Ex Parte JAMES

Patent Trial and Appeal Board

Aug 28, 2018

14746250 (P.T.A.B. Aug. 28, 2018)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR
14/746,250 06/22/2015 MICHAELE. JAMES
5409 7590 08/30/2018
SCHMEISER, OLSEN & WATTS
22 CENTURY HILL DRIVE
SUITE 302
LATHAM, NY 12110
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
ATTORNEY DOCKET NO. CONFIRMATION NO.
SHAP.4873CON-NY 9798
EXAMINER
CONLEY, FREDRICK C
ART UNIT PAPER NUMBER
3673
NOTIFICATION DATE DELIVERY MODE
08/30/2018 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):
AZ5409@IPLA WUSA.COM
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte MICHAEL E. JAMES 1
Appeal2017-010486
Application 14/7 46,250
Technology Center 3600
Before DANIEL S. SONG, BENJAMIN D. M. WOOD, and
LISA M. GUIJT, Administrative Patent Judges.
WOOD, Administrative Patent Judge.
DECISION ON APPEAL
1 Appellant states that the real party in interest is HMC LP. Holdings, Inc.
App. Br. 1.
Appeal2017-010486
Application 14/7 46,250
STATEMENT OF THE CASE
Appellant appeals under 35 U.S.C. § I34(a) from the Examiner's
Final Rejection of claims 1-13, which constitute all the claims pending in
this application. We have jurisdiction under 35 U.S.C. § 6(b).
We affirm.
THE INVENTION
The claims are directed to a mattress with different firmness zones.
Sole independent claim 1, reproduced below, is illustrative of the claimed
subject matter:
1. A mattress comprising:
a perimeter rail defining a perimeter of the mattress;
a plurality of spring arrays arranged within the perimeter
rail, each of the plurality of spring arrays comprising a plurality
of rows of individual springs each having an associated height;
and
a flexible spacer separating at least two of the plurality of
spring arrays and connected to the at least two of the plurality of
spring arrays along at least a portion of a length of the flexible
spacer.
McEntire
Piraino
Erdman
REFERENCES
us 1,528,066
us 5,740,574
US 2008/0098533 Al
REJECTIONS
Mar. 3, 1925
Apr. 21, 1998
May 1, 2008
Claims 1, 5, 7-9, 11, and 13 are rejected under pre-AIA 35 U.S.C.
§ 102(b) as anticipated by Piraino.
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Application 14/7 46,250
Claims 2, 3, 10, and 12 are rejected under pre-AIA 35 U.S.C. § 103(a)
as unpatentable over Piraino.
Claims 4 and 6 are rejected under pre-AIA 35 U.S.C. § 103(a) as
unpatentable over Piraino and McEntire.
Claim 7 is rejected under pre-AIA 35 U.S.C. § 103(a) as unpatentable
Piraino and Erdman. 2
ANALYSIS 3
Claims 1, 5, 7-9, 11, and 13-Anticipation-Piraino
Because Appellant only argues the patentability of independent claim
1, App. Br. 6-7, we decide the appeal of this rejection on the basis of claim
1 alone. 37 C.F.R. § 4I.37(c)(l)(iv).
The Examiner finds, inter alia, that Piraino' s inner spring supports
correspond to the claimed plurality of spring arrays, and that Piraino' s
internal interface member 10 corresponds to the claimed flexible spacer.
Final Act. 4; see Piraino 3 :32-34, 57, Fig. 1. The Examiner further finds
that Piraino's flexible spacer is "connected via the snug fit provided along at
least a portion of a length of the flexible spacer by internal pouches that are
adapted to snugly receive each individual spring array." Id. ( citing Piraino
2:51---60). The Examiner bases this finding on the determination that the
2 A rejection of claims 1-13 under 35 U.S.C. § 112(a) for failing to comply
with the enablement requirement (Final Act. 3) has been withdrawn. Ans. 5.
3 The Final Office Action included an objection to the drawings. Final Act.
2. Although Appellant responded to this objection (App. Br. 4--5), it is not
an appealable matter, but is reviewable by way of petition to the Technology
Center Director. See MPEP § 1002.02(c) (Item 4: Petitions under 37 C.F.R.
§ 1.113 relating to objections or requirements made by the examiners).
Accordingly, that issue is not addressed here.
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Application 14/7 46,250
term "connect" is "customarily defined as to become united or joined."
Ans. 6.
Appellant responds that "spring arrays received within the mattress's
pouches defined by the perimeter and internal interface member, even if the
fit is 'snug,' does not suggest that the spring arrays are connected to the
internal interface member." App. Br. 7; see also Reply Br. 5 ("Spring arrays
snugly fit within the pouches defined by perimeter and internal members
does not suggest that the spring arrays are united with, or joined to, the
internal member.").
Appellant does not dispute the Examiner's construction of "connect"
as "united or joined." Nor does Appellant suggest an alternative
construction. Further, the Specification does not define the term, describe
any particular structure or method that is required to "connect" the flexible
spacer with the spring arrays, or depict the spring arrays themselves. Indeed,
the Specification ( other than in the claims as originally filed) does not use
the term "connected" in the context of the invention. 4 Therefore, we are not
apprised of error in the Examiner's claim construction.
We are also not apprised of error in the Examiner's finding that
Piraino discloses a flexible spacer connected to the spring arrays. Piraino' s
internal interface member 10 forms part of the pockets into which the spring
arrays fit "snugly." Piraino 3:48-59. The internal interface member is thus
in close contact with the spring arrays and, essentially, friction fit together
with the spring arrays to form a unitary mattress structure. According to
Piraino, the internal interface member is part of the unitary comfort means
4 The term is used only in describing a prior art mattress. Spec. ,r 6.
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Application 14/7 46,250
that "allows the hybrid mattress to act as a single unit without coming apart
or shifting during use." Id. at 5: 12-16 ( emphasis added). Appellant
disagrees, stating that a "snug fit within internal pockets does not teach or
suggest that ... each spring array is connected, or united/joined, to the
structure between the two internal pockets." Reply Br. 4--5. But Appellant
does not offer any evidence or persuasive argument to support its
disagreement. Thus, we are not apprised of error in the Examiner's finding
that Piraino' s internal interface member 10 is connected to the spring arrays
along a portion of a length of the flexible spacer by a snug or friction fit.
Because we are not persuaded that the Examiner erred in finding that
Piraino discloses all of the limitations of claim 1, we sustain the Examiner's
rejection of claim 1, as well as claims 5, 7-9, 11, and 13, as anticipated by
Piraino.
Remaining Rejections
Appellant has not presented separate arguments for any of the
dependent claims that have been separately rejected as unpatentable under
35 U.S.C. § 103(a). Therefore, we sustain the Examiner's rejection of
claims 2, 3, 10, and 12 as unpatentable over Piraino; the Examiner's
rejection of claims 4 and 6 as unpatentable over Piraino and McEntire; and
the rejection of claim 7 as unpatentable over Piraino and Erdman.
DECISION
For the above reasons, the Examiner's rejection of claims 1-13 is
affirmed.
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Appeal2017-010486
Application 14/7 46,250
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a)(l )(iv).
AFFIRMED
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