13083135 (P.T.A.B. Feb. 22, 2017)

Ex Parte Poston et al

Patent Trial and Appeal BoardFeb 22, 2017

13083135 (P.T.A.B. Feb. 22, 2017)

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. 13/083,135 04/08/2011 Wilbur F. Poston 361301-1030 7494 24504 7590 02/24/2017 THOMAS I HORSTEMEYER, LLP 400 INTERSTATE NORTH PARKWAY SE SUITE 1500 ATLANTA, GA 30339 EXAMINER DAVIS, RICHARD G ART UNIT PAPER NUMBER 3644 NOTIFICATION DATE DELIVERY MODE 02/24/2017 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): uspatents @ tkhr.com ozzie. liggins @ tkhr.com docketing @ thomashorstemeyer. com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte WILBUR F. POSTON, ANDREA P. HANCOCK, and LINDA HILL POSTON Appeal 2015-0058531 Application 13/083,1352 Technology Center 3600 Before NINA L. MEDLOCK, KENNETH G. SCHOPFER, and TARA L. HUTCHINGS, Administrative Patent Judges. SCHOPFER, Administrative Patent Judge. DECISION ON APPEAL This is an appeal under 35 U.S.C. § 134 from the rejection of claims 1—6, 8, 10-12, 14, 16, 19, and 21—25. We have jurisdiction under 35 U.S.C. § 6(b). We REVERSE. 1 Our decision references the Appeal Brief (“Br.,” filed Dec. 24, 2014), and the Examiner’s Answer (“Ans.,” mailed Mar. 20, 2015) and Final Office Action (“Final Act.,” mailed June 26, 2014). 2 According to Appellants, the real party in interest is Mattress Safe, Inc. Br. 2. Appeal 2015-005853 Application 13/083,135 BACKGROUND According to Appellants, “[t]he invention relates to encasements, and, more specifically, is related to adaptable mattress and/or box spring encasements.” Spec. 11. CLAIMS Claims 1—6, 8, 10—12, 14, 16, 19, and 21—25 are on appeal. Claim 1 is illustrative of the appealed claims and recites: 1. A system, comprising: a cover configured to encapsulate a mattress and configured to vary as a function of an elasticity of a material of the cover, wherein the cover comprises at least: a top cover portion comprised of a stretchable polyester knit fabric with an at least 1 mil polyurethane membrane laminated thereon and having a weight of about 105 grams per square meter (GSM), the stretchable polyester knit fabric having a stretch property of about 200%, and the at least 1 mil polyurethane membrane having a stretch property of about 200%, wherein the at least 1 mil polyurethane membrane is operable to conform to a stretching of the stretchable polyester knit fabric and to aid the stretchable polyester knit fabric in a recovery of the stretching; a bottom cover portion comprised of an interlock stretch knit polyester fabric with no layer of the at least 1 mil polyurethane membrane laminated thereon; a horizontally-oriented seam mating the top cover portion with the bottom cover portion; a fastening component between the top cover portion and bottom cover portion configured to wholly encapsulate the mattress with the cover, wherein the fastening component is further configured to provide an opening to remove the cover from the mattress; and wherein the cover is adapted to stretch to fit at least two different sizes of mattresses, with a proviso that the cover is not 2 Appeal 2015-005853 Application 13/083,135 the exact dimensions of a standard United States-sized Twin, Long Twin, Full, Long Full, Queen, King, Hotel King, or California King mattress. Br. 21. REJECTION The Examiner rejects claims 1—6, 8, 10-12, 14, 16, 19, and 21—25 under 35 U.S.C. § 103(a) as unpatentable over Wyner3 in view of Corzani,4 Brooks,5 and Anand.6 DISCUSSION We are persuaded by Appellants’ argument that the Examiner erred in finding that the art of record renders obvious the use of knit fabric and/or a polyurethane membrane layer “having a stretch property of about 200%” as required by each of the independent claims on appeal. See Br. 9—14. With respect to these claim requirements, the Examiner relies first on Wyner’s disclosure of a knit fabric with “a stretch of at least 125%, which suggests higher stretch properties of about 200% are within the scope of the invention” and a membrane with “a stretch of at least 150%, which suggests higher stretch properties of about 200% are within the scope of the invention.” Final Act. 3 (citing Wyner col. 2,11. 60-65; col. 3,1. 4). The Examiner later relies on Anand as disclosing a “medical grade [wrap] knit substrate with a stretch of 130%—160%.” Final Act. 4 (citing Anand col. 5, 11. 55—65). The Examiner concludes that it would have been obvious to 3 Wyner et al., US 5,950,264, iss. Sept. 14, 1999. 4 Corzani et al., US 2002/0148047 Al, pub. Oct. 17, 2002. 5 Brooks et al., US 2004/0172754 Al, pub. Sept. 9, 2004. 6 Anand et al., US 7,207,962 B2, iss. Apr. 24, 2007. 3 Appeal 2015-005853 Application 13/083,135 combine Wyner with Anand “to provide a substrate with stretch that matches the film elongation of at least 150%.” Final Act. 4—5. In response to Appellants’ arguments, the Examiner further states “that Wyner makes obvious [this] limitation since ‘at least 125%’ is an open ended range” and “Anand demonstrates that stretches above 125% are taught in the prior art including ranges that approach or could be considered to include about 200%.” Ans. 2. The Examiner also indicates that the rejection does not rely on Brooks for this limitation. Id. at 3. Without further explanation from the Examiner, we find that the claimed “stretch property of about 200%” cannot reasonably be interpreted to include the relied upon disclosures of at least 125% or 150% stretch or a range of 130%—160% stretch. Although Wyner uses the language “at least,” the Examiner has failed to show how or why this suggests higher stretch properties up to about 200%. And, although the term “about 200%” indicates that variations in the stretch property are acceptable, we are not persuaded that the broadest reasonable scope of the claims consistent with the Specification allows for variations of at least 20% in the stretch factor, which would be the case with the use of the highest stretch property of 160% relied upon by the Examiner. On this point, we note that although the Specification does not provide a specific disclosure as to the range in variation considered by this claim term, the only specific disclosure in the Specification is for the use of polyurethane having a stretch property of over 200%. Spec. ]fl4. Accordingly, we are persuaded of reversible error with respect to the rejection of each independent claim. Thus, we do not sustain the rejection before us. 4 Appeal 2015-005853 Application 13/083,135 CONCLUSION For the reason set forth above, we reverse the rejection of claims 1—6, 8, 10-12, 14, 16, 19, and 21-25. REVERSED 5