Ex Parte Alvite et al

Board of Patent Appeals and Interferences

Sep 13, 2010

10215414 (B.P.A.I. Sep. 13, 2010)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
____________

Ex parte ARMANDO ALVITE and LEONARD I. HOREY
____________

Appeal 2010-003017
Application 10/215,414
Technology Center 3700
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Before JENNIFER D. BAHR, JOHN C. KERINS, and STEVEN D.A.
McCARTHY, Administrative Patent Judges.

KERINS, Administrative Patent Judge.
DECISION ON APPEAL1

1 The two-month time period for filing an appeal or commencing a civil
action, as recited in 37 C.F.R. § 1.304, or for filing a request for rehearing,
as recited in 37 C.F.R. § 41.52, begins to run from the “MAIL DATE”
(paper delivery mode) or the “NOTIFICATION DATE” (electronic delivery
mode) shown on the PTOL-90A cover letter attached to this decision.
Appeal 2010-003017
Application 10/215,414

STATEMENT OF THE CASE
Armando Alvite and Leonard I. Horey (Appellants) seek our review
under 35 U.S.C. § 134 of the Examiner’s final rejection of claims 1-3, 6-12
and 16-24, the only claims pending in the application. We have jurisdiction
under 35 U.S.C. § 6(b) (2002). We AFFIRM.

THE INVENTION
Appellants’ claimed invention is directed to a warming fabric or
blanket. Claim 16, reproduced below, is illustrative of Appellant’s
invention:
16. A warming blanket comprising:

a fabric, comprising:

a first zone; and

a second zone, the second zone being separated
from the first zone in that the first zone does not
substantially overlap the second zone;

a first heating element aligned along the fabric and
configured to heat a first zone of the fabric and not
the second zone;

a second heating element aligned along the fabric
and configured to heat a second zone of the fabric
and not the first zone; and

a multiplex controller for cycling power
individually and alternatively between the first
heating element and the second heating element.

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Application 10/215,414

THE REJECTIONS
The Examiner has rejected claims 1, 8-12, 16 and 19-24 under
35 U.S.C. § 103(a) as being unpatentable over Gabrosek (US 4,659,905,
issued April 21, 1987), in view of Uchida (JP62-190330, published August
20, 1987) and further in view of either Miwa (JP11-154588, published June
8, 1999) or Yoshio (JP6-132069, published May 13, 1994).2 The Examiner
has also rejected claims 2, 3, 6, 7, 17 and 18 under 35 U.S.C. § 103(a) as
being unpatentable over the foregoing references, and further in view of
Krackow (US 3,489,882, issued January 13, 1970).

ISSUES
Does Uchida constitute non-analogous art to warming blankets
or fabrics, such that it was error on the Examiner’s part to combine the
teachings of Uchida with those of Gabrosek?
Does the Examiner’s combination of the teachings of Gabrosek and
Uchida rely impermissibly on the use of hindsight reconstruction in view of
Appellants’ disclosure?

ANALYSIS
Claims 1, 8-12, 16 and 19-24--Obviousness--Gabrosek/Uchida/Miwa/Yoshio
Appellants present arguments for patentability directed only to claims
1 and 16, the two independent claims subject to this rejection.
The Examiner found that the fabric or blanket disclosed in Gabrosek
failed to teach only the multiplex controller element set forth in claims 1 and

2 English language translations of these Japanese published applications
are of record in the application file, and reference will be made, where
necessary, to the translations.

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Application 10/215,414

16. (Ans. 4, referencing Final Rejection, dated January 31, 2006). The
Examiner found that Uchida discloses a multiplex controller for an electric
carpet having heating elements therein to heat different zones of the carpet.
The Examiner concluded that it would have been obvious to modify the
Gabrosek fabric/blanket to employ a multiplex controller as disclosed in
Uchida, in order to reduce the overall power consumption while maintaining
the heating effect. (Id.).
Appellants do not contest that the proposed modification of Gabrosek
would result in the invention set forth in claims 1 and 16. Rather,
Appellants urge that it was improper to combine the teachings of the
references, asserting that the Uchida reference constitutes non-analogous art.
(Appeal Br. 10-11). Appellants further contend that, even if Uchida is
considered to be analogous art, the combination of the teachings of Uchida
with Gabrosek is improper, in that there is no motivation to combine
the references, and thus the combination was made using hindsight
reconstruction. (Appeal Br. 11-12).
The determination of the scope and content of the prior art includes
determining whether prior art references are “analogous.” The established
precedent of our reviewing court sets up a two-fold test for determining
whether art is analogous: “First, we decide if the reference is within the
field of the inventor’s endeavor. If it is not, we proceed to determine
whether the reference is reasonably pertinent to the particular problem with
which the inventor was involved.” In re Deminski, 796 F.2d 436, 442 (Fed.
Cir. 1986) (emphasis added).
Appellants argue that Uchida is not, as is the claimed invention,
directed to a “warming blanket (or fabric) that includes two zones that are

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Application 10/215,414

arranged to be aligned against upper and lower portions of a user.” (Appeal
Br. 10). Appellants contend that floor carpets in general, including the
electric floor carpet disclosed in Uchida, are not used against the lower and
upper torsos of an individual “such as is particularly claimed in Claims 1 and
16.”3 (Id.).
The Examiner counters that carpets and blankets both comprise fabric
which is heated, and points out that carpet heating and blanket heating, and
their heating elements, are all classified in Class 219. (Ans. 5). The
Examiner further cites to the Miwa and Yoshio references as evidence that
persons of ordinary skill in the art would consider the heating control of
carpets and of blankets to be related. (Id.).
We are not persuaded that the heating of electric carpets is outside
the field of Appellants’ endeavor, let alone not reasonably pertinent to a
problem with which Appellants’ were involved. One of the objects of
Appellants’ invention is to lower the wattage requirements for the warming
fabric. (Spec., p. 5, para. [0012]). Uchida, though directed to an electric
carpet, discloses a heating control scheme that lowers power consumption
(Uchida, p. 4, ll. 3-12), and is thus, at a minimum, reasonably pertinent
to Appellants’ wattage-lowering considerations. Moreover, the Miwa
reference in particular evidences that various planar heating elements known
in the art had applicability to both electric carpets and electric blankets.
(Miwa, p. 2, para. [0002]), thus establishing that the heating of both media
are within the same field of endeavor.

3 Claim 16 contains no language directed to a lower and/or upper torso or
portion of a user.

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Appellants’ alternative argument is that there is no motivation to
combine the Gabrosek and Uchida references, implying that hindsight
reconstruction was impermissibly employed in reaching the obviousness
conclusion. (App. Br. 11-12). The Supreme Court has admonished that
rigid adherence to a “teaching, suggestion, motivation” test in assessing
obviousness is not consistent with its precedent, and that, in the case of an
Examiner, there instead exists a requirement to present an apparent reason to
combine the teachings of the references, and that the articulated reasoning
should be supported by some rational underpinning. KSR Int'l Co. v. Teleflex
Inc., 550 U.S. 398, 418 (2007).
The Examiner stated the reason to combine the teachings of Uchida
with Gabrosek as being for the purpose of reducing overall power
consumption while maintaining an appropriate heating effect. (Ans. 4-5;
Final Rejection 4). Appellants do not challenge this rationale as being
untenable. Rather, Appellants simply posit that nothing in the Gabrosek
reference would motivate a user to look for a different controller for the
electric blanket therein “which works perfectly well by itself.” (App. Br.
12).
We are not persuaded that the Examiner erred in combining the
teachings of the Gabrosek and Uchida references in reaching the conclusion
that the subject matter of claims 1 and 16 would have been obvious to a
person of ordinary skill in the art.
No separate arguments for patentability are advanced for claims 8-12
and 19-24, which depend from claims 1 and 16, respectively. As such, the
dependent claims fall together with the independent claims from which they
depend. 37 C.F.R. § 41.37(c)(1)(vii) (2007).

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Application 10/215,414

Claims 2, 3, 6, 7, 17 and 18--Obviousness--Gabrosek/Uchida/Miwa/Yoshio
further in view of Krackow
Appellants present no additional arguments directed to the
patentability of these claims over the cited references. For the reasons set
forth above with respect to claims 1 and 16, the rejections of these claims
will be sustained.
CONCLUSIONS
Appellants have not persuaded us that the Uchida reference is non-
analogous art, and thus the consideration of the teachings of Uchida with the
teachings of Gabrosek is not in error. Appellants have not persuaded us that
the Examiner resorted to the use of impermissible hindsight reconstruction
in concluding that the claimed invention would have been obvious over the
combination of the teachings of Gabrosek and Uchida.

DECISION
The decision of the Examiner to reject claims 1-3, 6-12 and 16-24 is
affirmed.
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) (2007).

AFFIRMED

JRG

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