Ex Parte Klancnik

Patent Trial and Appeal Board

Jun 15, 2016

13734782 (P.T.A.B. Jun. 15, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
13/734,782 01/04/2013
26711 7590 06/17/2016
QUARLES & BRADYLLP
Attn: IP Docket
411 E. WISCONSIN A VE.
SUITE 2350
MILWAUKEE, WI 53202-4426
FIRST NAMED INVENTOR
Alvin R. Klancnik
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.
135845.01606 7640
EXAMINER
CONLEY, FREDRICK C
ART UNIT PAPER NUMBER
3673
NOTIFICATION DATE DELIVERY MODE
06/17/2016 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):
pat-dept@quarles.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte AL VIN R. KLANCNIK
Appeal2014-003736
Application 13/734,782
Technology Center 3600
Before: JOHN C. KERINS, CHARLES N. GREENHUT, and
JEREMY M. PLENZLER, Administrative Patent Judges.
GREENHUT, Administrative Patent Judge.
STATEMENT OF CASE
Appellant appeals under 35 U.S.C. § 134 from a rejection of claims 1-
20. App. Br. 2. We have jurisdiction under 35 U.S.C. § 6(b).
We reverse.
The claims are directed to a fire-resistant mattress having combustible
cushioning material compartmentalized between fire-resistant layers. Claim
1, reproduced below, is illustrative of the claimed subject matter:
Appeal2014-003736
Application 13/734,782
1. A mattress, comprising:
A sleeping side;
a cushioning layer;
an inner support compartment; and
a fire-containing compartment disposed between the
sleeping side and the inner support compartment and having first
and second layers of fire-resistant material selected from the
group consisting of a barrier sheet, a high loft batt, and a
fire-resistant chemical,
wherein the cushioning layer is disposed between the first
and second layers of fire-resistant material.
REFERENCES
The prior art relied upon by the Examiner in rejecting the claims on
appeal is:
Simon
Small
us 3,512,192
us 7' 150,059
REJECTIONS
Mar. 19, 1970
Dec. 19, 2006
Claims 1-8 and 12-20 are rejected under 35 U.S.C. § 102(b) as being
anticipated by Simon. Final Act. 2.
Claims 9-11 are rejected under 35 U.S.C. § 103(a) as being
unpatentable over Simon in view of Small. Final Act. 5.
OPINION
Claims 1--8, 12 and 13: Anticipation
Regarding independent claim 1, the dispute centers on whether the
Simon reference's mattress is reasonably regarded as having "afire-
containing compartment. .. having first and second layers of fire-resistant
material" (claim 1, emphasis added). Specifically, the dispositive issue
relating to the Examiner's anticipation rejection is whether Simon's mattress
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Appeal2014-003736
Application 13/734,782
layers are both reasonably regarded as "fire-resistant materials" in order to
thereby form a "fire-containing compartment." A determination of
anticipation, as well as obviousness, involves two steps: first is construing
the claim, a question of law, followed by, in the case of anticipation or
obviousness, a comparison of the construed claim to the prior art. This
comparison process involves fact-finding. Key Pharm. v. Hereon Labs.
Corp., 161 F.3d 709, 714 (Fed. Cir. 1998) (citations omitted).
The Examiner relies on Figure 1 and 2 of Simon, specifically citing
elements 20 and 24 of Simon as providing the first and second fire-resistant
layers that together form a fire-containing compartment. Ans. 2. Regarding
the Examiner's claim construction, there is no dispute that the cited layers of
Simon provide a "compartment." The terms "fire-resistant" and "fire-
containing" are the focus of the appeal. Appellant's Specification only cites
examples of fire risk reduction methods by mattress manufacturers to
explain the terms, such as: reducing the likelihood of sustained ignition and
mitigating the consequences of an ignition. Spec. 2. Appellant's
Specification further states that the terms fire resistant and fire retardant are
used interchangeably. Spec. 4.
Appellant does not dispute that layer 24 is properly cited as fire-
resistant due to the layer's thickness of Y4 inch. However, Appellant asserts
that the Simon reference provides that layer 20 is not fire-resistant based on
the disclosed larger thickness of at least Yz inch. App. Br. 6. In support of
this assertion, Appellant (citing Simon) contends that, "the thickness of
polyurethane foam layers is critical for fire resistance: '[a]t 1/4 inch± 1/16
inch the layer 24 will not support and maintain a flame .... At thicknesses of
about 1/2 inch polyurethane foam has been found to support flame.' Col. 3,
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Appeal2014-003736
Application 13/734,782
lines 36-40." App. Br. 6. Based on this flame supporting threshold
thickness of greater than Yz inch, Appellant, again citing to Simon, further
states:
Polyurethane foam layer 20 is disclosed as 'ideally between 1/2 to 1
1/2 inches thick' .... Col. 2, lines 42-43 and col. 3, lines 8-10,
respectively. Therefore, Simon discloses that layer 20 (which the
examiner argues to be fire resistant) has a thickness of 1/2 inch or
greater, which will support and maintain a flame and is not fire-
resistant.
App. Br. 6. In response to Appellant's contentions, the Examiner does not
appear to address that layer 20 would be thicker than this threshold and
therefore would support and maintain a flame as disclosed by Simon. The
Examiner cites to portions of Simon discussing layers 24 and 22, but not
layer 20. Ans. 6. The Examiner quotes a portion of Simon which discusses
the polyurethane foam material (i.e., the material of both layers 20 and 24)
in general, and does not appear to discuss the specific thickness of layer 20.
Ans. 6. Thereafter, the Examiner dismisses Appellant's arguments
(including assumingly those regarding layer 20) stating: "Simon clearly
meets the Appellant's broad structural limitations wherein the mattress is
composed with layers of fire-resistant materials." Ans. 6.
Based on the express disclosure of Simon, that layer 20 would
"support and maintain a flame," we are not apprised of any reasonable basis
for the Examiner to conclude that the two layers 20 and 24 can both be
considered "fire-resistant." Therefore, we are not apprised of any reasonable
basis to conclude that these two layers form a "fire-containing"
compartment. Therefore, the Examiner's rejections of claim 1, and its
dependents, based on Simon, cannot be sustained.
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Appeal2014-003736
Application 13/734,782
Claims 14-20: Anticipation
Regarding independent Claims 14 and 19, the contested portion of
claims 14 and 19 is the term "combustible." Claim 14 recites a
"combustible cushioning material" and claim 19 recites a "combustible
layer". Conversely to the construction of "fire-resistant" above, as asserted
by Appellant, for a material to be "combustible" it must seemingly be able to
support and maintain a flame. App. Br. 6.
The Examiner identifies layer 24 of Simon, which was cited as being
fire-resistant for claim 1, as instead being a combustible cushioning layer.
Ans. 3. As addressed above and correctly argued by the Appellant (and also
determined by the Examiner in claim 1 ), layer 24 of Simon is a fire-resistant
layer of material due to the thickness of the polyurethane foam material and
therefore cannot now reasonably be considered "combustible" as asserted by
the Examiner. Appellant, again citing the Simon disclosure, asserts:
'[t]he desired thickness of layer 24 is in the order of 1/4 inch (±1/16
inch)' and that it 'should not be varied beyond the 1/4 inch
dimension,' because ' [ t ]he thickness of layer 24 [is] ... quite critical in
making a fireproof mattress with a top layer of polyurethane foam. At
114 inch ±1116 inch the layer 24 will not support and maintain a
flame.' Col. 2, lines 52-53 and col. 3, lines 10-11 and 34-37
(emphasis added by Appellant).
App. Br. 6. Appellant's arguments demonstrate error in the rejection
because Simon discloses that layer 24 would not support and maintain a
flame, and therefore we are not apprised of any basis for the Examiner to
conclude that it would reasonably be considered "combustible." Therefore
the Examiner's rejection of claims 14 and 19, and that of dependent claims
15-18 and 20, cannot be sustained.
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Appeal2014-003736
Application 13/734,782
Obviousness
As the Examiner's reliance on the Simon reference to reject
independent claim 1 also forms the basis for the Examiner's rejection of
dependent claims 9-11, the obviousness rejection of dependent claims 9-11,
also cannot be sustained on the record before us.
DECISION
The Examiner's rejections of claims 1-20 under 35 U.S.C. §§ 102 and
103 are reversed.
REVERSED
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