Howard VelascoDownload PDFPatent Trials and Appeals BoardOct 29, 201914677549 - (D) (P.T.A.B. Oct. 29, 2019) Copy Citation 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. 14/677,549 04/02/2015 Howard Velasco 6541-0013-1 2422 35301 7590 10/29/2019 MCCORMICK, PAULDING & HUBER LLP CITY PLACE II 185 ASYLUM STREET HARTFORD, CT 06103 EXAMINER VERAA, CHRISTOPHER ART UNIT PAPER NUMBER 3636 NOTIFICATION DATE DELIVERY MODE 10/29/2019 ELECTRONIC 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. Notice of the Office communication was sent electronically on above-indicated "Notification Date" to the following e-mail address(es): patentdocket@ip-lawyers.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE ____________ BEFORE THE PATENT TRIAL AND APPEAL BOARD ____________ Ex parte HOWARD VELASCO Appeal 2019-002390 Application 14/677,549 Technology Center 3600 ____________ Before PHILIP J. HOFFMANN, KENNETH G. SCHOPFER, and TARA L. HUTCHINGS, Administrative Patent Judges. SCHOPFER, Administrative Patent Judge. DECISION ON APPEAL Pursuant to 35 U.S.C. § 134(a), Appellant1 appeals from the Examiner’s decision to reject claims 1, 2, 4–12, and 14–23.2 We have jurisdiction under 35 U.S.C. § 6(b). We AFFIRM. 1 We use the word “Appellant” to refer to “applicant” as defined in 37 C.F.R. § 1.42. Appellant identifies the real party in interest as Franklin Products, Inc. Appeal Br. 2. 2 The rejections of claim 13 have been withdrawn. Ans. 3. Appeal 2019-002390 Application 14/677,549 2 BACKGROUND The Specification discloses that “[t]he invention relates to upholstered furniture[, and p]articular embodiments of the invention relate to means for attaching upholstery covers to furniture frames.” Spec. ¶ 2. CLAIMS Claims 1, 6, 14, and 18 are the independent claims on appeal. Claim 1 is illustrative of the appealed claims, and recites: 1. An upholstery cover adapted for attachment to a frame, said frame including a mating feature for receiving the upholstery cover, said upholstery cover comprising: a pad; a facing laminated to one side of the pad; a backing scrim laminated to the other side of the pad opposite the facing; and an edge attachment article secured to a perimeter of at least one of the pad, the facing, or the backing scrim, wherein the edge attachment article comprises a ribbon of spring material, which is formed to define a securement portion that is secured along the perimeter of the upholstery cover, and to define a catch portion that is not secured to the upholstery cover and protrudes contiguous from the securement portion partway across the upholstery cover; said catch portion being adapted for engagement with the mating feature of the frame to which the upholstery cover is to be attached via the edge attachment article and wherein said securement portion is formed as loops projecting from the catch portion. Appeal Br. 23. REJECTIONS 1. The Examiner rejects claim 7 under 35 U.S.C. § 112(a) as failing to comply with the written description requirement. Appeal 2019-002390 Application 14/677,549 3 2. The Examiner rejects claim 7 under 35 U.S.C. § 112(b) as indefinite. 3. The Examiner rejects claims 1, 2, 6, 7, 11, 14, 15, 18, and 21–23 under 35 U.S.C. § 103 as unpatentable over Neely3 in view of Waldrop.4 4. The Examiner rejects claims 4 and 5 under 35 U.S.C. § 103 as unpatentable over Neely in view of Waldrop and Padden.5 5. The Examiner rejects claims 8, 17, and 20 under 35 U.S.C. § 103 as unpatentable over Neely in view of Waldrop and Zuzga.6 6. The Examiner rejects claims 9 and 19 under 35 U.S.C. § 103 as unpatentable over Neely in view of Waldrop and York.7 7. The Examiner rejects claims 10, 12, and 16 under 35 U.S.C. § 103 as unpatentable over Neely in view of Waldrop and Deley.8 DISCUSSION Written Description The Examiner finds that written description support is lacking for claim 7 because: In claim 7, the claim recites tabs formed on catch portion, while amended claim 1 recites loops formed on the securement portion. Loops are understood to pertain to embodiments where the edge attachment article is made from wire, while tabs are understood to be formed in plastic. The subject matter of claim 7 is thus mixing features of these different embodiments, combining loops on one side and tabs on the other, which is not supported by the written description. 3 Neely et al., US 2,876,826, iss. Mar. 10, 1959. 4 Waldrop et al., US 6,632,756 B1, iss. Oct. 14, 2003. 5 Padden, US 7,395,997 B2, iss. July 8, 2008. 6 Zuzga et al., US 2007/0040421 A1, pub. Feb. 22, 2007. 7 York et al., US 2007/0200417 A1, pub. Aug. 30, 2007. 8 Deley et al., US 4,872,724, iss. Oct. 10, 1989. Appeal 2019-002390 Application 14/677,549 4 Final Act. 2–3. The Examiner further explains: Loops are only described for embodiments where the edge attachment article is formed from loops of wire. The specification provides no explicit description of a catch portion formed as tabs, except by a tangential interpretation of paragraph 0019, which is assumed to refer to an embodiment with plastic tabs illustrated by three of the alternatives in figure 4. In view of the specification, the meaning of “tabs” formed on the edge attachment article is best understood to refer to an alternative to “loops”. Ans. 3–4. Appellant argues that a tab is not limited to any particular material either by its standard definition or by any disclosure provided in the Specification. Appeal Br. 12. Further, Appellant asserts that one of ordinary skill in the art would recognize that embodiments depicted in Figure 4 include tabs that “comport with the standard understanding of the term ‘tab’ as used in pending claim 7.” Id. “Adequate written description means that the applicant, in the specification, must ‘convey with reasonable clarity to those skilled in the art that, as of the filing date sought, he or she was in possession of the [claimed] invention.’” Agilent Techs., Inc. v. Affymetrix, Inc., 567 F.3d 1366, 1379 (Fed. Cir. 2009) (citation omitted) (brackets in original), reh’g en banc denied Sep. 18, 2009. We agree with Appellant that the Specification here provides adequate support for the limitation of claim 7. Specifically, Figure 4 shows a variety of shapes that the edge attachment article may take. See Spec. 19. Contrary to the Examiner’s indication, we see no disclosure in the Specification that limits any particular shape depicted in this Figure to any particular material. We also see no indication in this Figure, the Specification, or the claim that indicates that claim 7 is mixing different Appeal 2019-002390 Application 14/677,549 5 embodiments such that the claim requires something that is not reasonably disclosed in the Specification. Rather, we find that Figure 4 conveys with reasonable clarity that any of the depicted configurations may be described as including tabs under the ordinary meaning of that term, as argued by Appellant. See Appeal Br. 12. Thus, we are persuaded of error and we do not sustain the rejection of claim 7 here. Indefiniteness The Examiner finds that claim 7 is indefinite because “the recitation of tabs conflicts with the amended limitations of claim 1 which recites that the securement portion is formed as loops, as explained above regarding 35 U.S.C. [§] 112(a). The structure of the claimed article therefore cannot be clearly understood in view of the disclosure.” Final Act. 4. As discussed above, we agree with Appellant that the Specification provides adequate support for the limitation of claim 7 under 35 U.S.C. § 112(a). The Examiner has not otherwise explained why claim 7 includes any structure that “cannot be clearly understood in view of the disclosure.” Thus, we determine that the Examiner erred here, and accordingly, we do not sustain this rejection. Obviousness over Neely in view of Waldrop Claims 1, 2, 11, 14, and 18 With respect to claim 1, the Examiner finds that Neely teaches an upholstery cover and edge attachment article as claimed, except that Neely does not disclose a cover with a facing, pad, and backing scrim as claimed. Final Act. 4–5 (citing Neely Figs. 1–9; col. 3, ll. 29–47). The Examiner finds that Waldrop teaches a seat cover with a facing, pad, and backing scrim, and the Examiner determines it would have been obvious to use a Appeal 2019-002390 Application 14/677,549 6 cover as taught by Waldrop with Neely’s device “in order to provide more support and structural integrity of the fabric.” Id. at 5. We agree with and adopt the Examiner’s findings and conclusion with respect to claim 1. See Final Act. 4–5; Ans. 4–5. As discussed below, we are not persuaded of error in the rejection of claim 1 by Appellant’s arguments. Appellant first argues that “Neely fails to disclose an edge attachment article having a ‘securement portion’ comprised of loops attached at the perimeter of an upholster cover.” Appeal Br. 15. More specifically, Appellant asserts that element 12 in Neely’s device are not loops and “merely take the form of alternating bends.” Id. at 16. We disagree for the reasons provided by the Examiner. See Ans. 4. Specifically, as noted by the Examiner, Neely describes element 12 as “loops” that are “tightly wrapped around core member 9 to secure the wire member to said core member in tangential relation with respect thereto.” Neely col. 3, ll. 40–43. In light of this express disclosure in Neely, Appellant does not explain adequately why the claimed loops would not read on Neely’s loops. On this point, the Specification does not appear to provide any limiting disclosure regarding what may be considered a loop as claimed. Rather, the Specification only discloses “closed loops” that are “secured to at least one layer of the cover as a securement portion” without further explanation as to what constitutes a loop. Spec. ¶ 17. Thus, we agree with the Examiner that the Specification uses the term “loop” broadly. See Ans. 4. Next, Appellant asserts that the claim 1 requires a ribbon of spring material for the edge attachment article and “that the edge attachment article itself is secured along the perimeter of the upholstery cover.” Appeal Appeal 2019-002390 Application 14/677,549 7 Br. 16–17. Appellant also asserts that the ribbon of spring material required by the claim allows for “a flatter attachment system” and a “level of flexibility and flatness [that] is not possible with the Neely approach, which utilizes a core member.” Id. at 17. We are not persuaded by Appellant. First, we note that Appellant does not specifically identify any claimed structure that is missing from Neely’s device, as identified by the Examiner. To the extent Appellant asserts that Neely’s approach does not provide for a certain “level of flexibility and flatness,” no such requirements are expressly present in the claims as currently worded. And Appellant has not otherwise explained why the inclusion of a core member, as in Neely, shows that the claimed edge attachment article does not read on Neely’s device. Second, the Examiner finds that Neely’s edge attachment members “have at least the capacity to act as a spring” because Neely describes element 11 “as providing ‘resilient V-shaped, flange-like lateral extensions.’” Ans. 4–5 (citing Neely col. 3, ll. 29–48). To the extent Appellant is arguing that Neely does not include a ribbon of spring material, Appellant does not explain why the Examiner’s findings in this regard are in error. Third, to the extent Appellant is arguing that Neely’s edge attachment article is not itself directly attached to the perimeter of the upholstery cover, Neely discloses that an edge of the cover 5 is wrapped around the core member and loops 12 and then stitched together. We fail to see why this arrangement does not teach that the loops are secured along the perimeter of the cover, as required by the claim. We note that there is no specific claim requirement that a core cannot be present or that the loops must be directly Appeal 2019-002390 Application 14/677,549 8 attached to the perimeter of the cover such as by stitching the loops onto the cover. Based on the foregoing, we are not persuaded of any error in the rejection of claim 1, and thus, we sustain the rejection of claim 1. Appellant relies on the same arguments with respect to the rejection of independent claims 14 and 18, and does not provide separate arguments regarding dependent claims 2 and 11. Thus, we also sustain the rejection of claims 2, 11, 14, and 18. Claim 6 Independent claim 6 is similar to claim 1, but does not require that the securement portion is formed of loops and instead requires that the catch portion and securement portion “are formed of contiguous alternating bends of identical size and shape.” Appeal Br. 24. Regarding this claim requirement, Appellant argues that Neely does not disclose such a configuration. Appeal Br. 15; see also Reply Br. 6. However, the Examiner identifies the embodiment shown in Neely Figures 10–15 with respect to this claim limitation. Final Act. 5. The Examiner’s finding appears to be supported by the embodiment shown in Figure 13, which depicts a zigzag- shaped attachment article. See Neely Fig. 13; col. 2, ll. 36–40. Thus, without further explanation, we are not persuaded of error by Appellant’s argument, and we sustain the rejection of claim 6. Claim 7 Claim 7 depends from claim 1 and further requires that “the catch portion is formed as tabs projected away from the securement portion.” Appeal Br. 24. The Examiner finds that “Neely teaches a further embodiment comprising tabs.” Final Act. 6 (citing Neely Fig. 19–21). Appeal 2019-002390 Application 14/677,549 9 Appellant argues that the cited Figures of Neely refer to an embodiment that does not include a ribbon of spring material and a securement portion formed of loops as required by claim 1. Appeal Br. 17–18. We are not persuaded of reversible error. Neely teaches an embodiment in which the catch portion is made of plastic elongated flanges, which may be considered tabs, as relied upon by the Examiner. Neely Fig. 19; col. 2, ll. 51–54. Similarly, Neely discloses embodiments including “resilient flange portions 10,” which were relied upon by the Examiner as a catch portion, as noted above. One of ordinary skill in the art would recognize that either flange portion may be considered a tab, within the broadest reasonable interpretation of the claim. Thus, we generally agree with the Examiner that Neely teaches a catch portion formed as a tab, as required by claim 7, and therefore, we are not persuaded of reversible error by Appellant’s argument. Accordingly, we sustain the rejection of claim 7. Claim 15 Claim 15 depends from claim 14 and further requires that “the mating feature comprises a lip for engaging the catch portion of the edge attachment article.” Appeal Br. 25. The Examiner finds that Neely’s device includes a mating feature with “a lip 40 for engaging the catch portion 10.” Final Act. 6 (citing Neely Fig. 3). The Examiner further explains that “[t]he edges of female member 8 of Neeley, e.g. sidewalls 40 (see Neeley [F]igures 7 and 9) can be considered a lip within the broadest reasonable interpretation of the claim.” Ans. 5. Appellant argues that “the attachment according to the Neely invention does not rely on looping or hooking a wire around any type of lip. Instead, the Neely invention relies on the resiliency of the male member 7 to Appeal 2019-002390 Application 14/677,549 10 secure it within a channel formed by the female member.” Appeal Br. 18. Appellant asserts that the claim requires an added retaining element, e.g., a lip, beyond the sidewalls 39, 40 forming the channel in Neely’s female member. Reply Br. 4. Appellant further asserts that Neely discloses a different mechanism for engagement “involving bending the V-shaped portions 10 so they fit into the channel.” Id. at 5. We are not persuaded of error by Appellant’s arguments because we find they are not commensurate with the scope of the claim. As noted, claim 15 recites that “the mating feature comprises a lip for engaging the catch portion.” This claim language does not require that the lip is a separate or additional structure to the “mating feature” recited in claim 14. Further, the claim language does not require a specific form of engagement between the mating portion and the catch portion. We agree with the Examiner that Neely’s side walls 39 and 40 form a channel that may be considered a female mating portion into which the male portion 10 of the edge attachment article is inserted. See Neely Figs. 3, 9. Further, we agree with the Examiner that side wall 40 can be considered a lip that is designed to engage the catch portion, as shown in Neely Figure 9. Thus, without further explanation from Appellant, we are not persuaded of error in the rejection of claim 15, and accordingly, we sustain this rejection. Claims 21–23 Claims 21–23 depend from independent claims 1, 14, and 18, respectively. See Appeal Br. 26–27. Each of these claims requires that “the catch portion comprises generally straight sections of the ribbon of spring material extending between the loops comprising the securement portion.” Id. The Examiner finds that “Neely shows generally straight sections of the Appeal 2019-002390 Application 14/677,549 11 ribbon of spring material extending between the loops.” Final Act. 7 (citing Neely Fig. 4). Appellant argues that Neely depicts bent catch portions in Figure 4, which are described in Neely as V-shaped. Appeal Br. 18–19 (citing Neely col. 3, ll. 44–48, 55–56). Appellant further argues that the catch portion required by claims 21–23 must be straight. Reply Br. 5–6. We are not persuaded of error. The claim requires that the catch portion comprises “generally straight sections,” and we agree with the Examiner that each V-shaped catch portion in Neely includes two generally straight sections between the loops 12. Appellant does not persuade us that these claims should be interpreted such that the entirety of each catch portion must be one straight piece. Accordingly, we sustain the rejection of claims 21–23. Remaining Obviousness Rejections Appellant does not provide separate arguments regarding the rejections of claims 4, 5, 8–10, 12, 16, 17, 19, and 20. Appeal Br. 19–22. For the reasons discussed above, we sustain the rejections of these claims. CONCLUSION In summary: Claims Rejected 35 U.S.C. § Basis Affirmed Reversed 7 112(a) Written description 7 7 112(b) indefinite 7 1, 2, 6, 7, 11, 14, 15, 18, 21–23 103 Neely, Waldrop 1, 2, 6, 7, 11, 14, 15, 18, 21–23 4, 5 103 Neely, Waldrop, Padden 4, 5 8, 17, 20 103 Neely, Waldrop, Zuzga 8, 17, 20 Appeal 2019-002390 Application 14/677,549 12 Claims Rejected 35 U.S.C. § Basis Affirmed Reversed 9, 19 103 Neely, Waldrop, York 9, 19 10, 12, 16 103 Neely, Waldrop, Deley 10, 12, 16 Overall Outcome 1, 2, 4–12, 14–23 AFFIRMED Copy with citationCopy as parenthetical citation