Ex Parte Nichols

Board of Patent Appeals and Interferences

Sep 23, 2008

10960526 (B.P.A.I. Sep. 23, 2008)

UNITED STATES PATENT AND TRADEMARK OFFICE
__________

BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
__________

Ex parte JUNE NICHOLS
__________

Appeal 2008-4947
Application 10/960,526
Technology Center 3600
__________

Decided: September 23, 2008
__________

Before DONALD E. ADAMS, DEMETRA J. MILLS, and
LORA M. GREEN, Administrative Patent Judges.

GREEN, Administrative Patent Judge.

DECISION ON APPEAL
This is a decision on appeal under 35 U.S.C. § 134 from the
Examiner’s final rejection of claims 1-14 and 16. We have jurisdiction
under 35 U.S.C. § 6(b).

Appeal 2008-4947
Application 10/960,526

STATEMENT OF THE CASE
The claims are directed to a cover for a headrest for a seat, such as an
airline seat. Claim 1 is representative of the claims on appeal, and reads as
follows:
1. A headrest cover adapted to engage and cover at least a portion of a
seat having an upper portion with a headrest and a lower portion with front
and rear sides, the front side of the seat having a vertical surface defining a
front seat surface, comprising:
an elastic gathering enabling the cover to be placed over a headrest
portion of seats of varying sizes, and to substantially remain in place during
travel; and
two or more pillow compartments positioned adjacent the front seat
surface and located at varying heights on the cover, the pillow compartments
enabling insertion and removal of one or more pillows located at two or
more heights on the cover along the front seat surface, thereby providing a
traveler in the sat with additional support and comfort.

The Examiner relies on the following references:
Greer US 4,725, 094 Feb. 16, 1988
Sereboff US 4,761,011 Aug. 2, 1988
Melone US 5,707,107 Jan. 13, 1998
Hughes US 6,256,818 B1 Jul. 10, 2001

We affirm.

ISSUE (Obviousness)

The Examiner contends that claims 1-14 and 16 are obvious over the
combination of Melone and Sereboff alone, or in combination with other
references.
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Appellant contends that the Examiner improperly combined the
references to arrive at the claimed invention.
Thus, the issue on Appeal is: Whether the Examiner improperly
combined the references to arrive at the claimed invention?

FINDINGS OF FACT
FF1 According to the Specification, “the invention is directed to a sanitary,
travel headrest cover capable of use with seat headrests of different sizes,
and also capable of adjusting the height of a pillow contained by the cover.”
(Spec. 1.)
FF2 Figure 3 of the instant disclosure is reproduced below.

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Figure 3 shows the headrest cover attached over a portion of a seat,
including the headrest (Spec. 3). Headrest cover 10 has a resilient or elastic
cord or gathering 20 that allows the headrest cover to remain in position for
the duration of its use (Spec. 4-5). It includes a compartment 15 for a
pillow, as well as compartment 30 to retain a pillow for the back (Spec. 5).
FF3 Claims 1, 2, 4-7, 10-12, and 16 stand rejected under 35 U.S.C. §
103(a) as being obvious over the combination of Melone and Sereboff.
FF4 The Examiner, relying of Figures 3 and 4 of Melone, finds that
Melone “teaches a headrest cover adapted to engage and cover at least a
portion of a seat having an upper portion with a headrest and a lower portion
with front and rear sides including a gathering 12, two or more pillow
compartments 5, 9 and 10 at least one of which is for supporting a users
back, formed of a static free material (cotton fleece, col. 1, line 67).” (Ans.
4.) Moreover, the Examiner finds that “the compartments are generally U-
shaped when viewed from the side.” (Id.)
FF5 Thus, the Examiner finds that Melone teaches a headrest cover
“substantially as claimed except for the gathering being elastic and the
pillow compartments being on the front of the seat.” (Id.)
FF6 The Examiner relies on Sereboff as evidence that a headrest cover
having two or more pillow compartments or more heights on the cover
along the front seat is well known in the art (id.).
FF7 Thus, as to the pillow compartments, the Examiner concludes that it
“would have been obvious to one of ordinary skill in the art to modify the
Melone device such that the pillow compartments were on the front of the
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seat as taught to be old by Sereboff thereby providing the obvious advantage
of greater comfort to the user.” (Id.)
FF8 The Examiner also concludes that it would have been obvious to form
the gathering of elastic rather than a drawstring of unspecified material,
“especially since Melone teaches elastic . . . for helping to retain the cover
on the seat, both of which would work equally as well.” (Ans. 4.)
FF9 Melone is drawn to a cover for the seat back of a bucket seat (Melone,
col. 1, ll. 4-6). The seat cover is designed to be easy to install and remove
(id. at col. 1, ll. 42-43). The seat cover may have a pocket in the lumbar
region of the seat back front that may be stuffed with a soft material to
enhance comfort (id. at col. 1, ll. 44-46).
FF10 Figures 3 and 4 of Melone, relied upon by the Examiner, are
reproduced below.

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FF11 Figures 3 and 4 are a front (Fig. 3) and a rear (Fig. 4) view of a seat
cover of Melone (id. at col. 2, ll. 16-19).
FF12 The seat back 13 has a separate headrest 14 (id. at col. 2, ll. 54-64),
and the cover 15 is anchored to the seat by the elastic waistband 4 (id. at col.
2, ll. 39-41). The pocket 5 may be stuffed with foam or other soft material
to provide lumbar support (id. at col. 2, ll. 42-45). The top portion has a
puckered appearance due to the drawstring 12, and the back portion may
also include additional pockets 9 and 10 (id. at col. 2, ll. 46-53).
FF13 Sereboff teaches a removable cushion assembly that may be filled
with water or another medium that may be used to retrofit the back of an
existing chair (Sereboff, col. 2, ll. 29-33). Sereboff teaches a liquid or air
cushion attachment that has a plurality of casings that are arranged
substantially horizontally, which may then be filled with a liquid (id. at col.
3, ll. 48-63).
FF14 Thus Sereboff teaches the use of a cushion assembly having two or
more cushion arranged along the front of a seat to provide comfort to a
person using the seat.
FF15 The Examiner rejects claims 3 and 13 over the combination of Melone
and Sereboff as further combined with Hughes (Ans. 5).
FF16 Hughes is relied upon for teaching that the use of satin for a pillow
cover is well known in the art (Ans. 5). Specifically, Hughes teaches that
“[s]atin is very smooth and slippery allowing the hair of the user to glide
along it.” (Hughes, col. 4, ll. 19-20.) Thus, the Examiner concludes that it
would have been obvious to use satin in the headrest cover of Melone as
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Hughes provides evidence that the use of satin for a pillow cover is well
known in the art (Ans. 5).
FF17 The Examiner rejects claims 8 and 9 over the combination of Melone
and Sereboff, as further combined with Greer (Ans. 5). In addition, the
Examiner rejects claim 14 as being obvious over the combination of Melone,
Sereboff and Hughes as further combined with Greer (id. at 6).
FF18 Greer is relied upon for teaching that the use of side pockets on a seat
cover is well known in the art (id. at 5-6). The Examiner concludes that it
“would have been obvious to one of ordinary skill in the art to further
modify the Melone device such that it had side pockets as taught to be old by
Greer thereby providing the obvious advantage of more storage.” (Id. at 6.)

PRINCIPLES OF LAW
The question of obviousness is resolved on the basis of underlying
factual determinations including: (1) the scope and content of the prior art;
(2) the level of ordinary skill in the art; (3) the differences between the
claimed invention and the prior art; and (4) secondary considerations of
nonobviousness, if any. Graham v. John Deere Co., 383 U.S. 1, 17 (1966).
The Supreme Court has recently emphasized that “the [obviousness] analysis
need not seek out precise teachings directed to the specific subject matter of
the challenged claim, for a court can take account of the inferences and
creative steps that a person of ordinary skill in the art would employ.” KSR
Int’l v. Teleflex Inc., 127 S. Ct. 1727, 1741 (2007). “The combination of
familiar elements according to known methods is likely to be obvious when
it does no more than yield predictable results.” Id. at 1739. Moreover, an
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“[e]xpress suggestion to substitute one equivalent for another need not be
present to render such substitution obvious.” In re Fout, 675 F.2d 297, 301
(CCPA 1982).

ANALYSIS
As to the rejection of claims 1, 2, 4-7, 10-12, and 16 over the
combination of Melone and Sereboff, we agree with the Examiner, and
conclude that it would have been obvious to one of ordinary skill in the art to
add additional pockets to the seat cover of Melone because Sereboff
provides evidence that the use of a cushion assembly having two or more
cushions arranged along the front of a seat to provide comfort to a person
using the seat. We also conclude that it would have been obvious to replace
the drawstring of Melone with elastic as the ordinary artisan would
understand each would serve the purpose of helping to form the headrest
cover to the shape of the headrest, and as Melone also teaches the use of
elastic to secure the seat cover to the seat. We therefore conclude that the
Examiner has set forth a prima facie case of obviousness, and thus turn to
Appellant’s arguments made in rebuttal.
Appellant argues that Sereboff was improperly combined with Melone
(App. Br. 5). Sereboff, Appellant asserts, fails to disclose front pillow
covers, and fails to disclose a disposable headrest cover, but is instead drawn
to the use of a chair assembly with water cushions to support the chair itself
(id.). Appellant argues further that Sereboff in fact teaches away from the
claimed invention by teaching the use of a water cushion assembly located
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under a one-piece seat cover, as water cushions are heavy and may burst if
used in a traveler’s disposable headrest cover (id. at 6).
Appellant’s arguments are not found to be convincing. Melone was
cited to teach substantially the invention as claimed in claim 1. Melone,
however, only teaches a single pocket on the front of the seat cover (FF12),
and Sereboff was cited for its teaching the use of multiple supports (in the
case of Sereboff, fluid filled supports) to add to the comfort of a person
sitting in a chair (FF14). Thus, it would have been obvious to add additional
pockets for pillows to the seat cover of Melone to provide for the additional
comfort of the person using the seat.
As to Appellant’s argument that Sereboff teaches away from the
combination, “[u]nder the proper legal standard, a reference will teach away
when it suggests that the developments flowing from its disclosures are
unlikely to produce the objective of the applicant’s invention. A statement
that a particular combination is not a preferred embodiment does not teach
away absent clear discouragement of that combination.” Syntex (U.S.A.)
LLC v. Apotex, Inc., 407 F.3d 1371, 1380 (Fed. Cir. 2005) (citations
omitted). The fact that Sereboff is drawn to the use of fluid filled cushions
does not teach away from the combination, as Sereboff is merely evidence as
to what would have been obvious to the ordinary artisan—that the addition
of pillow compartments to the seat cover of Melone would allow for user to
add additional cushions that would allow for additional comfort of the
person using the seat. As noted by the Court in KSR, “[a] person of ordinary
skill is also a person of ordinary creativity, not an automaton.” 127 S. Ct. at
1742.
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We thus affirm the rejection as to claim 1. As Appellant does not
present arguments as to why claims 2, 5, 10-12, and 16 are separately
patentable, the rejection is affirmed as to those claims as well. 37 C.F.R. §
41.37(c)(1)(vii).
As to claim 4, Appellant argues that the Examiner admits that the
Melone fails to disclose an elastic cord at an upper portion of the headrest
cover, and the Examiner’s assertion that it would have been an obvious
design choice may only be made with the use of forbidden hindsight (App.
Br. 7). According to Appellant, “the Melone drawstring can become knotted
up making it difficult to remove, while both Melone’s and Sereboff’s covers
are designed to traverse the entire seat, so there would be no reason to locate
elastic cords only at an upper, headrest portions.” (Id.)
Appellant’s arguments are again not found to be convincing. Melone
teaches the use of a drawstring to customize the fit of the seat cover over the
headrest, and also teaches the use of elastic to hold the seat cover to the seat
(FF 12). The ordinary artisan would have also understood that elastic could
be used to customize the fit of the seat cover over the headrest. The
rejection is therefore affirmed as to claim 4.
As to claim 6, Appellant argues that “[i]t is admitted that Melone fails
to disclose front pillow compartments.” (App. Br. 7-8.) However,
Appellant is mischaracterizing the teachings of Melone and the rejection.
Melone does teach the use of as single front pillow compartment, but fails to
explicitly teach or suggest the use of more than one front pillow
compartment. For the reasons already discussed, Sereboff provides evidence
that the addition of pillow compartments to the seat cover of Melone would
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allow for user to add additional cushions that would allow for additional
comfort of the person using the seat (FF14). The rejection is therefore
affirmed as to claim 6.
As to claim 7, Appellant argues that neither Melone nor Sereboff
“disclose or suggest generally U-shaped compartments, when viewed from
the front.” (App. Br. 8.) The rejection is therefore also affirmed as to claim
7.
The pillow compartment of Melone meets the limitation that the
pillow compartment is “generally U-shaped . . . when viewed from the side
of the seat.” (Claim 7.) Although Appellant argues that it is not U-shaped
when viewed from the front, the language of the claim specifies that the U-
shape is viewed from the side of the seat. Moreover, it would have been
obvious to the ordinary artisan to modify the shape of the compartment
based on the shape of the pillow one desired to use.
As to the rejection of claims 3 and 13 over the combination of Melone
and Sereboff as further combined with Hughes, we agree with the Examiner,
and conclude that it would have been obvious to one of ordinary skill in the
art to use satin in the headrest cover of Melone as Hughes provides evidence
that the use of satin for a pillow cover is well known in the art. We thus turn
to Appellant’s arguments in rebuttal.
Appellant argues Melone does not teach the use of a static free
material, nor does it teach the use of satin (App. Br. 8). Appellant argues
further that Hughes is drawn to a heated massage pillow, “which is so very
different from the idea of a removable headrest cover for a seat that a person
of ordinary skill in the art would not have been lead to combine a single,
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disparate teaching from Hughes (the use of satin) with the distinguishable
teachings of Melone (sweatshirt-type seat cover with rear side pockets) and
Sereboff (water cushion assembly for chair).” (Id.)
Again, as already noted, “[a] person of ordinary skill is also a person
of ordinary creativity, not an automaton.” KSR, 127 S. Ct. at 1742.
Although Hughes is drawn to a heated massage pillow, Hughes specifically
teaches that the use of satin, because the satin is smooth and slippery, allows
the hair of the user to glide along it (FF16). The ordinary artisan would
understand that the use of satin on the headrest cover of Melone would allow
for the same result. We thus affirm the rejection as to claims 3 and 13.
As to the rejection of claims 8 and 9 over the combination of Melone
and Sereboff as further combined with Greer, as well as the rejection of
claim 14 over the combination of Melone, Sereboff, Hughes and Greer, we
again agree with the Examiner, and conclude that it would have been
obvious to one of ordinary skill in the art to modify the seat cover taught by
the combination of Melone and Sereboff, or the seat cover taught by the
combination of Melone, Sereboff and Hughes, such that it had side pockets
as taught to be known in the art by Greer, in order to provide the advantage
of more storage.
Appellant argues that as to the references cited, “only Greer
apparently teaches side pockets in connection with a terry cloth sand/lawn
chair.” (App. Br. 8.) According to Appellant, “as Greer fails to disclose a
seat cover for a headrest, there is no reason for a person of ordinary skill to
look to Greer for use of the claimed invention.” (Id. at 8-9.)
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Again, one of ordinary skill would understand that the inclusion of
side pockets would allow for additional storage space, and that those pockets
could be used to carry any desired object, such as an air freshener or sachet.
The rejection is thus affirmed as to claims 8, 9, and 13.

CONCLUSIONS OF LAW
Thus, we conclude that the Examiner did not improperly combined
the references to arrive at the claimed invention, but instead has established
a prima facie case of obviousness as to the appealed claims. Thus, we affirm
the rejection of claims 1, 2, 4-7, 10-12, and 16 as being obvious over the
combination of Melone and Sereboff; the rejection of claims 3 and 13 over
the combination of Melone and Sereboff as further combined with Hughes;
the rejection of claims 8 and 9 over the combination of Melone and
Sereboff, as further combined with Greer; as well as the rejection of claim
14 as being obvious over the combination of Melone, Sereboff and Hughes
as further combined with Greer.

TIME LIMITS
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

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cdc

MICHAEL P. MAZZA, LLC
686 CRESCENT BLVD.
GLEN ELYN IL 60137

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