Ex Parte Teran

Patent Trial and Appeal Board

Sep 20, 2017

13230538 (P.T.A.B. Sep. 20, 2017)

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.
13/230,538 09/12/2011 Paola Teran 019662/409519 3400
826 7590 09/22/2017
ALSTON & BIRD LLP
BANK OF AMERICA PLAZA
101 SOUTH TRYON STREET, SUITE 4000
CHARLOTTE, NC 28280-4000
EXAMINER
GOLDEN, CHINESSA T
ART UNIT PAPER NUMBER
1788
NOTIFICATION DATE DELIVERY MODE
09/22/2017 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):
u sptomail @ alston .com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte PAOLA TERAN
Appeal 2017-002303
Application 13/230,538
Technology Center 1700
Before JEFFREY B. ROBERTSON, JULIA HEANEY, and
SHELDON M. MCGEE, Administrative Patent Judges.
ROBERTSON, Administrative Patent Judge.
DECISION ON APPEAL
Appeal 2017-002303
Application 13/230,538
STATEMENT OF THE CASE
Appellant1 appeals under 35 U.S.C. § 134(a) from the Examiner’s
rejection of claims 1, 3, 4, and 6—21.2 (App. Br. 8.) We have jurisdiction
pursuant to 35 U.S.C. § 6(b).
We AFFIRM.
THE INVENTION
The Specification states that the invention relates to cushioned mats
with enhanced drying properties, the mat having a layered structure. (Spec.
111,6, 7.)
Claim 1, reproduced below, is representative of the subject matter on
appeal (emphasis added).
1. A cushioning mat for cushioning a user in environments
where water can come into contact with the cushioning mat, the
cushioning mat comprising:
a face fabric for coming into contact with the user;
a foam layer secured to a surface of the face fabric,
wherein the foam layer includes an open cell, viscoelastic foam
material; and
a slip-resistant backing secured to the foam layer
opposite the face fabric for reducing slippage of the cushioning
mat, wherein the backing is formed with openings for allowing
any water in the foam layer to leave the mat at least partially
through the openings in the backing, wherein the backing
comprises a sheet of woven fibers coated with a slip-resistant
substance, and wherein a cloth layer is interposed between the
backing and the foam layer to promote bonding.
1 According to the Appellant, the Real Party in Interest is Mohawk Carpet
Distribution, Inc. (Appeal Brief filed April 25, 2016, hereinafter “App. Br.,”
2.)
2 Claims 2 and 5 have been canceled. (See App. Br. 10.)
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Application 13/230,538
THE REJECTIONS
The Examiner rejected the claims under 35 U.S.C. § 103(a) as
follows:
I. Claims 1, 3, 4, 6, 8, 13, 20, and 21 as obvious over Glaser,3
Graebe,4 and Kim;5
II. Claim 7 as obvious over Glaser, Graebe, Kim, and DE’285;6
III. Claim 9 as obvious over Glaser, Graebe, Kim, and Roers;7
IV. Claims 10 and 17 as obvious over Glaser, Graebe, Kim, and
Hammond;8
V. Claims 11, 12, and 19 as obvious over Glaser, Graebe, Kim,
and Hammond;
VI. Claims 14 and 15 as obvious over Glaser, Graebe, Kim, and
Westgor;9
VII. Claim 16 as obvious over Glaser, Graebe, Kim, Hammond, and
Daniels;10 and
VIII. Claims 11, 18, and 19 as obvious over Glaser, Graebe, Kim,
and Daniels.
(Examiner’s Answer entered September 30, 2016, hereinafter “Ans.”)
3 US 2007/0275827 Al, published on November 29, 2007.
4 U.S. Patent 5,111,544, issued on May 12, 1992.
5 U.S. Patent 5,972,477, issued on October 26, 1999.
6 DE 20 2009 017 285 Ul, published on April 29, 2010.
7 US 2009/0155520 Al, published on June 18, 2009.
8 U.S. Patent 4,350,734, issued on September 21, 1982.
9 U.S. Patent 4,738,545, issued on April 19, 1988.
10 US 2009/0280322 Al, published on November 12, 2009.
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Application 13/230,538
Rejection I
The Examiner found that Glaser discloses a cushioning mat as recited
in the claims with the exception of a backing formed with openings for
allowing any water in the foam layer, where the backing comprises a sheet
of woven fibers coated with a slip-resistant substance, and wherein a cloth
layer is interposed between the backing and the foam layer to promote
bonding. (Ans. 2—3.) The Examiner found that Graebe discloses a high
friction mesh backing that is formed with openings to allow moisture to
drain. (Ans. 3.) The Examiner found that Kim discloses a laminated
structure with excellent cushioning properties including a three-dimensional
fiber network material (jersey layer) bonded between two layers of planar
material. (Ans. 3.) The Examiner concluded that it would have been
obvious to incorporate the porous backing of Graebe into the cushioning mat
of Glaser in order to enhance air circulation and allow moisture to drain
from the interior of the cushioning mat. (Ans. 4.) The Examiner further
concluded that it would have been obvious to incorporate the jersey layer of
Kim between the backing and foam layer “to aid in bonding the layers and
provide a lightweight, resilient cushioning material.” (Id.)
ISSUE
Appellant argues that Kim does not disclose that its three-dimensional
material could be effectively bonded to foam or bonded to a sheet of woven
fibers coated with a slip-resistant substance. (App. Br. 6.) Appellant
contends that Kim does not provide any guidance to promote bonding
between foam and backing layers of any kind. (App. Br. 6—7.) Appellant
contends that rather than promoting bonding, Kim discloses that adding
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Application 13/230,538
three-dimensional projections to material layers can improve cushioning
properties of the material layer. (App. Br. 7.) Appellant argues that in the
mat recited in the claims, the foam layer provides the cushioning properties
such that there would be no reason to add Kim’s three-dimensional fiber
layer specifically between an existing foam layer and a non-slip backing for
the purpose of modifying the cushioning properties of the mat. (App. Br. 7.)
Accordingly, the dispositive issue in this appeal is:
Has Appellant shown that the Examiner reversibly erred in concluding
that it would have been obvious to have included Kim’s three-dimensional
cloth layer between the foam layer and backing layer of Glaser in view of
Graebe?
DISCUSSION
We confine our discussion to appealed claim 1, which contains the
claim limitations representative of the arguments made by Appellant
pursuant to 37 C.F.R. § 41.37(c)(l)(iv).
We are not persuaded that the Examiner erred in rejecting claim 1.
Rather, we are of the view that the Examiner provided sufficient reasoning
for including the three-dimensional cloth layer disclosed in Kim in the
cushioning mat of Glaser in view of Graebe between the foam layer and
backing as recited in claim 1.
In particular, the Examiner stated that providing the cloth layer of
Kim would “provide a lightweight, resilient cushioning material.” (Ans. 4.)
Indeed, as discussed above, Appellant acknowledges that Kim discloses an
improvement in cushioning properties as a result of using the three-
dimensional cloth layer. (App. Br. 7; Kim, col. 3,11. 47—54.) Because the
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Application 13/230,538
cloth layer of the instant claims and the cloth layer of Kim are made of the
same material, jersey fabric (Kim, col. 11,11. 61—66), the additional benefit
of the three-dimensional cloth layer of Kim to aid in bonding the foam and
backing layers would naturally flow from including the three-dimensional
layer of Kim in the multi-layered material. “The fact that appellant has
recognized another advantage which would flow naturally from following
the suggestion of the prior art cannot be a basis for patentability when the
difference would otherwise have been obvious.” Ex parte Obiaya, 227
USPQ 58, 60 (BPA1 1985).
We are also unpersuaded that one of ordinary skill in the art would not
have been motivated to incorporate the three-dimensional layer of Kim
because Glaser already includes a foam layer. (App. Br. 7.) As pointed out
by the Examiner, Kim discloses the use of three-dimensional cloth layers in
mattresses, chairs, and acoustics, materials that would also contain foam
layers. (Ans. 15—16; Kim, col. 10,11. 31—37.) Thus, the presence of an
additional existing foam layer in a multi-layer structure would not dissuade
one of ordinary skill in the art from including the three-dimensional cloth
layer of Kim in such a structure.
Regarding Appellant’s contention that the Examiner does not provide
sufficient support for the particular location of the cloth layer as between the
foam layer and backing layer, we are not persuaded by this argument,
because Kim discloses that its three-dimensional cloth layer may be bonded
to planar layers or other three-dimensional cloth layers. (Kim, col. 2,11. 35—
42, col. 3,11. 40-65.) Thus, we are of the view that it would have been
obvious to one of ordinary skill in the art to have included the three-
dimensional cloth layers of Kim between the foam layer and backing layer
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Application 13/230,538
of Glaser in view of Graebe. KSR Int'l Co. v. Teleflex Inc., 550 U.S. 398,
417 (2007) (“[w]hen a work is available in one field of endeavor, design
incentives and other market forces can prompt variations of it, either in the
same field or a different one. If a person of ordinary skill can implement a
predictable variation, §103 likely bars its patentability.”)
Thus, even if we were to agree with Appellant that Kim’s disclosure
of a “planar layer” does not contemplate a foam layer (Reply Brief filed
November 30, 2016, “Reply Br.” 4), Kim at most would require bonding to
only one planar layer, which would correspond to the backing layer of the
multilayer film of Glaser in view of Graebe. In this regard, Kim itself
supports locating the three-dimensional cloth layer adjacent to the backing
layer in the multilayer film of Glaser in view of Graebe, because the backing
layer at least corresponds to a planar layer, and as a result, one of ordinary
skill in the art would have located the three-dimensional cloth layer adjacent
thereto.
Accordingly, Appellant has not sufficiently demonstrated reversible
error in the Examiner’s position that including Kim’s three-dimensional
cloth layer in the multilayer structure of Glaser in view of Graebe would
have been obvious.
Rejections II—VIII
Appellant does not present any separate arguments with respect to
Rejections II—VIII. Accordingly, we affirm the Examiner’s rejections for
the same reasons as discussed above.
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Application 13/230,538
CONCLUSION
Appellant has failed to demonstrate that the Examiner reversibly erred
in concluding that it would have been obvious to have included Kim’s three-
dimensional cloth layer between the foam layer and backing layer of Glaser
in view of Graebe.
ORDER
We affirm the Examiner’s decision rejecting claims 1,3,4, and 6—21
under 35 U.S.C. § 103(a).
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a).
AFFIRMED
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