Lovevery, Inc.

Patent Trials and Appeals Board

Sep 28, 2020

15946713 - (D) (P.T.A.B. Sep. 28, 2020)

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.
15/946,713 04/05/2018 Roderick Neal Morris 43852-0004001 4224
26201 7590 09/28/2020
FISH & RICHARDSON P.C. (AU)
P.O BOX 1022
Minneapolis, MN 55440-1022
EXAMINER
NICONOVICH, ALEXANDER R
ART UNIT PAPER NUMBER
3711
NOTIFICATION DATE DELIVERY MODE
09/28/2020 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):
PATDOCTC@fr.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
____________________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________________
Ex parte RODERICK NEAL MORRIS,
JESSICA THACHER CROLICK ROLPH,
SARA RICHINS, and PHILIP J. FOUTS
___________________

Appeal 2020-001301
Application 15/946,713
Technology Center 3700
____________________

Before PHILLIP J. KAUFFMAN, ANNETTE R. REIMERS, and
TARA L. HUTCHINGS, Administrative Patent Judges.

KAUFFMAN, Administrative Patent Judge.

DECISION ON APPEAL

STATEMENT OF THE CASE
Pursuant to 35 U.S.C. § 134(a), Appellant1 appeals from the
Examiner’s decision to reject claims 1–21, which constitute all the claims
pending in this application. Final Act. 2–9. We have jurisdiction under
35 U.S.C. § 6(b).
We reverse.

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 Lovevery,
Inc. Appeal Br. 1.
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The claims are directed to an early childhood development toy that is
safe, durable, and cleanable. Spec. 1:6–8, 2:23–29. Claims 1 and 21 are
independent. We reproduce claim 1 below.
1. A child development toy comprising:
a box defining an interior compartment and an aperture
extending into the interior compartment through a side of the
box; and
a set of flexible sheets, each sheet having a corner and
defining a bounded slit surrounded by material of the sheet and
configured to receive the corner of another sheet inserted
therethrough, such that the set of sheets is configurable as a chain
of sheets, each two adjacent sheets of the chain being releasably
connected by a connection formed by a corner of one of the two
adjacent sheets inserted into the slit of the other of the two
adjacent sheets, such that with the chain of sheets disposed
within the interior compartment of the box with a last sheet of
the chain extending through the aperture, a corner of a next-to-
last sheet of the chain may be pulled through the aperture,
followed by separation of the last sheet of the chain from the
next-to-last sheet of the chain, by pulling on the last sheet of the
chain.

Claim 21 recites a method of setting up a child development toy for play
including the step of “interconnecting a set of flexible sheets to form a chain
of sheets, by pulling a corner of each of all but one of the sheets through a
slit of another of the sheets.”

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REJECTIONS
I. Claims 1–8, 15–17, and 21 are rejected under 35 U.S.C. § 103
as unpatentable over McGinn2 and Bujalski.3 Final Act. 2–6.
II. Claims 9–12 are rejected under 35 U.S.C. § 103 as unpatentable
over McGinn, Bujalski, and Heldibridle.4 Final Act. 6–7.
III. Claims 13 and 14 are rejected under 35 U.S.C. § 103 as
unpatentable over McGinn, Bujalski, and Rappa.5 Final Act. 7–8.
IV. Claim 18 is rejected under 35 U.S.C. § 103 as unpatentable
over McGinn, Bujalski, and Amundson.6 Final Act. 8.
V. Claims 19 and 20 are rejected under 35 U.S.C. § 103 as
unpatentable over McGinn, Bujalski, and Var.7 Final Act. 8–9.

ANALYSIS
Each of the four rejections relies on Bujalski. The sole issue with
regard to each rejection is whether Bujalski is analogous art.

Rejection I
The Examiner concludes that the subject matter of independent claims
1 and 21 would have been obvious from the combined teachings of McGinn
and Bujalski. Final Act. 2–6; Ans. 10–15. It is uncontested that McGinn
teaches interconnecting a set of flexible sheets to form a chain of sheets by

2 McGinn (US 6,083,077, issued July 4, 2000)
3 Bujalski (US 6,228,459 B1, issued May 8, 2001).
4 Heldibridle et al. (US 7,192,632 B2, issued Mar. 20, 2007). (“Heldibridle”)
5 Rappa (US 2013/0164729 A1, published June 27, 2013).
6 Amundson (US 6,840,401 B2, issued Jan. 11, 2005).
7 Var (US 5,720,617, issued Feb. 24, 1998).
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means of hook-and-loop material, magnets, or the like. McGinn 4:26–36,
Figs. 4–6. The Examiner acknowledges that McGinn does not disclose
“each two adjacent sheets of the chain being releasably connected by a
connection formed by a corner of one of the two adjacent sheets inserted into
the slit of the other of the two adjacent sheets,” as recited in claim 1, and
similarly, does not disclose “pulling a corner of each of all but one of the
sheets through a slit of another of the sheets,” as recited in claim 21. Final
Act. 3, 6. The Examiner relies on Bujalski for these limitations. Id.
Appellant argues that the Examiner’s reliance is misplaced because
Bujalski is non-analogous art. Appeal Br. 3–9.
Whether proposed prior art is non-analogous is a factual question. In
re Clay, 966 F.2d 656, 658 (Fed. Cir. 1992). Where disputed, the Examiner
must demonstrate, through evidence or technical reasoning, that a reference
on which the Examiner relies is analogous. See In re Oetiker, 977 F.2d
1443, 1447 (Fed. Cir. 1992) (reversing an obviousness rejection because the
art had not been shown to be analogous). To be analogous art, the art must
either be: (1) in the same field of endeavor, or (2) reasonably pertinent to
the particular problem with which the inventor is involved. See, e.g., In re
Bigio, 381 F.3d 1320, 1325 (Fed. Cir. 2004).
Here, the Examiner does not find that Bujalski is within the same field
of endeavor as the subject matter of claims 1 and 21. See Final Act. 10; Ans.
10–15; see also Appeal Br. 4 (“Applicant is in agreement with the
implication from the Office Action that Bujalski is not from Applicant’s
field of endeavor”). Consequently, our question narrows to whether the
Examiner has sufficiently demonstrated, through evidence or technical
reasoning, that Bujalski is reasonably pertinent to the problem with which
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Appellant is involved. A reference is reasonably pertinent if “it is one
which, because of the matter with which it deals, logically would have
commended itself to an inventor’s attention in considering his problem.” In
re Clay, 966 F.2d 656, 659 (Fed. Cir. 1992).
Before directly addressing the problem involved, we address three
related issues.
First, the Examiner’s analysis incorrectly focuses on how McGinn is
analogous to Bujalski.8 See Final Act. 10; Ans. 10–15; see also Appeal Br.
8 (noting that an analogous art determination has nothing to do with
comparing the two prior art references). For example, the Examiner notes
similarities between the structure and function of McGinn’s toy and
Bujalski’s absorbent wrap. The term “analogous art” refers to the pertinence
of the teachings of the prior art to the claimed subject matter and not to
structural or operational differences between the disclosures of prior art
references. In re Sovish, 769 F.2d 738, 741 (Fed. Cir. 1985); see also In re
Kahn, 441 F.3d 977, 986–87 (Fed. Cir. 2006) (citing In re Oetiker, 977 F.2d
1443, 1447 (Fed. Cir. 1992) (holding that the correct focus of the analogous
art test is not whether the prior art references are analogous to each other;
rather, the correct focus is whether the reference is analogous art to the
claimed subject matter). Consequently, we agree with Appellant that
similarities between McGinn and Bujalski are not relevant as to whether
Bujalski is analogous art to the claimed subject matter. See Appeal Br. 8.

8 The Examiner states that Appellant argues “that McGinn and Bujalski are
nonanalogous art” (see Ans. 10) when actually, Appellant argues only that
Bujalski is nonanalogous art (see Appeal Br. 3).
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Second, the Examiner focuses on how Bujalski is classified. See
Ans. 10–11. We agree with Appellant that classification of the prior art is
weak evidence with regard to the problem being solved. Reply Br. 2 (citing
In re Mlot-Fijalkowski, 676 F.2d 666 (CCPA 1982), for the proposition that
classification evidence is of little value when determining if a reference is
analogous art). Further, “the similarities and differences in structure and
function of the inventions disclosed in the references carry far greater
weight” than patent classification. In re Ellis, 476 F.2d 1370, 1372 (CCPA
1973).
Third, the Examiner mentions that Appellant cited Bujalski on their
Information Disclosure Statement. Ans. 11. We agree with Appellant that
citation to Bujalski is not an admission that Bujalski is prior art. Reply Br. 1
(citing MANUAL OF PATENT EXAMINING PROCEDURE § 2129 ¶ 4).
Turning to the problem addressed, the Examiner determines that
Appellant sought out “other known flexible cloth sheet coupling means.”
Ans. 10; see also Final Act. 10. The Examiner finds that Bujalski discloses
an equivalent sheet coupling means, namely, a means to couple a portion of
a sheet to itself. Final Act. 10.
As an initial matter, the finding that Bujalski teaches an equivalent
sheet coupling means is inaccurate in that Buljalski discloses a means of
coupling a flexible sheet to itself; while in contrast, the claimed subject
matter couples a flexible sheet to another flexible sheet. Compare Bujalski,
1:57–66, Figs. 3, 4, with Spec. 1:12–14, Fig. 3A.
Somewhat more importantly, Appellant argues, and we agree, that the
Examiner defined the problem too broadly. See Appeal Br. 6–9. Under the
Examiner’s determination that the problem is to seek other sheet coupling
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means, every sheet coupling means would be reasonably pertinent to
Appellant’s problem. Such reasoning is too broad. See In re Oetiker, 977
F.2d 1443 (Fed. Cir. 1992) (criticizing the Board as defining the problem so
broadly that all hooking problems are analogous).
As Appellant explains, with supporting citations to the Specification,
the problem faced had both a connection aspect and a disconnection aspect.
The connection aspect was to permit quickly and easily making a chain of
sheets. Appeal Br. 7 (citing Spec. 2:26–28, claim 1, Fig 3C); Reply Br. 2.
The disconnection aspect was that the sheets only separate under certain
circumstances; namely, the last sheet disconnects from the next to last sheet
of the chain by pulling the last sheet of the chain through the aperture of a
box. Id. The Examiner’s definition does not acknowledge the connection
and disconnection aspects of the problem and the associated details.
Consequently, the Examiner has not met the burden of demonstrating
that Bujalski is reasonably pertinent to the particular problem with which the
named inventors were involved. Therefore, the Examiner has not shown that
Bujalski is analogous art. Accordingly, we do not sustain the rejection of
claims 1–8, 15–17, and 21 under 35 U.S.C. § 103 as unpatentable over
McGinn and Bujalski.

Rejections II–V
As noted above, each of these rejections relies on Buljalski. See Final
Act. 6–9. In other words, none of the added references are relied on as an
alternative to Buljalski. Consequently, each of these rejections suffers from
the same shortcomings as the first rejection.
Therefore, we do not sustain the remaining rejections.
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CONCLUSION
In summary:
Claims
Rejected
35 U.S.C. § Reference/Basis Affirmed Reversed
1–8, 15–17,
21
103 McGinn,
Bujalski
1–8, 15–17,
21
9–12 103 McGinn,
Bujalski,
Heldibridle
9–12
13, 14 103 McGinn,
Bujalski, Rappa
13, 14
18 103 McGinn,
Bujalski,
Amundson
18
19, 20 103 McGinn,
Bujalski, Var
19, 20
Overall
Outcome
1–21

REVERSED