Bliss Hammocks Inc.

Patent Trials and Appeals Board

Jul 7, 2020

2019007012 (P.T.A.B. Jul. 7, 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.
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