Ex Parte CohenDownload PDFBoard of Patent Appeals and InterferencesFeb 27, 201210666439 (B.P.A.I. Feb. 27, 2012) Copy Citation 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. 10/666,439 09/22/2003 Ernesto Cohen 28,437-A 8312 7590 02/27/2012 Charles E. Temko 22 Marion Road Westport, CT 06880 EXAMINER NELSON JR, MILTON ART UNIT PAPER NUMBER 3636 MAIL DATE DELIVERY MODE 02/27/2012 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 BOARD OF PATENT APPEALS AND INTERFERENCES ____________________ Ex parte ERNESTO COHAN ____________________ Appeal 2010-002855 Application 10/666,439 Technology Center 3600 ____________________ Before LINDA E. HORNER, ROBERT A. CLARKE, and EDWARD A. BROWN, Administrative Patent Judges. BROWN, Administrative Patent Judge. DECISION ON APPEAL Appeal 2010-002855 Application 10/666,439 2 STATEMENT OF THE CASE Ernesto Cohan (Appellant) appeals under 35 U.S.C. § 134(a) from the Examiner's decision rejecting claims 9 and 10. (App. Br. 1). Claims 1-8 were cancelled. (Ans. 2).1 We have jurisdiction over this appeal under 35 U.S.C. § 6(b). We AFFIRM-IN-PART. THE INVENTION The invention is directed to a cover for upholstered furniture. (Spec. 1). Claim 9, which is reproduced below with paragraphing added, is illustrative of the claimed subject matter.2 9. A unitary cover for upholstered chairs and sofas comprising: a hollow shell of resilient fabric having a peripheral edge, an elastic member for contracting said edge to maintain said cover upon an engaged article of furniture, said cover including a plurality of interconnected panels overlying a rectangular cushion forming part of said sofa, said panels including a rear panel having first and second parts lying in separate planes disposed at a mutual angle 1 Appellant indicates that claims 5 and 6 were withdrawn from consideration. (App. Br. 1). However, the Examiner's Answer properly indicates that these claims were cancelled in the Amendment of August 12, 2004. (Ans. 2). 2 Claim 9 reproduced above corresponds to the Examiner-initialed version of claim 9 shown in the "AMENDED CLAIMS APPENDIX," attached as an Appendix to the Examiner's Answer. (Ans. 3). Appeal 2010-002855 Application 10/666,439 3 to provide a degree of excess material in an area at the rear of said cushion; the material comprising said first and second parts being normally concealed from view and providing excess material for movement over said cushion when said cushion is sat upon by a user, said excess material contracting when said cushion is vacated. THE REJECTIONS3 The following Examiner's rejections are before us for review. 1. Claim 9 is rejected under 35 U.S.C. § 102(b) as anticipated by Cook (US 3,371,957, issued Mar. 5, 1968). 2. Claim 10 is rejected under 35 U.S.C. § 103(a) as unpatentable over Cook and Riley (US 5,722,723, issued Mar. 3, 1998). ANALYSIS Rejection of claim 9 The Examiner found Cook discloses a cover including a rear panel having first and second parts (i.e., portion a2 of envelope between pads b, b2) disposed in separate planes at a mutual angle. (Ans. 4; see also Cook, col. 2, ll. 31-34; Fig. 3). The Examiner found Cook's first and second parts inherently provide excess material in an area at the rear of the cushion, and the material comprising the first and second parts is normally concealed from view. (Id.). The Examiner also found Cook's resilient material forming the excess material moves over the cushion when sat upon by a user, and necessarily contracts when the cushion is vacated. (Id.). 3 The Examiner's Answer indicates that the rejection of claims 9 and 10 under 35 U.S.C. § 112, second paragraph, has been withdrawn. (Ans. 3). Appeal 2010-002855 Application 10/666,439 4 Appellant contends that whatever "stretching" is possible in Cook's material is because it is resilient. (App. Br. 4). Appellant contends that the two parts of Appellant's back panel are disposed at a mutual angle, which provides additional material to allow "stretching," and the "stretching" does not depend on elasticity of the material. (Id.). Appellant also contends that the resiliency of the cushion causes the additional material to return to its initial position when the seat is vacated. (Id.). Appellant's contentions are not persuasive. The Examiner correctly determined that claim 9 calls for "movement," not "stretching," of the material. (Ans. 5). We agree with the Examiner that the resiliency of Cook's cover material allows it to stretch, and the portion a2 of Cook's envelope shown in Figure 3 provides additional material capable of allowing "stretching." (Id.). Cook discloses: A loose cover especially for automobile and like seats comprises an envelope for stretchable textile material capable of fitting over the seat and back portions of different size seat assemblies and having a pad of foamed plastic bonded to the underside of the envelope overlying said seat portion to non-slidably grip the seat portion while the remainder of the envelope is free to stretch and slide on the assembly in accord with driver movements and the like. (Col. 1, ll. 14-22) (emphasis added). According to Cook, the "remainder of the envelope" (i.e., the portion of the envelope that the pad of foamed plastic is not bonded to) is free to stretch and slide on the assembly due to movements of a person sitting on the assembly. The portion a2 of the envelope shown in Figure 3 of Cook is disposed between pads b, b2 (see col. 2, ll. 31-34). One of ordinary skill in Appeal 2010-002855 Application 10/666,439 5 the art would understand that stress can be imparted to portion a2 when a user sits on Cook's cover, and that such stress would cause portion a2 to stretch, as well as slide relative to the seat. In our view, such stretching and sliding of portion a2 of Cook's envelope both provide "movement" of the material "over" the seat. Accordingly, we agree with the Examiner that Cook's cover provides "excess material" for movement over a cushion when a user sits on the cushion. (Ans. 6). Claim 9 does not call for the excess material to return to its initial position when the seat is vacated, as argued by Appellant. In our view, Cook's additional material is capable of "contracting" when a user vacates the seat, thereby removing the stress imparted by the user from acting on the additional material. Appellant has not provided any persuasive argument why Cook's additional resilient material is not capable of "contracting" as claimed. Hence, we sustain the rejection of claim 9. Rejection of claim 10 The Examiner determined that Cook discloses all features of claim 10 except for "a resilient-elongated tube positioned over said excess material." (Ans. 4). The Examiner found Riley teaches a resilient-elongated tube (i.e., resilient member 40) positioned over excess material formed by first and second parts. (Id., citing Riley, Figs. 8 and 9). The Examiner concluded that it would have been obvious to one of ordinary skill in the art to modify Cook by positioning Riley's tube over the excess material formed by the first and second parts. (Id. at 4-5). The Examiner determined that the modification would stabilize Cook's cover by pressing on the excess material, thereby reducing movement of the cover. (Id. at 5). Appeal 2010-002855 Application 10/666,439 6 We agree with Appellant that the Examiner did not articulate adequate reasoning with rational underpinnings to explain why one of ordinary skill in the art would have been led to position Riley's tube over portion a2 of Cook's cover. For reasons discussed supra, we do not agree with Appellant's contention that the "additional material" of Cook's cover would not move when a force is applied to the resilient material of the cover. (App. Br. 5). However, Cook's cover also includes pads b, b2 bonded to the underside of the cover. The pads b, b2 non-slidably grip the seat and, as such, would already appear to control excessive movement of portion a2 of the cover when a user sits on or vacates the seat. In addition, even assuming that the embodiment of Riley's member 40 shown in Figure 8 or 9 could be positioned over Cook's portion a2, this modification would appear to result in significantly increasing the width of the crevice between pads b, b2 when the member 40 is in its expanded position. (See Riley, col. 4, ll. 36-39). Hence, we do not sustain the rejection of claim 10. DECISION 1. The rejection of claim 9 under 35 U.S.C. § 102(b) as anticipated by Cook is AFFIRMED. 2. The rejection of claim 10 under 35 U.S.C. § 103(a) as unpatentable over Cook and Riley is REVERSED. No time period for taking any subsequent action in connection with this appeal may be extended under 37 C.F.R. § 1.136(a). AFFIRMED-IN-PART Appeal 2010-002855 Application 10/666,439 7 mls Copy with citationCopy as parenthetical citation