Bliss Hammocks Inc.Download PDFPatent Trials and Appeals BoardJul 7, 20202019007012 (P.T.A.B. Jul. 7, 2020) 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. 29/619,971 10/03/2017 Victor Sabbagh 10441-14 4995 1912 7590 07/07/2020 AMSTER, ROTHSTEIN & EBENSTEIN LLP 90 PARK AVENUE NEW YORK, NY 10016 EXAMINER BROOKS, CATHRON C ART UNIT PAPER NUMBER 2922 MAIL DATE DELIVERY MODE 07/07/2020 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 VICTOR SABBAGH ____________ Appeal 2019-007012 Application 29/619,971 Technology Center 2900 ____________ Before JOHN C. KERINS, JILL D. HILL, and CYNTHIA L. MURPHY, Administrative Patent Judges. KERINS, Administrative Patent Judge. DECISION ON APPEAL Pursuant to 35 U.S.C. § 134(a), Appellant1 appeals from the Examiner’s decision rejecting the pending design claim (claim 1) in this application. The Board has jurisdiction over the appeal under 35 U.S.C. §§ 6(b) & 171(b). We REVERSE. 1 We use the word “Appellant” to refer to “applicant” as defined in 37 C.F.R. § 1.42. Appellant identifies Bliss Hammocks Inc. as the real party in interest. Appeal Br. 3. The Appeal Brief omits page numbering, therefore we employ the page numbering for the body of the brief as set forth therein on the Table of Contents page. Appeal 2019-007012 Application 29/619,971 2 CLAIMED SUBJECT MATTER The present application claims “the ornamental design for a hammock hanging strap, as shown and described.” Appeal Br., Claims App. Representative Figures 1 and 8 are reproduced below. Figure 1 above is a perspective view of the claimed hammock hanging strap, and Figure 8 is an enlarged view of the portion of the strap designated by dashed-line box 8 of Figure 1. Spec. 1. Appeal 2019-007012 Application 29/619,971 3 REJECTION ON APPEAL Appellant’s claim is rejected under 35 U.S.C. § 103 as being unpatentable over Bogardus III (US 6,357,551 B1, issued Mar. 19, 2002) (hereafter “Bogardus”) in view of Wu (US 8,696,521 B2, issued Apr. 15, 2014). OPINION The Examiner finds that the Figure 3 embodiment of Bogardus “shows a strap of similar overall appearance as the claimed design, and having design characteristics that are basically the same as those of the claimed design.” Final Act. 2. The Examiner identifies the design characteristics contributing to the appearance of the Bogardus article as “an elongated flat strap that is looped over at each end and attached at the strap ends, and, that has separate loops of the same strap material along the length of one side of the strap at regular intervals, and those loops are attached at each end.” Id. The Examiner finds that the claimed design differs from Bogardus by having smaller loops, the loops lacking a twist, and the loops being attached to the elongated strap with X-shaped stitching. Final Act. 2. The Examiner provides the below side-by-side comparison at page 3 of the Final Action: Appeal 2019-007012 Application 29/619,971 4 Depicted on the left above is Figure 1 of the claimed design, a perspective view, and, on the right, is Figure 3 of Bogardus, which is a fragmentary plan view of an embodiment of a flexible ladder, “as it would appear laid out upon a flat, horizontal surface.” Bogardus, col. 3, ll. 16–18. The Examiner turns to Wu, finding that Wu illustrates a strap that is “of similar appearance to that of Bogardus and to the claimed design,” with a strap looped at both ends; with separate loops attached to one side of the strap at regular intervals; with smaller sized loops that do not include a twist; Appeal 2019-007012 Application 29/619,971 5 X-shaped stitching for the loops and end loops; and similar spacing between loops relative to the claimed design. Final Act. 4. Figure 1 of the Wu exercise strap is reproduced below. Depicted above is Figure 1 of the Wu patent, which is “an exploded, perspective view” of an embodiment of an exercise strap. Wu, col. 2, ll. 17– 18. The Examiner concludes that it would have been obvious to have modified the appearance of the Bogardus article in view of Wu, so as to provide Bogardus with smaller loops that lack a twist, with the loops being spaced farther apart, and using X-shaped stitching to attach the loops to the elongated strap. Final Act. 4–5. Appellant challenges the Examiner’s finding that the claimed article and the Bogardus article create the same visual impression and that the two designs are basically the same. Appeal Br. 7–8; Reply Br. 4–7. Appellant Appeal 2019-007012 Application 29/619,971 6 maintains that there is effectively no similarity in appearance between the two designs other than that they both have a strap and loops. Appeal Br. 8. Appellant submits that The design characteristics of the Claimed Design give a visual impression of a neat and linear strip with relatively intricate detail in the form of small loops and confined decorative stitching, whereas the design characteristics of Bogardus give a very different visual impression of a fluid and splayed device with no decorative elements other than its large, twisted loops. Reply Br. 6. Appellant compares the Examiner’s position in this appeal relative to Bogardus serving as a primary (Rosen)2 reference to that under consideration in Durling v. Spectrum Furniture Co.,3 a case in which the district court’s reasoning behind finding the putative primary reference applicable merely described “the general concept of a sectional sofa with integrated end tables.” Reply Br. 7, citing Durling, 101 F.3d at 104. Appellant asserts that the Examiner similarly and improperly relies on the general concept of providing a strap with loops to justify citing Bogardus as a proper Rosen reference. Id. Although we are not completely on board with Appellant’s characterization of the Examiner’s position relative to “a strap with loops,” in that the Examiner further notes that the loops in Bogardus are formed of the same material as the strap, and that the strap is looped over at either end, we do ultimately agree with Appellant that the Examiner’s characterization of Bogardus is more of a description of a general concept rather than 2 In re Rosen, 673 F.2d 388 (CCPA 1982). 3 101 F.3d 100 (Fed. Cir. 1996). Appeal 2019-007012 Application 29/619,971 7 comparing the visual appearances of Bogardus and the claimed design. Reply Br. 7, citing Durling, 101 F.3d 104–05. We find Appellant’s contrasting of the claimed design as being “a neat and linear strip with . . . small loops and confined decorative stitching,” to Bogardus’ “fluid and splayed device with . . . large, twisted loops” to be an apt assessment of both the basic design characteristics and overall appearance of the respective articles, and is illustrative that the two do not share the same basic design characteristics and overall appearance. Reply Br. 6. Accordingly, Bogardus may not properly serve as a primary, Rosen, reference in the rejection. Having not met this threshold, the Examiner’s reliance on Wu to modify Bogardus so as to reach the claimed design, is of no avail. The rejection of Appellant’s claim as being unpatentable over Bogardus and Wu is therefore not sustained. CONCLUSION In summary, we do not sustain the Examiner’s rejection, as summarized in the following table: Claim Rejected 35 U.S.C. § Reference Affirmed Reversed 1 103 Bogardus, Wu 1 REVERSED Copy with citationCopy as parenthetical citation