Debra Rodman

Patent Trials and Appeals Board

Nov 24, 2020

2020000912 (P.T.A.B. Nov. 24, 2020)

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.
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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
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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
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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.
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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.
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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).
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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
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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
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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.
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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
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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