Ex Parte Bigelow

Patent Trial and Appeal Board

Jun 13, 2013

10700808 (P.T.A.B. Jun. 13, 2013)

UNITED STATES PATENT AND TRADEMARKOFFICE
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.
10/700,808 11/04/2003 Robert T. Bigelow BA-U-COV-00010 4771
7590 06/13/2013
Robert T. Bigelow
4640 S. Eastern Ave
Las Vegas, NV 89119
EXAMINER
A, PHI DIEU TRAN
ART UNIT PAPER NUMBER
3633
MAIL DATE DELIVERY MODE
06/13/2013 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

____________

Ex parte ROBERT T. BIGELOW
____________

Appeal 2011-002713
Application 10/700,808
Technology Center 3600
____________

Before JENNIFER D. BAHR, STEFAN STAICOVICI, and
ADAM V. FLOYD, Administrative Patent Judges.

STAICOVICI, Administrative Patent Judge.

DECISION ON APPEAL

Appeal 2011-002713
Application 10/700,808

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STATEMENT OF THE CASE
Robert T. Bigelow (Appellant) appeal under 35 U.S.C. § 134 from the
Examiner’s decision rejecting under 35 U.S.C. § 102(e) claims 1-4, 6-11,
13-18, 20, and 21 as anticipated Moon (US 6,892,497, iss. May. 17, 2005).
Claims 5, 12, 19, and 22-29 have been withdrawn. See App. Br. 7 and Ans.
5.1 We have jurisdiction over this appeal under 35 U.S.C. § 6(b).

INVENTION
Appellant’s invention relates to a “cover for use with an inflatable
modular structure.” Spec. 1, ll. 18-19 and fig. 1a.
Claim 2 is illustrative of the claimed invention and reads as follows:
2. A cover for use with a core of an inflatable modular
structure, the core having a plurality of attachment elements,
the cover comprising:
a first segment of at least one substantially sheet like and
substantially rigid structure and having a longitudinal axis, an
interior surface, and having an arcuate exterior disposed
generally opposite of the interior surface and surface
perpendicular to the length of the longitudinal axis;
a second segment having a substantially flat surface; a
plurality of ribs disposed between, and joined to, the inner
surface of the first segment and the substantially flat surface of
the second segment and the ribs having a plurality of
attachment elements; and the attachment elements on the ribs
cooperating with the attachment elements on the core such that
the cover is removably attached to the core.

SUMMARY OF DECISION
We REVERSE.

1 Supplemental Examiner’s Answer, mailed November 12, 2009.
Appeal 2011-002713
Application 10/700,808

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ANALYSIS
Each of independent claims 1, 2, 9, 14, and 21 requires, inter alia, “a
first segment . . . having an arcuate exterior” and “a second segment having
a substantially flat surface.” App. Br. 38-42, Claims Appendix.
Referring to Figures 14-16 and 26 of Moon, the Examiner found that
Moon teaches a first segment 404 having an arcuate exterior surface and a
second segment 406 having a substantially flat surface. Ans. 4 and 6.
Appellant argues that because both surfaces 404 and 406 shown in
Figure 14 of Moon “share[] the same curvature” one surface cannot be
“arcuate” and the other “substantially flat,” as called for by each of
independent claims 1, 2, 9, 14, and 21. App. Br. 26. We agree.
At the outset, we note that the term “substantially” is often used as a
modifier to imply “approximate” rather than “perfect.” See Playtex Prods.,
Inc. v. Proctor and Gamble Co., 400 F.3d 901, 907 (Fed. Cir. 2005). When
a word of degree, such as the term “substantially,” is used in a claim, we
look to the specification to determine whether the specification provides
some standard for measuring that degree. See Seattle Box Company, Inc. v.
Industrial Crating & Packing, Inc., 731 F.2d 818, 826 (Fed. Cir. 1984). In
this case, pointing to Figure 1a of Appellant’s Drawings, the Specification
describes first segment 102 as having an “arcuate, or convex, exterior
surface” and second segment 108 as being “generally flat.” Spec. 8, ll. 19-
21. As such, although we appreciate that a “substantially flat” surface is not
perfectly flat, we do not agree that an “arcuate” surface constitutes a
“substantially flat” surface, as the Examiner appears to opine. Figure 1a of
Appellant’s Drawings shows that a “substantially flat” surface, namely, 108,
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Application 10/700,808

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is not the same as an “arcuate” surface, namely, 102. Hence, because we
agree with Appellant that both top surface 404 and bottom surface 406 of
Moon are curved, i.e., arcuate, we likewise agree with Appellant that one
surface cannot be “arcuate” and the other “substantially flat,” as called for
by each of independent claims 1, 2, 9, 14, and 21. See Reply Br. 9; see also
Moon, figs. 14 and 26.
Thus, for the foregoing reasons, we do not sustain the rejection of
claims 1-4, 6-11, 13-18, 20, and 21 under 35 U.S.C. § 102(e) as anticipated
by Moon.

SUMMARY
The decision of the Examiner to reject claims 1-4, 6-11, 13-18, 20,
and 21is reversed.

REVERSED

rvb