Ex Parte 6799341 et al

Patent Trial and Appeal Board

Mar 27, 2013

90011779 (P.T.A.B. Mar. 27, 2013)

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.
90/011,779 06/30/2011 6799341 HOMT-47804US1 1451
116 7590 03/27/2013
PEARNE & GORDON LLP
1801 EAST 9TH STREET
SUITE 1200
CLEVELAND, OH 44114-3108
EXAMINER
ENGLISH, PETER C
ART UNIT PAPER NUMBER
3993
MAIL DATE DELIVERY MODE
03/27/2013 PAPER
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.
PTOL-90A (Rev. 04/07)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________________

Ex parte HOMTEX, INC.
1

Appellant, Patent Owner
____________________

Appeal 2013-003370
Reexamination Control 90/011,779
Patent No. US 6,799,341 B2
2

Technology Center 3900
____________________

Before DANIEL S. SONG, MICHAEL L. HOELTER and
SCOTT E. KAMHOLZ, Administrative Patent Judges.

SONG, Administrative Patent Judge.

DECISION ON APPEAL

1
Homtex, Inc. is the real party in interest (Appeal Brief (hereinafter "App.
Br.") 3).
2
Issued October 5, 2004 to Wootten, Jr. (hereinafter "'341 patent").
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The Appellant appeals under 35 U.S.C. §§ 134(b) and 306 from a
Final Rejection of claims 1-14, 16, 18, 19, 21, 23 and 26. We have
jurisdiction under 35 U.S.C. §§ 134(b) and 306. In addition to the Appeal
Brief, the Patent Owner also relies on a Reply Brief (hereinafter "Reply
Br."), declarations of Mr. Strongwater who is a co-inventor of an applied
prior art patent, Mr. Wootten, Jr., who is the inventor of the subject '341
patent, and a draftsperson Mr. Zusy. An oral hearing with the Patent
Owner's legal representative was conducted March 20, 2013, a transcript of
which will be entered into the electronic record in due course.
The '341 patent was the subject of litigation entitled Homtex, Inc. v.
Leggett & Platt, Inc. et al., 5:11-cv--01349-CLS (NDAla.) which has been
settled and dismissed with prejudice (Reply Br. 1).
The invention is directed to a fitted mattress sheet. Representative
independent 1 reads as follows (App. Br. 45, Claims Appendix, emphasis
added):
1. (Original) A fitted sheet for a mattress which comprises
an elongated main body section which defines opposite
first and second side sections and opposite first and second end
sections, adjacent edges of said side and end sections being
attached together,
a first end panel which is stitched to said first end section
and stitched to said respective first and second side sections,
a second end panel which is stitched to said second end
section and stitched to said respective first and second side
sections, and
an elastic band which is connected to inner peripheries of
said first and second side sections and said first and second end
panels so that said side sections, said end sections and said end
panels will tightly fit against the sides of a mattress and extend
thereunder to tightly fit the fitted sheet on the mattress.
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REJECTIONS
The Examiner rejected various claims of the '341 patent as follows:
1. Claims 1-5 and 8 under 35 U.S.C. § 102(b) as anticipated by
Mink
3
;
2. Claims 6 and 7 under 35 U.S.C. § 103(a) as unpatentable over
Mink in view of Allaire
4
;
3. Claims 1-6, 8-14, 16, 18-19, 21, 23 and 26 under 35 U.S.C.
§ 103(a) as unpatentable over Gusman
5
in view of Keene
6
and Mink;
4. Claim 7 under 35 U.S.C. § 103(a) as unpatentable over Gusman in
view of Keene, Mink and Allaire;
5. Claims 1-6, 8-14, 16, 18, 19 and 21
7
under 35 U.S.C. § 103(a) as
unpatentable over Kasem
8
in view of Keene.
6. Claim 7 under 35 U.S.C. § 103(a) as unpatentable over Kasem in
view of Keene and Allaire.
We AFFIRM-IN-PART.

ISSUES
The following issues are dispositive in the present appeal.

3
Franklin Mink et al., U.S. 6,226,815 B1 (May 8, 2001).
4
Ralph M. Allaire, Jr., U.S. 4,261,048 (July 24, 1984).
5
Irwin J. Gusman, U.S. 4,703,530 (November 3, 1987).
6
James Henry Keene, III, U.S. 6,108,836 (August 29, 2000).
7
Whereas the Patent Owner identifies claim 26 as being part of this rejection
(App. Br. 4), the Answer does not include this claim (Ans. 6).
8
Jean Kasem, U.S. 6,230,352 B1 (May 15, 2001).
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1. Whether the Examiner erred in finding that the elastic strip of
Mink satisfies the limitation "end panel" recited in the claims.
2. Whether the Examiner erred in finding that an end panel of
Gusman is "stitched to" a side section.
3. Whether the Examiner erred in concluding obviousness of
modifying the sheet of Kasem to provide a separate end panel in view of
Keene.

PRINCIPLES OF LAW
"Anticipation requires the presence in a single prior art reference
disclosure of each and every element of the claimed invention, arranged as
in the claim." Lindemann Maschinenfabrik GMBH v. American Hoist and
Derrick Co., 730 F.2d 1452, 1458 (Fed. Cir. 1984). Claims are to be given
their broadest reasonable interpretation consistent with the specification,
reading claim language in light of the specification as it would be interpreted
by one of ordinary skill in the art. In re Am. Acad. of Sci. Tech. Ctr., 367
F.3d 1359, 1364 (Fed. Cir. 2004).
"Section 103 forbids issuance of a patent when 'the differences
between the subject matter sought to be patented and the prior art are such
that the subject matter as a whole would have been obvious at the time the
invention was made to a person having ordinary skill in the art to which said
subject matter pertains.'" KSR Int'l Co. v. Teleflex Inc., 550 U.S. 398, 406
(2007). In KSR, the Supreme Court explained that "[i]f a person of ordinary
skill can implement a predictable variation, §103 likely bars its
patentability," and that "if a technique has been used to improve one device,
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and a person of ordinary skill in the art would recognize that it would
improve similar devices in the same way, using the technique is obvious
unless its actual application is beyond his or her skill." Id. at 417.
Furthermore, making elements of a device integral or separate is considered
to be an obvious design choice and does not render an invention patentable.
See In re Larson, 340 F.2d 965, 968 (CCPA 1965).

ANALYSIS
Preliminary Issues
We preliminarily address the various arguments of the Patent Owner
presented in its briefs that are not directed to the Examiner's substantive
rejections of the claims. In particular, the Patent Owner asserts that the
drawings contain various errors, and refers to the Declaration of Mr. Zusy in
support thereof, the submission including corrected drawings (App. Br. 41-
43; Decl. of Zusy). The Patent Owner's request to enter corrected drawings
was rejected by the Examiner who stated that the corrected drawings contain
new matter (Ans. 15). The Patent Owner requests the Board to consider the
issue and enter the submitted drawings (App. Br. 42; Reply Br. 10, 11).
However, as noted by the Examiner (Ans. 15), this issue is not properly
before the Board because it is a petitionable issue, not an appealable one. In
fact, the Patent Owner filed a Petition Under 37 C.F.R. § 1.181 Requesting
Entry of Drawing Amendments which has already been denied (App. Br. 7-
8).
The Patent Owner also states that the Examiner did not address the
prior objections to the amendments to the specification of the '341 patent in
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the Answer (Reply Br. 9). However, it is evident that such matters are also
not within the purview of the Board.

Rejection 1
The Examiner rejects claims 1-5 and 8 as being anticipated finding
that Mink discloses each and every limitation of these claims. The
Examiner, inter alia, finds that Mink satisfies the recited "end panel"
limitation by its provision of the wide elastic strip 18 (Ans. 2-3).
The Patent Owner, inter alia, disputes this finding and contends that
the wide elastic strip 18 of Mink "is not the same as a panel, as claimed,
because elastic has specific properties that are not normally associated with a
panel." (App. Br. 24, 26). The Patent Owner argues that "the term 'panel,'
which is inherently a fabric as know [sic, known] by those of skill in the art,
does not encompass an elastic band 20 as that term is understood by those of
skill in the art." (Reply Br. 2). In support, the Patent Owner relies on the
Declaration of Strongwater who is a co-inventor of Mink to assert that this
evidence establishes that the elastic strip 18 is not a panel, and that a person
of ordinary skill in the art would not consider it to be a panel (App. Br. 18-
19, 25; Reply Br. 2-3). The Patent Owner further argues that the Examiner
improperly discounted the Declaration of Strongwater (App. Br. 25).
The Examiner responds that the Patent Owner's arguments and the
declaration evidence "are not persuasive because they rely on the
presupposition that the end panels are 'fabric' end panels." (Ans. 9). In this
regard, the Examiner observes that the rejected claims do not recite "fabric"
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end panels and further asserts that conventional definition of "panel" does
not require it to be made of fabric (Ans. 9-10).
However, the evidence of record, while limited, supports the Patent
Owner's contention. The specification of the '341, while not explicitly
defining "panel," denominates the elastic component of the sheet as an
"elastic binder." ('341 patent, col. 2, ll. 51-56). Mink also distinguishes
between fabric components of the sheet and those components exhibiting
elasticity, such components being identified as "wide elastic strip" and
"narrow elastic strip." (Mink, col. 2, ll. 24-32). In addition to explaining that
the panel 12 of Mink was made of fabric (Decl. of Strongwater, ¶ 12), Mr.
Strongwater's declaration is directed to how one of ordinary skill in the art
would understand the term "panel" in the pertinent art, and further states that
the elastic strip 18 would not be considered a panel in the art. In particular,
the declarant states that:
10. One of skill in the relevant art would not find that the
elastic band 18, in my patent, is the same as a panel. Moreover,
an elastic strip is not the same thing as a panel.
…

13. …The elastic 18 is different from a panel.

14. The elastic strip 18 has different characteristics from the
panel 18 [sic, 12]. The elastic strip is typically a very strong,
thick material that requires special handling in the
manufacturing process. A panel, on the other hand, is a fabric
that can be easily sewn with traditional sewing techniques.

15. For these reasons, the elastic strip 18 in my patent is not
the same thing as a panel.
(Decl. of Strongwater, ¶¶ 10, 13, 14, 15).
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Thus, the evidence indicates that in the pertinent art, components
exhibiting elasticity are specifically identified as being "elastic" in contrast
to the other components or portions of the sheets which are made of fabric.
While the claims may not explicitly set forth that the panels are made of
fabric as noted by the Examiner, the evidence indicates that the conventional
definition of "panel" to a person in this art is limited to fabrics, and is
distinguished from elastic components. There is no persuasive evidence in
the record which supports the finding that the term "panel" encompasses
such elastic strip of Mink relied upon by the Examiner.
Hence, because we agree with the Patent Owner that the elastic strip
18 of Mink does not satisfy the recitation for an "end panel" in the claims,
we do not sustain Rejection 1. The remaining arguments of the Patent
Owner are moot.

Rejection 2
Claims 6 and 7 depend from claim 1 and stand rejected as obvious
over Mink in view of Allaire. This rejection is premised on the finding that
the elastic strip 18 of Mink satisfies the limitation "end panel" recited in
independent claim 1, the Examiner merely relying on Allaire for disclosing
cotton and linen materials (Ans. 3). The Patent Owner relies on dependency
on claim 1 for patentability of these claims (App. Br. 28). Thus, Rejection 2
is not sustained for the reason discussed supra with respect to Rejection 1.

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Rejection 3
The Examiner rejects claims 1-6, 8-14, 16, 18-19, 21, 23 and 26 as
obvious over Gusman in view of Keene and Mink. The Examiner, inter
alia, finds that Gusman discloses "the end panels 24 being sewn to the side
panels 22 (which form part of the first and second side sections 16) at the
corners 20," and edge elastic 36 (Ans. 3). Whereas the Examiner concedes
that Gusman fails to disclose end panels which are stitched to end sections
because they are made as one piece therewith, the Examiner concludes that
such separate construction and stitching would have been obvious and
merely a matter of design choice in view of Keene's teachings (Ans. 4).
The Patent Owner argues that the rejection is improper because, inter
alia, Gusman discloses a conventional fitted sheet without end panels, and
"Gusman does not teach separate end panels that are stitched to the end
sections." (App. Br. 29; Reply Br. 3). We generally agree with the Patent
Owner. We first observe that the end panels 18 with retaining flaps 24 at the
ends of the fitted sheet 12 of Gusman extend from top 14 of the sheet to the
same extent as the side panels 16 and retaining flaps 22 (Gusman, col. 2, l.
62-col. 3, l. 11; Figs. 1, 2). To the extent that the Examiner distinguishes the
retaining flaps 24 portion from the remainder of the end panel 18 so that the
retaining flaps 24 corresponds to the recited "end panel" and the remainder
of the end panel 18 corresponds to the recited "end section," it follows that
the retaining flaps 22 are distinguished from the remainder of the side panels
16, the side panels 16 extending from the top 14 to the same extent as the
end panels 18.
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In making the retaining flaps 24 a separate component that is stitched
to the remaining portion of the end panel 18, the result is that the retaining
flaps 24 are "stitched to" the retaining flaps 22 instead of the remainder of
the side panels 16 that corresponds to the "side section" recited in the claims.
Whereas the Examiner states that the side panels 22 "form part of the first
and second side sections 16," the entirety of the reference must be
considered, and the Examiner's selective use of the fitted sheet 12 disclosed
in Gusman is, in our view, improper. See generally, In re Wesslau, 353 F.2d
238, 241 (CCPA 1965) ("It is impermissible within the framework of section
103 to pick and choose from any one reference only so much of it as will
support a given position, to the exclusion of other parts necessary to the full
appreciation of what such reference fairly suggests to one of ordinary skill in
the art.").
Therefore, in view of the above, we agree with the Patent Owner that
Gusman does not disclose end panels that are stitched to the end sections,
and correspondingly, do not sustain Rejection 3. The remaining arguments
of the Patent Owner with respect to this rejection are moot.

Rejection 4
Claim 7 depends from claim 1 and stands rejected as unpatentable
over Gusman in view of Keene, Mink and Allaire. This rejection is
premised on the finding that Gusman discloses end panels stitched to the end
sections, the Examiner relying on Allaire for disclosing use of linen material
(Ans. 6). The Patent Owner relies on dependency on claim 1 for
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patentability of claim 7 (App. Br. 32). Thus, Rejection 4 is not sustained for
the reason discussed supra with respect to Rejection 3.

Rejection 5
The Examiner rejects claims 1-6, 8-14, 16, 18, 19 and 21 as obvious
over Kasem in view of Keene (Ans. 6-8). Kasem discloses a safety sheet for
a crib (Title). Figures 5 and 8 of Kasem are reproduced below.

FIG. 5 FIG. 8
Figure 5 of Kasem shows a blank from which the crib sheet is made,
the blank including a central region 70, flaps 72 and elastic gatherers 74 (col.
1, ll. 55-56; col. 2, ll. 40-45; Fig. 5). Figure 8 of Kasem shows the sheet 100
installed on conventional crib mattress 90 (col. 1, ll. 61-62; col. 3, ll. 1-5;
Fig. 8). Kasem further discloses that the sides of the blank are folded and
sewn to define a rectangular volume, "each flap 72 being folded and sewn to
the central region 70" to define a pocket at either end of the rectangular
volume (col. 2, ll. 46-52). Thus, contrary to Gusman discussed supra,
Kasem clearly discloses ends of the sheet that extend from the main top
surface to a greater extent than the sides thereof (see Fig. 8).
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The Examiner finds that Kasem discloses end panels "which are
formed in one piece" with the end section, the end panels being sewn to the
side panels which form part of the side sections (Ans. 6). The Examiner also
finds that Kasem also discloses an edge elastic 74 attached to, and extending
along, the inner periphery of the side and end panels (Ans. 6-7). The
Examiner concedes that "Kasem fails to disclose first and second end panels
which are stitched to the first and second end sections." (Ans. 7).
The Examiner relies on Keene for teaching:
that various panels of the fitted sheet 112 can be either formed
in one piece with each other or, alternatively, formed as
separate pieces that are sewn together (see column 4, ll. 11-16,
23-27, 35-39 and 51-56). That is, Keene, III teaches that
choosing to separate one-piece panels into separate panels that
are stitched together is within the level of ordinary skill in the
art and is merely a matter of design choice. Further, Keene, III
teaches that one advantage of forming panels as separate pieces
that are then stitched together is that this allows the panels of
the fitted sheet to all be cut from a single fabric blank, thereby
improving efficiency of manufacture and reducing waste (see
column 6, lines 36-48).
(Ans. 7).
We agree with the Examiner's findings with respect to both Kasem
and Keene.
Based on these findings, the Examiner concludes that it would have
been obvious to one of ordinary skill in the art to modify the sheet of Kasem
to have separate end panels that are stitched to end sections as a mere matter
of design choice, and to allow panels to be cut from a single fabric blank so
as to improve manufacturing efficiency and reduce waste (Ans. 7). We
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agree with the Examiner's conclusion of obviousness and address the Patent
Owner's various arguments below.
The Patent Owner initially argues that "although Kasem uses elastic, it
discourages the use of elastic when the elastic is used to hold the sheet of the
mattress" whereas the claimed invention utilizes an elastic to pull the sheet
tightly on the mattress (App. Br. 34-35). However, as noted, Kasem itself
utilizes "elastic gatherers 74" along the side sections that are below the
mattress (col. 2, ll. 44-46; Figs. 5, 6, 8) and Kasem further teaches that such
elastic gatherers can be provided on the "short sides" of the sheet (col. 3, ll.
10-15). While Kasem also states that "[i]n another embodiment, the elastic
gathers are eliminated entirely," it is clearly setting forth an alternative
embodiment (Col. 3, ll. 15-16). Hence, Kasem merely teaches various
embodiments of the sheet, with and without an elastic gather. In the
embodiment where the elastic gather is provided along the long and short
sides of the sheet, we agree with the Examiner that "the edge elastic 74 of
Kasem functions, in cooperation with the pocket structure formed by the
sheet panels, to hold the sheet on the mattress." (Ans. 12; see also Kasem,
Fig. 8).
The Patent Owner also argues that the secondary reference Keene
teaches away from use of elastic because it mentions that elastic bands can
wear after repeated use (Keene, col. 1, ll. 37-39) and does not utilize an
elastic in its disclosed sheet (App. Br. 36; see also Reply Br. 6). The Patent
Owner argues that the Examiner erred in rejecting these claims based on
Kasem and Keene because "the combination of Keene and Kasem would be
unlikely by those of skill in the art." (App. Br. 36; see also Reply Br. 6).
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This line of argument is also unpersuasive. Firstly, we observe that
the rejection is not based on physically combining the structures of Kasem
with Keene (see Ans. 7 reproduced supra). Rather, the Examiner relies on
Keene for establishing that it was known to those in the art to provide
separate panels or components in a sheet, and to sew these separate panels
together (id.). The Examiner also relies on Keene for its teaching that it was
known to those in the art to improve manufacturing efficiency and reduce
waste by cutting the panels from a single fabric blank (id.).
Secondly, while the disclosed sheet of Keene does not utilize
anelastic, that does not negate or detract from the fact that Keene clearly
establishes that sewing separate panels in a sheet was already known and
practiced by those in the art. The provision of an elastic is not the basis of
distinction between the claimed invention and the prior art disclosed in
Kasem. Rather, it is the provision of an end panel as a separate component
which is sewn to the sheet that distinguishes the claimed invention from
Kasem. Providing a separate end panel does not relate to the provision of an
elastic.
The Patent Owner appears to assert that even if a prior art reference
includes numerous different teachings therein, as long as one aspect thereof
can be considered to "teach away" from the claimed invention, the prior art
reference (and the other teachings therein) becomes contaminated so that the
reference cannot be relied upon at all, even with respect to other teachings
unrelated to the aspect that is said to be taught away (App. Br. 36). We do
not share this view. Whereas the Patent Owner cites cases in support (App.
Br. 30, fn. 3), these cases do not appear to support the Patent Owner's
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apparent position. Instead, a reference must be evaluated for all its teachings.
See In re Inland Steel Co., 265 F.3d 1354, 1361 (Fed. Cir. 2001) (The
claimed invention required addition of antimony and avoidance of annealing
during a specific period. The primary reference disclosed the claim except
for addition of antimony. The secondary reference disclosed annealing in
addition to the adding of antimony. The appellant argued that the secondary
reference teaches away but the court stated "[t]he fact that [the secondary
reference] teaches that annealing in addition to adding antimony produces
optimal results does not negate [the secondary reference's] additional
teaching that adding antimony is effective even in non-annealed steel"; see
also citations therein); see also In re Bode, 550 F.2d 656, 661 (CCPA
1977).
Clearly, if the distinction between the claimed invention and Kasem
was in the implementation of the disclosed elastic, it may be argued that
Keene teaches away from the use of elastics in view of the fact that it does
not use an elastic and notes the disadvantage of their use. However, the
distinction between the claims and Kasem is that of the separateness of an
end panel that is sewn to the sheet. Keene includes other teachings pertinent
to sheets and manufacturing thereof that do not relate to elastics of which
one of ordinary skill in the art would be aware, namely that panels can be
separately sewn on, and the desirability of cutting such panels from a single
fabric blank. Such aspects of sheets are not related to elastics, and thus,
Keene cannot be said to teach away therefrom based on the lack of elastics.
Thus, we agree with the Examiner's conclusion that providing a
portion of flap 72 as a separate piece that is stitched to the remainder of the
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blank would have been merely a design choice that is within the skill of one
of ordinary skill, and thus obvious. See also KSR, 550 U.S. at 417; In re
Larson, 340 F.2d at 968.
The Patent Owner further relies on the Declaration of Wootten to
argue that the rejection is improper because Kasem would require a wider
piece of fabric than normally required for making sheets thereby resulting in
greater amount of waste, whereas in contrast, Keene strives for efficiency in
its design (App. Br. 36). Hence, the Patent Owner asserts that the person of
ordinary skill in the art "knowing the inefficient teaching of Kasem would
steer clear of teachings for combination with Keene, which promotes
efficiency." (App. Br. 36-37). This argument is without merit. A person of
ordinary skill in the art, knowing the inefficiency of the sheet described in
Kasem would seek to improve efficiency using knowledge and techniques
known in the art such as those evidenced by the teachings of Keene, namely,
to provide separate sewn panels, and to cut panels from a single blank to
improve manufacturing efficiency and reduce waste as the Examiner has
articulated (Ans. 7, 13). See also KSR, 550 U.S. at 417; Medichem, S.A. v.
Rolabo, S.L., 437 F.3d 1157, 1165 (Fed. Cir. 2006) ("a given course of
action often has simultaneous advantages and disadvantages, and this does
not necessarily obviate motivation to combine.").
The Patent Owner further argues that the sheet of Kasem does not
have a separate end panel, and teaches a single flap so that there is no
stitching of a separate end panel to an end section (App. Br. 37; Reply Br.
6). According to the Patent Owner, because Keene merely teaches an end
section that does not extend under mattress, the combination of Kasem and
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Keene fails to result in invention even if combined (App. Br. 37; Reply Br.
7). However, the Patent Owner mischaracterizes the rejection which as
noted, is not premised on physically combining the structures of Kasem and
Keene, but is based on modifying the sheet of Kasem to provide separate
end panels that are sewn to the end section in view of Keene, which
demonstrates that such separation and sewing of panels were known in the
pertinent art (see Ans. 7). In addition, non-obviousness cannot be
established by attacking references individually. In re Merck, 800 F.2d 1091,
1097 (Fed. Cir. 1986); In re Keller, 642 F.2d 413, 425 (CCPA 1981).
Moreover, as the Examiner explained, the degree to which end sections and
end panels of Kasem extend under the mattress depends on thickness of the
mattress (Ans. 13).

Claims 12-14 and 16
The Patent Owner observes that these claims require the width of the
side and the end panels be the same and argues that "[i]f the end panel of
Keene were provided on end flap of Kasem, the result would be a sheet with
side sections that are wider than the respective end sections." (App. Br. 39).
However, this argument is misdirected because, as observed by the
Examiner (Ans. 13-14), the rejection is not premised on physically
combining the structures of Kasem and Keene.
The Patent Owner further argues that because the end flap of Kasem
has a trapezoid shape, it does not satisfy claim 12 which requires
substantially the same length between end panel and end section (App. Br.
39). The Examiner disagrees and points out that the claims only require the
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end panel be "substantially" the same in length as the end, and further finds
that because that the trapezoid shape in Fig. 8 of Kasem has a shallow taper,
the end panel would be "substantially" the same length as the end section
(Ans. 14). The Patent Owner argues that "substantially" is a term of
estimation that merely allows for slight variations (Reply Br. 7-8).
However, the Patent Owner does not provide any persuasive evidence as to
the meaning of "substantially" in the art or otherwise as used in the claim to
support this contention. Thus, we not find mere attorney argument
unpersuasive.
In addition, the Examiner also states that the lengths at the adjoining
edges of the end panels and end sections are the same and further states that
selection of a rectangular shape for end panels in place of a trapezoidal
shape is within the level of ordinary skill in the art (Ans. 14). These reasons
for rejecting the claims are not persuasively addressed by the Patent Owner.
Thus, we agree with the Examiner and sustain the rejection of these claims.

Claims 18, 19 and 21
These claims require the side and end sections have substantially the
same width. The Patent Owner argues that "[i]f the end panel[s] of Keene
were provided on the end flap of Kasem, the result would be a sheet with
side sections that are wider than the respective end sections." (App. Br. 40;
see also Reply Br. 7). However, as the Examiner notes (Ans. 14) and as
discussed supra, the Patent Owner mischaracterizes the rejection as being
based on combining the structures of Kasem and Keene. Furthermore, with
respect to dividing the flap 72 of Kasem, it would have been an obvious
Appeal 2013-003370
Reexamination Control 90/011,779
Patent No. US 6,799,341 B2

19
matter of design choice and a predictable variation to provide such division
at the location where the flap extends beyond the side sections to which the
flap is attached. Such division results in the recited end panel of the claims
which is attached to the remaining portion of the flap that corresponds to the
recited end section.
Therefore, we are not persuaded of any error in the Examiner's
rejection of claims 1-6, 8-14, 16, 18, 19 and 21 as obvious over Kasem in
view of Keene. Correspondingly, we sustain Rejection 5.

Rejection 6
The Examiner rejected claim 7 as unpatentable over Kasem in view of
Keene and Allaire, the Examiner relying on Allaire for disclosing linen
(Ans. 8). The Patent owner merely relies on dependency on claim 1 for
patentability of claim 7 (App. Br. 38). Thus, in view of the above, we
sustain Rejection 6.

CONCLUSIONS
1. The Examiner erred in finding that the elastic strip of Mink
satisfies the limitation "end panel" recited in the claims.
2. The Examiner erred in finding that an end panel of Gusman is
"stitched to" a side section.
3. The Examiner did not err in concluding obviousness of
modifying the sheet of Kasem to provide a separate end panel in view of
Keene.
Appeal 2013-003370
Reexamination Control 90/011,779
Patent No. US 6,799,341 B2

20

ORDERS
1. Rejections 1 to 4 are REVERSED.
2. Rejections 5 and 6 are AFFIRMED.

Requests for extensions of time in this ex parte reexamination
proceeding are governed by 37 C.F.R. § 1.550(c). See 37 C.F.R. § 41.50(f).

AFFIRMED-IN-PART

ack
cc Patent Owner:
PEARNE & GORDON LLP
1801 EAST 9TH STREET
Suite 1200
CLEVELAND, OH 44114-3108