Morand, Michel

Patent Trials and Appeals Board

Jul 21, 2020

2019004004 (P.T.A.B. Jul. 21, 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.
14/344,359 07/01/2014 Michel Morand SWA0361US 2210
23413 7590 07/21/2020
CANTOR COLBURN LLP
20 Church Street
22nd Floor
Hartford, CT 06103
EXAMINER
ROS, NICHOLAS A
ART UNIT PAPER NUMBER
3754
NOTIFICATION DATE DELIVERY MODE
07/21/2020 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):
usptopatentmail@cantorcolburn.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
____________________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________________

Ex parte MICHEL MORAND
____________________

Appeal 2019-004004
Application 14/344,359
Technology Center 3700
____________________

Before MICHAEL C. ASTORINO, PHILIP J. HOFFMANN, and
CYNTHIA L. MURPHY, Administrative Patent Judges.

HOFFMANN, Administrative Patent Judge.

DECISION ON APPEAL
STATEMENT OF THE CASE
Pursuant to 35 U.S.C. § 134(a), Appellant1 appeals from the
Examiner’s rejection of claims 1–16. 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. In the Real Party in Interest section of the Appeal Brief,
Appellant states that “[t]he inventor, Michel Morand, assigned his entire
right, title, and interest in the patent application to Angelcare Development
Inc.” Appeal Br. 1.
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According to Appellant, the invention is directed “to baby bath-
support devices used to support babies while bathing.” Spec. ¶ 2. Claim 1 is
the sole independent claim on appeal. Below, we reproduce claim 1 as
representative of the appealed claims.
1. A baby bath-support device comprising:
a frame having a generally rigid body adapted to be
positioned on a surface of a bathing tub or sink, the frame
defining an opening in an upper portion, the opening comprising
a peripheral edge, a bottom edge of the frame having a footprint
greater than or equal to a footprint defined by the peripheral
edge;
a support panel made of a flexible material and defining a
concave support surface adapted to support a baby laid thereon
during bathing, the support panel having a plurality of
perforations through the concave support surface to allow a fluid
to flow therethrough; and
a connection arrangement between the frame and the
support for hanging the support panel at the peripheral edge such
that the support panel is hung to the frame to cover at least
partially the opening.
REJECTIONS AND PRIOR ART2
The Examiner rejects the claims as follows:
I. Claims 1–4, 7, 9–11, and 15 under 35 U.S.C. § 103(a) as
unpatentable based on Monti3 and Greenfield;4
II. Claims 5 and 6 under 35 U.S.C. § 103(a) as unpatentable based
on Monti, Greenfield, and Smith;5

2 We combine certain rejections relative to the Final Office Action.
3 Monti et al., US 7,533,425 B2, issued May 19, 2009 (“Monti”).
4 Greenfield, US 3,633,222, issued July 11, 1972.
5 Smith, US 2,957,184, issued Oct. 25, 1960.
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III. Claim 8 under 35 U.S.C. § 103(a) as unpatentable based on
Monti, Greenfield, and Sundberg;6
IV. Claim 12 under 35 U.S.C. § 103(a) as unpatentable based on
Monti, Greenfield, and Goergen;7
V. Claim 13 under 35 U.S.C. § 103(a) as unpatentable based on
Monti, Greenfield, and Morelock;8
VI. Claim 14 under 35 U.S.C. § 103(a) as unpatentable based on
Monti, Greenfield, and Poulson;9 and
VII. Claim 16 under 35 U.S.C. § 103(a) as unpatentable based on
Monti, Greenfield, and Lister.10
ANALYSIS
Rejection I—Obviousness rejection of independent claim 1, and
dependent claims 2–4, 7, 9–11, and 15
As set forth above, independent claim 1 recites a baby bath-support
device comprising, in relevant part,
a frame having a generally rigid body adapted to be
positioned on a surface of a bathing tub or sink, the frame
defining an opening in an upper portion, the opening
comprising a peripheral edge, a bottom edge of the frame
having a footprint greater than or equal to a footprint defined
by the peripheral edge.
Appeal Br., Claims App. (emphasis added).

6 Sundberg, US 7,065,805 B1, issued June 27, 2006.
7 Goergen, US 2011/0083261 A1, published Apr. 14, 2011.
8 Morelock et al., US 2011/0041244 A1, published Feb. 24, 2011
(“Morelock”).
9 Poulson et al., US 5,588,159, issued Dec. 31, 1996 (“Poulson”).
10 Lister et al., US 5,599,063, issued Feb. 4, 1997 (“Lister”).
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To support the rejection, with reference to the embodiment shown in
Monti’s Figure 5, the Examiner relies on Monti’s foundation 152 to disclose
the claimed frame. Answer 3–4. According to the Examiner, “Monti . . .
discloses that . . . baby bath support device 114 [that includes
foundation 152] (Figure 5) can be used in . . . basin 112 (Figure 5) as
shown[,] or independently in a sink or on a counter as long as the support
device is properly altered . . . [as described in Monti’s c]olumn 2, lines 58–
61.” Id. This cited portion of Monti discloses, in relevant part, that
“movable [juvenile-support] nest 14 can be used in basin 12, in a sink (not
shown), or on a counter (not shown). One or more legs (not shown) would
be appended to nest 14 to allow nest 14 to rest in a stable position on such a
counter or table.” Monti, col. 2, ll. 58–61 (emphases omitted).
However, the Examiner finds that “Monti [even when altered to
include the described legs] does not disclose that a bottom edge of the frame
has a footprint greater than or equal to a footprint defined by the [frame’s]
peripheral edge,” as set forth in the claim language emphasized above.
Answer 4. Nonetheless, the Examiner finds that Greenfield discloses such a
frame bottom edge. Id. The Examiner determines that “[i]t would have
been obvious . . . to . . . [modify] Monti[’s bottom edge] . . . as taught by
Greenfield, so as to permit the baby bath support device to stand on its own
and be utilized in various locations such as in a sink or on a countertop.” Id.
To summarize, according to the Examiner: although Monti illustrates
an embodiment in its Figure 5 in which juvenile-support nest 114 with
foundation 152 is disposed in basin 112, Monti discloses that nest 114 need
not only be used with basin 112, but instead discloses that nest 114 may be
modified to include legs so that the nest may be used on a counter or in a
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sink; and it would have been obvious to replace Monti’s legs with
Greenfield’s bottom edge.
Based on our review of the record, we agree with Appellant that the
Examiner errs because the proposed modification appears to be based solely
on impermissible hindsight. Appeal Br. 11–12. First, the Examiner does not
support adequately that Monti discloses that the embodiment shown in its
Figure 5—i.e., the particular embodiment that the Examiner proposes to
modify based on Greenfield—may be “properly altered” to be used “in a
sink or on a counter,” such as by “append[ing]” “one or more legs” thereto.
Answer 3; Monti col. 2, ll. 58–61. Instead, as Appellant points out,
Monti describes two distinct embodiments, namely the
assembly of basin 12 and movable nest 14 related to
Fig[ures] 1–4, and another assembly of basin 112 and movable
nest 114 [shown in Figure 5]. The excerpt of Monti of
col[umn] 2, lines 58–61, used as teaching “as long as the
support device is properly altered” discusses the embodiment of
Fig[ures] 1–4, namely the basin 12 and movable nest 14, and
does not refer to the embodiment of Fig[ure] 5 relied upon by
the Office as support to allege obviousness.
Appeal Br. 8. We agree with Appellant—indeed, the cited portion of Monti
states, in relevant part, that “movable [juvenile-support] nest 14 can be used
in basin 12, in a sink (not shown), or on a counter (not shown). One or more
legs (not shown) would be appended to nest 14 to allow nest 14 to rest in a
stable position on such a counter or table.” Monti, col. 2, ll. 58–61
(emphases omitted). It is Monti’s Figures 1–4 that disclose juvenile-support
nest 14 and basin 12. See id. at Figs. 1–4. In contrast, Monti’s Figure 5
illustrates “a juvenile bathtub in accordance with a second embodiment of
the present disclosure”—i.e., juvenile-support nest 114 and basin 112. Id. at
col. 1, ll. 53–54 (emphasis added); Fig. 5. The Examiner does not indicate
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where Monti discloses that juvenile-support nest 114 may be altered (as
nest 14 may be modified) to include removable legs or other structure, such
that nest 114 may be “used independently in a sink or on a counter.”
Answer 4. Thus, based on our review of the record, the Examiner does not
establish that Monti contemplates that nest 114 is ever used outside of
basin 112.
However, even if we were to assume that Monti contemplates altering
nest 114 to include legs so that the nest may be used on a counter or in a sink
without basin 112, there appears to be no reason to replace Monti’s legs with
Greenfield’s bottom edge, other than that Appellant claims such a bottom
edge. This is because Monti does not contemplate a nest unusable with a
basin. For example, Monti’s abstract states that “[a] juvenile bathtub
includes a basin and a nest formed as a seat for supporting a juvenile in the
basin.” Monti, Abstract. Monti’s Summary of the Invention discloses “[a]
juvenile bathtub in accordance with the present disclosure comprises a basin
and a juvenile-support nest mounted for movement in the basin to move a
juvenile placed on the juvenile-support nest relative to a pool of bath water
stored in the basin.” Id., col. 1, ll.17–21. All of Monti’s figures disclose
nest 14 or 114 used together with basin 12 or 112. Id., Figs. 1–5. Further,
each one of Monti’s claims requires “[a] juvenile bathtub comprising a
basin” and a “nest.” Id., Claims 1–20. Still further, even the portion of
Monti on which the Examiner relies—column 2, lines 58–61—does not
describe that when nest 14 is modified to include legs, the nest otherwise is
unable to be disposed within basin 12. Id., col. 2, ll. 58–61.
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As Appellant points out, however,
[c]onsidering that . . . nest 114 must be received in . . .
basin 112, the person of ordinary skill in the art would
understand that it would not make any sense for . . . nest 114 of
Monti to have “a footprint greater than or equal to a footprint
defined by the peripheral edge,” as required by . . .
[independent] claim 1 . . . . [N]est 114 would not fit in the
basin 112 if it had a greater footprint at its bottom.
Appeal Br. 9. It is not clear that when nest 114 is modified as the Examiner
proposes, nest 114 will remain mountable within basin 112. Further, the
Examiner does not support adequately, for example, that it would have been
obvious to modify basin 112 so that such a modified basin may receive the
modified nest.
Greenfield, on which the Examiner relies to disclose a frame bottom
edge having a footprint greater than or equal to a footprint defined by the
frame’s peripheral edge, does not describe a nest or similar structure
mounted in a basin. Instead, Greenfield’s device only is “used within a
standard bath tub.” Greenfield col. 1, ll. 51–52. Thus, Greenfield does not
set forth any reason why a nest mounted in a basin would have a frame
bottom edge with a footprint greater than or equal to a footprint defined by
the frame’s peripheral edge.
Accordingly, based on the record before us, we do not sustain the
Examiner’s obviousness rejection of independent claim 1. We also do not
sustain the Examiner’s obviousness rejection of claims 2–4, 7, 9–11, and 15
that depend from, and the Examiner rejects with, independent claim 1.
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Rejections II–VII—Obviousness rejections of dependent claims 5, 6, 8,
12–14, and 16
For the reasons set forth above, we do not sustain the Examiner’s
obviousness rejection of independent claim 1 based on Monti and
Greenfield. The Examiner does not rely on any of Smith, Sundberg,
Goergen, Morelock, Poulson, or Lister to disclose anything that would
remedy the above-discussed deficiency in the independent claim’s rejection.
Thus, we also do not sustain the Examiner’s obviousness rejections of any of
dependent claims 5, 6, 8, 12–14, and 16.
CONCLUSION
We REVERSE the Examiner’s § 103 rejections of claims 1–16.
In summary:
REVERSED
Claims
Rejected
35 U.S.C. § Basis/Reference(s) Affirmed Reversed
1–4, 7, 9–11,
15
103(a) Monti, Greenfield 1–4, 7, 9–11,
15
5, 6 103(a) Monti, Greenfield,
Smith
5, 6
8 103(a) Monti, Greenfield,
Sundberg
8
12 103(a) Monti, Greenfield,
Goergen
12
13 103(a) Monti, Greenfield,
Morelock
13
14 103(a) Monti, Greenfield,
Poulson
14
16 103(a) Monti, Greenfield,
Lister
16
Overall
Outcome
1–16