention was filed would find it obvious to form for any and all of the pillows in the claimed invention as pillows which are capable of being fluffed for the purpose of enabling a user to customize focused areas of support and comfort of the pillow for the user. Appeal 2020-000912 Application 14/750,401 6 Id. at 15–16. We agree with and adopt the Examiner’s findings and conclusions with respect to the rejection of independent claim 8. See Final Act. 12–16; see also Ans. 3–21. As discussed below, we are not persuaded of error by Appellant’s arguments. Appellant first argues that Fang uses non-fluffable cushions and “does not show or suggest a method wherein one or more pillows are fluffed or shaped to precisely adjust the elevation of the baby’s head.” Appeal Br. 13. With respect to the rejection in view of Leifermann, this argument against Fang individually is not persuasive, because the Examiner relies on Leifermann to conclude that it would have been obvious to include fluffable materials “for the purpose of enabling a user to customized focused areas of support and comfort of the pillow for the user.” Final Act. 15–16. Next, Appellant argues that Fang teaches away from the use of fluffable pillows. Appeal Br. 13. In support, Appellant asserts that Fang teaches filler materials that are compression resistant and provide support “without significant deflection or indentation.” Id. (quoting Fang ¶ 33). We are not persuaded of error by this argument. “A reference may be said to teach away when a person of ordinary skill, upon reading the reference, would be discouraged from following the path set out in the reference, or would be led in a direction divergent from the path that was taken by the applicant.” In re Gurley, 27 F.3d 551, 553 (Fed. Cir. 1994). “Under the proper legal standard, a reference will teach away when it suggests that the developments flowing from its disclosures are unlikely to produce the objective of the applicant’s invention.” Syntex (U.S.A.) LLC v. Apotex, Inc., 407 F.3d 1371, 1380 (Fed. Cir. 2005). Appeal 2020-000912 Application 14/750,401 7 As an initial matter regarding this argument, we note that the claim does not require any specific degree to which the device can be “fluffed.” Rather, claim 8 only requires that device is capable of being “manually fluffed to be shaped or compressed to form an impression, contour or a change of thickness after being fluffed.” We disagree with Appellant that the cited portions of Fang teach away from any ability for the pillow to be shaped, compressed, or contoured to change the thickness of the device. Fang discloses that the pillows may be filled with materials including “polyester fibers, foam, cotton, and or any other suitable soft compressible material.” Fang ¶ 33. Fang further discloses that the material is stuffed inside the covers “to provide sufficient firmness so that the cushion 10 [and] the padded pillow top 30 generally do not sag or droop when held at either midsection.” Id. Fang discloses that the firmness of each portion may vary and the device is designed to provide sufficient firmness “without significant deflection or indentation of cushion body 12 or padded pillow top 30.” Id. We agree with the Examiner that Fang does not appear to otherwise explain what is meant by significant deflection or indentation. See Ans. 4–5. Further, the Examiner provides evidence that at least some of the materials listed in Fang are known to be used in fluffable pillows. See, e.g. Leifermann ¶ 25; Rieber ¶ 37. Based on the foregoing, we are not persuaded that Fang teaches away from the combination proposed by the Examiner. For similar reasons, we are also not persuaded that Fang’s objectives would be defeated by the use of a fluffable pillow. See Appeal Br. 13. As noted above, the claim does not require a specific degree to which the pillows must be fluffed. Further, Fang discloses materials that are known to be fluffable, and Appellant does not persuade us that Fang’s disclosure of a Appeal 2020-000912 Application 14/750,401 8 pillow that supports a baby without significant deflection or indentation cannot also be fluffable to a certain degree. Thus, we agree with the Examiner that Fang’s pillow may be fluffable to a degree without defeating the intended purpose of using such a pillow. Next, Appellant argues that Bartner’s objective would also be defeated or rendered inoperable by the use of pillows that can be manually fluffed as claimed. Appeal Br. 14. In support, Appellant asserts that Bartner’s pillow cannot be fluffable because it includes a light module and that using “a fluffable pillow would result in the elimination of the concavity 12c and the groove 14 (Fig. 2) that are required at the edge of the cushion 12.” Id. The only further explanation provided regarding this point is that Bartner’s pillow includes a predetermined contour that must be molded or pre-shaped and cannot be fluffable. We are not persuaded for the reasons discussed above and the reasons provided by the Examiner. See Ans. 7–8. Appellant does not explain adequately why a pillow including a light module cannot be fluffable or why a contoured pillow must be formed of molded or pre-shaped material that is not capable of being fluffed to any degree. Further, Appellant raises arguments regarding the references cited by the Examiner as support for the Examiner’s taking of Official Notice. Appeal Br. 17–19. Appellant argues that none of these references in combination with Fang and Bartner “provide a logical basis for rejection of” claim 8. See id. at 19. We are not persuaded of error. As discussed by the Examiner, these references were only provided as “an evidentiary teaching that pillows can be fluffed or shaped to change the height of the pillow” and in support of the Examiner’s Official Notice of that fact. Ans. 13. Thus, the Appeal 2020-000912 Application 14/750,401 9 rejection does not contemplate any combination of these references with Fang and Bartner. Finally, Appellant argues that Leifermann in combination with any of the other references cited “does not provide a logical basis for rejection” of claim 8 because “claim 8 requires a controllable elevation of a baby’s head and controllable stability of a baby’s back by a pillow system wherein all of the pillows have a filler material that can be manually fluffed, shaped or compressed, to form an impression, contour or change of thickness.” Appeal Br. 20. In response, the Examiner explains that Leifermann is relied upon to: provide[] an alternative rejection which suggests modifying the pillows of Fang and Bartner to include any type of fill including foam which is capable of being fluffed for the purpose of customizing focused areas of support and comfort of the pillow for the user (see paragraphs [0055] and [0050] of Leifermann which teach “when the pillow is fluffed” and “For example, the inner sleeve 144 and filler material 114 therein can be a down or feather pillow, can be a conventional pillow having any type of fill (e.g., cotton, balls, beads, beans, or foam), and the like.” . . . The same rational applies to the use of Leifermann who explicitly teaches overlapping materials of both Fang and Bartner being fluffable and making it obvious to utilize fluffable fill for the purpose of customizing focused areas of support and comfort of the pillow. Ans. 17–18. We are not persuaded of error, and agree with the Examiner’s findings. Based on the foregoing, we sustain the rejection of claim 8 as obvious over Fang in view of Bartner, Official Notice, and Leifermann. Appellant does not raise separate arguments regarding the rejections of claims 2–4 and 10, and thus, we sustain the rejections of those claims in view of Leifermann and the other art of record. Appeal 2020-000912 Application 14/750,401 10 Rejection of Claims 6, 7, 9, and 11 in View of Leifermann Appellant relies on the same arguments with respect to the rejection of independent claim 9 as those addressed above with respect to the rejection of claim 8. Thus, for the reasons discussed above, we also sustain the rejection of claims 9, 6, 7, and 11 in view of Leifermann. Remaining Rejections The Examiner provides alternate rejections of all claims which do not rely on Leifermann. Because we have sustained the rejections above, which are dispositive of all claims on appeal, we do not reach the alternative rejections that do not rely on Leifermann. CONCLUSION We AFFIRM the obviousness rejections of claims 2–4 and 6–11 that rely in part on Leifermann. We do not reach the alternative rejections of claims 2–4 and 6–11 that do not rely on Leifermann. In summary: Claims Rejected 35 U.S.C. § Basis Affirmed Reversed Not reached 2, 4, 8, 10 103 Fang, Bartner, Official Notice 2, 4, 8, 10 2, 4, 8, 10 103 Fang, Bartner, Official Notice, Leifermann 2, 4, 8, 10 3 103 Fang, Bartner, Official Notice, Alanna 3 3 103 Fang, Bartner, Official Notice, Alanna, Leifermann 3 Appeal 2020-000912 Application 14/750,401 11 Claims Rejected 35 U.S.C. § Basis Affirmed Reversed Not reached 6, 7, 9, 11 103 Fang, Bartner, Official Notice, Rieber 6, 7, 9, 11 6, 7, 9, 11 103 Fang, Bartner, Official Notice, Rieber, Leifermann 6, 7, 9, 11 Overall Outcome 2–4, 6–11 No time period for taking any subsequent action in connection with this appeal may be extended under 37 C.F.R. § 1.136 (a). See 37 C.F.R. § 1.136 (a)(l)(iv). AFFIRMED Copy with citationCopy as parenthetical citation