Ex Parte TeranDownload PDFPatent Trial and Appeal BoardSep 20, 201713230538 (P.T.A.B. Sep. 20, 2017) 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. 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.) 2 Appeal 2017-002303 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. 3 Appeal 2017-002303 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 4 Appeal 2017-002303 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 5 Appeal 2017-002303 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 6 Appeal 2017-002303 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. 7 Appeal 2017-002303 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 8 Copy with citationCopy as parenthetical citation