Ex Parte Koutsky et al

Board of Patent Appeals and Interferences

Sep 21, 2011

11580379 (B.P.A.I. Sep. 21, 2011)

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.
11/580,379 10/13/2006 L. John Koutsky 3575DIV 5881
89986 7590 09/22/2011
LANE & WATERMAN LLP
220 N. MAIN STREET, SUITE 600
Davenport, IA 52801
EXAMINER
CONLEY, FREDRICK C
ART UNIT PAPER NUMBER
3673
MAIL DATE DELIVERY MODE
09/22/2011 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 L. JOHN KOUTSKY,
WILLIAM TUMAN, and LYSLE R. HINKHOUSE
____________________

Appeal 2009-013772
Application 11/580,379
Technology Center 3600
____________________

Before WILLIAM F. PATE III, MICHAEL W. O’NEILL,
and KEN B. BARRETT, Administrative Patent Judges.

BARRETT, Administrative Patent Judge.

DECISION ON APPEAL

STATEMENT OF THE CASE
L. John Koutsky et al. (Appellants) seek our review under 35 U.S.C.
§ 134 of the final rejection of claims 2-5. Claim 1 has been canceled. We
have jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM.
Appeal 2009-013772
Application 11/580,379

2
THE INVENTION
Claim 2, reproduced below with emphasis added, is representative of
the subject matter on appeal.
2. A method for fabricating a covered seat cushion
comprising:
providing a seat mold cavity defined by first and second
mold parts;
placing a cover within the first mold part;
locating an insert within the seat mold cavity the insert
having an outer wall extending around and spaced from the
periphery of the first mold part and cover, said spacing between
the insert wall and the first mold part being sufficiently small to
provide a restricted foaming area;
securing the second mold part to the first mold part to
form the mold cavity;
foaming a resin material within the cavity in a single
pour operation to form a foamed body having a first foam
density and a foamed perimeter section having a second foam
density greater than the first foam density; and
said cover having a border which is bonded to the
foamed perimeter section.

THE REJECTIONS
The following Examiner’s rejections are before us for review:
1. Claims 2 and 4 are rejected under 35 U.S.C. § 102(b) as being
anticipated by Bethell (US 4,853,995, issued Aug. 8, 1989); and
2. Claims 3 and 5 are rejected under 35 U.S.C. § 103(a) as being
unpatentable over Bethell.

Appeal 2009-013772
Application 11/580,379

3
OPINION1
Appellants argue the claims subject to the anticipation rejection as a
group. App. Br. 4-9. We select claim 2 as the representative claim, and
claim 4 stands or falls with claim 2. 37 C.F.R. § 41.37(c)(1)(vii).
Independent claim 2 calls for locating an insert to create a space
between the insert and the mold “sufficiently small to provide a restricted
foaming area,” and foaming a resin to form “a foamed perimeter section
having a second foam density greater than the first foam density [of the
foamed body].” According to Appellants, the greater foam density in the
perimeter section results from the spacing between the insert and the mold
being small. Spec. 3. Appellants challenge the Examiner’s finding that
Bethell’s configuration would inherently result in a foamed perimeter
section with a greater density than that of the body section. App. Br. 7-9;
Ans. 3-4 (citing, inter alia, Bethell, fig. 2, and referring to the spacing
between the snap-ring member 16 and return ring 24).
We determine that the Examiner has set forth adequate findings and
technical reasoning at pages 3-4 and 5-6 of the Answer to establish a prima
facie showing of inherency. Appellants have not rebutted that showing with
persuasive argument or evidence. See In re Spada, 911 F.2d 705, 708 (Fed.
Cir. 1990) (“[W]hen the [Examiner] shows sound basis for believing that the

1 The Examiner found that the Reply Brief contains new, not-admitted
evidence and therefore is non-compliant. Office Communication mailed
Jan. 29, 2009; see also 37 C.F.R. § 41.41(a)(2) and (b). The Examiner states
that the Reply Brief filed Nov. 3, 2008, will not be considered. Thus, the
Examiner denied entry of the Reply Brief. Appellants have not challenged
this action by petition, and therefore the Reply Brief is not in the record on
appeal. Accordingly, we, like the Examiner, do not consider the Reply
Brief.
Appeal 2009-013772
Application 11/580,379

4
products of the applicant and the prior art are the same, the applicant has the
burden of showing that they are not.”) Accordingly, we affirm the rejection
of claims 2 and 4. Appellants do not present separate arguments for the
obviousness rejection of claims 3 and 5, App. Br. 9, and therefore we also
affirm that rejection.

DECISION
The decision of the Examiner to reject claims 2-5 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). See 37 C.F.R.
§ 1.136(a)(1)(iv).

AFFIRMED

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