12070215 (P.T.A.B. Jul. 29, 2013)

Ex Parte McQuoid

Patent Trial and Appeal BoardJul 29, 2013

12070215 (P.T.A.B. Jul. 29, 2013)

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. 12/070,215 02/14/2008 Vicky McQuoid RAR795.01 8974 29762 7590 07/29/2013 RICHARD A. RYAN ATTORNEY AT LAW 440 W. FALLBROOK AVENUE SUITE 104 FRESNO, CA 93711 EXAMINER CONLEY, FREDRICK C ART UNIT PAPER NUMBER 3673 MAIL DATE DELIVERY MODE 07/29/2013 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 VICKY MCQUOID ____________ Appeal 2011-008165 Application 12/070,215 Technology Center 3600 ____________ Before JENNIFER D. BAHR, MICHAEL C. ASTORINO, and BENJAMIN D. M. WOOD, Administrative Patent Judges. ASTORINO, Administrative Patent Judge. DECISION ON APPEAL STATEMENT OF THE CASE The Appellant appeals under 35 U.S.C. § 134 from the Examiner’s decision finally rejecting claims 1-19. We have jurisdiction over the appeal under 35 U.S.C. § 6(b). We REVERSE. Appeal 2011-008165 Application 12/070,215 2 CLAIMED SUBJECT MATTER Claims 1, 8, and 13 are the independent claims on appeal. Claim 1, reproduced below, is illustrative of the subject matter on appeal. 1. A pillow system, comprising: a pillow having a top panel and an opposing bottom panel joined at the periphery thereof to define a periphery edge around said pillow, said pillow having a cushioning material disposed between said top panel and said bottom panel and enclosed by said periphery edge, said pillow having an outer surface substantially covering at least one of said top panel and said bottom panel, said outer surface having a cover theme thereon; a pocket disposed in said pillow, said pocket accessible through a pocket inlet in said peripheral edge, said pocket extending into and substantially enclosed by said cushioning material; closure means along said peripheral edge at said pocket inlet for at least substantially closing said pocket; and one or more articles disposed in said pocket and enclosed by said closure means, said articles having an article theme corresponding to said cover theme. REJECTIONS The following Examiner’s rejections are before us for review: claims 1-4, 6, 8, 9, 11, 13-16, and 18 are rejected under 35 U.S.C. § 103(a) as unpatentable over Brau (US 5,575,028, iss. Nov. 19, 1996) and Beehler (US 2,293,530, iss. Aug. 28, 1942); and claims 5, 7, 10, 12, 17, and 19 are rejected under 35 U.S.C. § 103(a) as unpatentable over Brau, Beehler, and Faircloth (US 7,461,421 B1, iss. Dec. 9, 2008). Appeal 2011-008165 Application 12/070,215 3 OPINION The independent claims 1, 8, and 13 call for a pillow system or, alternatively, a pillow including a cushioning material disposed between a top panel and a bottom panel, and a “pocket extending into . . . said cushioning material.” Br., Claims Appendix. The Examiner finds that Brau’s soft filling 34 between the front flexible sheet 30 and the rear flexible sheet 32 corresponds to the claimed cushioning material disposed between a top panel and a bottom panel, respectively. Ans. 4; Brau, col. 3, ll. 23-29. The Examiner also finds that Brau’s rear pocket 14 corresponds to the claimed pocket and, as such, the rear pocket 14 must extend into the cushioning material 34. Ans. 4, 7. The Appellant contends that Brau’s rear pocket 14 does not extend into the soft filling (cushioning material) 34. Br. 9. We agree. As pointed out by the Appellant, Brau’s rear pocket 14 is not disposed inside the soft filling (cushioning material) 34 between the front flexible sheet 30 and the rear flexible sheet 32. Id. See Brau, fig. 2. Rather, Brau’s flexible sheet 42 forms the rear pocket 14 and attaches to the outside of the rear sheet 32 in a direction away from the portion of the cushion 12 enclosing the cushioning material 34. Br. 9. See Brau, col. 3, ll. 23-35 (cushion 12 does not include the rear pocket 14). As such, the Examiner’s finding that Brau’s rear pocket 14 extends into the soft filling 34 is incorrect. The Examiner’s rejection includes an additional finding regarding Beehler. Ans. 4. The finding concerns the teaching of a zipper 24, 26 as a closure means and does not remedy the deficiency of Examiner’s unsubstantiated finding concerning Brau. Id. As such, the Examiner’s rejection lacks rational underpinning. Appeal 2011-008165 Application 12/070,215 4 Thus, the rejection of claims 1-4, 6, 8, 9, 11, 13-16, and 18 as unpatentable over Brau and Beehler is not sustained. As for the remaining rejection based on Brau and Beehler in combination with Faircloth, this rejection relies on the same unsubstantiated finding concerning Brau. See Ans. 5. As such, we cannot sustain the rejection of claims 5, 7, 10, 12, 17, and 19 under 35 U.S.C. § 103(a) as unpatentable over Brau, Beehler, and Faircloth. DECISION We REVERSE the rejections of claims 1-19. REVERSED Klh