Michelle O'Doherty

Patent Trials and Appeals Board

Jan 28, 2022

2022000611 (P.T.A.B. Jan. 28, 2022)

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. 15/252,968 08/31/2016 Michelle O'Doherty NYLS-6 3042 135800 7590 01/28/2022 NYLS PATENT LAW CLINIC 185 West Broadway New York, NY 10013 EXAMINER MCCLURE, MORGAN J ART UNIT PAPER NUMBER 3673 NOTIFICATION DATE DELIVERY MODE 01/28/2022 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): SFalati@nyls.edu USPTO@dockettrak.com USPTOcorrespondence@nyls.edu PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte MICHELLE O'DOHERTY Appeal 2022-000611 Application 15/252,968 Technology Center 3600 Before MICHELLE R. OSINSKI, LISA M. GUIJT, and MICHAEL L. WOODS, Administrative Patent Judges. GUIJT, 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 1-17, 19, and 20. 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(a). Appellant identifies the real party in interest as the inventor, Michelle O’Doherty. Appeal Br. 2. Appeal 2022-000611 Application 15/252,968 2 CLAIMED SUBJECT MATTER Appellant’s invention relates to an “Apparatus for Creating a Sleeping Surface.” Spec., Title. Claims 1 and 13 are the independent claims on appeal, and claim 1, reproduced below with the disputed claim limitation italicized for emphasis, is illustrative of the claimed subject matter. 1. A sleeping apparatus, comprising: a textile fiber shell comprising an upper sleeping surface and a lower support surface, wherein the textile fiber shell comprises a rectangular shape having a first set of substantially parallel sides and a second set of substantially parallel sides, wherein the first set of sides are longer than the second set of sides; a plurality of adjustable straps coupled to the lower support surface of the textile fiber shell, wherein each of the plurality of adjustable straps is coupled to the lower support surface via a corresponding channel formed on the lower support surface for each of the plurality of straps, wherein each of the channels is parallel to the first set of sides and perpendicular to the second set of sides and wherein at least one of the channels is formed on the lower support surface between the first set of sides; and a plurality of anchors, wherein each anchor is coupled to one of the plurality of adjustable straps, wherein the anchors are configured to attach to one or more structures to support the lower surface2 of the textile fiber shell relative to the one or more structures such that the upper sleeping surface is a flat surface. 2 The claim term “the lower surface” lacks antecedent basis; however, we assume “the lower surface” is intended to refer back to the claimed “lower support surface.” Appeal 2022-000611 Application 15/252,968 3 THE REJECTIONS The prior art relied upon by the Examiner is: Name Reference Date Soeder US 2,676,337 April 27, 1954 Sorensen US 3,833,947 Sept. 10, 1974 Proctor US 4,796,903 Jan. 10, 1989 Failor US 5,860,174 Jan. 19, 1999 Marshall US 6,796,606 B2 Sept. 28, 2004 Kroculick US 2006/0150922 A1 July 13, 2006 Chaffee US 7,328,472 B2 Feb. 12, 2008 Lambert GB 2444700 A June 18, 2008 The rejections before us on appeal are: I. Claims 1-4, 19, and 20 stand rejected under 35 U.S.C. § 103 as unpatentable over Lambert, Failor, Proctor, and Kroculick. II. Claims 5 and 6 stand rejected under 35 U.S.C. § 103 as unpatentable over Lambert, Failor, Proctor, Kroculick, and Marshall.3 III. Claims 7, 13, and 16 stand rejected under 35 U.S.C. § 103 as unpatentable over Lambert, Failor, Proctor, Kroculick, and Soeder. IV. Claims 8-11 stand rejected under 35 U.S.C. § 103 as unpatentable over Lambert, Failor, Proctor, Kroculick, and Chaffee. V. Claim 12 stands rejected under 35 U.S.C. § 103 as unpatentable over Lambert, Failor, Proctor, Kroculick, Chaffee, and Merriam-Webster Dictionary (definition of “grommet”). 3 The reference to Chaffee in the rejection of claims 5 and 6 appears to be a typographical error, as Chaffee is not recited in the statement of the rejection of claims 5 and 6, or of claim 1 from which claims 5 and 6 depend, neither does the Examiner provide any findings relative to Chaffee in Rejection II other than the phrase “formed into a shell as in Chaffee.” Final Act. 8-9. Appeal 2022-000611 Application 15/252,968 4 VI. Claims 14 and 15 stand rejected under 35 U.S.C. § 103 as unpatentable over Lambert, Failor, Proctor, Kroculick, Chaffee, and Soeder. VII. Claim 17 stands rejected under 35 U.S.C. § 103 as unpatentable over Lambert, Failor, Proctor, Kroculick, Soeder, and Sorensen. OPINION Rejection I Independent claim 1 and dependent claims 2, 3, 19, and 20 Regarding independent claim 1, the Examiner finds that Lambert’s “Figure 6 Embodiment” discloses, inter alia, a sleeping apparatus comprising anchors (i.e., “where 10 is marked”), each anchor being coupled to an adjustable strap (i.e., ties 9) and configured to attach to a structure (i.e., seat rows 1, 14), as claimed.4 Final Act. 5 (citing Lambert, Figs. 6). In particular, the Examiner finds that Lambert’s anchors are “the ‘structural parts on the side of the seats 10 such as the arm rest attachment points.’” Ans. 4 (quoting Lambert 10:9-21; citing Lambert, Fig. 6). The Examiner explains that “the seat itself is the ‘structure’ the claim requires, not the seat including the arm rests and arm rest attachment points.” Id. Figure 6 of Lambert is reproduced below. 4 The Examiner relies on Proctor for teaching adjustable straps coupled to a support surface via channels, on Kroculick for teaching channels parallel to longer sides of rectangular surface, and Failor for teaching a shell, as claimed. Final Act. 5-6. Appeal 2022-000611 Application 15/252,968 5 Lambert’s Figure 6 depicts a fourth embodiment of the invention, where supporting device 4 transmits part of the load to two seat rows 1, 14. See Lambert 6:28-33. In particular, Lambert’s Figure 6 shows that fabric is simply stretched out from the front of the back portion of a seat row 1 to the back of the back portion of a seat row directly in front 14 using a series of ties 9 threaded through reinforced holes 15 in the fabric and tightened around structural parts on the side of the seats 10 such as the arm rest attachment points. Id. at 11:6-12. Appellant argues that claim 1 requires the sleeping apparatus to be comprised of anchors attached to straps and that “[i]t is unreasonable for the Examiner to interpret a structural component that is clearly not part of the sleeping apparatus of Lambert (i.e., the seat 10) to be analogous to the plurality of anchors that are recited as a structural component of the sleeping apparatus.” Appeal Br. 5, 6; see also Reply Br. 3-4. Appeal 2022-000611 Application 15/252,968 6 We agree with Appellant that claim 1 positively recites the anchors as structures of the sleeping apparatus, and therefore, the Examiner’s reliance on structural parts on the sides of the aircraft seats as part of the sleeping apparatus is unreasonable. Put another way, the structural parts on the sides of the aircraft seats is not disclosed in Lambert as a component of the (portable) seat extension system, and therefore, do not fairly disclose the claimed anchors. Rather, Lambert’s structural parts on the sides of the aircraft seats correspond to the claimed “one or more structures to support the lower surface of the textile fiber shell [of the sleeping apparatus].” Accordingly, we do not sustain the Examiner’s rejection of claim 1 and claims 2, 3, 19, and 20 depending therefrom. Dependent claim 4 Dependent claim 4 recites: “The sleeping apparatus of claim 1, further comprising: strap buckles coupled to the adjustable straps.” Appeal Br. 9 (Claims App.). Notably, dependent claim 4 does not recite that the strap buckles may be the anchors recited in claim 1 (i.e., “wherein the anchors of claim 1 may be strap buckles”), but rather, requires the sleeping apparatus to have both “a plurality of anchors, wherein each anchor is coupled to one of the plurality of adjustable straps” (claim 1) and further, “strap buckles coupled to the adjustable straps” (claim 4). Appeal Br. 9 (Claims App.). In this respect, the Specification discloses that [a]ttached, either permanently sewn, or by detachable means such as buttons, to the first sides 101, 102 of the outer textile fiber shell 100 may be a plurality of adjustable straps 110. In one example, the adjustable straps 110 are constructed of a flexible material such as a bungee cord. In another example, the adjustable straps 110 are not flexible (e.g., are constructed Appeal 2022-000611 Application 15/252,968 7 from nylon), but include a mechanism such as a strap buckle that allows the length of the adjustable straps 110 to be adjusted. Each of the adjustable straps 110 may be coupled to anchors 120 that latch the sleeping apparatus 1 to the corresponding airplane seats. Spec. ¶ 15 (emphasis added). Thus, the strap buckles recited in claim 4 are in addition to the anchors that attach to a structure to support the sleeping apparatus. Thus, the Examiner’s reliance on Lambert’s Figure 7 for teaching “attaching the flat sleeping surface to the seat using straps including buckles” fails to cure the Examiner’s reliance on the seat row structures of Lambert for disclosing the anchors recited in claim 1 as discussed supra. Final Act. 7-8 (citing Lambert 11:25-30, Fig. 7 (“at 12”). Accordingly, we do not sustain the Examiner’s rejection of claim 4, which depends from independent claim 1, for the reasons stated supra. Rejection III Independent claim 13 Independent claim 13 recites, in relevant part, “an anchor coupled to each strap, the anchor being configured to secure the sleeping apparatus to a structure.” Appeal Br. 11 (Claims App.). The Examiner relies on the same deficient findings relative to Lambert for the disclosure of an anchor as relied on in the rejection of independent claim 1 supra, and therefore, for essentially the same reasons as stated supra, we also do not sustain the Examiner’s rejection of independent claim 13. Final Act. 10-12. Dependent claims 7 and 16 The Examiner’s reliance on Soeder for disclosing a releasable security strap with respect to claim 7 or on Kroculick for teaching openings to allow Appeal 2022-000611 Application 15/252,968 8 passage of a seatbelt does not cure the Examiner’s deficient findings relative to Lambert as set forth with respect to independent claims 1 and 13 supra from which claim 7 and 16 depend. Final Act. 9-10, 15-16. Accordingly, we do not sustain the Examiner’s rejection of claims 7 and 16. Rejections II, IV, V, VI, and VII The Examiner’s further reliance on Marshall, Chaffee, the Merriam- Webster Dictionary, Soeder, and Sorensen in the rejection of claims 5, 6, 8- 12, 14, 15, and 17 does not cure the Examiner’s deficient findings relative to Lambert as set forth with respect to independent claims 1 and 13 supra from which these claims depend. Final Act. 8-9, 12-16. Accordingly, we do not sustain the Examiner’s rejection of claims 5, 6, 8-12, 14, 15, and 17. Appeal 2022-000611 Application 15/252,968 9 CONCLUSION The Examiner’s rejections are reversed. DECISION SUMMARY In summary: Claims Rejected 35 U.S.C. § Reference(s)/Basis Affirmed Reversed 1-4, 19, 20 103 Lambert, Failor, Proctor, Kroculick 1-4, 19, 20 5, 6 103 Lambert, Failor, Proctor, Kroculick, Marshall 5, 6 7, 13, 16 103 Lambert, Failor, Proctor, Kroculick, Soeder 7, 13, 16 8-11 103 Lambert, Failor, Proctor, Kroculick, Chaffee 8-11 12 103 Lambert, Failor, Proctor, Kroculick, Chaffee, Merriam- Webster Dictionary 12 14, 15 103 Lambert, Failor, Proctor, Kroculick, Chaffe, Soeder 14, 15 17 103 Lambert, Failor, Proctor, Kroculick, Soeder, Sorensen 17 Overall Outcome 1-17, 19, 20 REVERSED