2020002736 (P.T.A.B. Mar. 1, 2021)

SEALY TECHNOLOGY LLC(OWNER) et al.

Patent Trials and Appeals BoardMar 1, 2021

2020002736 (P.T.A.B. Mar. 1, 2021)

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. 95/001,540 02/08/2011 D622996 SMCY-172-602 8383 23342 7590 03/01/2021 Kilpatrick Townsend & Stockton LLP - Winston-Salem Mailstop: 22 - IP Docketing 1100 Peachtree Street Suite 2800 Atlanta, GA 30309 EXAMINER HYDER, PHILIP S ART UNIT PAPER NUMBER 2917 MAIL DATE DELIVERY MODE 03/01/2021 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 PATENT TRIAL AND APPEAL BOARD ____________________ SIMMONS BEDDING COMPANY Requester v. SEALY TECNHOLOGY LLC Patent Owner ____________________ Appeal 2020-002736 Reexamination Control 95/001,540 Patent US D622,996 S1 Technology Center 2900 ____________________ Before JOHN C. KERINS, DANIEL S. SONG, and BRETT C. MARTIN, Administrative Patent Judges. MARTIN, Administrative Patent Judge. DECISION ON REQUEST FOR REHEARING STATEMENT OF THE CASE The Board issued a Decision in this case on July 1, 2020 (the “Decision”). Patent Owner now requests rehearing of that Decision. The Decision affirmed the Examiner’s rejections of the claims. See Decision 10. 1 Issued on September 7, 2010 to Sealy Technology LLC. Appeal 2020-002736 Reexamination Control 95/001,540 Patent US D622,996 S 2 Upon consideration of Patent Owner’s Request, we do not modify our opinion. REQUEST FOR REHEARING A request for rehearing “must state with particularity the points believed to have been misapprehended or overlooked [by the Patent Trial and Appeal Board, hereinafter “Board”].” 37 C.F.R. § 41.79(b)(1). In addition, a request for rehearing is not an opportunity to express disagreement with a decision without setting forth points believed to have been misapprehended or overlooked by the Board in rendering its Decision. The proper course for an Appellant dissatisfied with a Board decision is to seek judicial review, not to file a request for rehearing to reargue issues that have already been decided. See 35 U.S.C. §§ 141, 145. ANALYSIS Although Patent Owner lists six points allegedly misapprehended or overlooked, the arguments made in support amount to nothing more than disagreement with the Board’s Decision. Req. 4. The Board sufficiently addressed all of the points raised by Patent Owner and none of the arguments actually point to anything misapprehended or overlooked. We further note that most, if not all, of these arguments are similar to those in the related appeals of the ’531 and ’088 patents, which were then appealed to the Federal Circuit. The Federal Circuit rejected all of Patent Owner’s arguments and affirmed the Board on the same or similar issues. Accordingly, we decline to alter our Decision. CONCLUSION The Request for Rehearing is denied. Appeal 2020-002736 Reexamination Control 95/001,540 Patent US D622,996 S 3 Outcome of Decision on Rehearing: Claims Rejected 35 U.S.C. § Reference(s)/Basis Denied Granted 1 103 King Koil, Antares, Tenuta, Somma Nouveau 1 1 103 Somma Nouveau, Antares, Tenuta, King Koil 1 1 103 Restonic Mattress, King Koil, Antares, Tenuta 1 1 103 Lemoyne Ultimate Pillowtop, King Koil, Antares, Tenuta 1 Overall Outcome 1 Final Outcome of Appeal after Rehearing: Claims Rejected 35 U.S.C. § Reference(s)/Basis Affirmed Reversed 1 103 King Koil, Antares, Tenuta, Somma Nouveau 1 1 103 Somma Nouveau, Antares, Tenuta, King Koil 1 1 103 Restonic Mattress, King Koil, Antares, Tenuta 1 1 103 Lemoyne Ultimate Pillowtop, King Koil, Antares, Tenuta 1 Overall Outcome 1 Appeal 2020-002736 Reexamination Control 95/001,540 Patent US D622,996 S 4 DENIED PATENT OWNER: KILPATRICK TOWNSEND & STOCKTON LLP Mailstop: 22 - IP Docketing 1100 Peachtree Street Suite 2800 Atlanta GA 30309 For THIRD PARTY REQUESTER: PAUL, WEISS, RIFKIND, WHARTON & GARRISON LLP 2001 K Street NW Washington, DC 20006-1047