TOMY International, Inc.

Patent Trials and Appeals Board

Sep 13, 2021

2021001104 (P.T.A.B. Sep. 13, 2021)

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.
16/054,172 08/03/2018 Kellyn Bailey JJC-01 5719
103461 7590 09/13/2021
Saul Ewing Arnstein & Lehr, LLP
161 North Clark Street
Suite 4200
Chicago, IL 60601
EXAMINER
KWIECINSKI, RYAN D
ART UNIT PAPER NUMBER
3635
NOTIFICATION DATE DELIVERY MODE
09/13/2021 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):
joseph.kuo@saul.com
laura.disanto@saul.com
patents@saul.com
PTOL-90A (Rev. 04/07)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________

Ex parte KELLYN BAILEY
____________

Appeal 2021-001104
Application 16/054,172
Technology Center 3600
____________

Before BIBHU R. MOHANTY, JENNIFER MEYER CHAGNON, and
ROBERT J. SILVERMAN, Administrative Patent Judges.

MOHANTY, Administrative Patent Judge.

DECISION ON APPEAL
STATEMENT OF THE CASE
Pursuant to 35 U.S.C. § 134(a), Appellant1 appeals from the
Examiner’s decision to reject claims 1–20. We have jurisdiction under
35 U.S.C. § 6(b).

SUMMARY OF THE DECISION
We AFFIRM-IN-PART.

1 We use the word Appellant to refer to “applicant” as defined in 37 C.F.R.
§ 1.42(a). Appellant identifies the real party in interest as TOMY
International, Inc. (Appeal Br. 1).
Appeal 2021-001104
Application 16/054,172

2

CLAIMED SUBJECT MATTER
The Appellant’s claimed invention relates to a bunting bag for
covering child seats including stroller seats, infant carriers, and car seats to
cover or partially cover them (Spec., para. 2). Claim 1, reproduced below, is
representative of the subject matter on appeal.
1. A bunting bag for use with a seat having restraining
straps, the bunting bag comprising:
a flexible bottom panel sized and configured for a
contoured fit with the seat;
a flexible top panel, detachably coupled to and
selectively covering at least a portion of the bottom panel;
at least one of the top panel or bottom panel including at
least one panel fastener disposed about a periphery thereof for
variably attaching the top panel to the bottom panel;
the bottom panel further defining an opening and a
harness insert interface formed around a periphery of the
opening; and
a harness insert, the harness insert including a plurality of
apertures configured to permit strap member to pass
therethrough, the harness insert further being detachably
coupled to and removable from the bottom panel via the
harness insert interface.

THE REJECTIONS
The Examiner relies upon the following as evidence in support of the
rejections:
Dudley US 6,012,189 Jan. 11, 2000
Davis US 2010/0170039 A1 July 8, 2010
Danziger US 2010/0237671 A1 Sept. 23, 2010
Fair US 8,650,663 B2 Feb. 18, 2014
Heuze FR 2 901 980 Dec. 14, 2007
Boulton GB 2 455 321 A June 10, 2009

Appeal 2021-001104
Application 16/054,172

3

The following rejections are before us for review2:
1. Claims 1–3, 6, 9, 10, 13, 16, and 19 are rejected under
35 U.S.C. § 103 as unpatentable over Fair, Dudley, and Danziger.
2. Claims 4, 11, and 17 are rejected under 35 U.S.C. § 103 as
unpatentable over Fair, Dudley, Danziger, and Heuze.
3. Claims 5, 12, and 18 are rejected under 35 U.S.C. § 103 as
unpatentable over Fair, Dudley, Danziger, and Boulton.
4. Claims 7, 8, 14, 15, and 20 are rejected under 35 U.S.C. § 103
as unpatentable over Fair, Dudley, Danziger, and Davis.

FINDINGS OF FACT
We have determined that the findings of fact in the Analysis section
below are supported at least by a preponderance of the evidence.3

ANALYSIS
Claims 1–4, 6–11, 13–17, 19, and 20
The Appellant argues that the rejection of claim 1 under 35 U.S.C.
§ 103 as unpatentable over Fair, Dudley, and Danziger is improper (Appeal
Br. 7–13; Reply Br. 2–6). Specifically, the Appellant argues that the cited
prior art fails to disclose a “harness insert” in the manner claimed (Appeal
Br. 11; Reply Br. 3–5). The Appellant also argues that the cited

2 The Advisory Action mailed June 12, 2020 indicates that the rejection
made under 35 U.S.C. § 112(b) has been overcome. Accordingly, that
rejection is considered withdrawn.
3 See Ethicon, Inc. v. Quigg, 849 F.2d 1422, 1427 (Fed. Cir. 1988)
(explaining the general evidentiary standard for proceedings before the
Patent Office).
Appeal 2021-001104
Application 16/054,172

4

combination of references uses impermissible hindsight and would not have
been obvious (Appeal Br. 7–13; Reply Br. 2–6).
In contrast, the Examiner has determined that the rejection of record is
proper (Final Act. 3–8, 11, 12; Ans. 3–7).
We agree with the Examiner. Here, the rejection cites to Fair as
disclosing a bunting bag cover with a top cover (350), bottom panel (360),
and fastener (366) which goes down the middle of the cover (Figs. 1, 4).
The rejection also cites to Fair which discloses a central portion (380) of the
bottom panel, that includes slots (382) formed between tabs (392) (Fig. 4).
A fastener (390) couples tabs (392) to bottom panel (360), to form the slots
(382), allowing “the belts or straps of the child seat to be . . . adjusted with
respect to the bunting bag” (Fair 10:5–7). The rejection cites to the bunting
bag of Dudley as disclosing a zipper fastener (80) that extends around the
periphery of layers of a bunting bag, and to Danzinger as disclosing a
removable insert (20) in a car seat cover.
Here, we agree with the Examiner that the modification of the bunting
bag cover of Fair to include a zipper fastener that extends around the
periphery as disclosed by Dudley, and to further include a removable insert
for receiving the straps as disclosed by Danzinger, would have been an
obvious, predictable combination of familiar elements for the advantage of
having a bunting bag cover with a zipper providing access to the feet of the
infant and to prevent the infant from accessing the zipper easily, and to be
able to easily remove the bunting bag from the seat, to easily weave the
harness restraints through the opening, and to remove the insert easily for
cleaning.
Appeal 2021-001104
Application 16/054,172

5

The Appellant has argued that the configuration of Fair would not be
modified with that of Dudley’s zipper around the periphery to allow for
variable venting. This argument is not persuasive as the design of Fair does
not allow easy access to the infant’s feet or keep the zipper out of the easier
reach from the infant. Here, one of ordinary skill in the art would have
readily inferred the advantage of placing the zipper along the edge as
disclosed by Dudley. In KSR Int’l Co. v. Teleflex Inc., 550 U.S. 398 (2007),
the Court stated that when considering obviousness “the analysis need not
seek out precise teachings directed to the specific subject matter of the
challenged claim, for a court can take account of the inferences and creative
steps that a person of ordinary skill in the art would employ.” KSR, 550 U.S.
at 418.
The Appellant argues that the element 20 in Danziger is “not a harness
insert” but rather a window flap. However, the Specification in describing
the harness insert 16, states that “[w]hen the harness insert 16 is positioned
within or over opening 54, tab members 56 are secured with securement
regions 62 to attach the harness insert 16 to the bottom panel 14” (Spec.,
para. 14, emphasis added). Thus, the Specification describes that the
“harness insert” maybe positioned “over [the] opening” and be secured,
which is the same manner in which the detachable member in 20 in
Danzinger functions.
Accordingly, for the reasons given above. The rejection claim 1 is
sustained. The Appellant has provided the same or similar arguments for
claims 2, 4, 6–9, 11, 13–17, 19, and 20 and the rejection of these claims is
sustained for the same reasons given above.
Appeal 2021-001104
Application 16/054,172

6

With regards to claims 3 and 10 the Appellant argues that the cited
prior art fails to disclose “tab members” for securing the removable harness.
Claims 3 and 10 each contain a limitation for “a plurality of tab members”
which include loop material. Fair however discloses “tab members” such a
member 392 which also includes attachment by hook and loop members. As
Fair discloses “tab members,” the rejection of claims 3 and 10 is sustained.

Claims 5, 12, and 18
The Examiner has rejected claim 5 as unpatentable under 35 U.S.C.
§ 103 as unpatentable over Fair, Dudley, Danziger, and Boulton (Final Act.
10–11; Ans. 8).
The Appellant argues that the cited combination of references using
Fair, Dudley, Danzinger, and Boulton uses impermissible hindsight (Appeal
Br. 15–16). The Appellant also argues that Boulton is not for a bunting bag
and that the combination is improper since a car seat or stroller already
includes straps (Appeal Br. 16).
We agree with the Appellant. Claim 5 contains limitations for a “first
strap member extending across a rear portion of the bottom panel and a
second strap member extending partially across the rear portion of the
bottom panel in substantially perpendicular alignment with the first strap, the
second strap member securable with the first strap member.” Here, the
rejection of record lacks articulated reasoning with rational underpinnings
without impermissible hindsight to sustain the rejection.
Fair is directed to use of a baby bunting device for use in a device
such as a car seat that already has straps to secure the child, so the device is
already secured by those straps to retain the baby secured in the device.
Appeal 2021-001104
Application 16/054,172

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Here, the cited rationale for the combination, namely, to ensure the bunting
bag is secured to the seat, lacks articulated reasoning with rational
underpinnings without impermissible hindsight to sustain the rejection.
Accordingly, the rejection of claim 5 is not sustained. Claims 12 and 18
contain similar limitations and the rejection of these claims is not sustained
for the same reasons given above.

CONCLUSIONS OF LAW
We conclude that Appellant has not shown that the Examiner erred in
rejecting claims 1–3, 6, 9, 10, 13, 16, and 19 under 35 U.S.C. § 103 as
unpatentable over Fair, Dudley, and Danziger.
We conclude that Appellant has not shown that the Examiner erred in
rejecting claims 4, 11, and 17 under 35 U.S.C. § 103 as unpatentable over
Fair, Dudley, Danziger, and Heuze.
We conclude that Appellant has shown that the Examiner erred in
rejecting claims 5, 12, and 18 under 35 U.S.C. § 103 as unpatentable over
Fair, Dudley, Danziger, and Boulton.
We conclude that Appellant has not shown that the Examiner erred in
rejecting claims 7, 8, 14, 15, and 20 under 35 U.S.C. § 103 as unpatentable
over Fair, Dudley, Danziger, and Davis.
Appeal 2021-001104
Application 16/054,172

8

DECISION SUMMARY
In summary:
Claims
Rejected
35 U.S.C.
§
Reference(s)/Basis Affirmed Reversed
1–3, 6, 9,
10, 13, 16,
19
103 Fair, Dudley,
Danziger
1–3, 6, 9,
10, 13, 16,
19

4, 11, 17 103 Fair, Dudley,
Danziger, Heuze
4, 11, 17
5, 12, 18 103 Fair, Dudley,
Danziger, Boulton
5, 12, 18
7, 8, 14, 15,
20
103 Fair, Dudley,
Danziger, Davis
7, 8, 14, 15,
20

Overall
Outcome
1–4, 6–11,
13–17, 19,
20
5, 12, 18
TIME PERIOD FOR RESPONSE
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)(1)(iv).
AFFIRMED-IN-PART