Ex Parte SeitzDownload PDFPatent Trial and Appeal BoardJul 11, 201310137680 (P.T.A.B. Jul. 11, 2013) Copy Citation UNITED STATES PATENT AND TRADEMARKOFFICE 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. 10/137,680 05/02/2002 Larry Keith Seitz JR. 5234A 2907 7590 07/11/2013 Milliken & Company P. O. Box 1927 Spartanburg, SC 29304 EXAMINER PILLAI, NAMITHA ART UNIT PAPER NUMBER 2172 MAIL DATE DELIVERY MODE 07/11/2013 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 LARRY KEITH SEITZ JR. ____________________ Appeal 2009-004748 Application 10/137,680 Technology Center 2100 ____________________ Before ALLEN R. MacDONALD, ROBERT E. NAPPI and SCOTT R. BOALICK, Administrative Patent Judges. MacDONALD, Administrative Patent Judge. DECISION ON APPEAL Appeal 2009-004748 Application 10/137,680 2 STATEMENT OF CASE Appellant appeals under 35 U.S.C. § 134(a) from a final rejection of claims 4, 10-27, and 37-45. We have jurisdiction under 35 U.S.C. § 6(b). Exemplary Claims Exemplary claims 10, 4, 37, and 16 under appeal read as follows (emphases added): Claim 10. A display system for simulated presentation of a plurality of alternative arrangements of prospective actual independently displaceable floor covering elements across a flooring support surface, the display system comprising: a plurality of viewable and manipulatable simulated elements, wherein said simulated elements have a shape and size substantially corresponding to a reduced to-scale version of the shape and size of the prospective actual independently displaceable floor covering elements and wherein said simulated elements further include a surface design or pattern comprising a reduced reproduction of a surface design or pattern of at least one prospective actual independently displaceable floor covering element, said simulated elements being arrangeable in a manipulatable array to simulate a first prospective, actual arrangement of the prospective actual independently displaceable floor covering elements and such that said manipulatable array is alterable by means of rotating at least one of the simulated elements about the center of the simulated element 90, 180, or 270 degrees while maintaining the element placement location relative to the other simulated elements to simulate at least a second prospective arrangement of the prospective actual independently displaceable floor covering elements. Claim 4. The display system as recited in Claim 10, wherein the arrangement of simulated elements represents at least one of a quarter turn tile layout, an ashlar tile layout, a 180° banded tile layout, and combinations thereof. Claim 16. The display system according to Claim 10, wherein the surface design or pattern of each of the simulated elements is identical. Appeal 2009-004748 Application 10/137,680 3 Claim 37. The display system as recited in claim 10, wherein at least a portion of the simulated elements within the manipulatable array are displayed in conjunction with a pile direction indicator independent of the surface design or pattern. Rejections The Examiner rejected claims 4, 10-15, 17-23, 25-27, and 37-45 under 35 U.S.C. § 103(a) as being unpatentable over the combination of Thomas (US 5,966,454) and Eichel (US 6,664,972 B2).1 The Examiner rejected claims 16 and 24 under 35 U.S.C. § 103(a) as being unpatentable over the combination of Thomas, Eichel, and Pollitt (US 6,122,890). 2 Appellant’s Contentions 1. Appellant contends that the Examiner erred in rejecting claim 10 under 35 U.S.C. § 103(a) because: Firstly, Appellants respectfully believe that there is no motivation or rationale in Thomas et al. to combine with Eichel et al., to learn from Eichel et al. or the like. (App. Br. 5-6)(emphasis added). 2. Appellant further contends that the Examiner erred in rejecting claim 10 under 35 U.S.C. § 103(a) because: Eichel et al. does teach that the images may be rotated for better viewing, but this rotation does not create a second prospective actual arrangement. In Eichel et al., all that is rotated is an image of a surface treatment, not of individual elements that make up a surface treatment. Eichel et al. does not teach or 1 Separate patentability is not argued for claims 10-15, 17-23, 25-27, and 38-45. Except for our ultimate decision, these claims are not discussed further herein. 2 Separate patentability is not argued for claim 24. Except for our ultimate decision, this claim is not discussed further herein. Appeal 2009-004748 Application 10/137,680 4 disclose simulated presentation of a plurality of alternative arrangements of prospective actual independently displaceable floor covering elements across a flooring support surface by rotating at least one of the simulated elements about its center while maintaining its position relative to the other simulated elements. (App. Br. 6)(emphases added). 3. Appellant further contends that the Examiner erred in rejecting claim 10 under 35 U.S.C. § 103(a) because: The Office Action states that the process of rotating a simulated element such as a tile by a certain degree is an automated step of an otherwise manual process, wherein a user viewing a real life tile would rotate the tile for better viewing. Appellants respectfully disagree with this and similar statements. The simulated tile elements of the present invention are not rotated for "better viewing", but as a way to quickly and easily view different flooring patterns made up of floor covering elements in different configurations of rotated tiles. In real life, creating these arrangements would involve obtaining a large number of heavy and bulky tiles and manually rearranging and rotating the tiles to view the different configurations. (App. Br. 6)(emphasis added). 4. Appellant contends that the Examiner erred in rejecting claims 37-39 under 35 U.S.C. § 103(a) because “Thomas et al. does not teach a pile direction indicator . . . .” (App. Br. 7). 5. Appellant contends that the Examiner erred in rejecting claim 4 under 35 U.S.C. § 103(a) because the references taken alone or together do not teach or disclose rotating the tiles to create a quarter turn tile layout, an ashlar tile layout, a 180° tile layout, or a 180° banded tile layout. (App. Br. 7). Further, “[i]t is difficult for carpet tile customers or prospective Appeal 2009-004748 Application 10/137,680 5 customers to physically manipulate full size, actual tiles to visualize prospective installations or arrangements.” (App. Br. 7). 6. Appellant contends that the Examiner erred in rejecting claim 16 under 35 U.S.C. § 103(a) because “Thomas et al. teaches away from using the identical simulated tiles of the present invention.” (App. Br. 8). Further, “Appellants respectfully believe Pollitt to be non-analogous [sic] art to Thomas and the presently claimed invention.” (App. Br. 8). Issue on Appeal Did the Examiner err in rejecting claims 4, 10-27, and 37-45 as being obvious? ANALYSIS We have reviewed the Examiner’s rejections in light of Appellant’s arguments that the Examiner has erred. As to Appellant’s above contention 4, we agree. The Examiner points to Eichel Figure 13B as showing “a pile direction indicator.” (Ans. 15). We disagree as Figure 13B is directed to upholstery rather than floor covering elements as claimed. As to Appellant’s other contentions, we disagree with Appellant’s conclusions. We adopt as our own (1) the findings and reasons set forth by the Examiner in the action from which this appeal is taken and (2) the reasons set forth by the Examiner in the Examiner’s Answer in response to Appellant’s Appeal Brief. We concur with the conclusions reached by the Examiner. We highlight the following for emphasis. As to Appellant’s above contention 1, we disagree. Appellant’s statement that “there is no motivation or rationale in Thomas et al. to Appeal 2009-004748 Application 10/137,680 6 combine with Eichel et al., to learn from Eichel et al. or the like” is without merit as the Examiner did not rely on Thomas to provide this motivation/rationale. Rather, the Examiner’s articulated reasoning pointed to Eichel and well known manual process in the art. (Final Rej. 4). As to Appellant’s above contention 2, we disagree. Appellant’s statement that Eichel “does teach that the images may be rotated for better viewing, but this rotation does not create a second prospective actual arrangement” is without merit as the Examiner did not rely on Eichel to provide this teaching. Rather, the Examiner’s articulated reasoning pointed to Thomas. (Final Rej. 3). As to Appellant’s above contention 3, we disagree. Contrary to Appellant’s argument, rotating “as a way to quickly and easily view different flooring patterns made up of floor covering elements in different configurations of rotated tiles” is an example of rotating the simulated tile elements of the present invention for “better viewing.” As to Appellant’s above contention 5, we agree with the Examiner’s reasoning. (Ans. 16). Further, we do not find it relevant that there is a level of difficulty for “customers to physically manipulate full size, actual tiles to visualize prospective installations or arrangements.” As to Appellant’s above contention 6, we disagree. Further, we find no “teach[ing] away” in Thomas as it does not criticize, discredit, or otherwise discourage using identical tiles as argued. See In re Fulton, 391 F.3d 1195, 1201 (Fed. Cir. 2004) (“The prior art’s mere disclosure of more than one alternative does not constitute a teaching away from any of these alternatives because such disclosure does not criticize, discredit, or otherwise discourage the solution claimed in the … application.”); see also Appeal 2009-004748 Application 10/137,680 7 In re Gurley, 27 F.3d 551, 552-53 (Fed. Cir. 1994) (“[A] reference will teach away if it suggests that the line of development flowing from the reference's disclosure is unlikely to be productive of the result sought by the applicant.”). Finally, contrary to Appellant’s argument, we find Pollitt to be the epitome of analogous art as it is a real world embodiment of the item being simulated in Thomas and Eichel. “A reference is reasonably pertinent if, even though it may be in a different field from that of the inventor’s endeavor, it is one which, because of the matter with which it deals, logically would have commended itself to an inventor’s attention in considering his problem.” In re Clay, 966 F.2d 656, 659, (Fed. Cir. 1992). CONCLUSIONS (1) The Examiner has not erred in rejecting claims 4, 10-27, and 40-45 as being unpatentable under 35 U.S.C. § 103(a). (2) Appellant has shown that the Examiner erred in rejecting claims 37-39 as being unpatentable under 35 U.S.C. § 103(a). (3) Claims 4, 10-27, and 40-45 are not patentable. DECISION The Examiner’s rejections of claims 4, 10-27, and 40-45 are affirmed. The Examiner’s rejection of claims 37-39 is reversed. Appeal 2009-004748 Application 10/137,680 8 No time period for taking any subsequent action in connection with this appeal may be extended under 37 C.F.R. § 1.136(a)(1)(iv). AFFIRMED-IN-PART tj Copy with citationCopy as parenthetical citation