Ex Parte Samuel

Patent Trial and Appeal Board

Aug 23, 2017

12785857 (P.T.A.B. Aug. 23, 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.
12/785,857 05/24/2010 Chen Samuel Chen.SelflnflatingPool 1755
23616 7590
NEWHOPE LAW, PC
CLEMENT CHENG, ESQ.
4522 Katella Avenue
#200
Los Alamitos, CA 90720
EXAMINER
CRANE, LAUREN ASHLEY
ART UNIT PAPER NUMBER
3754
MAIL DATE DELIVERY MODE
08/23/2017 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 PATENT TRIAL AND APPEAL BOARD
Ex parte CHEN SAMUEL
Appeal 2015-007610
Application 12/785,8571
Technology Center 3700
Before JENNIFER D. BAHR, STEFAN STAICOVICI, and
SEAN P. O’HANLON, Administrative Patent Judges.
STAICOVICI, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Chen Samuel (Appellant) appeal under 35 U.S.C. § 134(a) from the
Examiner’s decision rejecting claims 1—14. We have jurisdiction over this
appeal under 35 U.S.C. § 6(b).
SUMMARY OF DECISION
We AFFIRM.
1 According to Appellant, Sportspower Ltd. is the real party in interest.
Appeal Br. 1 (filed Feb. 9, 2015).
Appeal 2015-007610
Application 12/785,857
INVENTION
Appellant’s invention relates to self-inflating pools. Spec. 1,1. 8.
Claim 1, the sole independent claim, is representative of the claimed
invention and reads as follows (underlining omitted):
1. A water conservation pool comprising:
a. a water bladder having an inlet, wherein the water
bladder is hollow and flexible for filling with water, wherein
the water bladder is strong enough to support the weight of
children on top;
b. a bounce surface disposed on a top surface of the water
bladder;
c. an inflatable rim above the water bladder bounce
surface;
d. a sidewall extending from the water bladder to the
inflatable rim for retaining water in a water open area, wherein
the sidewall is collapsible when the pool is empty, wherein the
sidewall panel is a flexible sheet connecting between the
inflatable rim and the bounce surface, wherein the sidewall is
configured as a water wall for retaining a pool of water over the
water bladder, wherein the sidewall forms a vertically
extending water wall that surrounds the water bladder and
allows the pool to retain water.
REJECTIONS
The following rejections are before us for review:
I. The Examiner rejected claims 1, 2, and 5 under 35 U.S.C.
§ 103(a) as being unpatentable over Stefanini (GB 2 037 580 A,
published July 16, 1980) and Amelung (US 4,186,457, issued
Feb. 5, 1980).
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Application 12/785,857
II. The Examiner rejected claims 3, 4, 6, and 7 under 35 U.S.C.
§ 103(a) as being unpatentable over Stefanini, Amelung, and
Zheng (US 7,699,186 B2, issued Apr. 20, 2010).
III. The Examiner rejected claims 8, 9, and 12 under 35 U.S.C.
§ 103(a) as being unpatentable over Stefanini, Amelung, and
Hasselquist (US 2,714,726, issued Aug. 9, 1955).
IV. The Examiner rejected claims 10, 11, 13, and 14 under 35
U.S.C. § 103(a) as being unpatentable over Stefanini, Amelung,
Hasselquist, and Zheng.
ANALYSIS
Rejection I
Appellant has not presented arguments for the patentability of claims
2 and 5 apart from claim 1. See Appeal Br. 6—8. Therefore, in accordance
with 37 C.F.R. § 41.37(c)(l)(iv), we select claim 1 as the representative
claim to decide the appeal of the rejection of these claims, with claims 2 and
5 standing or falling with claim 1.
The Examiner finds that Stefanini discloses most of the limitations of
independent claim 1, but “fails to show the bladder being filled with water.”
Non-Final Act. 3 (mailed Sept. 25, 2014). Nonetheless, the Examiner finds
that Amelung discloses a water mattress that includes a water bladder. Id.
(citing Amelung, Fig. 9). The Examiner concludes that “[wjhether the
bladder is filled with air or water [it] still ensures a bouncy soft surface and
therefore [air and water] are functional equivalents that fails to patentably
distinguish.” Id.
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Application 12/785,857
Appellant argues that because Stefanini discloses an air filled chamber
for retaining a water pool and Amelung discloses a water bladder for
providing a dry enclosure, the combined teachings of Stefanini and Amelung
cannot disclose “a bottom water bladder with a top water pool.” Appeal Br.
7. According to Appellant, “[t]wo references that teach one water member
each, [do] not teach two water members.” Id. at 8.
We are not persuaded by Appellant’s arguments because Appellant
cannot show nonobviousness by attacking Stefanini and Amelung
individually when the rejection as articulated by the Examiner is based on a
combination of Stefanini and Amelung. See In re Merck & Co. Inc., 800
F.2d 1091, 1097 (Fed. Cir. 1986). We agree with the Examiner that, because
“Stefanini shows an inflatable pool that includes a bladder (2) and sidewalls
(7)” and “Amelung teaches a water mattress” that “includes a water
bladder,” the resulting combination “would yield a water bladder and water
pool, therefore two water members.” Ans. 6 (mailed July 14, 2015). We
further agree with the Examiner’s position that “[fjilling the bladder [of
Stefanini] with water instead of air is well within the level of one of ordinary
skill in the art because they are both fluids” and “[t]he combination yields a
device with two water members.” Id. Given that air and water are both
fluids, both are capable of providing a bouncy soft surface to Stefanini’s
pool, and as Amelung discloses that water can be used to inflate a bladder,
the Examiner has a sound basis for concluding that water would have been a
suitable substitute for the air in Stefanini’s bladder. Appellant provides no
persuasive reason why a person of ordinary skill in the art could not have
implemented such a substitution. Neither does Appellant provide any
persuasive reason why the results of the substitution would have been
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Application 12/785,857
unpredictable. Hence, the Examiner is correct in concluding that such a
substitution would have been obvious.
Appellant further argues that each of Zheng and Hasselquist also
discloses a single water member and, thus, cannot be combined with
Stefanini and Amelung to show a water pool having two water members.
See Appeal Br. 6—7.
We are not persuaded by Appellant’s argument because neither Zheng
nor Hasselquist was employed by the Examiner in rejecting independent
claim 1. See Non-Final Act. 3. Accordingly, Appellant’s arguments are not
commensurate with the Examiner’s rejection and, thus, are not persuasive.
In conclusion, for the foregoing reasons, we sustain the rejection
under 35 U.S.C. § 103(a) of independent claim 1 as unpatentable over
Stefanini and Amelung. Claims 2 and 5 fall with claim 1.
Rejections II—IV
As noted above, Appellant argues that each of Zheng and Hasselquist
also discloses a single water member and, thus, cannot be combined with
Stefanini and Amelung to show a water pool having two water members.
See Appeal Br. 6—7.
However, neither Zheng nor Hasselquist was employed by the
Examiner to show a bottom water bladder in combination with a top water
pool. As discussed supra, the combined teachings of Stefanini and Amelung
disclose a bottom water bladder with a top water pool. See Ans. 6.
Appellant is attacking the disclosures of Stefanini, Amelung, Zheng, and
Hasselquist individually rather than the Examiner’s combination of their
teachings. See Appeal Br. 7. Specifically, Zheng was used by the Examiner
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Application 12/785,857
to disclose stabilizing chambers and Hasselquist was used for its disclosure
of inflatable ribs 12. See Ans. 7.
Appellants do not provide any other additional arguments. See
Appeal Br. 9—11. Accordingly, for the reasons discussed above, we sustain
the rejections under 35 U.S.C. § 103(a) of claims 3, 4, 6, and 7 as
unpatentable over Stefanini, Amelung, and Zheng; of claims 8, 9, and 12 as
unpatentable over Stefanini, Amelung, and Hasselquist; and of claims 10,
11, 13, and 14 as unpatentable over Stefanini, Amelung, Hasselquist, and
Zheng.
SUMMARY
The Examiner’s decision to reject claims 1—14 under 35 U.S.C. § 103(a)
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)(l)(iv).
AFFIRMED
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