Ex Parte Oh

Patent Trials and Appeals Board

Apr 29, 2019

13686825 - (D) (P.T.A.B. Apr. 29, 2019)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR
13/686,825 11/27/2012 Suk Kan Oh
47713 7590 04/29/2019
IMPERIUM PATENT WORKS
P.O. BOX607
Pleasanton, CA 94566
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
ATTORNEY DOCKET NO. CONFIRMATION NO.
ZIN-001-lC 8223
EXAMINER
WITTENSCHLAEGER, THOMAS M
ART UNIT PAPER NUMBER
3731
MAIL DATE DELIVERY MODE
04/29/2019 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 SUK KAN OH
Appeal2018-006966 1
Application 13/686,825
Technology Center 3700
Before JILL D. HILL, LEE L. STEPINA, and ARTHUR M. PESLAK,
Administrative Patent Judges.
STEPINA, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Suk Kan Oh ("Appellant") appeals under 35 U.S.C. § 134(a) from the
Examiner's decision rejecting claims 14--19 and 22-35. 2 We have
jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM-IN-PART.
1 According to Appellant's Appeal Brief, Zinus, Inc. is the real party in
interest. Appeal Br. 1.
2 Claims 1-13, 20, and 21 are canceled. Appeal Br. 2.
Appeal2018-006966
Application 13/686,825
CLAIMED SUBJECT MATTER
Appellant's invention relates to a method of retaining a bedding
product in a roller box. Spec. ,r 2. Claims 14, 24, 31, and 33 are
independent. Claims 14 and 33, reproduced below, are illustrative of the
claimed subject matter:
14. A method comprising:
retaining a bedding product in a roller box that has a
bottom portion and a plurality of sidewalls, wherein the plurality
of sidewalls are made from a single piece of cardboard, wherein
the roller box has two fixed-axis wheels disposed along a comer
edge of the bottom portion of the roller box, wherein the comer
edge is defined by where the bottom portion meets a first of the
sidewalls, wherein each of the wheels has an axis of rotation
extending in a line that passes through two of the plurality of
sidewalls and both of the wheels are disposed between those two
sidewalls, wherein each of the wheels has a separate wheel
housing made of hardened plastic, wherein each of the wheels
rotates about a separate axle that is supported on both sides by
the separate wheel housing, and wherein the roller box has a
handle attached to a top portion of the roller box.
3 3. A method comprising:
retaining a mattress in a roller box, wherein the roller box
comprises:
a box portion having a top portion, a bottom portion, and
a plurality of sidewalls, wherein the box portion has a height and
a width, and wherein the bottom portion meets a first of the
sidewalls to define a comer edge of the box portion;
two fixed-axis wheels disposed along the comer edge,
wherein each of the wheels has an axis of rotation extending in a
line that passes through two of the plurality of sidewalls, wherein
each of the wheels has a separate wheel housing made of
hardened plastic, and wherein each of the wheels rotates about a
separate axle that is supported on both sides by the separate
wheel housing; and
a rigid strip member, wherein the rigid strip member
extends lengthwise parallel to the comer edge, wherein each
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Application 13/686,825
separate wheel housing is coupled to the rigid strip member,
wherein the rigid strip member is immovably attached to a single
one of the plurality of sidewalls, and wherein the mattress is
rolled into a cylindrical shape with a diameter substantially equal
to the width of the box portion and a length substantially equal
to the height of the box portion.
Appeal Br. 68, 72 (Claims App.).
REFERENCES
The prior art relied upon by the Examiner in rejecting the claims on
appeal is:
Barbour
Engelbrecht
Armstrong
Rudolf
Miller
Mandell
Lewis
Costa
Figov
us 3,797,917
us 5,125,675
us 5,358,082
us 5,934,041
US 6,253,891 Bl
US D474,354 S
US 6,739,107 Bl
US 2005/0150732 Al
US 2005/0195260 Al
REJECTIONS
Mar. 19, 1974
June 30, 1992
Oct. 25, 1994
Aug. 10, 1999
July 3, 2001
May 13, 2003
May 25, 2004
July 14, 2005
Sept. 8, 2005
I. Claims 15, 16, 17, 22, 23, 25, 26, 29, 30, 32, and 34 are rejected
under 35 U.S.C. § 112, second paragraph, as indefinite.
II. Claims 15, 16, 17, 22, 23, 25, 26, 29, 30, 32, and 34 are rejected
under 35 U.S.C. § 112, fourth paragraph, as being in improper dependent
form.
III. Claims 14, 22, and 23 are rejected under 35 U.S.C. § I03(a) as
unpatentable over Lewis, Costa, Miller, Mandell, and Engelbrecht.
IV. Claim 15 is rejected under 35 U.S.C. § I03(a) as unpatentable
over Lewis, Costa, Miller, Mandell, Engelbrecht, and Armstrong
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V. Claims 16 and 17 are rejected under 35 U.S.C. § 103(a) as
unpatentable over Lewis, Costa, Miller, Mandell, Engelbrecht, and Rudolf.
VI. Claim 18 is rejected under 35 U.S.C. § 103(a) as unpatentable
over Lewis, Costa, Miller, Mandell, Engelbrecht, and Applicant Admitted
Prior Art (AAP A).
VII. Claim 18 is rejected under 35 U.S.C. § 103(a) as unpatentable
over Lewis, Costa, Miller, Mandell, Engelbrecht, and Barbour.
VIII. Claim 19 is rejected under 35 U.S.C. § 103(a) as unpatentable
over Lewis, Costa, Miller, Mandell, Engelbrecht, and Figov.
IX. Claims 24, 26, 29, and 30 are rejected under 35 U.S.C. § 103(a)
as unpatentable over Lewis, Costa, Miller, Mandell, and Engelbrecht. 3
X. Claim 25 is rejected under 35 U.S.C. § 103(a) as unpatentable
over Lewis, Costa, Miller, Mandell, Engelbrecht, and Rudolf.
XI. Claim 27 is rejected under 35 U.S.C. § 103(a) as unpatentable
over Lewis, Costa, Miller, Mandell, Engelbrecht, and AAP A.
XII. Claim 27 is rejected under 35 U.S.C. § 103(a) as unpatentable
over Lewis, Costa, Miller, Mandell, Engelbrecht, and Barbour.
XIII. Claim 28 is rejected under 35 U.S.C. § 103(a) as unpatentable
over Lewis, Costa, Miller, Mandell, Engelbrecht, and Figov.
XIV. Claim 31 is rejected under 35 U.S.C. § 103(a) as unpatentable
over Lewis, Costa, Miller, and Engelbrecht.
XV. Claim 32 is rejected under 35 U.S.C. § 103(a) as unpatentable
over Lewis, Costa, Miller, Engelbrecht, and Mandell.
3 Although the Examiner rejected claims 24, 26, 29, and 30 under a separate
heading, we note that Rejection III of claims 14, 22, and 23 is based on the
same combination of references.
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XVI. Claims 33 and 34 are rejected under 35 U.S.C. § 103(a) as
unpatentable over Lewis, Costa, and Miller.
XVII. Claim 35 is rejected under 35 U.S.C. § 103(a) as unpatentable
over Lewis, Costa, Miller, Mandell, AAP A, and Figov.
XVIII. Claim 35 is rejected under 35 U.S.C. § 103(a) as unpatentable
over Lewis, Costa, Miller, Mandell, Barbour, and Figov.
OPINION
Rejection I; Indefiniteness
The Examiner considers that claims 15, 16, 17, 22, 23, 25, 26, 29, 30,
32, and 34 are indefinite because each of these claims "recites only structural
limitations in the body of the claim." Non-Final Act. 3. According to the
Examiner, it is not clear if the claim is a method claim or an apparatus claim
because no "method steps are actually being claimed." Id.
Appellant argues that the rejection "is unfounded because there is no
legal basis for [the Examiner's] interpretation of§ 112, second paragraph."
Appeal Br. 10. Appellant asserts that the additional structural limitations
recited in the claims "further limit the single method step of the associated
independent base claim," and "particularly point out and distinctly claim
how the method step of the base claims is further limited." Id. at 11; see
also Reply Br. 7.
In response, the Examiner takes the position that "a claim depending
from a method claim must itself also be a method claim." Ans. 3 1. The
Examiner contends that "the structure ... does not further limit the method
since no steps for performing the method are being further recited." Id.
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Although "[a] single claim which claims both an apparatus and the
method steps of using the apparatus is indefinite under 35 U.S.C. § 112,
second paragraph" (IPXL Holdings, L.L.C. v. Amazon.com, Inc., 430 F.3d
1377, 1384 (Fed. Cir. 2005)) that is not the case here. Claims 15, 16, 17, 22,
23, 25, 26, 29, 30, 32, and 34 are not indefinite, because these claims are
limited to practicing the claimed method with a roller box possessing the
requisite structure, i.e., the recited process is limited in terms of the specific
structure required by the claim. See Microprocessor Enhancement Corp. v.
Texas Instruments Inc., 520 F.3d 1367, 1375 (Fed. Cir. 2008). Because one
of ordinary skill in the art would understand whether a roller box has the
claimed structure to perform the claimed method of retaining the bedding
product, the structural limitations of claims 15, 16, 17, 22, 23, 25, 26, 29, 30,
32, and 34 are not unclear, and thus, are not indefinite.
We do not sustain the Examiner's rejection of claims 15, 16, 17, 22,
23, 25, 26, 29, 30, 32, and 34 under 35 U.S.C. § 112, second paragraph, as
being indefinite.
Rejection II; 35 U.S.C. 112, 4th Paragraph
The Examiner's rejection is premised on the assertion that a structural
limitation does not further limit the method "because it does not recite any
method steps and further limit the method of the independent claim." Non-
Final Act. 4. However, as discussed above, because the claims are limited to
practicing the claimed method with a roller box possessing the requisite
structure, additional requisite structure further limits how the claimed
method is practiced.
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We do not sustain the Examiner's rejection of claims 15, 16, 17, 22,
23, 25, 26, 29, 30, 32, and 34 under 35 U.S.C. § 112, fourth paragraph, as
failing to further limit the subject matter of the claim upon which it depends.
Rejection III; Obviousness of Claims 14, 22, and 23
Appellant argues claims 14, 22, and 23 as a group. Appeal Br. 21. We
select claim 14 as a representative claim, and claims 22 and 23 stand or fall
with claim 14. 37 C.F.R. § 4I.37(c)(l)(iv). As such, our analysis focuses on
the subject matter of claim 14. Appellant's Summary of Claimed Subject
Matter for claim 14 refers to Figure 3, which we reproduce below.
FIG. 3
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Appellant's Figure 3 is a perspective view of a top portion of a box
portion of a roller box assembly. Spec. ,r 10.
The Examiner finds that Lewis discloses retaining bedding in a box,
but that the box of Lewis does not include wheels in a hardened plastic
housing. Non-Final Act. 5. Nonetheless, the Examiner finds that Costa
discloses an enclosure (box) on wheels and that Miller discloses a hardened
plastic wheel housing. The Examiner posits that it would have been obvious
to one of ordinary skill in the art at the time the invention was made to
incorporate wheels on the box of Lewis "in order to conveniently move the
box without having to pick it up." Id. The Examiner also considers that it
would have been obvious to have manufactured the wheel housing of the
Lewis/Costa box out of hardened plastic "in order to protect the wheels from
collisions during use." Non-Final Act. 6. The Examiner finds that the
Lewis/Costa/Miller box does not have a handle, as claimed, and is not made
from a single piece of cardboard. Id. Nonetheless, the Examiner finds that
Mandell teaches a box with a handle and that Engelbrecht teaches a box
made from a single piece of cardboard. Id. The Examiner concludes that it
would have been obvious to incorporate a handle on the Lewis/Costa/Miller
box "in order provide a feature that allows a user to get a good grasp on the
roller box," and that it would have been obvious to form the box from a
single piece of cardboard "in order to allow the box to be easily transported
and stored when it is not holding articles." Non-Final Act. 6-7.
Wheels Disposed Along an Edge
Appellant argues that "the wheels of Costa are not disposed along an
edge where the bottom of Costa's luggage case meets a sidewall," because
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Application 13/686,825
Costa's wheels are in wheel retainers 20 that are in bottom tray 17, which
forms a curve between the bottom and the back. Appeal Br. 13 ( citing Costa
,r 24). Appellant asserts that, because the back of Costa's case "does not
extend down far enough to meet the bottom end 2 of the luggage ... Costa's
wheels are not disposed at the edge of a back wall and the bottom end 2 of
Costa's luggage case." Appeal Br. 14--15.
The Examiner responds that Figures 3 and 4 of Costa show the wheel
housing attached to the bottom wall and the back wall. Ans. 32. The
Examiner finds that because this shows the wheels are disposed where the
bottom wall meets the back wall, Costa teaches placing the wheels "at the
edge where the bottom wall meets the back sidewall." Id.
Appellant replies that because the bottom back of Costa's tray 17 is
curved, and because wheel retainers 20 are integrated into tray 17, Costa
does not have an edge, and thus, "the wheels cannot be disposed along any
comer edge of the tray 17." Reply Br. 9. According to Appellant, using
Costa's tray 17 "inside Lewis' box in the same way that Costa's tray 17 is
disposed inside Costa's luggage shell, then Costa's wheels would be
disposed inside Lewis' box and not along any comer edge of Lewis' box."
Id.
Appellant's arguments on this point are unavailing. Claim 14 recites,
in part, "wherein the roller box has two fixed-axis wheels disposed along a
comer edge of the bottom portion of the roller box, wherein the comer edge
is defined by where the bottom portion meets a first of the sidewalls."
Appeal Br. 68 (Claims App.). With respect to the disposition of the wheels
"along" the comer edge, one of ordinary skill in the art would have
understood "along" in accordance with its plain and ordinary meaning. See
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In re Zletz, 893 F.2d 319,321 (Fed. Cir. 1989). "Along" is commonly
defined as "beside" and "parallel to the length or direction of." Along
Definition, Dictionary.com, https ://www.dictionary.com/browse/ along (last
accessed April 3, 2019); see also Ex parte Oh, Appeal No. 2010-012211
(BP AI Aug. 15, 2012). "Edge" is commonly defined as "a line or border at
which a surface terminates." Edge Definition, Dictionary.com,
https://www.dictionary.com/browse/edge?s=t (last accessed April 3, 2019)
Costa's wheels are along a comer edge, as seen in Figure 4 of Costa,
reproduced below.
FIG. 4
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Figure 4 of Costa depicts a back perspective view of a wheeled
luggage case with the luggage case compartment shown in dashed lines in
order to reveal the inner luggage frame. Costa ,r 17.
Although we appreciate Appellant's position that Costa's bottom tray
1 7 appears curved, Costa has a bottom portion and a separate back portion
that meet together. That is, Costa has a substantially vertical back wall
surface and a substantially horizontal bottom wall surface that meet at the
border where the vertical and horizontal surfaces come together. Costa's
wheels are beside the portion of the case where the back and bottom surfaces
meet. Costa's wheels are thus along an edge. The claim does not require a
sharp edge. Moreover, Lewis has a sharp edge, and the Examiner is
incorporating wheels and a wheel housing into Lewis, and does not require a
bodily incorporation of Costa's bottom tray 17. See In re Keller, 642 F.2d
413,425 (CCPA 1981) (citations omitted) ("The test for obviousness is not
whether the features of a secondary reference may be bodily incorporated
into the structure of the primary reference .... Rather, the test is what the
combined teachings of those references would have suggested to those of
ordinary skill in the art."); In re Nievelt, 482 F.2d 965,968 (CCPA 1973)
("Combining the teachings of references does not involve an ability to
combine their specific structures."). The combined teachings of Lewis and
Costa suggest wheels in a wheel housing along an edge. Appellant does not
apprise us of Examiner error on this point.
Engelbrecht 's Box
Appellant also contends that Engelbrecht's box could not be
combined with the other references to result in a roller box with wheels
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between two sidewalls that are made from a single piece of cardboard,
because Engelbrecht's box is not "suited to rolling a bedding product ... on
wheels disposed between sidewall." Appeal Br. 1 7. Appellant asserts that
the Examiner's reason for using Engelbrecht, namely, "to allow the
shopping box to be easily stored," is also improper because "Costa's luggage
[] cannot be carried like a briefcase and folded flat for storage." Id.
The Examiner responds that Engelbrecht is not being modified and is
only relied upon for teaching making a box from a single piece of cardboard.
Ans. 32-33.
Appellant replies that the Examiner has picked Engelbrecht' s
cardboard blank 16 "to reconstruct the invention of claim 14 and disregarded
the teachings of Lewis, Costa, Miller and Mandell that are incompatible with
the isolated element plucked from Engelbrecht." Reply Br. 10.
Appellant's arguments are not persuasive. The Examiner relies on
Engelbrecht to modify Lewis' box to be made from a single piece of
cardboard. See Non-Final Act. 7. Figure 2 of Engelbrecht is reproduced
below.
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Engelbrecht's Figure 2 illustrates one stage during erection of the
trolley from the collapsed state. Engelbrecht, 1 :65---66. Lewis already
discloses a cardboard box (see Lewis 9:8), and Appellant does not explain
adequately why making the box of Lewis out of a single piece of cardboard
would have been beyond the abilities of one of ordinary skill in the art. "[I]f
a technique has been used to improve one device, and a person of ordinary
skill in the art would recognize that it would improve similar devices in the
same way, using the technique is obvious unless its actual application is
beyond his or her skill." KSR Int'! Co. v. Teleflex Inc., 550 U.S. 398,417
(2007). Nor does Appellant explain adequately why the box of Lewis would
not benefit from being folded when empty for easier transport and storage,
as the Examiner finds. We are not apprised of Examiner error.
Analogous Art
Appellant also argues that Costa and Miller are not pertinent to
packaging a mattress because they relate to making rollable luggage.
Appeal Br. 18. Appellant contends that the material and intended uses of
wheeled luggage are completely different than those for retail packaging of a
box used to carry a heavy mattress. Id. According to Appellant, the
Examiner's finding that each of the cited references are within the "art of
'transportable containers' is entirely too broad" based on the variety of
devices within that category. Appeal Br. 19. Appellant asserts that "[ o ]ne
of ordinary skill in the art of retail packaging would not look to the
nonanalogous art relating to all transportable containers." Id. Appellant
contends that not all transportable containers are analogous because they are
not pertinent to "problems faced by inventors of inexpensive, single-use
retail packaging." Id.
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The Examiner replies that each of the references "are analogous art
because they all relate to the art of personal transportable containers." Ans.
34. The Examiner also takes the position that the references are also
"pertinent to the particular problem with which the appellant was concerned
because they are concerned with reducing the effort of transporting a
personal container." Id.
Appellant replies that Costa and Miller are not analogous art "because
they do not relate to the problem of making inexpensive, single-use
packaging to sell bedding products to retail customers." Reply Br. 11.
Appellant's arguments are unavailing. Although we appreciate
Appellant's position that the "art of 'transportable containers' is entirely too
broad" (see Appeal Br. 19), Appellant does not explain persuasively why the
particular transportable container relied upon by the Examiner, i.e., wheeled
luggage, is outside of Appellant's field of endeavor. Appellant's field of
endeavor is determined by referring to the entirety of the disclosure and not
just the claims at issue. See, e.g., In re Mettke, 570 F.3d 1356, 1359 (Fed.
Cir. 2009) (relying on specification to determine applicant's field of
endeavor). In addition, "[t]h[e field of endeavor] test for analogous art
requires the PTO to determine the appropriate field of endeavor by reference
to explanations of the invention's subject matter in the patent application,
including the embodiments, function, and structure of the claimed
invention." In re Bigio, 381 F.3d 1320, 1325-26 (Fed. Cir. 2004).
In this case, Appellant's Specification describes the technical field as
relating to a roller box. Spec. ,r 2. "The described embodiments relates to a
roller box." Appellant' Specification does not discuss the cost of making the
roller box. Nor does Appellant's Specification describe the roller box as
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being "single-use." Costa "relates generally to the field of rollable luggage
cases and to other types of cases."4 Costa ,r 1. Costa's wheeled luggage
case and the claimed roller box have similar structure in that both have four
sides, a top portion with a handle, and a bottom portion having two wheels.
Compare Costa's Figure 4 and Appellant's Figure 3, reproduced above. In
addition, Costa' wheeled luggage case and the claimed roller box have
similar functions in that luggage cases sold at a retail store are transported
out of the store by pulling the luggage cases by their handles such that the
luggage cases roll on their rollers. Cf Spec. ,r 6 and Costa ,r 2. Given that
Costa's wheeled luggage is similar to the disclosed roller box, functions in a
similar manner, and has similar structure, we agree with the Examiner that
Costa meets the field of endeavor test for analogous art.
Even the narrower disclosure of "a roller box assembly for retaining
and transporting a bedding product" (Spec. ,r 2) does not exclude Costa from
Appellant's technical field. People often travel with their own personal
pillows, or blankets, or a particular (security) blanket for a child, each of
which is a bedding product. Any or all of these items are placed in and
retained by the luggage case, which is then transported on its rollers to its
end location.
As the first prong of the analogous art test is satisfied, we need not
reach the Examiner's discussion of the second prong of the analogous art
test (as to whether Costa is pertinent to Appellant's problem).
4 A common dictionary definition of "case" is "a box or receptacle for
holding something. Case Definition, Merriam-Webster's Collegiate
Dictionary (1 Ph Ed. 2005).
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A similar analysis applies to the luggage of Miller. Specifically, like
Costa, Miller "relates to a wheel unit for an article of luggage." Miller, 1 :6-
7). Appellant's invention and Miller's luggage (suitcase) are both roller
boxes having similar structure and function. As such, the Examiner
correctly found that Miller is analogous art, and properly considered its
teachings in determining that the subject matter of claim 14 would have been
obvious.
Impermissible Hindsight
Appellant also argues that a designer of one-time use retail packaging
would not look to the luggage of Costa and Miller because "[t]here is no
apparent reason to use expensive replaceable luggage wheels on cheap retail
packaging that is used only once." Appeal Br. 19. According to Appellant,
the Examiner used hindsight to choose isolated elements from Costa and
Miller. Reply Br. 11.
The Examiner's reason to modify Lewis based on the disclosures of
Costa and Miller, to improve how heavy items are transported, is adequately
supported. Costa discloses that a wheeled device decreases user "discomfort
when pulling heavy loads or loads over a long distance." Costa ,r 4.
Similarly, Miller discloses that wheeled articles "facilitate translation of the
luggage along the ground." Miller, 1:14--18; see also Non-Final Act. 6. The
teaching of an improved movement of heavy loads comes directly from
Costa and Miller, which Appellant does not address. Appellant's general
discussion of the disclosure of Costa and Miller, and unsupported assertions
do not apprise us of error in the Examiner's findings of fact or address the
specific rationales the Examiner articulated for combining the teachings of
the references.
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Mandell 's Handle
Appellant also argues that one of ordinary skill would not put
Mandell's handle on a cardboard box with wheels because "Mandell's
handle is rigid and incompatible with rolling a box on two wheels." Appeal
Br. 19. Appellant contends that Mandell' s handle would not be used for
retail packaging because it does not fold flat and would not stack on store
shelves. Id. According to Appellant, Mandell's handle is designed for a
different use and one of ordinary skill would have used Costa's ergonomic
handle, not a handle from a design patent that does not provide a teaching of
a "good grasp." Appeal Br. 20; see also Reply Br. 12.
The Examiner responds that it is within the general knowledge of one
of ordinary skill in the art that "handles help a user get a good grasp on a box
and that Mandell's handle, when incorporated into a roller box, would help a
user get a good grasp on the roller box." Ans. 34--35.
Appellant's arguments are not persuasive. Although we appreciate
that Mandell is a design patent, Mandell is entitled "Bedding Display Stand"
and includes a handle and wheels. Because not all display stands include
wheels and a handle, Mandell uses these features for a reason, namely, to
move items from one place to another. Appellant provides no persuasive
reason why Mandell' s handle must be used to push or pull the box on all
three wheels. See Appeal Br. 20. Based on the location of the two rear
wheels and the rear handle on the box of Mandell, a preponderance of the
evidence supports the Examiner's position that the box would be "tipped"
backward to be "easily gripped," and moved using the handle, and then tilted
forward to use the third front wheel for stability to display the bedding.
Non-Final Act. 57. As to Appellant's contentions regarding any perceived
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shortcomings in using Mandell' s handle for retail packaging, the claims do
not require that the handle folds flat and that the box is configured to be
stacked.
We have considered all of Appellant's arguments in support of the
patentability of claim 14, but they do not apprise us of Examiner error.
Accordingly, we sustain the Examiner's rejection of claim 14 as
unpatentable over Lewis, Costa, Miller, Mandell, and Engelbrecht. Claims
22 and 23 fall with claim 14.
Rejection IV; Claim 15
Claim 15 recites, in part, that the bottom portion of the roller box "is
attached to one of the plurality of sidewalls by bolts that pass through
portions of each wheel housing." Appeal Br. 68 (Claims App.).
The Examiner notes that Miller teaches securing the bottom portion to
the sidewall and wheel housing via fasteners, but relies on Armstrong to
teach that the fasteners are bolts. Non-Final Act. 9-10. The Examiner
considers that it would have been obvious to have used bolts as the fasteners
because "bolts were widely known in the art of transportable containers ...
and one of ordinary skill in the art has good reason to pursue the known
options within one's technical competence." Id.
Appellant argues that Miller relates to replacing wheels on plastic or
metal luggage, not cardboard boxes. Appeal Br. 22; see also Reply Br. 13.
Appellant contends that the Examiner's reasoning is insufficient because
Armstrong does not attach wheels to a cardboard box, and that Armstrong's
problems are different from those faced by the inventor." Appeal Br. 23.
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The Examiner responds that Miller and Armstrong are pertinent to the
problem of reducing the effort to transport a container. Ans. 35. The
Examiner notes that the rationale for combining Armstrong is that this
modification would merely have been the simple substitution of one known
element for another to obtain predictable results. Id. ( citing MPEP 2143 III).
Appellant's arguments are not persuasive because they are not
commensurate with the Examiner's rejection. The Examiner does not rely
on Armstrong to attach wheels to cardboard boxes. Lewis is relied on for
the cardboard box and the Examiner relies on Miller for the location of the
attachment, namely, that the wheel housing is attached to the bottom portion
and attached to the sidewall. Non-Final Act. 10. As to whether Armstrong
is analogous art, like Costa and Miller, Armstrong discloses wheeled
luggage with a handle that makes it easier to move larger loads. Armstrong,
7: 13-16; Fig. 1. Appellant's invention and Armstrong's luggage are both in
the field of endeavor of roller boxes. As such, the Examiner correctly found
that Armstrong is analogous art, and properly considered its teachings in
determining that the subject matter of claim 15 would have been obvious.
Moreover, we find no reason to believe a person of ordinary skill in the art
would have had any difficulty in substituting the bolt of Armstrong for the
threaded fastener of Miller, or that doing so would yield anything other than
a predictable result with respect to connecting a wheel to a support surface.
See Ans. 3 5. Furthermore, Appellant does not assert that the result of the
substitution would have been unpredictable or that doing so would have
been beyond the level of ordinary skill in the art.
For these reasons, we are not apprised that the Examiner's rejection of
claim 15 is in error.
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Rejection V; Claims 16 and 17
Claim 16 recites that "the bedding product is a roll of material that is
contained in a cylindrical-shaped bag." Appeal Br. 68 (Claims App.).
In rejecting claims 16 and 17, the Examiner relies on the additional
disclosure of Rudolf, and finds that Rudolf discloses a bedding in a
cylindrical shaped bag to minimize packing material. Non-Final Act. 11-12.
Appellant argues that "Rudolf s method is incompatible with Lewis'
method," because Rudolf uses a drum and roller to obtain a rolled mattress
and the rolled mattress is then placed in wrapping whereas Lewis places a
plastic wrapper around the bedding and then applies vacuum to compress the
mattress, which is then rolled and placed in an outer plastic cove. Appeal
Br. 25. According to Appellant, because "Lewis' mattress cannot be
compressed without using a plastic film[, t ]he motivation to avoid using film
would not have been an apparent reason to combine any teaching with
Lewis, which requires film." Id. Appellant contends that the mattress could
be mechanically compressed as in Rudolf or compressed using a vacuum, as
in Lewis, both not by using both methods, and the Examiner "impermissibly
relies on cherry picking isolated elements," to arrive at the claimed
invention. Appeal Br. 25-26.
The Examiner responds that Rudolf is only relied on to teach how the
mattress is rolled up. Ans. 36.
Appellant replies that the conflicting teachings of the references
cannot be ignored, because it is improper to "disregard the remaining
teachings of the reference that are incompatible with the teachings of the
other references in the combination." Reply Br. 13 (citing (Arctic Cat Inc. v.
Bombardier Rec. Prods. Inc., 876 F.3d 1350, 1360 (Fed. Cir. 2017) (it is
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error to disregard disclosures in the references and to consider the references
in less than their entireties).
Appellant's arguments are misplaced. Claim 16 requires that the
bedding product is a roll of material contained in a cylindrical-shaped bag,
and claim 17 requires that the bedding product is a compressed and rolled
innerspring mattress that is contained in a cylindrical-shaped bag. Lewis
discloses compressing a mattress, rolling the mattress, and then placing the
rolled mattress in a "sleeve or other expansion restrictor," such as a plastic
tubular sleeve before placing the mattress in a cardboard box. Lewis 8:58-
9:9. Rudolf discloses compressing a mattress, forming it into a roll, and then
placing the rolled mattress "into a sack, a bag or wrapping." Rudolf, 4:15-
21; see also Non-Final Act. 11-12. One of ordinary skill in the bed
packaging art would be aware of both methods of packaging. The claimed
method does not require a specific order for compressing and rolling, or a
specific method for compressing and rolling. The Examiner relies on
Rudolf s method (see Ans. 36) to produce the same end result, bedding in a
cylindrical bag. Lewis uses an inner plastic layer as well as an outer plastic
sleeve, whereas the method of Rudolf does not require the inner plastic layer
of Lewis. Appellant does not adequately explain why the Examiner's
rationale for the proposed modification, i.e., reducing the amount of plastic
film needed, by foregoing Lewis' inner plastic layer, is inadequate.
Accordingly, we are not apprised that the Examiner's rejection of
claims 16 and 1 7 is in error.
Rejection VI; Claim 18
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Claim 18 recites the step of supplying the bedding product in the
roller box to a retail customer. Appeal Br. 68 (Claims App.).
In rejecting claim 18, the Examiner relies on Appellant's remarks that
it is "old and well-known practice in the art that a supplier of merchandise to
supply the merchandise to a retail customer." Non-Final Act. 12-13.
Specifically, Appellant stated that "[o]f course, supplying 'merchandise' to a
customer is not novel." Appellant's Amendment filed July 3, 2016, p.
44:22. The Examiner considers that implementing this practice would have
been obvious in order to fulfill the purpose of why the item was made in the
first place. Non-Final Act. 13; see also Ans. 36-37.
Appellant argues that supplying a retail customer with a mattress in a
roller box is novel, and that "[Appellant's] statement that it is not novel to
supply merchandise to a customer cannot serve as prior art to teach
supplying a bedding product in the recited roller box to a retail customer."
Appeal Br. 28; see also Reply Br. 14.
Appellant's arguments are not persuasive. Appellant, as noted above,
admits explicitly that supplying merchandise to a customer is not novel. The
Examiner is relying on Appellant's admission only for what it explicitly
states. Appellant's argument that the admission is insufficient to teach
supplying bedding in a roller box to a customer is unavailing because it does
not address the Examiner's proposed combination of references cited in the
rejection. One cannot show nonobviousness by attacking references
individually where the rejection is based on combinations of references. See
In re Keller, 642 F.2d 413,426 (CCPA 1981); In re Merck & Co., 800 F.2d
1091, 1097 (Fed. Cir. 1986). Here, the Examiner finds that "Lewis, Costa,
Miller, Mandell, and Engelbrecht teach a mattress in a roller box." Ans. 36.
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The roller box, as a type of merchandise, is then supplied to the customer.
Further, Appellant's Specification discloses that it is "known to compress a
mattress and to provide the mattress to the customer in a compressed state in
a box at the retail store." Spec. ,r 3. Given that is known to supply a
customer with a mattress in a box, and that Lewis, Costa, Miller, Mandell,
and Engelbrecht teach a mattress in a roller box, it logically follows to
supply the mattress in the roller box to a retail customer. Appellant does not
assert that doing so would have been beyond the level of ordinary skill in the
art. Accordingly, we find the Examiner to have the better position. Thus,
we affirm the Examiner's rejection of claim 18.
Rejection VII; Claim 18
The Examiner additionally relies on Barbour to support the
proposition that it was known to supply merchandise to a retail customer.
See Non-Final Act. 13-14. However, as this fact is admitted by Appellant
independently of the disclosure in Barbour, we need not reach the
Examiner's reliance on Barbour for claim 18.
Rejection VIII; Claim 19
Claim 19 recites, in part, instructing a retail customer to transport the
bedding product out of a retail store by pulling the roller box by the handle
and thereby rolling the roller box on its two fixed-axis wheels. 5
5 Should there be further prosecution of this application (including any
review for allowance), the Examiner may wish to review the claims for
consistency with Federal Circuit guidance regarding "printed matter."
Specifically, our reviewing court has held that"[ w ]here the printed matter is
not functionally related to the substrate, the printed matter will not
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In rejecting claim 19 as unpatentable, the Examiner relies on Figov for
"instructing a customer how to use a product." Non-Final Act. 15. The
Examiner concludes that it would have been obvious to have modified the
method of Lewis to include instructing a customer how to use the roller box
"in order to allow a customer to correctly use a product." Id.
Appellant argues that "Figov does not teach anything about
instructions on how to use any particular product-certainly not a roller box."
Reply Br. 16.
Appellant's arguments are not persuasive. The fact that a "roller box"
is not specifically mentioned in Figov does not, without more, establish that
the Examiner erred. "Common sense teaches, however, that familiar items
may have obvious uses beyond their primary purposes, and in many cases a
person of ordinary skill will be able to fit the teachings of multiple patents
together like pieces of a puzzle." KSR Int'! Co. v. Teleflex Inc., 550 U.S.
398, 420 (2007). "A person of ordinary skill is also a person of ordinary
creativity, not an automaton." Id. at 421. Given that the intended use of a
handle is to pull the item having the handle, we agree with the Examiner that
Figov' s general teachings of instructing a person how to use a product would
result in the user pulling the handle.
To the extent that Appellant argues that Figov is nonanalogous art, we
agree with the Examiner that Figov' s instruction on "how to use a product"
distinguish the invention from the prior art in terms of patentability." In re
Ngai, 367 F.3d 1336, 1339 (Fed. Cir. 2004). The rationale underlying the
"printed matter" cases has been extended to the analysis of the patentability
of method claims. King Pharmaceuticals Inc. v. Eon Labs, Inc., 616 F.3d
1267, 1278-79 (Fed. Cir. 2010) (applying the "printed matter" reasoning to
method claims containing an "informing" step that could be either printed or
verbal instructions).
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(Non-Final Act. 29) is reasonably pertinent to Appellant's problem of
instructing a user how to roll the roller box out of the retail store.
Specifically, the title ofFigov is, "PROCESS AND MATERIALS FOR
MARKING PLASTIC SURFACES," and Figov discloses that "[p]ackaging
of all types of materials may require ... information about the use of such
items." Figov ,r 3; see also Non-Final Act. 15. "Information of the product
may be integral to the container ... to instruct the customer how to use the
product." Id. In this case, Lewis, Costa, Miller, Mandell, and Engelbrecht
teach a mattress in a roller box, and Figov instructs the person on how to use
the roller box (product). Appellant has not shown error in the Examiner's
findings and reasoning.
On this record, we are not apprised that the Examiner's rejection of
claim 19 is in error.
Rejection IX; Claims 24, 26, 29, and 30
Independent claim 24 contains substantially similar limitations as
claim 14 regarding "sidewalls formed from a single piece of cardboard;"
"wheels disposed along the comer edge," a "wheel housing made of
hardened plastic," and "a handle attached to the top portion." Appeal Br. 70
(Claims App.). Appellant submits the same arguments for patentability of
claim 24 as for claim 14. Id. at 33--41. Specifically, Appellant argues that
Lewis, Costa, Miller, Mandell, and Engelbrecht do not teach "wheels
disposed along a comer edge between two cardboard sidewalls" (Appeal Br.
34--36); that Engelbrecht could not be combined with "the other references
to result in a roller box with wheels disposed between sidewalls formed from
a single piece of cardboard" (Appeal Br. 37); that "Costa and Miller are not
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within the pertinent [analogous] art" (Appeal Br. 38 and 40-41); that "there
would have been no apparent reason to put the luggage wheels of Costa and
Miller on Lewis' cardboard mattress box" (Appeal Br. 38); and that there is
"no apparent reason to put Mandell' s handle ... on Lewis' cardboard box"
(Appeal Br. 39).
We do not find these arguments to be persuasive for the reasons
discussed herein. See Rejection III. Accordingly, we sustain the rejection of
claim 24 as well as dependent claims 26, 29, and 30 for the same reasons
stated above in connection with the rejection of claim 14.
Rejection X,· Claim 25
Dependent claim 25 contains substantially similar limitations as claim
16 regarding "the mattress is contained in a cylindrical-shaped bag." Appeal
Br. 70 (Claims App.). Appellant submits the same arguments for
patentability of claim 25 as for claim 16. Id. at 41--44. We sustain the
rejection of claim 25 for the same reasons stated above in Rejection Vin
connection with the rejection of claim 16.
Rejections XI and XII; Claim 27
Dependent claim 27 contains substantially similar limitations as claim
18 regarding "supplying the mattress in the roller box to a retail customer."
Appeal Br. 70 (Claims App.). Appellant submits the same arguments for
patentability of claim 27 as for claim 18 that the well-known practice of
"supplying merchandise to a customer ... has nothing to do with either a
mattress or a roller box." Id. at 44--45. We sustain the rejection of claim 27
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for the same reasons stated above in Rejection VI in connection with the
rejection of claim 18.
Similar to the rejection of claim 18, in rejecting claim 27, the
Examiner additionally relies on Barbour to support the proposition that it
was known to supply merchandise to a retail customer. See Non-Final Act.
20. However, as this is admitted by Appellant, we need not reach the
Examiner's reliance on Barbour for claim 27.
Rejection XIII; Claim 28
Dependent claim 28 contains substantially similar limitations as claim
19 regarding "instructing a retail customer to transport the mattress out of a
retail store by pulling the roller box by the handle so as to roll the roller box
on its two wheels." Appeal Br. 71 (Claims App.). Appellant submits the
same arguments for patentability of claim 28 as for claim 19. Id. at 48--49.
We sustain the rejection of claim 28 for the same reasons stated above in
Rejection VIII in connection with the rejection of claim 19.
Rejection XIV; Claim 31
Independent claim 31 contains substantially similar limitations as
claim 14 regarding sidewalls "formed from a single piece of cardboard;"
"wheels disposed along the comer edge," and a "wheel housing made of
hardened plastic." Appeal Br. 71 (Claims App.). Appellant submits the
same arguments for patentability of claim 31 as for claim 14. Id. at 49-54.
Specifically, Appellant argues that Lewis, Costa, Miller, and Engelbrecht do
not teach "wheels disposed along a comer edge between two cardboard
sidewalls" (Appeal Br. 49-52); that "Costa and Miller are nonanalogous art"
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(Appeal Br. 52-53); and that there is "no apparent reason to combine Lewis,
Costa, Miller, and Engelbrecht" (Appeal Br. 53-54).
For the reasons discussed herein, we do not find these arguments to be
persuasive. See Rejection III. We sustain the rejection of claim 31 for the
same reasons stated above in connection with the rejection of claim 14.
Rejection XV; Claim 32
Claim 32 requires that the roller box include a handle attached to the
top portion of the box portion. Appeal Br. 72 (Claims App.).
The Examiner relies on Mandell for this feature. See Non-Final Act.
24. The Examiner considers that it would have been obvious to incorporate
a handle to the top portion of Lewis' box "in order provide a feature that
allows a user to get a good grasp on the roller box." Non-Final Act. 25.
Appellant argues that one of ordinary skill would have used Costa's
ergonomic handle, not a rigid handle from a design patent that does not
provide a teaching of a "good grasp." Appeal Br. 55. According to
Appellant, "Mandell' s rigid handle is meant to be used to push a display
stand that stands on three wheels as opposed to pulling luggage that has been
tipped to roll on two wheels." Id.
The Examiner responds that it is within the general knowledge of one
of ordinary skill in the art that "handles help a user get a good grasp on a box
and that Mandell' s handle, when incorporated into a roller box, would help a
user get a good grasp on the roller box." Ans. 48.
Appellant's arguments are not persuasive. As discussed above in
Rejection III, Appellant provides no persuasive reason why Mandell's
handle must be used to push or pull the box on all three wheels, and rather, a
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preponderance of the evidence supports the Examiner's position that the box
would be "tipped" on two wheels and the handle "easily gripped," to move
the box.
Accordingly, we sustain the Examiner's rejection of claim 32 as
unpatentable over Lewis, Costa, Miller, Engelbrecht, and Mandell for the
same reasons discussed above in Rejection III.
Rejection XVI; Claims 33 and 34
Independent claim 33 contains substantially similar limitations as
claim 14 regarding "wheels disposed along the comer edge." Appeal Br. 72
(Claims App.). Appellant submits the same arguments for patentability of
claim 33 as for claim 14. Id. at 56-62. Specifically, Appellant argues that
Lewis, Costa, and Miller do not teach wheels disposed along a comer edge
between two cardboard sidewalls (Appeal Br. 56-59); that "Costa and Miller
are nonanalogous art" (Appeal Br. 61); and that there is "no apparent reason
to combine Lewis, Costa, and Miller" (Appeal Br. 61---62). For the reasons
discussed above in Rejection III, Appellant's arguments do not apprise us of
Examiner error on these points.
Claim 33 also recites, in part, a rigid strip member immovably
attached to a single one of the plurality of sidewalls.
The Examiner finds that Costa "teaches a rigid strip member ( the
piece of material extending between the two wheels on the back vertical
sidewall, height extending from the dashed line to the top of bottom tray
17)." Non-Final Act. 26 ( citing Costa, Fig. 4 ). According to the Examiner,
the fastener depicted in Costa's figures "connects the rigid strip member to
the sidewall." Id.
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Appellant argues that the element upon which the Examiner relies is
"just a portion of the bottom tray 17 ," whereas the claimed "strip member is
a separate claim element from the bottom portion of the box portion."
Appeal Br. 59---60. According to Appellant, it is not possible to incorporate
just the back portion of Costa's bottom tray 17 into Lewis' box, "because the
back portion is integrally formed with the bottom tray," and incorporating
the entire bottom tray 17 "would be unworkable." Id. at 60.
The Examiner responds that because Costa's bottom tray is inside the
luggage compartment, it "is a separate element from the bottom portion of
Costa." Ans. 49. The Examiner states that Appellant's assertion that
placing Costa's tray into the box of Lewis "would be unworkable," is not
supported by evidence. Id.
Appellant replies that Costa's "entire bottom tray 17 is not a strip and
cannot reasonably teach the recited strip member." Reply Br. 24. Appellant
asserts, moreover, that because Costa's tray 17 is attached to the back and
bottom walls, Costa does not teach a rigid strip member "attached to a single
one of the sidewalls." Id.
Appellant's arguments are persuasive. A common dictionary
definition of "strip" is "a long narrow piece of material." Strip Definition,
Merriam-Webster's Collegiate Dictionary (1 Ph Ed. 2005). Appellant's
Specification discloses an exemplary rigid strip member 134, as seen in
Figure 6, reproduced below.
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FIG.6
Figure 6 is a view the roller box of a roller box assembly, when the
roller box is partially disassembled to reveal how the bottom insert portion is
attached to the first sidewall of the box portion. Spec. ,r 13. Appellant's
strip 134 is consistent with the above definition in that it is a long narrow
piece of material.
Costa discloses case 1 having compartment 6 (box) and frame 16 that
includes bottom tray 17 that "provide[ s] structural support to the bottom end
2 ... of the luggage case 1." Costa ,r 24. Although the Examiner correctly
notes that Costa's tray 17 is a separate portion that is fastened to both the
bottom and a sidewall, this is insufficient to establish that tray 17 is a strip.
Rather, tray 17 has an essentially L-shaped section that extends over the
entire bottom portion and partially up the rear sidewall of case 1, as seen in
Figure 4 of Costa, above. The Examiner does not explain adequately why
one of ordinary skill in the art would only choose the piece of tray 17 that
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contacts the sidewall of Costa's case (the short part of the "L") while
excluding the remainder of the tray, which constitutes the bulk of the tray
(the longer part of the "L") that contacts the bottom portion of Costa's case.
We agree with Appellant that because Costa's "entire bottom tray 17 is not a
strip ... Costa does not teach the recited rigid strip member that is attached
to a single one of the sidewalls," as required by claim 33. Reply Br. 24.
For these reasons, we do not sustain the rejection of claim 33, and
claim 34 depending from claim 33 as unpatentable over Lewis, Costa, and
Miller.
Rejections XVII and XVIII; Claim 35
Dependent claim 35 contains substantially similar limitations as claim
18 regarding "supplying the mattress in the roller box to a retail customer,"
and claim 19 regarding "instructing a retail customer to transport the
mattress out of a retail store by pulling the roller box by the handle so as to
roll the roller box on its two wheels." Appeal Br. 73 (Claims App.).
Appellant submits the same arguments for patentability of claim 3 5 as for
claims 18 and 19. Id. at 62---65. For the reasons discussed above,
Appellant's arguments for the patentability of claims 18 and 19 are not
persuasive. See Rejections VI and VIII.
Accordingly, we sustain the rejection of claim 35 for the same reasons
stated above in Rejections VI and VIII in connection with the rejection of
claims 18 and 19.
Similar to the rejection of claim 18, in rejecting claim 35, the
Examiner additionally relies on Barbour to support the proposition that it
was known to supply merchandise to a retail customer. See Non-Final Act.
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30-32. However, as this is admitted by Appellant, we need not reach the
Examiner's reliance on Barbour for claim 35.
We have considered all of Appellant's arguments, but are not apprised
of Examiner error, except as to claim 33. For the reasons discussed above,
we affirm the Examiner's rejection of claims 14--19, 22-32, and 35 as
unpatentable, and reverse the Examiner's rejection of claims 33 and 34.
DECISION
The Examiner's decision to reject claims 15, 16, 17, 22, 23, 25, 26,
29, 30, 32, and 34 under 35 U.S.C. § 112, second paragraph, as indefinite is
REVERSED.
The Examiner's decision to reject claims 15, 16, 17, 22, 23, 25, 26,
29, 30, 32, and 34 under 35 U.S.C. § 112, fourth paragraph, as being in
improper dependent form is REVERSED.
The Examiner's decision to reject claims 14, 22, and 23 under 35
U.S.C. § 103(a) as unpatentable over Lewis, Costa, Miller, Mandell, and
Engelbrecht is AFFIRMED.
The Examiner's decision to reject claim 15 under 35 U.S.C. § 103(a)
as unpatentable over Lewis, Costa, Miller, Mandell, Engelbrecht, and
Armstrong is AFFIRMED.
The Examiner's decision to reject claims 16 and 17 under 35 U.S.C.
§ 103(a) as unpatentable over Lewis, Costa, Miller, Mandell, Engelbrecht,
and Rudolf is AFFIRMED.
The Examiner's decision to reject Claim 18 under 35 U.S.C. § 103(a)
as unpatentable over Lewis, Costa, Miller, Mandell, Engelbrecht, and
Applicant Admitted Prior Art (AAP A) is AFFIRMED.
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We do not reach the Examiner's decision to reject Claim 18 under 35
U.S.C. § 103(a) as unpatentable over Lewis, Costa, Miller, Mandell,
Engelbrecht, and Barbour.
The Examiner's decision to reject claim 19 under 35 U.S.C. § 103(a)
as unpatentable over Lewis, Costa, Miller, Mandell, Engelbrecht, and Figov
is AFFIRMED.
The Examiner's decision to reject claims 24, 26, 29, and 30 under 35
U.S.C. § 103(a) as unpatentable over Lewis, Costa, Miller, Mandell, and
Engelbrecht is AFFIRMED.
The Examiner's decision to reject claim 25 under 35 U.S.C. § 103(a)
as unpatentable over Lewis, Costa, Miller, Mandell, Engelbrecht, and Rudolf
is AFFIRMED.
The Examiner's decision to reject claim 27 under 35 U.S.C. § 103(a)
as unpatentable over Lewis, Costa, Miller, Mandell, Engelbrecht, and AAP A
is AFFIRMED.
We do not reach the Examiner's decision to reject claim 27 under 35
U.S.C. § 103(a) as unpatentable over Lewis, Costa, Miller, Mandell,
Engelbrecht, and Barbour.
The Examiner's decision to reject Claim 28 under 35 U.S.C. § 103(a)
as unpatentable over Lewis, Costa, Miller, Mandell, Engelbrecht, and Figov
is AFFIRMED.
The Examiner's decision to reject claim 31 under 35 U.S.C. § 103(a)
as unpatentable over Lewis, Costa, Miller, and Engelbrecht is AFFIRMED.
The Examiner's decision to reject claim 32 under 35 U.S.C. § 103(a)
as unpatentable over Lewis, Costa, Miller, Engelbrecht, and Mandell is
AFFIRMED.
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The Examiner's decision to reject claims 33 and 34 under 35 U.S.C.
§ I03(a) as unpatentable over Lewis, Costa, and Miller is REVERSED.
The Examiner's decision to reject claim 35 under 35 U.S.C. § 103(a)
as unpatentable over Lewis, Costa, Miller, Mandell, AAP A, and Figov is
AFFIRMED.
We do not reach the Examiner's decision to reject claim 35 under 35
U.S.C. § I03(a) as unpatentable over Lewis, Costa, Miller, Mandell,
Barbour, and Figov.
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.I36(a).
AFFIRMED-IN-PART
35