Ex Parte Poulakis

Board of Patent Appeals and Interferences

Apr 30, 2008

10019397 (B.P.A.I. Apr. 30, 2008)

UNITED STATES PATENT AND TRADEMARK OFFICE
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BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
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Ex parte KONSTANTINOS POULAKIS

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Appeal 2008-1292
Application 10/019,397
Technology Center 1700
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Decided: April 30, 2008
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Before BRADLEY R. GARRIS, PETER F. KRATZ, and
JEFFREY T. SMITH, Administrative Patent Judges.

SMITH, Administrative Patent Judge.

DECISION ON APPEAL
Statement of the Case
This is an appeal under 35 U.S.C. § 134 from a final rejection of
claims 11-26, 28-38, and 43-45. We have jurisdiction under 35 U.S.C. § 6.
Appellant’s invention, relates to a particular method for producing a
flexible shaped strip (18) suitable for securing a cushion covering (12) to a
Appeal 2008-1292
Application 10/019,397

cushion component (10) formed of foam material. The features of the
claimed invention are demonstrated in Figure 1 which appears below.

Representative claims 11, 30, and 34 appear below:
11. A method for producing a flexible shaped strip for securing
a cushion covering a cushion component formed of foam material and
provided with a longitudinal passage for engaging the shaped strip,
comprising the steps of:
forming the shaped strip from plastic material for engaging the
longitudinal passage in the cushion component and securing the
covering to the cushion component; and
providing a slip-preventer at least partially on an exterior
periphery of the shaped strip, the slip-preventer being a plastic
material softer than the plastic material, of the shaped strip;
whereby, the slip-preventer increases tear resistance of the
shaped strip to resist inadvertent removal of the shaped strip from the
longitudinal passage in the cushion component.

30. A method for producing a flexible shaped strip for securing
a cushion covering to a cushion component formed of foam material
and being provided with a longitudinal passage for engaging the
shaped strip, comprising the steps of:
forming the shaped strip from plastic material, the strip having
a top surface with a longitudinal slot, a fastener received in the slot
and coupled to the shaped strip, and longitudinal interlocking
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members on side surfaces of the strip defining recessed areas between
the interlocking members; and
providing a slip-preventer on said top surface of the strip, the
slip-preventer being a plastic material softer than the plastic material
of the shaped strip to reduce slippage between the strip and the foam
material and to increase tear resistance of the shaped strip to resist
inadvertent removal of the shaped strip from the longitudinal passage
in the cushion component.

34. A method for producing a flexible shaped strip and securing
a cushion covering to a foamed cushion material having a longitudinal
passage for engaging the strip, comprising the steps of:
forming the shaped strip from a first plastic material, the strip
having a top surface with a longitudinal slot, a fastener received in the
slot and coupled to the shaped strip and to the cushion covering
material, the shaped strip having a plurality of longitudinal
interlocking members on side surfaces;
applying a second plastic material on a surface of the shaped
strip to provide a slip preventing material on the shaped strip, the
second plastic material being softer than the first plastic material to
decrease slippage between the shaped strip and the foamed cushion
material; and
inserting the shaped strip into the longitudinal passage of the
foamed cushion material such that the second plastic material directly
engages the foamed cushion material.

The Examiner relies on the following references in rejecting the
appealed subject matter:

Esler US 3,876,495 Apr. 8, 1975
Tolle US 4,057,956 Nov. 15, 1977
Maruyama US 4,718,718 Jan. 12, 1988
Boon US 4,874,670 Oct. 17, 1989
Engelson US 5,095,915 Mar. 17, 1992
Schulte ‘078 ZA 9805078A Mar. 31, 1999
Schulte ‘382 US 6,478,382 Nov. 12, 2002
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Application 10/019,397

The following rejections are presented for review:1
1) Claims 11, 15, 17, and 28 stand rejected as unpatentable under
35 U.S.C. § 103(a) over Esler.
2) Claims 11, 12, 15, 17, 22-24, 28, and 30-32 stand rejected under
35 U.S.C. § 103(a) over Schulte2 in view of Esler and Maruyama.
3) Claims 12-14, 32, and 33 stand rejected under 35 U.S.C. § 103(a) over
Schulte in view of Esler and Maruyama and further in view of Tolle.
4) Claims 18, 19, 25, and 26 stand rejected under 35 U.S.C. § 103(a) over
Schulte in view of Esler and Maruyama and further in view of Engelson.
5) Claims 20 and 21 stand rejected under 35 U.S.C. § 103(a) over Schulte in
view of Esler and Maruyama and further in view of Boon.
6) Claims 11, 29, 34-38, and 43-45 stand rejected under 35 U.S.C. § 103(a)
over Schulte in view of Esler and Maruyama and further in view of the
alleged admitted prior art3.
We REVERSE.

1 We note that the Examiner has not accounted for claim 16 in any of the
stated rejections. Claim 16 depends upon claim 11. Consequently, for the
purposes of this appeal, we consider the patentability of claims 16 to stand
with claim 11.

2 It is noted that the Examiner has relied on U.S. Patent 6,478,382 as an
English language translation of South African patent ZA 9805087A. The
Appellant has not objected to the use of the U.S. patent for this purpose by the
Examiner.
3 The Examiner cites the discussion appearing on page 2 of the Specification
as admitted prior art.
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The Examiner bears the initial burden of presenting a prima facie case
of obviousness. In re Oetiker, 977 F.2d 1443, 1445 (Fed. Cir. 1992). In
order to establish a prima facie case of obviousness, the Examiner must
show that each and every limitation of the claim is described or suggested by
the prior art or would have been obvious based on the knowledge of those of
ordinary skill in the art. In re Fine, 837 F.2d 1071, 1074 (Fed. Cir. 1988)).
“[R]ejections on obviousness grounds cannot be sustained by mere
conclusory statements; instead, there must be some articulated reasoning
with some rational underpinning to support the legal conclusion of
obviousness.” In re Kahn, 441 F.3d 977, 988 (Fed. Cir. 2006) (quoted with
approval in KSR Int'l Co. v. Teleflex Inc., 127 S. Ct. 1727, 1741 (2007)).
Obviousness rejection over Esler
The Examiner contends that Esler discloses a flexible cord for seats
which has a core formed from polymer fibers which is covered in an
extruded foam coating which reduces the slippage of the cord. Specifically
the Examiner states:
Esler discloses a flexible cord for seats which has a core formed
from polymer fibers which is covered in an extruded foam coating
which reduces the slippage of the cord.[ ](Col. 2, ll. 2-17; Col. 3, ll.
48-50; Col. 6, ll. 57)[.] The material is capable of securing a cover to
a cushion. The coating increases tear resistance since it decreases the
slippage. It is noted that the claim does not require the insertion of the
cord into the cushion, but rather only that it is capable of doing so.
Since the cord is thin enough and flexible enough to be inserted into a
cushion, it is capable of being inserted. While the reference does not
disclose the hardnesses of the core or foam coating, it would have
been obvious to one of ordinary skill in the art at the time the
invention was made to make the foam coating softer than the core
since the foam coating, which is intended to be velvety and flexible[
](Co1. 3, ll. 41) would be softer than a material which is intended to
be reinforcing[ ](Co1. 2, ll. 23) particularly since reinforcing implies
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that the core is stronger than the foam by itself. It is noted there is
nothing in the claim positively requiring the softness of the plastic
material to refer to the composition of the plastic material rather than
its structural properties. (Ans. 3-4).

Appellant contends that Esler describes a welting cord that is wrapped
by a fabric to provide a decorative feature to the finished article. Appellant
contends that the reinforcing member of Esler is not a shaped strip capable
of attaching a cover to a foam cushion component. Appellant contends that
there is no structure disclosed by Esler that would enable the welting cord to
connect a fabric or cover to a foam cushion. Appellant contends that Esler
does not disclose providing a slip preventing coating on the exterior of a
shaped strip where the slip preventer coating is a plastic softer than the
plastic material of the shaped strip. Appellant contends that the Examiner
has not established that the foam material of Esler is a softer material than
the fibers forming the core. (App. Br. 6-7).
The Examiner has not cited any support or authority for her position
regarding the tear resistance and hardness of the welting cord as well as the
suitability of attaching a cover to a foam cushion component. The Examiner
has simply speculated that the welting cord of Esler comprises a softer
exterior to the reinforcing member. Esler describes welting cords having an
exterior surface adapted to cooperate with upholstery boxing strips for
upholstered cushions. (Esler, col. 1, l. 63-col. 2, l. 1). The invention of
Esler was designed to overcome the problems of the prior art wherein the
welting cords would slip in the fabric that formed the boxing strip. (Esler,
co1. 1, ll. 35-40). Esler discloses the velvety exterior of the welting cord
prevent slippage of the cord within the fabric boxing strip. (Esler, co1. 2, ll.
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14-17). Esler referring to Figure 1 discloses “[t]he welting cord provided by
the invention is utilized in a conventional boxing strip comprising a fabric
10, the edges 12 of which are folded over the welting cord 20 of the
invention. The edges 12 are attached at their very ends to the fabric 10 by
means such as glue or stitching 14. The boxing strip is then combined with
other fabric pieces to enclose an upholster cushion.” (Esler, co1. 2, ll. 56-
64). Esler has not disclosed that the welting cord is suitable for use within a
longitudinal passage of a foamed cushion. Esler has not disclosed that the
exterior foamed surface, which provides anti-slip properties relative to
fabric, would have been suitable for providing slip-preventing properties
within a longitudinal passage of a foamed cushion. Esler has not disclosed
the softness/hardness of either the exterior surface of the foam welting cord
or the internal reinforcing element. Esler has not recognized a problem with
tearing of the foamed welting cord. Esler has not disclosed that the exterior
foamed surface of the welting cord increases the tear resistance of the
internal reinforcing member.
As such, the Examiner’s conclusion of obviousness is not supported
by any reasonable basis in the reference as to the desirability of performing a
method for producing a flexible shaped strip suitable for securing a cushion
covering to a cushion component formed of foam material. Rather, we are
left with the Examiner’s after-the-fact unsupported conclusory statements.
Rejections based on conclusory statements and not demonstrable evidence is
insufficient to support a prima facie case of unpatentability. See KSR supra.

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Obviousness rejections over Schulte, Esler, and Maruyama4
The Examiner contends that Schulte discloses a flexible shaped strip
which serves to secure a cover to a foamed seat cushion having a
longitudinal slit into which the strip is applied. (Figures 1 and 2; Abstract;
Schulte, col. 1, ll. 6-13; Col. 4, l. 3). The Examiner contends that Schulte
discloses the shaped strip comprises anti-slip means. (Schulte, col. 3, ll. 52-
57). However, the Examiner contends that Schulte does not disclose the
anti-slip means. (Ans. 4). The Examiner contends Esler discloses coating a
strip used in seats with a foam material to prevent slippage of the strip
relative to the material surrounding it. The Examiner further contends that
Maruyama discloses applying a rubber layer to the outside of a wire strip
which secures a cover to a foamed seat cushion. (Ans. 4). The Examiner
concludes “[i]t would have been obvious to one of ordinary skill in the art at
the time the invention was made to coat the shaped strip of Schulte with a
material which is anti-slip as shown in Esler since Schulte discloses using
anti-slip means but is silent as to the exact nature of those means, since Esler
discloses coating a plastic core with a soft, flexible plastic material to
prevent slippage of the strip when used in a seat cushion, and since
Maruyama et al. discloses it is known to coat strips that perform the same
function, namely holding seat covers in seat cushions with rubber which is
an anti-slip material.” (Ans. 4-5).
Appellant contends that the combination of Schulte, Esler, and
Maruyama does not disclose or suggest the claimed invention, since the
combination of the cited patents does not suggest a method of producing a
shaped strip and coating the shaped strip with a slip preventive material that

4 Our analysis applies to all the independent claims.
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is softer in comparison to the plastic material of the shaped strip. (App. Br.
10-12). Appellant contends that Schulte is cited for disclosing a strip for
securing a cover to a seat cushion, but does not disclose a slip preventive
coating as required by the claimed invention. Appellant contends that Esler
is cited for disclosing a foam body over a fiber core, while Maruyama is
cited for disclosing a rubber layer on an electric wire. (App. Br. 10-12).
We agree with Appellant that it would not have been obvious to a
person of ordinary skill in the art to modify Schulte based on the Esler and
Maruyama as suggested by the Examiner. (App. Br. 11). Schulte discloses
that the ribs of the shaped strip are sufficient to fasten the strip to a foam
body. Specifically, Schulte discloses the anchoring elements 14 are utilized
for adhering shaped strip in the recesses 18 of the foamed body. (Schulte,
col. 3, ll. 52-61). Schulte does not indicate that a coating or other slip
preventing material is needed to function as intended. Thus, one skilled in
the art would not have been motivated to modify the strip of Schulte.
Even if Schulte indicated that an additional anti-slip coating was
necessary, we agree with the Appellant that the foam welting cord of Esler is
not relevant to the fastener of Schulte or the claimed invention. (App. Br.
11). The foam layer on the core of Esler is formed to provide sufficient
volume or bulk to function as a welting cord. The Examiner has not
addressed how the bulk of the foam from Esler would have been suitable for
incorporation into the invention of Schulte. Furthermore, even if it were
appropriate to combine the teachings of Esler with Schulte, this combination
would not result in the claimed invention for the reasons discussed above
regarding Esler. That is, Esler does not disclose that the exterior foamed
surface, which provides anti-slip properties relative to fabric, would have
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been suitable for providing slip-preventing properties within a longitudinal
passage of a foamed cushion. Esler does not disclose the softness/hardness
of the foam surface of the welting cord. The Examiner has not explained
why this foam material is necessarily softer than the core material of Schulte
and would increase the tear resistance thereof.
We also agree with Appellant’s arguments regarding Maruyama.
(App. Br. 11-12). Maruyama relates to a trim cover having an electric
heater. The Examiner contends that Maruyama discloses holding seat covers
in seat cushions with rubber which is an anti-slip material. (Ans. 4-5).
Maruyama discloses wires 15b is covered with a rubber 15c to prevent the
wire from striking against and rubbing the heater of the seat cushion.
(Maruyama, col. 3, ll. 27-30). Thus, it appears as though the rubber of
Maruyama is sized and shaped for insulation purposes and not for anti-slip
properties as suggested by the Examiner. The Examiner has not adequately
addressed why a person of ordinary skill in the art would have been
motivated to utilize an insulating rubber material as a coating for the shaped
strip of Schulte. Furthermore, the Examiner has not adequately addressed
why the rubber component of Maruyama would necessarily have been softer
than the strip of Schulte.
As such, the Examiner’s conclusion of obviousness is not supported
by any reasonable basis in the references as to the desirability of performing
a method for producing a flexible shaped strip suitable for securing a
cushion covering to a cushion component formed of foam material as stated
in the independent claims.

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Since we reverse for the lack of the presentation of a prima facie case
of obviousness by the Examiner, we need not reach the issue of the
sufficiency of the evidence as allegedly demonstrating conception and
reduction to practice of the invention before the date of the Schulte
reference.
ORDER
The Examiner's decision rejecting claims 11-26, 28-38, and 43-45 is
reversed.
REVERSED

PL Initial:
sld

MARK S. BICKS
ROYLANCE ABRAMS BERDO & GOODMAN
SUITE 600
13OO 19TH STREET NW
WASHINGTON, DC 20036

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