11324387 (B.P.A.I. Jun. 15, 2012)

Ex Parte Leach

Board of Patent Appeals and InterferencesJun 15, 2012

11324387 (B.P.A.I. Jun. 15, 2012)

UNITED STATES PATENT AND TRADEMARK OFFICE ________________ BEFORE THE BOARD OF PATENT APPEALS AND INTERFERENCES ________________ Ex parte JAMIE S. LEACH ________________ Appeal 2010-004130 Application 11/324,387 Technology Center 3600 ________________ Before EDWARD A. BROWN, MICHAEL L. HOELTER and, BENJAMIN D. M. WOOD, Administrative Patent Judges. HOELTER, Administrative Patent Judge. DECISION ON APPEAL Appeal 2010-004130 Application 11/324,387 2 STATEMENT OF THE CASE This is a decision on appeal, under 35 U.S.C. § 134(a), from a final rejection of claims 10-35 (Br. 1). Claims 1-9 have been cancelled (Br. 1). We have jurisdiction under 35 U.S.C. § 6(b). We AFFIRM. The Claimed Subject Matter The claimed subject matter is directed to a pillow body having a center section and first and second arms characterized as extending hinge- free from the center section. Independent claim 10 is illustrative of the claims on appeal and is reproduced below: 10. A body pillow comprising: an elongate, flexible pillow body sized for use as a body pillow by an adult or child and which in a resting position comprises: a center section having a first end and a second end; a first arm having a non-terminal end extending from the first end of the center section and terminating in a first free end of the pillow body; and a second arm having a non-terminal end extending from the second end of the center section and terminating in a second free end of the pillow body; wherein the length of the center section is greater than the length of each of the first and second arms; the pillow body having a top surface, a bottom surface, a first side, and a second side; wherein the first and second arms are symmetrically sized, shaped and positioned relative to the center section and are angled toward the first side; and wherein the pillow body formed by the center section and the first and second arms extending therefrom is characterized as continuous and hinge-free. Appeal 2010-004130 Application 11/324,387 3 Reference Relied on by the Examiner McCullough US 3,327,330 Jun 27, 1967 The Rejections on Appeal 1. Claims 10-35 are rejected under 35 U.S.C. § 112, first paragraph, as failing to comply with the written description requirement (Ans. 3). 2. Claims 10-12, 16, 17 and 34 are rejected under 35 U.S.C. § 102(b) as being anticipated by McCullough (Ans. 3). 3. Claims 13-15, 18-33 and 35 are rejected under 35 U.S.C. § 103(a) as being unpatentable over McCullough (Ans. 5). ANALYSIS All claims are rejected under 35 U.S.C. § 112, first paragraph, because both independent claims 10 and 23 each require a “hinge-free” pillow body and the Examiner indicates that the scope of this term “can not be reasonably ascertained” (Ans. 3). The Examiner notes that “hinge-free” does not appear in Appellant’s original disclosure and further that Appellant’s figures “clearly show the pillow being bent in various ways” (Ans. 3). The Examiner notes an “area of reduced cross section” which facilitates the pillow changing between the arrangements of Figures 1 and 2, such area being “broadly construed to be a living hinge” (Ans. 8). In light of this bending, the Examiner posits the question: “[h]ow is the connection between Applicant’s center section and first and second arms hinge-free?” (Ans. 3). Appellant relies on the drawings to provide support for this terminology stating that when the pillow body is bent as shown in Figure 2, “there are no defined breaks or folding lines that could be characterized as a ‘hinge’” (Br. 4). As a result, Appellant contends, “the term ‘hinge-free’ is Appeal 2010-004130 Application 11/324,387 4 supported by the original disclosure, and independent claims 10 and 23 satisfy the written description requirement” (Br. 5). Appellant does not identify any written support in the Specification for the term "hinge-free" or for defining “hinge-free” as “no defined breaks or folding lines” (Br. 4). Nor does Appellant provide any other evidence that supports this construction. Furthermore, and conversely, Appellant’s Figure 2 discloses multiple fold lines between the center and arm portions and hence we are not persuaded that Figure 2 provides support for the “hinge-free” claim limitation as Appellant asserts. In view of the record presented, we agree with the Examiner that “one or ordinary skill in the art looking at Appellant’s original specification would find the phrase ‘hinge- free’ unsupported” (Ans. 8). Accordingly, we sustain the Examiner’s rejection of claims 10-35 as failing to comply with the written description requirement. DECISION The rejection of claims 10-35 as failing to comply with the written description requirement is affirmed. The affirmance of the Examiner’s rejection of claims 10-35 discussed supra constitutes a general affirmance of the decision of the Examiner on these claims (see 37 C.F.R. §41.50(a)). Accordingly, we do not reach the Examiner’s rejection of these same claims over McCullough. No time period for taking any subsequent action in connection with this appeal may be extended under 37 C.F.R. § 1.136(a). AFFIRMED Appeal 2010-004130 Application 11/324,387 5 MP