Ex Parte Gladney

Board of Patent Appeals and Interferences

Oct 26, 2009

10671903 (B.P.A.I. Oct. 26, 2009)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
____________

Ex parte RICHARD F. GLADNEY
____________

Appeal 2009-002935
Application 10/671,903
Technology Center 3600
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Decided: October 26, 2009
____________

Before LINDA E. HORNER, JOHN C. KERINS, and STEFAN
STAICOVICI, Administrative Patent Judges.

HORNER, Administrative Patent Judge

DECISION ON APPEAL
Appeal 2009-002935
Application 10/671,903

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STATEMENT OF THE CASE
Richard F. Gladney (Appellant) seeks our review under 35 U.S.C.
§ 134 of the Examiner’s decision rejecting claims 1, 2, 4, 6-13, 18-22, 24-27,
and 29. Claims 3, 5, and 14-17 have been canceled. Claims 23 and 28 are
pending and not rejected, the rejections against these claims having been
withdrawn by the Examiner in the Answer. Ans. 2-3. We have jurisdiction
under 35 U.S.C. § 6(b) (2002).

SUMMARY OF DECISION
We AFFIRM-IN-PART.

THE INVENTION
Appellant’s claimed invention is to a mattress that prevents or
mitigates the development of a center ridge. Spec. 2, para. 0005. A center
ridge is formed when materials in a two-person mattress become compressed
in the areas of the surface where people sleep and materials along the center
of the mattress remain uncompacted and over time present an elevated
surface. Spec. 1, para. 0003. The center ridge is also caused, or worsened,
as people enter and exit beds, and by so doing urge materials within the
mattress core toward the mattress center. Id. Claims 1 and 21, reproduced
below, are representative of the subject matter on appeal.
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1. A mattress comprising:
a head end;
a foot end;
a first side and a second side; and
a center region traversing the mattress from
the head end to the foot end, the center region
including one or more materials other than a single
air bladder that mitigate the emergence of a center
ridge over repeated uses of the mattress, the center
region having a width of between about two inches
and about twelve inches.

21. A method for manufacturing a mattress, the
method comprising:
constructing a first region and a second
region of one or more materials having a first
firmness, the first region and the second region
being configured to provide a sleeping surface to
one or more users of the mattress;
constructing a center region between the
first region and the second region, the center
region being constructed of one or more materials
other than a single air bladder that together have a
second firmness different than the first firmness,
the center region having a width of between about
two inches and about twelve inches.

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THE EVIDENCE
The Examiner relies upon the following evidence:
Fultz US 3,516,901 Jun. 23, 1970
Kentor1 US 3,608,107 Sep. 28, 1971
Talbert US 4,086,675 May 2, 1978
Klancnik US 4,092,749 Jun. 6, 1978
Farley (Farley ‘849) US 5,077,849 Jan. 7, 1992
Bonaddio US 5,537,699 Jul. 23, 1996
Selman US 5,579,549 Dec. 3, 1996
Farley (Farley ‘179) US 6,003,179 Dec. 21, 1999
Nunez US 6,041,459 Mar. 28, 2000

THE REJECTIONS
Appellant seeks review of the following rejections:2
1. The Examiner rejected claims 1, 2, 4, 6-8, 18-22, 24-27, and 29 under
35 U.S.C. § 103(a) as being unpatentable over Selman or Nunez in
view of Farley ‘849 or Farley ‘179.
2. The Examiner rejected claims 9-11 under 35 U.S.C. § 103(a) as being
unpatentable over Selman or Nunez in view of Farley ‘849 or Farley
‘179, and further in view of Klancnik.

1 The Examiner relied on Kentor only to support the taking of Official
Notice that “Queen and King size mattresses are well known and old.”
Ans. 7, 11.
2 The Examiner withdrew the following rejections: claims 1, 2, 4, 6-13, and
18-29 under 35 U.S.C. § 112, first paragraph, claims 1, 2, 6, 9, and 18-28
under 35 U.S.C. § 102(b) as being anticipated by U.S. Patent No. 2,859,505
to Jarvis, and claims 4 and 29 under 35 U.S.C. § 103(a) as unpatentable over
Jarvis. Ans. 2-3. As such, claims 23 and 28 are pending and not rejected.
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3. The Examiner rejected claims 9, 12, and 13 under 35 U.S.C. § 103(a)
as being unpatentable over Selman or Nunez in view of Farley ‘849 or
Farley ‘179, and further in view of Talbert or Bonaddio or Fultz.

ISSUES
The Examiner found Selman and Nunez disclose a center region
traversing the mattress from a head end to a foot end, as called for in claims
1, 18, and 20. Ans. 4, 9.
Appellant contends the Examiner erred in rejecting these claims
because Selman and Nunez disclose the center portion traversing the
mattress from side-to-side instead of from the head end to the foot end as
claimed. App. Br. 13, 21.
The Examiner further found Selman and Nunez disclose a center
region between a first region and a second region of a mattress, and Farley
‘849 and Farley ‘179 disclose the center region having a width of between
about two inches and about twelve inches, as called for in claim 21. Ans. 5,
15, 16.
Appellant contends the Examiner erred in rejecting claim 21 because
Selman, Nunez, Farley ‘849, and Farley ‘179 fail to teach or suggest the
center region having a width of between about two inches and about twelve
inches. Reply Br. 16.3

3 Appellant also contended in the Appeal Brief that the Examiner erred in
rejecting claim 21 because Selman and Nunez disclose the center portion
traversing the mattress from side-to-side instead of from the head end to the
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The issues presented by this appeal are:
Has Appellant shown the Examiner erred in finding that Selman and
Nunez disclose a mattress having a center portion that traverses the mattress
from the head end to the foot end, as called for in claims 1, 18, and 20?
Has Appellant shown the Examiner erred in finding that the combined
teachings of Selman, Nunez, Farley ‘849, and Farley ‘179 would have led
one having ordinary skill in the art to modify the mattresses of Selman
and/or Nunez to make the center region having a width of between about
two inches and about twelve inches, as called for in claim 21?

FINDINGS OF FACT
We find that the following enumerated findings are supported by at
least a preponderance of the evidence. Ethicon, Inc. v. Quigg, 849 F.2d
1422, 1427 (Fed. Cir. 1988) (explaining the general evidentiary standard for
proceedings before the Office).
1. Selman discloses a mattress having a transverse center portion of
relatively increased firmness to extend mattress life, provide
increased and lasting user comfort, and decrease wear caused by
the inner springs in the center portion, which bears the most weight

foot end. App. Br. 13, 21. Appellant, presumably realizing that claim 21
does not contain the limitation that the center portion traverses the mattress
from the head end to the foot end, apparently dropped this argument in the
Reply Brief. See Reply Br. 15-16 (limiting the argument regarding the head
end and foot end to only independent claims 1, 18, and 20).
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during sleeping. Selman, col. 1, ll. 8-9 and ll. 27-29; id. at col. 2,
ll. 5-8 and ll. 15-18. Selman discloses an insulator pad 100 having
a center portion 102, a head portion 104, and a foot portion 106,
where the center portion 102 has increased firmness in comparison
to head portion 104 and foot portion 106. Selman, col. 3, ll. 19-22;
fig. 1. Selman further discloses an alternate embodiment also
having a center portion 202 of enhanced firmness that is enhanced
“to support the wear due to sitting and sleeping.” Selman, col. 4,
ll. 51-54; fig. 2. The center portions 102, 202 are located midway
between the mattress head portion and foot portion and traverse the
mattress from side-to-side. Selman, figs. 1, 2.
2. Nunez discloses a mattress 10 having a convoluted foam cushion
12 which is divided in seven, longitudinally-spaced zones 41-47
having select convoluted pattern configurations to provide support
and comfort areas. Nunez, col. 2, ll. 44-45 and ll. 55-7; id. at
col. 3, ll. 6-8; fig. 1. Nunez discloses that the width of each zone
corresponds to the width of the body. Nunez, col. 3, ll. 8-9.
Support zones 41, 43, 45, and 47 provide additional support to a
user’s head and neck, lower back area, lower buttocks and thigh
area, and lower leg, ankle and foot area, respectively. Nunez, col.
3, ll. 9-10; id. at col. 3, l. 62 – col. 4, l. 3. Zones 42, 44, and 46 are
comfort zones underlying the user’s shoulder area, hips and upper
buttocks area, and calf and leg area. Nunez, col. 3, l. 10; id. at col.
3, l. 62 – col. 4, l. 2. The comfort zones provide less support to the
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user’s body than the support zones. Nunez, col. 3, ll. 14-16. As
such, each zone traverses the mattress from side-to-side. Nunez,
fig. 1.
3. Farley ‘849 discloses a convoluted foam pad having at least one
area of the pad that provides less resistance to the weight of the
body than other areas of the pad to allow the portion of the body
resting on this area of the pad to sink farther into the pad. Farley
‘849, col. 3, ll. 16-28. Farley ‘849 discloses in one embodiment a
pad 195 having shoulder and tail support areas 203 and 207, which
have a lower foam content than the head, middle back, and leg and
feet support areas 201, 205, and 209 to increase the surface area of
the pad in contact with the shoulder and tail portion of the body
and diminish the level of pressure exerted on the skin per unit area.
Farley ‘849, col. 15, ll. 19-32; figs. 24, 25. Farley’s tail support
area 207 is located approximately midway between the head and
foot support areas 201, 209 and traverses the mattress from side-to-
side. Farley ‘849, fig. 24. Farley ‘849 discloses that the tail
support area 207 has a length of approximately eleven inches.
Farley ‘849, col. 15, ll. 52-53.
4. Farley ‘179 discloses a pad for supporting a recumbent human
being upon an inclined surface and having distinct shoulder, tail,
and foot support regions for facilitating optimal anatomical
conformance to the human body. Farley ‘179, col. 1, ll. 5-9. In
particular, Farley ‘179 discloses a support pad 10 having shoulder,
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foot, and tail support regions 22, 24, and 26, and a general support
region 28. Farley ‘179, col. 5, l. 2 and ll. 23-32; fig. 2. As shown
in Figure 2, tail support region 26 is located approximately
midway between a head end and a foot end of the pad and
traverses the mattress from side-to-side. Farley ‘179 discloses the
tail support region 26 has a width of from nine to seventeen inches,
and a preferred width of approximately eleven inches. Farley ‘179,
col. 5, ll. 41-44. Farley ‘179 discloses that the quantity of foam
per unit volume in the general support region 28 is greater than the
quantity of foam per unit volume in the shoulder, foot, and tail
support regions 22, 24, and 26. Farley ‘179, col. 5, l. 66 – col. 6,
l. 4.

PRINCIPLES OF LAW
“Both anticipation under § 102 and obviousness under § 103 are two-
step inquiries. The first step in both analyses is a proper construction of the
claims. . . . The second step in the analyses requires a comparison of the
properly construed claim to the prior art.” Medichem, S.A. v. Rolabo, S.L.,
353 F.3d 928, 933 (Fed. Cir. 2003) (internal citations omitted).
We determine the scope of the claims in patent applications not solely
on the basis of the claim language, but upon giving claims “their broadest
reasonable interpretation consistent with the specification” and “in light of
the specification as it would be interpreted by one of ordinary skill in the
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art.” In re Am. Acad. of Sci. Tech. Ctr., 367 F.3d 1359, 1364 (Fed. Cir.
2004).

ANALYSIS
Rejection of claims 1, 2, 4, 6-8, 18-22, 24-27, and 29 as unpatentable over
Selman or Nunez in view of Farley ‘849 or Farley ‘179
Independent claims 1, 18, and 20
Independent claims 1, 18, and 20 each call for a mattress comprising a
head end and a foot end and a center region “traversing the mattress from the
head end to the foot end.” We disagree with the Examiner’s reading of the
“head end” and “foot end” as merely statements of intended use. See Ans.
13-14. Appellant’s Specification defines the head end 108, the foot end 110,
and the center region 102 of the mattress 100 relative to where sleepers are
expected to repose. See e.g., Spec. 5-6, para. 0019. As such, one having
ordinary skill in the art would understand that the claimed head end and foot
end of the mattress correspond to the ends of the mattress nearest where the
sleeper’s head and feet are expected to be located during normal use of the
mattress. This understanding is consistent with descriptions of mattresses in
the art, which also use the terms “head” and “foot” to describe regions of a
mattress relative to the expected orientation of a sleeper when resting on the
mattress (Facts 1-4). Based on the interpretation of the claimed head end
and the foot end as referring to the ends of the mattress nearest where the
sleeper’s head and feet are expected to be located during normal use of the
mattress, neither Selman nor Nunez nor Farley ‘849 nor Farley ‘179
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discloses a center portion as claimed traversing the mattress from the head
end to the foot end (Facts 1-4). Selman discloses a mattress having a
transverse center portion that is located midway between the mattress head
portion and foot portion and traverses the mattress from side-to-side (Fact
1). Similarly, Nunez discloses a mattress 10 having a convoluted foam
cushion 12 which is divided in seven, longitudinally-spaced zones 41-47 of
support and comfort, where the zones each traverse the mattress from side-
to-side (Fact 2). Likewise, Farley ‘849 and Farley ‘179 disclose a support
pad having a tail support area that is located approximately midway between
a head end and a foot end of the mattress and that traverses the mattress from
side-to-side (Facts 3, 4). As such, we cannot sustain the rejection of
independent claims 1, 18, and 20 under § 103 in view of Selman or Nunez in
view of Farley ‘849 or Farley ‘179. For the same reasons, we cannot sustain
this rejection of dependent claims 2, 4, 6-8, 19, 24-26, and 29.
Independent claim 21
Independent claim 21 is directed to a method for manufacturing a
mattress including the step of constructing a center region of a second
firmness between a first region and a second region of a first firmness. The
claim recites that the first and second regions are configured to provide a
sleeping surface to one or more users of the mattress. The claim calls for the
center region to have a width of between about two inches and about twelve
inches. As noted supra, Appellant argued that “Selman et al., Nunez et al.,
Farley ‘179, and Farley ‘849 fail to teach or suggest the ‘center region
having a width of between about two inches and about twelve inches.’”
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Reply Br. 16. The Examiner, however, found that Farley ‘179 and Farley
‘849 disclose center regions 26 and 207, respectively, having a width that
falls within the claimed range. See e.g., Ans. 5 (citing to Farley ‘179, col. 5
and Farley ‘849, col. 15). We see no error, and Appellant has not adequately
persuaded us of any error, in the Examiner’s finding. In particular, Farley
‘849 discloses that the tail support area 207 has a length of approximately
eleven inches (Fact 3), and Farley ‘179 discloses the tail support region 26
has a width of from nine to seventeen inches, and a preferred width of
approximately eleven inches (Fact 4). The center regions of Selman (102)
and Nunez (44) are both designed to lie beneath the tail or buttocks portion
of a user’s body (Facts 1, 2). Farley ‘179 and Farley ‘849 disclose that a
preferred width for a region of a mattress support pad designed to lie beneath
a user’s tail portion is eleven inches (Facts 3, 4). Thus, it would have been
obvious to modify the center portions of either Selman or Nunez, based on
the teaching of a preferred width underlying the same region in Farley ‘179
and Farley ‘849, to make the center portions eleven inches. Such a mattress
would fall within the claimed range of two to twelve inches. As such, we
will sustain the Examiner’s rejection of claim 21. Dependent claims 22 and
27 are likewise rejected, as Appellant presents no separate arguments for
patentability of these claims. As such, claims 22 and 27 fall with claim 21.
37 C.F.R. § 41.37(c)(1)(vii) (2007).

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Rejection of claims 9-11 as unpatentable over Selman or Nunez in view of
Farley ‘849 or Farley ‘179 and further in view of Klancnik
Claims 9-11 depend from claim 1. The Examiner’s conclusion of
obviousness of claims 9-11 relies on the erroneous interpretation of “head
end” and “tail end” as discussed supra in our analysis of claim 1. Ans. 7-8,
12. The Examiner does not rely on Klancnik to disclose a center region
traversing the mattress from the head end to the foot end as called for in
claim 1. Further, we find that Klancnik does not cure the deficiency in the
combined teaching of Selman or Nunez in view of Farley ‘849 or Farley
‘179. As such, we cannot sustain this rejection of claims 9-11.

Rejection of claims 9, 12, and 13 as unpatentable over Selman or Nunez in
view of Farley ‘849 or Farley ‘179 and further in view of Talbert or
Bonaddio or Fultz
Claims 9, 12, and 13 depend from claim 1. The Examiner’s
conclusion of obviousness of claims 9, 12, and 13 relies on the erroneous
interpretation of “head end” and “tail end” as discussed supra in our analysis
of claim 1. Ans. 8, 12-13. The Examiner does not rely on Talbert or
Bonaddio or Fultz to disclose a center region traversing the mattress from
the head end to the foot end as called for in claim 1. Further, we find that
neither Talbert nor Bonaddio nor Fultz cures the deficiency in the combined
teaching of Selman or Nunez in view of Farley ‘849 or Farley ‘179. As
such, we cannot sustain this rejection of claims 9, 12, and 13.

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CONCLUSIONS
Appellant has shown the Examiner erred in finding that Selman and
Nunez disclose a mattress having a center portion that traverses the mattress
from the head end to the foot end.
Appellant has failed to show the Examiner erred in finding that the
combined teachings of Selman, Nunez, Farley ‘849, and Farley ‘179 would
have led one having ordinary skill in the art to modify the mattresses of
Selman and/or Nunez to make the center region having a width of between
about two inches and about twelve inches.

DECISION
The decision of the Examiner to reject claims 1, 2, 4, 6-13, 18-20,
24-26, and 29 is reversed. The decision of the Examiner to reject claims 21,
22, and 27 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-IN-PART

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