Ex Parte Cowelchuk et al

Board of Patent Appeals and Interferences

Aug 31, 2010

10904010 (B.P.A.I. Aug. 31, 2010)

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.
10/904,010 10/19/2004 Glenn A Cowelchuk MASLIAC-65 1010
37690 7590 08/31/2010
WOOD, HERRON & EVANS, LLP (LEAR)
2700 CAREW TOWER
441 VINE STREET
CINCINNATI, OH 45202
EXAMINER
BLANKENSHIP, GREGORY A
ART UNIT PAPER NUMBER
3612
MAIL DATE DELIVERY MODE
08/31/2010 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 GLENN A. COWELCHUK, TODD L. DEPUE, DAVID
DOOLEY, MICHAEL J. HIER, and RANDY S. REED
____________

Appeal 2009-007539
Application 10/904,010
Technology Center 3600
____________

Before MURRIEL E. CRAWFORD, ANTON W. FETTING, and BIBHU R.
MOHANTY, Administrative Patent Judges.

CRAWFORD, Administrative Patent Judge.

DECISION ON APPEAL1

1The two-month time period for filing an appeal or commencing a civil
action, as recited in 37 C.F.R. § 1.304, or for filing a request for rehearing,
as recited in 37 C.F.R. § 41.52, begins to run from the “MAIL DATE”
(paper delivery mode) or the “NOTIFICATION DATE” (electronic delivery
mode) shown on the PTOL-90A cover letter attached to this decision.

Appeal 2009-007539
Application 10/904,010

2
STATEMENT OF THE CASE
Appellants seek our review under 35 U.S.C. § 134 (2002) of the
Examiner’s final decision rejecting claims 1 to 7. We have jurisdiction over
the appeal under 35 U.S.C. § 6(b) (2002).
We AFFIRM-IN-PART.
BACKGROUND
Appellants’ invention is directed to an automotive trim part with
multi-feel cover and method of making (Spec., [Para. 1]).
Claim 1 is illustrative:
1. An automotive interior trim assembly with
multi-feel cover, comprising:
a substrate including an automotive trim part
made from a first material; and
an outer cover layer made from a second
material, the outer cover layer being integrally
molded to at least a portion of the trim part and
defining a first and a second thickness, the second
thickness being greater than the first thickness and
the second thickness defining a first outer skin
and a foamed inner core having a cellular
construction, the first outer skin and the foamed
inner core being integrally formed together from
the second material such that the first outer skin
will deform and compress the foamed inner core
when a force is applied to thereby provide a softer
feel.
The Examiner relies on the following prior art references as evidence
of unpatentability:
Schwaighofer US 6,764,621 B2 Jul. 20, 2004
Dry US 6,899,363 B2 May 31, 2005

Appeal 2009-007539
Application 10/904,010

3
Appellants appeal the following rejections:
1. Claims 1 to 5 and 7 under 35 U.S.C. § 103(a) as being
unpatentable over Dry in view of Schwaighofer.
2. Claim 6 under 35 U.S.C. § 103(a) as unpatentable over Dry.

ISSUE
Did the Examiner err in rejecting the claims because the prior art does
not disclose an automotive interior trim assembly having a substrate made
from a first material and an outer cover layer with an outer skin and a
foamed inner core integrally formed together from a second material?

FACTUAL FINDINGS
We adopt all of the Examiner’s findings as our own. (Ans. 3 to 4).

ANALYSIS
The Appellants' argument that Dry does not disclose an outer cover
layer having sections having different constructions such that the sections
have a different feel or material property is unpersuasive because claim 1
does not recite that the outer cover layer has sections having different
constructions such that the sections have a different feel or material
property. Claim 1 recites that the outer cover layer is made from a second
material and includes a first outer skin that is defined by a second thickness.
This Dry clearly discloses as clearly seen in Figure 4.
Likewise, we are not persuaded of error by the Appellants’ argument
that Schwaighofer does not disclose different layers one being an outer skin
and the other being an inner core. Schwaighofer discloses at column 3, lines
Appeal 2009-007539
Application 10/904,010

4
39 to 41 that a skin is formed from a in-mold coating and as such does
indeed disclose an outer skin made of a material different from the core.
The Appellants’ argument that Dry does not suggest an inner core
being foamed and having a cellular construction is also unpersuasive
because the Examiner relies on Schwaighofer for teaching this feature.
The Appellants’ argument that Dry teaches away from using a foam
material similar to that disclosed in Schwaighofer to control the feel of the
outer cover layer is unconvincing. We agree with the Examiner that:
Dry teaches away from an armrest that has a foam
pad surrounded by a separate cover sheet.
However, this is not the result of combining Dry
and Schwaighofer as set forth in the rejection of
claim 1. The result is a unitary foamed outer cover
layer with a first outer skin and an inner core that
are integrally formed together of a single foamed
material. This results in both the first outer skin
and the inner core being foamed and having a
cellular construction. This construction retains all
of the benefits of the construction disclosed by Dry
in that it does not have a foam pad surrounded by a
separate cover sheet.
(Ans. 6).
In view of the foregoing, we will sustain the Examiner’s
rejection of claim 1. We will also sustain the rejection as it is directed
to claims 2 to 4 because the Appellants have not argued the separate
patentability of these claims.
We agree with the Appellants that neither Dry nor
Schwaighofer discloses that the first thickness defines a second outer
skin and is substantially devoid of a foamed inner core. We discern
no factual basis for finding that the first thickness is devoid of an
Appeal 2009-007539
Application 10/904,010

5
inner core. Although the Examiner has provided a marked up copy of
Dry’s Figure 4 in the Examiner’s Answer mailed January 24, 2008,
there is no basis in the Dry reference for finding that the first
thickness of Dry when combined with the Schwaighofer reference
would be devoid of a foamed inner core.
We will sustain the Examiner’s rejection of claim 6 because the
Appellants rely on their arguments regarding claim 1 to respond to this
rejection.

DECISION
We AFFIRM the Examiner’s § 103(a) rejections of claims 1 to 4, 6
and 7. We REVERSE the Examiner’s § 103(a) rejection of claim 5.

TIME PERIOD
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a). See 37 C.F.R.
§ 1.136(a)(1) (2007).

AFFIRMED-IN-PART

hh

WOOD, HERRON & EVANS, LLP (LEAR)
2700 CAREW TOWER
441 VINE STREET
CINCINNATI, OH 45202