VIA, Inc.

Patent Trials and Appeals Board

Dec 24, 2020

2020002288 (P.T.A.B. Dec. 24, 2020)

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.
15/855,762 12/27/2017 John Charles Hepler 725.7070 9801
21707 7590 12/24/2020
ATIP Law
4790 Caughlin Parkway #701
RENO, NV 89519-0907
EXAMINER
NELSON JR, MILTON
ART UNIT PAPER NUMBER
3636
NOTIFICATION DATE DELIVERY MODE
12/24/2020 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):
firm@AtipLaw.com
pjpanzica@AtipLaw.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte JOHN CHARLES HEPLER
Appeal 2020-002288
Application 15/855,762
Technology Center 3600
Before MURRIEL E. CRAWFORD, PHILIP J. HOFFMANN, and
BRADLEY B. BAYAT, Administrative Patent Judges.
HOFFMANN, 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 1–12. We have jurisdiction under
35 U.S.C. § 6(b).
We REVERSE.

1 We use the term “Appellant” to refer to “applicant” as defined in
37 C.F.R. § 1.42. Appellant identifies the real party in interest as VIA, Inc.
Appeal Br. 3.
Appeal 2020-002288
Application 15/855,762

2
Appellant’s claims are directed to a chair. Independent claims 1 and 7
are the independent claims under appeal. Below, we reproduce independent
claim 1 as illustrative of the appealed claims.
1. A chair comprising:
(A) a frame; and
(B) a support material that is supported by the frame and
that provides a support for an occupant of the chair;
wherein the support material comprises a mesh having a
plurality of interwoven strands, wherein the plurality of
interwoven strands comprise one or more interwoven strands
that include a copper infusion.
REJECTIONS AND PRIOR ART
The Examiner rejects the claims as follows:
I. Claims 1–3, 6–9, and 12 under 35 U.S.C. § 103 as unpatentable
over Smith (US 2010/0181807 A1, published July 22, 2010)
and Questel et al., (US 5,177,124, issued Jan. 5, 1993)
(“Questel”); and
II. Claims 4, 5, 10 and 11 under 35 U.S.C. § 103 as unpatentable
over Smith, Questel, and Trinder, II et al., (US 2015/0320035
A1, published Nov. 12, 2015) (“Trinder”).
OPINION
Rejection I—Obviousness rejection of claims 1–3, 6–9, and 12
Independent claim 1 recites, in relevant part, “a support material that
is supported by the frame and that provides a support for an occupant of the
chair; wherein the support material comprises a mesh having a plurality of
interwoven strands . . . [that] comprise[s] one or more interwoven strands
that include a copper infusion.” Appeal Br., Claims App. Independent
Appeal 2020-002288
Application 15/855,762

3
claim 7 includes a similar recitation. Id. The Examiner rejects the two
independent claims based on similar reasoning. See Final Action 3–5.
Specifically, the Examiner finds that Smith discloses a chair including
“a support material (45),” but “with the exception of the one or more
interwoven strands including a copper infusion.” Id. at 3. The Examiner
finds that it is Questel that “teaches configuring a furniture article (see line 2
in column 9) as including a support material (plastic) that includes a copper
infusion (see paragraph 3 in column 3).” Id. It appears that, at least initially,
the Examiner determines that it would have been obvious to configure
Smith’s “support material (i.e.[,] the interwoven strands and therefore one or
more interwoven strands) as including a copper infusion” based on Questel’s
disclosure of copper powder molded in plastic, because such a “modification
enhances aesthetic appeal of the chair by providing an appearance that
simulates a solid metal piece.”2 Id.
Appellant argues that the Examiner’s rejection is in error because
“[t]he Examiner has provided no explicit analysis nor provided a reasoned
explanation as to how the person skilled in the art would perform the
combination of Smith and Questel. Specifically, the Examiner has provided
no explicit analysis as to how . . . [Smith’s] support material (i.e. interwoven
strands) could be configured to include a copper infusion” as taught by
Questel. Reply Br. 3. Based on our review of the record, we agree with
Appellant.

2 Below, we also discuss the Examiner’s determination that it would have
been obvious to replace Smith’s mesh material of interwoven strands with
Questel’s material formed as a mesh material of interwoven strands.
Appeal 2020-002288
Application 15/855,762

4
Appellant’s Specification describes that
the mesh that is typically used in a mesh chair is replaced with a
mesh including copper infused strands. The strands may be, for
example, a polymer, nylon or similar type material to which a
copper compound such as cuprous oxide, cuprous iodide etc. is
added prior to the material being drawn into fibers or strands.
Spec. ¶ 27 (cited at Appeal Br. 7).
Smith discloses that
[t]he seat 14 and the backrest 18 can each have a continuous
sheet of flexible and elastic mesh (represented by 45 in FIG. 1a)
held taut across and substantially covering the seat and
backrest. The terms “mesh” and “sheet of mesh” are used
interchangeably herein to refer to a mesh material that is a
continuous sheet in that it essentially consistent in its
composition of strands and intervening openings.
Smith ¶ 64. Smith’s “continuous sheet of flexible and elastic mesh”
can include a polypropelene [sic] mesh fabric or the like. The
mesh can be a woven mesh or a knitted mesh. The mesh
material can include 70% elastomer monofilament with a 55
durometer and 30% polyester yarn. The elastomeric
monofilament can be a polyester co-polymer (such as Hytrel by
Dupont). The interwoven monofilaments can also be bonded
together to resist unraveling, for example by using a coextruded
mono filament with an outer layer having a lower melting point
that melts in an oven to bond to adjacent monofilaments.
Id. Alternatively, Smith describes that the mesh could be “a plastic material
that has a series or arrangement of openings across the sheet and that is
continuous in that it is essentially consistent in its composition of structure
and openings,” and “can be formed together, such as by injection molding.”
Id. ¶ 65.
Questel teaches a molding process, where metal particles are added to
a resin/polyester plastic material, the metal particles “are permitted to settle”
Appeal 2020-002288
Application 15/855,762

5
to the bottom of the mold, and non-metal floatable particles “will rise.”
Questel col. 3, ll. 21–62. By adding both metal particles and floatable
particles (such as hollow ceramic spheres), “[a]ny shrinkage in the object
will be balanced on opposing surfaces of the object so it will not lose its
desired shape due to uneven shrinkage of opposite faces which would occur
if the object contained only the metal particles on one face of the object.”
Id. at col. 3, ll. 44–47.
The Examiner does not support adequately, such as by citing evidence
or presenting a line of technical reasoning, that creating the claimed article is
as simple as merely adding copper, as Questel discloses, to the material that
forms Smith’s plastic mesh material. More specifically, it is not clear from
the record that the proposed modification of adding copper to Smith’s plastic
mesh material either would create a chair that would work (for example, a
mesh material that would support the chair’s user), or would result in the
expected aesthetic effect (i.e., that Smith’s chair would have “an appearance
that simulates a solid metal piece” (Final Action 3)).
In the Answer, the Examiner appears to change the basis of the
rejection, from a determination that it would have been obvious to modify
Smith’s plastic mesh material based on Questel, to a determination that it
would have been obvious to replace Smith’s mesh material with a mesh
material made from Questel’s material. See, e.g., Answer 7. However, the
Examiner does not support adequately, such as with evidence or a line of
technical reasoning, that “one of ordinary skill in the art could still produce
strands for the same chair using a different plastic material taught by Questel
(copper infused plastic).” Answer at 7. Again, for example, it is not clear
from the record that Questel’s plastic material formed from resin, hollow
Appeal 2020-002288
Application 15/855,762

6
ceramic spheres, and metal may be made into a mesh material capable of
supporting the chair’s user. See, e.g., Reply Br. 4–5.
The Examiner states that “Appellant provides no evidence that . . .
[Questel’s] molding process is prohibitive to producing a strand that can be
interwoven into a mesh.” Id. at 9. This is improper, however, because it is
the Examiner who has the burden to support adequately that the proposed
modification renders the claims obvious. See In re Warner, 379 F.2d 1011,
1016 (CCPA 1967) (“the precise language of 35 U.S.C. § 102 that ‘(a)
person shall be entitled to a patent unless,’ concerning novelty and
unobviousness, clearly places a burden of proof on the Patent Office which
requires it to produce the factual basis for its rejection of an application
under sections 102 and 103.”)
Based on the foregoing, we do not sustain the Examiner’s obviousness
rejection of independent claims 1 and 7. We also do not sustain the rejection
of claims 2, 3, 6, 8, 9, and 12 that depend from, and the Examiner rejects
with, the independent claims.
Rejection II—Obviousness rejection of claims 4, 5, 10, and 11
Claims 4, 5, 10 and 11 depend from independent claims 1 and 7. The
Examiner does not rely on Trinder to disclose anything that would remedy
the above-discussed deficiency in the rejection of the independent claims.
Consequently, we do not sustain the Examiner’s obviousness rejection of
dependent claims 4, 5, 10, and 11.

Appeal 2020-002288
Application 15/855,762

7
CONCLUSION
We REVERSE the Examiner’s obviousness rejections of all of the
claims.
In summary:
Claim(s)
Rejected
35 U.S.C. § Reference(s)/Basis Affirmed Reversed
1–3, 6–9, 12 103 Smith, Questel 1–3, 6–9, 12
4, 5, 10, 11 103 Smith, Questel,
Trinder
4, 5, 10, 11
Overall Outcome 1–12

REVERSED