Ex parte BARNETT et al.

Board of Patent Appeals and Interferences

May 14, 1998

08223323 (B.P.A.I. May. 14, 1998)

Application for patent filed April 5, 1994. According 1
to appellants, the application is a continuation of Applica-
tion 07/952,839, filed February 8, 1993, abandoned; which is a
continuation-in-part of Application 07/567,113, filed August
13, 1990, abandoned; which is a continuation-in-part of Appli-
cation 07/528,559, filed May 24, 1990, abandoned.
1
THIS OPINION WAS NOT WRITTEN FOR PUBLICATION
The opinion in support of the decision being entered today
(1) was not written for publication in a law journal and
(2) is not binding precedent of the Board.
Paper No. 37
UNITED STATES PATENT AND TRADEMARK OFFICE
_____________
BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
_____________
Ex parte KARL F. BARNETT,
DONALD P. MARRIOTT, CHRISTOPHER J. BARRETT
and
JOHN L. BREAUGH
_____________
Appeal No. 96-2455
Application 08/223,3231
______________
ON BRIEF
_______________
Before McCANDLISH, Senior Administrative Patent Judge, and
FRANKFORT and STAAB, Administrative Patent Judges.
FRANKFORT, Administrative Patent Judge.
Appeal No. 96-2455
Application 08/223,323
2
DECISION ON APPEAL
This is a decision on appeal from the examiner's
final rejection of claims 1 through 12, 18 through 21 and 24,
which are all of the claims remaining in this application.
Claims 13 through 17, 22, 23 and 25 through 39 have been
canceled.
Appellants' invention is directed to a temporary
disposable seat cover that may be used, for example, to pro-
tect vehicle seats during (1) the manufacture of the vehicle,
(2) shipment thereof, and (3) also during any subsequent
repairs thereof at a car dealership, etc. A copy of independ-
ent claims 1, 18 and 24 on appeal may be found in Appendix A
attached to appellants' brief.
The prior art references of record relied upon by
the examiner as evidence of obviousness of the claimed subject
matter are:
Nail 2,904,103 Sept. 15,
1959
Appeal No. 96-2455
Application 08/223,323
A copy of a translation of each of the above-noted2
foreign documents prepared by or for the U.S. Patent and
Trademark Office is attached to this decision.
3
Gemy 1,062,196 Apr. 20,
1951
(French)
Schenz 3,419,728 Nov. 11,
1985
(German)
Horn 3,500,928 July 17,
1986
(German)2
Claims 1 through 7, 9 through 12, 18 through 21 and
24 stand rejected under 35 U.S.C. § 103 as being unpatentable
over Schenz in view of Nail and Gemy.
Claim 8 stands rejected under 35 U.S.C. § 103 as
being unpatentable over Schenz in view of Nail and Gemy as
applied above, and further in view of Horn.
Reference is made to the examiner's answer (Paper
No. 25, mailed December 13, 1995) for the examiner's full
reasoning in support of the above-noted rejections. A com-
plete exposition of appellants' arguments thereagainst are
Appeal No. 96-2455
Application 08/223,323
4
found in the appeal brief filed October 2, 1995 (Paper No. 24)
and reply brief (Paper No. 26, filed February 12, 1996).
OPINION
After careful consideration of appellants' specifi-
cation and claims, the teachings of the applied references and
the arguments and comments advanced by appellants and the
examiner, it is our determination that the examiner's conclu-
sions of obviousness regarding appellants' claimed subject
matter are unsupported by the applied prior art and the rejec-
tions based thereon will therefore not be sustained.
As the examiner has recognized (answer, page 4),
Schenz discloses, e.g., in Figure 1, a temporary seat cover
comprising a two-layer member having an upper pocket (12) and
a lower pocket (10), however, there is no teaching or sugges-
tion therein of either the tabs located intermediate the upper
and lower pockets or the adhesive means associated with the
tabs and used to secure the seat cover to the seat, as re-
Appeal No. 96-2455
Application 08/223,323
5
quired in appellants' claims on appeal. To address these
differences, the examiner points to Gemy and Nail, urging that
Gemy (figs. 1, 2) teaches the use of adhe-
sives means to facilitate anchoring a cover
means to a chair and the patent to Nail
teaches the use of flaps for a covering
means to conform and facilitate anchoring
and producing an aesthetically pleasing
cover to be old (answer, page 4).
The examiner then concludes that
[i]t would have been obvious and well
within the level of ordinary skill in the
art to modify the structure of Schenz to
include adhesives and flap means, as taught
by Nail
and Gemy, to provide an alternative
conventional anchoring means and better
aesthetics, such structure used in the same
intended purpose, thereby providing
structure as claimed.
Contrary to the position of the examiner, the
applied references do not teach or suggest "tabs," like those
claimed by
appellants, positioned on a temporary seat cover in the manner
required in the claims on appeal. Even more disturbing,
however, is the fact that none of the applied references teach
Appeal No. 96-2455
Application 08/223,323
6
or suggest an "adhesive means" like that set forth in the
claims before us on appeal. In contrast with the examiner's
position, it is apparent from the translation of the Gemy
reference that there is nothing therein which provides any
teaching, suggestion or incentive regarding an adhesive means
to facilitate anchoring a cover means to a chair, as the
examiner seems to have believed. Instead, Gemy discloses a
protective device for a vehicle seat wherein a fabric cover
(2), such as velour, is attached peripherally to a smooth,
slippery surface element (1), such as plastic,
by stitching as seen in Figure 1. Ties (3, 4) are used to
secure
the protective device to the seat. No adhesive is used or
disclosed in Gemy. Thus, the examiner's position with regard
to claims 1 through 7, 9 through 12, 18 through 21 and 24 is
totally without factual support in the applied references and
must there- fore be reversed.
As for the examiner's rejection of claim 8 under
35 U.S.C. § 103 as being unpatentable over Schenz, Nail, Gemy
Appeal No. 96-2455
Application 08/223,323
7
and Horn, even if one of ordinary skill in the art were to
combine the teachings of Horn with those of the references
applied above, the deficiencies in the teachings of Schenz,
Nail and Gemy, as noted above would not be overcome.
Accordingly, the examiner's rejection of dependent claim 8
under 35 U.S.C. § 103 will also not be sustained.
As is apparent from the foregoing, the decision of
the examiner rejecting claims 1 through 12, 18 through 21 and
24 under 35 U.S.C. § 103 is reversed.
REVERSED
HARRISON E. McCANDLISH )
Senior Administrative Patent Judge )
)
)
) BOARD OF
PATENT
CHARLES E. FRANKFORT ) APPEALS
AND
Appeal No. 96-2455
Application 08/223,323
8
Administrative Patent Judge )
INTERFERENCES
)
)
)
LAWRENCE J. STAAB )
Administrative Patent Judge )
Appeal No. 96-2455
Application 08/223,323
9
Timothy G. Newan
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