11448936 (B.P.A.I. Sep. 29, 2010)

Ex Parte Peoples

Board of Patent Appeals and InterferencesSep 29, 2010

11448936 (B.P.A.I. Sep. 29, 2010)

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. 11/448,936 06/08/2006 Douglas Peoples P-4014-1 5546 7590 09/29/2010 MYRON AMER P.C. Suite 2B 350 National Boulevard Long Beach, NY 11561-3327 EXAMINER PUROL, DAVID M ART UNIT PAPER NUMBER 3634 MAIL DATE DELIVERY MODE 09/29/2010 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 BOARD OF PATENT APPEALS AND INTERFERENCES ____________________ Ex parte DOUGLAS PEOPLES ____________________ Appeal 2010-007842 Application 11/448,936 Technology Center 3600 ____________________ Before LINDA E. HORNER, WILLIAM F. PATE III and STEVEN D.A. McCARTHY, Administrative Patent Judges. McCARTHY, 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 2010-007842 Application 11/448,936 The Appellant appeals under 35 U.S.C. § 134 from the Examiner’s 1 decision finally rejecting claim 1 under 35 U.S.C. § 103(a) as being 2 unpatentable over Hinds (US 6,192,965, issued Feb. 27, 2001) and Scott (US 3 2,752,993, issued Jul. 3, 1956). We have jurisdiction under 35 U.S.C. 4 § 6(b). 5 We REVERSE. 6 Claim 12 is the sole claim on appeal: 7 1. A two-component shower curtain of a type in an in-use 8 condition suspended from a shower support rod and in 9 a laundering condition disconnected from said support 10 rod, said one-component comprising: 11 12 A. a shower curtain of plastic construction material 13 constituted as 14 a. a rectangular shape having an 15 upper edge and a bottom edge; 16 b. a zipper lower track in sewn attachment 17 along said shower curtain upper edge; 18 19 and a said second-component comprising: 20 21 B. a valance of plastic construction material 22 constituted as 23 c. an elongated first rectangular strip having an 24 upper edge and a bottom edge; 25 d. plural adjacent spaced apart edges bounding 26 openings in said upper-edge for receiving 27 therein grommets for attachment to said 28 support rod; 29 e. a zipper upper track in sewn attachment 30 along said valance lower edge; 31 32 2 Claim 1 is misnumbered as claim 2 in the Claims Appendix to the Appellant’s Brief. Appeal 2010-007842 Application 11/448,936 3 f. an elongated second rectangular strip in sewn 1 attachment at a selected location between 2 said upper and bottom edges; 3 g. said selected location of said sewn 4 attachment positioning said second 5 rectangular strip in a depending overlapping 6 relation over said zipper upper track; and 7 8 C. an operative position of said valence in 9 overlapping relation of said zipper upper and 10 lower tracks in attached relation to each other; 11 whereby when said shower curtain is released by being 12 unzippered from said support rod incident to detachment 13 of said zipper upper and lower tracks and placement of 14 said shower curtain into said laundering condition thereof, 15 said valance remains to mask said zipper upper track from 16 view to contribute to an enhanced shower curtain 17 appearance. 18 19 Hinds discloses a zippered shower curtain including a curtain 14 20 removably attached to a component 123 by a zipper 16. (Hinds, col. 2, ll. 21 52-57.) Figure 2 of Hinds depicts the zipper 16 as having upper and lower 22 zipper tracks. The zipper upper track is attached to the component 12 along 23 a lower edge 20 of the component 12 by a tape 38. (Hinds, col. 3, ll. 21-23.) 24 Hinds does not appear to disclose an elongated second rectangular strip in 25 sewn attachment at a selected location between the upper and bottom edges. 26 Neither does Scott appear to disclose that the selected location of the sewn 27 attachment positions the second rectangular strip in a depending overlapping 28 relation over the zipper upper track. 29 3 Although Hinds refers to the component 12 as a “valance” (Hinds, col. 2, ll. 53-55), the Examiner concedes that “Hinds discloses the claimed two component shower curtain absent the use of a valance.” (Ans. 3 (emphasis added).) Appeal 2010-007842 Application 11/448,936 4 Scott discloses a shower curtain 1 including a ruffle 3 stitched along 1 the upper edge of the curtain. Scott further discloses interposing a narrow 2 strip or tape 5 of absorbent fabric between the curtain 1 and the ruffle 3. 3 Scott teaches pouring a suitable deodorizing or fragrant liquid onto the tape 4 5. The tape 5 absorbs the liquid for release when the shower is in use. 5 (Scott, col. 2, ll. 8-28.) 6 The Appellant correctly argues that the Examiner has not articulated 7 reasoning with some rational underpinning sufficient to support the 8 conclusion that it would have been obvious to modify Hinds’ shower curtain 9 to include elements c-g recited in claim 1. (See Reply Br. 2.) The Examiner 10 finds that: 11 Hinds discloses the claimed two component 12 shower curtain absent the use of a valance, Scott 13 discloses a shower curtain which employs the use 14 of a valance 3, wherein, to incorporate this 15 teaching into the curtain of Hinds for the purpose 16 of aesthetics would have been obvious to one of 17 ordinary skill in the art. 18 (Ans. 3.) This reasoning provides reason for having modified Hinds’ shower 19 curtain to include a valance having a structure similar to that of Scott’s ruffle 20 3. On the other hand, the statement articulates no reason for having 21 modified Hinds’ shower curtain to include an elongated second rectangular 22 strip in-sewn attachment at a selected location between the upper and bottom 23 edges as recited in element f, much less the selected location of the sewn 24 attachment position in the second rectangular strip in a depending 25 overlapping relation over the zipper upper track, as recited in element g. 26 In responding to the Appellant’s arguments, the Examiner is more 27 specific: 28 Appeal 2010-007842 Application 11/448,936 5 The reference to Scott is relied upon for the 1 teaching of a shower curtain having a ruffle 3 2 which responds to the claimed elongated second 3 rectangular strip in sewn attachment at a selected 4 location. The use of a ruffle per se in the art of 5 curtains has an explicit purpose[,] that of a 6 decoration thereby providing a pleasing aesthetic 7 effect. While Scott discloses that there is a narrow 8 strip or tape 5 of an absorbent fabric interposed 9 between the curtain 1 and the ruffle 3 it is noted 10 that the claims of the instant application do not 11 preclude the presence of such a strip. 12 (Ans. 4.) In the end, the Examiner declares that: 13 All of the claimed elements are known in the 14 prior art and one skilled in the art could have 15 combined the elements as claimed by known 16 methods with no change in their respective 17 functions, and the combination would have yielded 18 predictable results to one of ordinary skill in the art 19 at the time of the invention. 20 (Id.) Both statements lack rational underpinning. 21 The Examiner points to no teaching of Scott indicating that the ruffle 22 3 is to be added for any aesthetic purpose. Instead, Scott discloses that the 23 ruffle 3 protects the tape 5 from the flow of water from the shower and 24 regulates the rate of deodorization or release of fragrance from the tape 5. 25 Therefore, the function of the valance and the elongated second rectangular 26 strip recited in claim 1 would have differed from the function of the ruffle 3 27 in the shower curtain of Scott. The Examiner articulates no reason why one 28 of ordinary skill in the art would have modified Hinds’ shower curtain to 29 include the elongated second strip of limitation f of claim 1, positioned as 30 recited in limitation g of claim 1, despite this difference in the functions of 31 the recited and prior art elements. Even assuming for purposes of this 32 Appeal 2010-007842 Application 11/448,936 6 appeal only the correctness of the Examiner’s finding that “[t]he use of a 1 ruffle per se in the art of curtains has an explicit purpose[,] that of a 2 decoration thereby providing a pleasing aesthetic effect” (Ans. 4), that 3 statement does not imply a reason to have modified Hinds’ shower curtain to 4 meet limitations f and g of claim 1. 5 We do not sustain the rejection of claim 1 under § 103(a) as being 6 unpatentable over Hinds and Scott. 7 8 DECISION 9 We REVERSE the Examiner’s decision rejecting claim 1. 10 11 REVERSED 12 13 14 Klh 15 16 MYRON AMER P.C. 17 SUITE 2B 18 350 NATIONAL BOULEVARD 19 LONG BEACH, NY 11561-3327 20