11906599 (P.T.A.B. Sep. 25, 2013)

Ex Parte Kasbohm

Patent Trial and Appeal BoardSep 25, 2013

11906599 (P.T.A.B. Sep. 25, 2013)

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. 11/906,599 10/03/2007 Alina Kasbohm 066.001US1 8211 97462 7590 09/25/2013 Mark A. Litman & Associates, P.A. 7001 Cahill Road, Ste. 15A Edina, MN 55439 EXAMINER POLITO, NICHOLAS F ART UNIT PAPER NUMBER 3673 MAIL DATE DELIVERY MODE 09/25/2013 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 ALINA KASBOHM ____________________ Appeal 2011-010130 Application 11/906,599 Technology Center 3600 ____________________ Before: MICHAEL C. ASTORINO, BENJAMIN D. M. WOOD, and HYUN J. JUNG, Administrative Patent Judges. JUNG, Administrative Patent Judge. DECISION ON APPEAL Appeal 2011-010130 Application 11/906,599 2 STATEMENT OF THE CASE Alina Kasbohm (Appellant) appeals under 35 U.S.C. § 134 from a rejection of claims 1-13. We have jurisdiction under 35 U.S.C. § 6(b). We AFFIRM. CLAIMED SUBJECT MATTER The claims relate “to the field of fabrics [sic] articles and fabric articles that contain audio emissions systems that can provide soothing audio emissions that are provided on demand.” Spec. 1:7-9. Sole independent claim 1, reproduced below, is representative of the claimed subject matter: 1. A fabric article comprising a soft, flexible fabric having a pocket therein, markings on at least one side of the fabric forming the pocket, and a battery-powered recording and playback device with at least one pressure sensitive contact on the device, the at least one pressure sensitive contact comprising a playback contact, and the at least one pressure sensitive contact being aligned with one of the markings that indicates a location of the at least one pressure sensitive contact within the fabric. REFERENCES The prior art relied upon by the Examiner in rejecting the claims on appeal is: Rasamny Christianson Hernandez US 5,784,733 US 6,050,826 US 7,380,298 B2 Jul. 28, 1998 Apr. 18, 2000 Jun. 3, 2008 Jin US 2007/0124874 A1 Jun. 7, 2007 Appeal 2011-010130 Application 11/906,599 3 REJECTIONS The Appellant seeks our review of the rejections of: claims 1, 3, and 4 under 35 U.S.C. § 102(e) as anticipated by Hernandez; claim 2 under 35 U.S.C. § 103(a) as unpatentable over Hernandez and Rasamny; claims 5-9 under 35 U.S.C. § 103(a) as unpatentable over Hernandez and Jin; claims 10 and 12 under 35 U.S.C. § 103(a) as unpatentable over Hernandez and Christianson; claim 11 under 35 U.S.C. § 103(a) as unpatentable over Hernandez, Rasamny, and Christianson; and claim 13 under 35 U.S.C. § 103(a) as unpatentable over Hernandez, Jin, and Christianson. ANALYSIS The Examiner finds that: Hernandez teaches in Figure 1 a fabric article (20) comprising a soft, flexible fabric having a pocket (26) therein, markings (56) on at least one side of the fabric forming the pocket, and a battery- powered (48) recording (52) and playback (54) device with at least one pressure sensitive contact on the device, the at least one pressure sensitive contact comprising a playback contact (col. 4, lines 24-27), and the at least one pressure sensitive contact being aligned with one of the markings that indicates a location of the at least one pressure sensitive contact within the fabric. Ans. 3. Appeal 2011-010130 Application 11/906,599 4 The Appellant argues that the “present invention requires ease of identification of the specific location of the control button, and Hernandez requires that the entire device be hidden from view from children” and thus “Hernandez not only fails to disclose the literal limitations [recited] in the claims, but actually teaches directly against those very limitations.” Br. 10. The Appellant also argues that “the slit in Hernandez does not perform the specific function recited in the claims of applicant, namely ‘ . . . and the at least one pressure sensitive contact being aligned with one of the markings that indicates a location of the at least one pressure sensitive contact within the fabric.’” Br. 10-11. In particular, the Appellant argues that “a slit is not likely to be or necessarily is a visible marking” and thus, “the slit cannot indicate ‘ . . . a location of the at least one pressure sensitive contact within the fabric.’” Br. 11. The Appellant also argues that the “present claims require the specific location of the pressure sensitive contact underneath the marking so that pressing the marking will always press against the pressure sensitive contact” which “is not and cannot be done in the disclosure of Hernandez where no marking is provided and the slit of Hernandez is not shown to be located directly over the pressure sensitive contact.” Id. The Examiner responds that “Hernandez teaches in Figure 3 and column 4, lines 20 to 23 markers (56) for facilitating play of the device.” Ans. 8. The Examiner also states that the “most recent office action dated 9/22/2010 states that the predetermined indicia (56) as described in Figure 3 and column 4, lines 20 to 23 of Hernandez teach the markings as claimed.” Id. at 9. Appeal 2011-010130 Application 11/906,599 5 The Appellant’s arguments are not persuasive because, as the Examiner indicates in the Response to Argument, the Examiner finds that Hernandez teaches markings 56 on at least one side of the fabric forming the pocket at column 4, lines 20 to 23. See Ans. 3 and 8-9. The cited portion of Hernandez states that the “predetermined indicia 56 may be provided on such rear surface 24 to indicate location and function of the first and second switch means 52 and 54 respectively.” The first switch means 52 is “for activating the microphone means 42 and for recording the at least one audio message.” Hernandez, col. 4, ll. 14-16. The second switch means 54 is “for activating the speaker means 44 and for emitting the at least one audio message.” Id. at ll. 16-18. The Appellant’s argument does not address the Examiner’s findings regarding the recited markings. Accordingly, we sustain the Examiner’s rejection of claim 1 and its dependent claims 3 and 4 under 35 U.S.C. § 102(e) as anticipated by Hernandez. For the remaining rejections, the Appellant argues that the additionally cited reference fails to “overcome the fatal deficiencies in the teachings of Hernandez noted above.” Br. 11-12. For the reasons discussed supra, the Appellant does not persuasively identify a deficiency in the teachings of Hernandez. Accordingly, we sustain the Examiner’s rejections under 35 U.S.C. § 103(a) of: claim 2 as unpatentable over Hernandez and Rasamny; claims 5-9 as unpatentable over Hernandez and Jin; claims 10 and 12 as unpatentable over Hernandez and Christianson; claim 11 as unpatentable over Hernandez, Rasamny, and Christianson; and claim 13 as unpatentable over Hernandez, Jin, and Christianson. Appeal 2011-010130 Application 11/906,599 6 DECISION The Examiner’s decision to reject claims 1-13 is affirmed. No time period for taking any subsequent action in connection with this appeal may be extended under 37 C.F.R. § 1.136(a)(1)(iv). AFFIRMED Klh