Ex Parte Seitz

Patent Trial and Appeal Board

Jul 11, 2013

10137680 (P.T.A.B. Jul. 11, 2013)

UNITED STATES PATENT AND TRADEMARKOFFICE
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.
10/137,680 05/02/2002 Larry Keith Seitz JR. 5234A 2907
7590 07/11/2013
Milliken & Company
P. O. Box 1927
Spartanburg, SC 29304
EXAMINER
PILLAI, NAMITHA
ART UNIT PAPER NUMBER
2172
MAIL DATE DELIVERY MODE
07/11/2013 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 LARRY KEITH SEITZ JR.
____________________

Appeal 2009-004748
Application 10/137,680
Technology Center 2100
____________________

Before ALLEN R. MacDONALD, ROBERT E. NAPPI and SCOTT R.
BOALICK, Administrative Patent Judges.

MacDONALD, Administrative Patent Judge.

DECISION ON APPEAL

Appeal 2009-004748
Application 10/137,680

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STATEMENT OF CASE
Appellant appeals under 35 U.S.C. § 134(a) from a final rejection of
claims 4, 10-27, and 37-45. We have jurisdiction under 35 U.S.C. § 6(b).
Exemplary Claims
Exemplary claims 10, 4, 37, and 16 under appeal read as follows
(emphases added):
Claim 10. A display system for simulated presentation of a plurality of
alternative arrangements of prospective actual independently displaceable
floor covering elements across a flooring support surface, the display system
comprising:
a plurality of viewable and manipulatable simulated elements,
wherein said simulated elements have a shape and size substantially
corresponding to a reduced to-scale version of the shape and size of the
prospective actual independently displaceable floor covering elements and
wherein said simulated elements further include a surface design or pattern
comprising a reduced reproduction of a surface design or pattern of at least
one prospective actual independently displaceable floor covering element,
said simulated elements being arrangeable in a manipulatable array to
simulate a first prospective, actual arrangement of the prospective actual
independently displaceable floor covering elements and such that said
manipulatable array is alterable by means of rotating at least one of the
simulated elements about the center of the simulated element 90, 180, or 270
degrees while maintaining the element placement location relative to the
other simulated elements to simulate at least a second prospective
arrangement of the prospective actual independently displaceable floor
covering elements.
Claim 4. The display system as recited in Claim 10, wherein the
arrangement of simulated elements represents at least one of a quarter turn
tile layout, an ashlar tile layout, a 180° banded tile layout, and combinations
thereof.
Claim 16. The display system according to Claim 10, wherein the
surface design or pattern of each of the simulated elements is identical.
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Claim 37. The display system as recited in claim 10, wherein at least a
portion of the simulated elements within the manipulatable array are
displayed in conjunction with a pile direction indicator independent of the
surface design or pattern.
Rejections
The Examiner rejected claims 4, 10-15, 17-23, 25-27, and 37-45 under
35 U.S.C. § 103(a) as being unpatentable over the combination of Thomas
(US 5,966,454) and Eichel (US 6,664,972 B2).1
The Examiner rejected claims 16 and 24 under 35 U.S.C. § 103(a) as
being unpatentable over the combination of Thomas, Eichel, and Pollitt (US
6,122,890). 2
Appellant’s Contentions
1. Appellant contends that the Examiner erred in rejecting claim
10 under 35 U.S.C. § 103(a) because:
Firstly, Appellants respectfully believe that there is no
motivation or rationale in Thomas et al. to combine with
Eichel et al., to learn from Eichel et al. or the like.
(App. Br. 5-6)(emphasis added).
2. Appellant further contends that the Examiner erred in rejecting
claim 10 under 35 U.S.C. § 103(a) because:
Eichel et al. does teach that the images may be rotated for better
viewing, but this rotation does not create a second prospective
actual arrangement. In Eichel et al., all that is rotated is an
image of a surface treatment, not of individual elements that
make up a surface treatment. Eichel et al. does not teach or

1 Separate patentability is not argued for claims 10-15, 17-23, 25-27, and
38-45. Except for our ultimate decision, these claims are not discussed
further herein.
2 Separate patentability is not argued for claim 24. Except for our ultimate
decision, this claim is not discussed further herein.
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disclose simulated presentation of a plurality of alternative
arrangements of prospective actual independently displaceable
floor covering elements across a flooring support surface by
rotating at least one of the simulated elements about its center
while maintaining its position relative to the other simulated
elements.
(App. Br. 6)(emphases added).
3. Appellant further contends that the Examiner erred in rejecting
claim 10 under 35 U.S.C. § 103(a) because:
The Office Action states that the process of rotating a
simulated element such as a tile by a certain degree is an
automated step of an otherwise manual process, wherein a user
viewing a real life tile would rotate the tile for better viewing.
Appellants respectfully disagree with this and similar
statements. The simulated tile elements of the present
invention are not rotated for "better viewing", but as a way to
quickly and easily view different flooring patterns made up of
floor covering elements in different configurations of rotated
tiles. In real life, creating these arrangements would involve
obtaining a large number of heavy and bulky tiles and manually
rearranging and rotating the tiles to view the different
configurations.
(App. Br. 6)(emphasis added).
4. Appellant contends that the Examiner erred in rejecting claims
37-39 under 35 U.S.C. § 103(a) because “Thomas et al. does not teach a pile
direction indicator . . . .” (App. Br. 7).
5. Appellant contends that the Examiner erred in rejecting claim 4
under 35 U.S.C. § 103(a) because the references taken alone or together do
not teach or disclose rotating the tiles to create a quarter turn tile layout, an
ashlar tile layout, a 180° tile layout, or a 180° banded tile layout. (App. Br.
7). Further, “[i]t is difficult for carpet tile customers or prospective
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customers to physically manipulate full size, actual tiles to visualize
prospective installations or arrangements.” (App. Br. 7).
6. Appellant contends that the Examiner erred in rejecting claim
16 under 35 U.S.C. § 103(a) because “Thomas et al. teaches away from
using the identical simulated tiles of the present invention.” (App. Br. 8).
Further, “Appellants respectfully believe Pollitt to be non-analogous [sic] art
to Thomas and the presently claimed invention.” (App. Br. 8).

Issue on Appeal
Did the Examiner err in rejecting claims 4, 10-27, and 37-45 as being
obvious?
ANALYSIS
We have reviewed the Examiner’s rejections in light of Appellant’s
arguments that the Examiner has erred.
As to Appellant’s above contention 4, we agree. The Examiner points
to Eichel Figure 13B as showing “a pile direction indicator.” (Ans. 15). We
disagree as Figure 13B is directed to upholstery rather than floor covering
elements as claimed.
As to Appellant’s other contentions, we disagree with Appellant’s
conclusions. We adopt as our own (1) the findings and reasons set forth by
the Examiner in the action from which this appeal is taken and (2) the
reasons set forth by the Examiner in the Examiner’s Answer in response to
Appellant’s Appeal Brief. We concur with the conclusions reached by the
Examiner. We highlight the following for emphasis.
As to Appellant’s above contention 1, we disagree. Appellant’s
statement that “there is no motivation or rationale in Thomas et al. to
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combine with Eichel et al., to learn from Eichel et al. or the like” is without
merit as the Examiner did not rely on Thomas to provide this
motivation/rationale. Rather, the Examiner’s articulated reasoning pointed
to Eichel and well known manual process in the art. (Final Rej. 4).
As to Appellant’s above contention 2, we disagree. Appellant’s
statement that Eichel “does teach that the images may be rotated for better
viewing, but this rotation does not create a second prospective actual
arrangement” is without merit as the Examiner did not rely on Eichel to
provide this teaching. Rather, the Examiner’s articulated reasoning pointed
to Thomas. (Final Rej. 3).
As to Appellant’s above contention 3, we disagree. Contrary to
Appellant’s argument, rotating “as a way to quickly and easily view
different flooring patterns made up of floor covering elements in different
configurations of rotated tiles” is an example of rotating the simulated tile
elements of the present invention for “better viewing.”
As to Appellant’s above contention 5, we agree with the Examiner’s
reasoning. (Ans. 16). Further, we do not find it relevant that there is a level
of difficulty for “customers to physically manipulate full size, actual tiles to
visualize prospective installations or arrangements.”
As to Appellant’s above contention 6, we disagree. Further, we find
no “teach[ing] away” in Thomas as it does not criticize, discredit, or
otherwise discourage using identical tiles as argued. See In re Fulton, 391
F.3d 1195, 1201 (Fed. Cir. 2004) (“The prior art’s mere disclosure of more
than one alternative does not constitute a teaching away from any of these
alternatives because such disclosure does not criticize, discredit, or
otherwise discourage the solution claimed in the … application.”); see also
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In re Gurley, 27 F.3d 551, 552-53 (Fed. Cir. 1994) (“[A] reference will teach
away if it suggests that the line of development flowing from the reference's
disclosure is unlikely to be productive of the result sought by the
applicant.”). Finally, contrary to Appellant’s argument, we find Pollitt to be
the epitome of analogous art as it is a real world embodiment of the item
being simulated in Thomas and Eichel. “A reference is reasonably pertinent
if, even though it may be in a different field from that of the inventor’s
endeavor, it is one which, because of the matter with which it deals,
logically would have commended itself to an inventor’s attention in
considering his problem.” In re Clay, 966 F.2d 656, 659, (Fed. Cir. 1992).

CONCLUSIONS
(1) The Examiner has not erred in rejecting claims 4, 10-27, and
40-45 as being unpatentable under 35 U.S.C. § 103(a).
(2) Appellant has shown that the Examiner erred in rejecting claims
37-39 as being unpatentable under 35 U.S.C. § 103(a).
(3) Claims 4, 10-27, and 40-45 are not patentable.

DECISION
The Examiner’s rejections of claims 4, 10-27, and 40-45 are affirmed.
The Examiner’s rejection of claims 37-39 is reversed.

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Application 10/137,680

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No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a)(1)(iv).

AFFIRMED-IN-PART

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