Ex Parte Thrush

Board of Patent Appeals and Interferences

May 19, 2011

11105182 (B.P.A.I. May. 19, 2011)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
____________

Ex parte BRUCE A. THRUSH
____________

Appeal 2009-012713
Application 11/105,182
Technology Center 1700
____________

Before BRADLEY R. GARRIS, CHUNG K. PAK, and PETER F. KRATZ,
Administrative Patent Judges.

KRATZ, Administrative Patent Judge.

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

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Appellant’s claimed invention is directed to a floor matting product
having an interlocking peripheral wall that is useful for a playroom, athletic,
or other environments where cushioning is desired (Spec. 1). As Appellant
explains, resilient floor matting made from a variety of materials, even the
more recently used polymeric foams, has been used for a long time to absorb
“the pounding forces of the feet”; that is, provide cushioning for people
engaged in a number of activities. Id. Prior art colored matting shaped in
the form of interlocking tiles, some with sides of different texture, have been
employed (Spec. 1-2). According to Appellant, prior art tile mattings are
either of one color and/or have one side textured, such as the top surface
(Spec. 2). In this regard, Appellant reports that prior art mattings were
attempted to be made with differently colored sides without success (Spec.
2). Appellant notes that delamination of matting made of two or more layers
has been a problem in the prior art (Spec. 2). Moreover, Appellant notes that
matting can occupy a significant amount of retail space, particularly when a
number of textures or colors are being offered for sale (Spec. 3).
Appellant observes that the number of varieties of matting carried for
sale could be cut in half by having both surfaces of the matting textured
differently and/or colored differently (Spec. 3).
According to Appellant, their floor matting provides for a body
having first and second layers with each layer having outer surfaces of
different surface texture or design, and/or having outer surfaces of different
colors, the body being bounded by an interlocking peripheral wall (Spec. 3,
ll. 15-21). The boundary between the first and second layers of the mat
body can have an undulating shape to allegedly help eliminate delamination
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between the layers (Spec. 4, ll. 6-18). For example, the two layers can be
bound together by adhesive or heat welding (Spec. 5, ll. 18-19).
Appellant discloses that each layer could be made of multiple layers
(sub layers), such as from three sheets, each made from a combination of
virgin and recycle polymers (Spec. 7, ll. 5-19). Moreover, Appellant reports
that “[t]he two mat layers have slightly different compositions because their
respective sheets are made from different raw compositions (the differences
can be slight) at different times” (Spec. 7, ll. 20-22).
Claims 1, 7, and 12 are illustrative and reproduced below:
1. An improved floor matting having a body with an interlocking
peripheral wall, the improvement comprising the body having first and
second layers of a first composition, bound together such that the first
and second layers are juxtaposed at an undulating interlayer boundary;
and the first layer having at least one of a different surface texture and a
different color from the second layer.

7. A floor matting comprising a planar body of generally uniform
thickness having first and second layers of different colors and different
textures bound together to form an at least slightly non-planar boundary,
and the body bounded by an interlocking peripheral wall.

12. A floor matting comprising a planar body of generally
uniform thickness having first and second layers of different colors, each
with a textured surface and joined at an undulating inner boundary; and
the body bounded by an interlocking peripheral wall.

The Examiner relies on the following prior art references as evidence in
rejecting the appealed claims:
Eiden 4,336,293 Jun. 22, 1982
D’Luzansky 5,052,158 Oct. 1, 1991
Glydon 5,212,842 May 25, 1993
Field 5,358,776 Oct. 25, 1994
Gipple 6,333,766 B1 Dec. 25, 2001
Chang 6,588,167 B2 Jul. 8, 2003

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Grove US 2003/0191227 A1 Oct. 9, 2003
McMahan US 2004/0237194 A1 Dec. 2, 2004

The Examiner maintains the following three grounds of rejection:
Rejection I
Claims 1-6, 12, 14, and 15 stand rejected under 35 U.S.C. § 103(a) as
being unpatentable over Chang in view of Glydon and any of Eiden, Gipple,
or Grove.
Rejection II
Claims 1-16 stand rejected under 35 U.S.C. § 103(a) as being
unpatentable over D’Luzansky in view of either Field or McMahon and any
of Eiden, Gipple, or Grove.
Rejection III
Claims 1-16 stand rejected under 35 U.S.C. § 103(a) as being
unpatentable over Glydon in view of McMahon and any of Eiden, Gipple, or
Grove.
We affirm the stated rejections for reasons set forth by the Examiner
as further explained below.

Rejection I
Appellant argues claims 1 through 6 together as a group, and they
argue claims 12, 14, and 15 as a group.1 We select claims 1 and 12 as
representative of the respective claim groupings.

1Appellant asserts that claims 2-5 and claims14 and 15 were not addressed
by the Examiner (App. Br. 8). However, the Examiner specifically
addresses these dependent claims (Ans. 9 and 10). Appellant furnishes no
separate argument with respect to dependent claims 2-5, 14, and 15 in the
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Chang discloses a generally planar reversible dual color modular
pad/mat of generally uniform thickness that displays different colors on
opposite sides thereof (col. 2, ll. 60-66; Figs. 1-4). Chang discloses that this
reversible feature allows for a reduction of the amount of finished pads that
need to be carried in stock and a reduction in the volume of warehouse space
needed for the pads/mats (col. 1, ll. 40-43). The body of the mat/pad of
Chang includes interlocking peripheral walls having dovetails and grooves
arranged for engaging other mats (col. 2, l. 20-col. 3, l. 10; Figs 1-4).
Representative claim 1 requires an interlocking mat having two or
more layers of a first composition and having different coloring and/or
texture employed for forming the body of the interlocking mat and
representative claim 12 requires an interlocking mat comprising two layers
with each layer having a textured surface and different coloring. Each of
claims 1 and 12 further requires an undulating boundary between two layers.
The Examiner has reasonably found that Chang teaches or suggests a
mat having a body with an interlocking peripheral wall, with opposite side
surfaces having different colors, and with the surfaces having at least some
texture (Ans. 4).
The Examiner acknowledges that Chang does not specifically describe
forming their pad/mat using two or more layers with an undulating boundary
between the layers, as required by the representative claims 1 and 12 (Ans.
4).
The Examiner turns to Glydon for teaching the use of more than one
layer in forming an interlocking floor mat/ pad and to each of Gipple, Eiden,

Reply Brief. Accordingly, claims 2-5, 14, and 15 stand together with the
independent claims from which they depend.
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and Grove for teaching/suggesting the use of a wavy/undulating interface
between adjacent layers of a mat.
Glydon teaches or suggests interlocking foam pads can be made using
multiple layers of the same or different composition, wherein an
intermediate layer/sub layer portion (16) of the multi-layer pad has a lower
density than top and bottom layers 14 and 18, rather than employing a single
layer of foam (col. 1, l. 61–col. 2, l.16, col. 3, ll. 55-64: Figs. 1 and 3).
Glydon teaches that the disclosed pad layer arrangement provides for easier
assembly of the interlocking mat pads having such a layered structure, while
providing the same or a better locking mechanism than would be achieved
using prior art non-layered pads for forming the interlocked mat (col. 1, ll.
19-27 and col. 3, ll. 12-16). This easier assembly is particularly
advantageous for children according to Glydon (col. 1, ll. 52-54).
Given the above, we concur with the Examiner’s conclusion that one
of ordinary skill in the art at the time of the invention would have been led to
form the dual color modular pads of Chang using the layered structure
taught by Glydon (Ans. 4). This is because one of ordinary skill in the art
would have desired forming interlocking pads that are easy to assemble as
taught by Glydon while also providing for the differently colored pad sides
as taught by Chang.
PRINCIPAL ARGUMENTS/ISSUES RAISED
Appellant argues that (1) the Examiner’s proposed combination of
Chang and Glydon would not result in a two layer structure having layers of
a first composition juxtaposed, as claimed, and (2) the Examiner’s proposed
use of an undulating interface between the layers of the pad would not have
been suggested by the additional teachings of any of Gipple, Eiden, and
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Grove because the latter references join layers of different compositions and
are directed to layers that are not bounded by peripheral walls (App. Br. 7-8;
Reply Br. 3-4).2
Regarding the first argument and as we pointed out above, Glydon
teaches that the composition of each layer in its multilayer pad structure can
have the same composition, albeit the inner portion of the pad (core foam)
has a lower density (col. 1, l. 61-col. 2, l. 17). In this regard, representative
appealed claim 1, as well as claim 12, does not limit the matting body to
layers of a single density or restrict the total number of layers or sub layers
that form each layer. Indeed, claim 12 does not require that each layer has a
first composition. Moreover, when the “first composition” language of
claim 1 is read together with the allowance for a different color for the first
and second layers and further in light of the Specification, it is clear that
some variation in composition is permissible by the recited “first
composition” language of claim 1, when given its broadest reasonable
construction as it would have been understood by one of ordinary skill in the
art when read in light of the Specification (see Spec. 7, ll. 20-22).
Thus, the core foam and top foam of Glydon are considered to
correspond to the claimed first layer of a first composition and the bottom
layer of Glydon can be considered to correspond to a second layer of a first

2 We note that the Reply Brief presents Declaration evidence and argument
pertaining thereto. In the Appeal Brief, Appellant states that “[n]o evidence
was submitted pursuant to§§ 1.130, 1.131, or 1.132” (Evidence Appx.).
Declaration evidence intended to be relied upon, on appeal, is required to be
submitted with the Appeal Brief. 37 CFR § 41.37(c)(ix). Hence, we decline
to consider the belatedly presented evidence and argument pertaining thereto
forwarded with the Reply Brief with respect to any of the Examiner’s
rejections.
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composition juxtaposed with the first layer.3 Consequently, we are not
persuaded by the argued distinction respecting the juxtaposed (close by) first
and second layers of a first composition, as argued for representative claim
1, over the combined teachings of the applied references. After all,
Appellant discloses that an adhesive layer could form the boundary (Spec. 5,
ll. 18-19).
Concerning the required undulating interlayer or inner boundary as
required by representative claims 1 and 12, respectively, the Examiner turns
to any of Gipple, Grove, or Eiden to show layers laminated or adhered
together at non-planar or undulated boundaries (Ans. 4). We observe, for
example, that Gipple teaches or suggests using an undulated boundary at a
laminate interface to increase fracture toughness and to increase
delamination resistance (abst., col. 2, ll. 3-39).
While Gipple, as well as each of Grove and Eiden, may be directed to
laminating or joining layers having different compositions as argued,
Appellant has not substantiated why it would not have been reasonable for
one of ordinary skill in the art to expect increased delamination resistance
when using an undulated boundary for joining the layers, as taught by
Gipple, whether the layers are of the same composition (claim 1) or can be
of the same or different compositions as required by claim 12. Indeed, one
of ordinary skill in the art fabricating the mat pads of Chang using multiple
layers as taught by Glydon would have readily recognized the need for
delamination resistance given the pounding that exercise floor mats would

3 This broadest reasonable interpretation of Appellant’s claims, including the
recited layers, is consistent with the subject Specification, wherein Appellant
discloses using about six sheets for forming the mat, normally three sheets
for each layer; that is each layer can comprise sub layers (Spec. 7, ll. 11-22).
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be subjected to, and, in so doing, would have been led to employ the
delamination resistance techniques of Gipple, as a known option for
prolonging the delamination resistance and structural integrity of the mats.
Consequently, one of ordinary skill in the art would have had ample reason
to employ such a known option for laminated layer boundaries of the multi-
layer floor mats suggested by Glydon.
On this record, Appellant’s non-substantiated argument concerning
the limited applicability of the teachings of Gipple and the other
alternatively applied tertiary references with respect to an undulated
lamination boundary is not persuasive of error in the Examiner’s
obviousness assessment.
It follows that, on this record, we shall sustain the Examiner’s
obviousness rejection over Chang in view of Glydon and any of Eiden,
Gipple, or Grove.
Rejection III
Next, we consider the third stated obviousness rejection. In this
rejection, the Examiner rejects claims 1-16 relying on Glydon, as discussed
above, but in combination with McMahon, and any of Eiden, Gipple, or
Grove. The latter three references are generally employed as they were in
the first rejection; that is, for teaching or suggesting an undulating boundary
between layers.
As explained above, Glydon teaches or suggests interlocking foam
pads/mats made using multiple layers of the same or different composition,
wherein an intermediate layer/sub layer portion (16) of the multi-layer pad
has a lower density than top and bottom layers 14 and 18 (col. 1, l. 61–col. 2,
l.16, col. 3, ll. 55-64: Figs. 1 and 3).
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The Examiner acknowledges that Glydon does not teach that the mat
layers have different colors at opposed sides of the mat per independent
claims 1, 7, and 12, that the mat has textures on each side per claims 7 and
12, and that the mat has an undulating boundary between layers (claims 1
and 12) or a non-planar boundary between layers (claim 7) (Ans. 7).4
The Examiner turns to McMahon for teaching and/or suggesting the
use of different colors and for further suggesting differing textures on
opposite sides of a mat (Ans. 7-8). In this regard, McMahon teaches that
one or both mat surfaces may have anti-skid or anti-slide properties, such as
provided via a textured surface (paras. 0017 and 0018). Furthermore,
McMahon teaches that the mat surfaces can display different colors. Id.
As discussed above with the first rejection, the Examiner similarly
relies on any of Eiden, Gipple, or Grove for suggesting the use of an
undulating and/or non-planar boundary between the layers of Glydon to
increase delamination resistance (Ans. 8).
Appellant argues that McMahon is not drawn to an interlocking floor
mat (App. Br. 10). However, Appellant has not persuasively explained why
the use of different textured surfaces and colors for opposite sides of a mat,
as taught by McMahon would not have been recognized as being available
and readily applicable options for an interlocking floor mat by one of
ordinary skill in the art, such as for the mat taught by Glydon.
After all, the benefits of obtaining the functional and decorative
advantages associated with such coloring and texturing options would be

4 Appellant does not argue the dependent claims separately. Accordingly,
we select claims 1, 7, and 12 as representative claims and consider claims 1,
7, and 12 separately only to the extent they are separately argued.
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intuitive and reasonably expected to remain when employed with modular
mats. As stated in KSR Int’l Co., v. Teleflex, Inc., 550 U.S. 398, 418 (2007):
“[A]nalysis [of whether the subject matter of a claim
would have been prima facie obvious] 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 also instructs “that when a patent claims a structure already
known in the prior art that is altered by mere substitution of one element for
another known in the field, the combination must do more than yield a
predictable result.” KSR, 550 U.S. at 417.
While exercising any of the options to color or texture mat sides
differently would undoubtedly have some drawbacks, including the need to
correctly arrange for a given top/bottom orientation for each modular mat
pad of an interlocked mat for the purpose of obtaining a uniform color and
texture on a given side, the tradeoffs respecting the selection of these
features for a modular mat would have been apparent to an ordinarily skilled
artisan selecting from the known available choices. In this regard, the
relevant artisan has ordinary skill, not the lack of any. See In re Sovish, 769
F.2d 738, 742 (Fed. Cir. 1985).
As for the non-planar boundary (claim 7) and undulating boundary
features, the tertiary references, as exemplified by Gipple, teach such a
construction feature to enhance delamination resistance. Consequently and
for reasons discussed above with respect to the Examiner’s first rejection
and for reasons set forth in the Answer, Appellants’ argument urging non-
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obviousness based on this limitation is not persuasive (App. Br. 10; Reply
Br. 5).
It follows that, on this record, we shall sustain the Examiner’s
obviousness rejection of claims 1-16 over Glydon in combination with
McMahon, and any of Eiden, Gipple, or Grove.

Rejection II
Here, the Examiner rejects claims 1-16 relying on D’Luzansky in
view of either Field or McMahon and any of Eiden, Gipple, or Grove. The
latter three references are generally employed as they were in the first and
third rejections; that is, for teaching or suggesting an undulating boundary
between layers; albeit the Examiner additionally relies on Eiden for teaching
a textured/nonslip surface. McMahon was discussed above regarding the
Examiner’s third stated rejection.
The Examiner has found, inter alia, that D’Luzansky teaches or
suggests an interlocking cushioned modular exercise floor mat, wherein the
mat can comprise a layered structure and has differently colored floor mat
sides that are textured (Ans. 5-6; D’Luzansky, col. 7, ll. 18-35, Figs. 1 and
8). D’Luzansky further teaches or suggests, as an alternative, that two layers
(110 and 102) of polyethylene foam of the same density can be bound
together using a scrim material (col. 7, ll. 36-54; Fig. 9).
The Examiner acknowledges that D’Luzansky does not explicitly
teach that the mat has an undulating boundary between layers (claims 1 and
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12) or a non-planar boundary between layers (claim 7), and that the mat has
a different texture on each side per claim 7 (Ans. 6).5
The Examiner turns to McMahon for teaching and/or suggesting
differing textures on opposite sides of a mat and for further suggesting the
use of different colors (Ans. 6).6 In this regard, McMahon teaches that one
or both mat surfaces may have anti-skid or anti-slide properties, such as
provided via a textured surface (paras. 0017 and 0018). Furthermore,
McMahon teaches that the mat surfaces can display different colors. Id.
Appellant’s contention that McMahon is not directed to a modular floor mat
is off the mark in that the readily apparent benefits from texturing mat sides
differently (different design choices and/or slip potential) are self-evident
and are not predicated on the application thereof to a unitary versus modular
mat structure. Moreover, Appellant asserts that there is a downside to using
different textures on different sides of a modular mat (App. Br. 9-10).
However, this argument is not persuasive of reversible error in the
Examiner’s obviousness rejection for substantially the same reasons set forth
above with respect to the Examiner’s third ground of rejection.
As discussed above with the first and third rejections, the Examiner
similarly relies on any of Eiden, Gipple, or Grove for suggesting the use of
an undulating and/or non-planar boundary between the layers of D’Luzansky
to increase delamination resistance (Ans. 6-7).

5 Appellant argues claims 1-6 and 12-16 as a group and claims 7-11 as
another group (App. Br. 9). Appellant does not argue the dependent claims
separately. Accordingly, we select claims 12 and 7 as the representative
claims and consider claims 7 and 12 separately to the extent that separate
arguments have been furnished in the Appeal Brief with respect to these
independent claims as regard this ground of rejection.
6 We need not reach the additional teachings of Field.
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Appellant’s arguments concerning the use of an undulating (claim 12)
or non-planar boundary (claim 7) between layers of D’Luzansky are not
persuasive in light of the additional teachings of Gipple for substantially the
same reasons as those set forth above with respect to the other obviousness
rejections, and for the reasons set forth by the Examiner in the Answer. In
this regard, we again note that Appellant argues claims 1-6 and 12-16
together with respect to this claim feature and as to this ground of rejection
(App. Br. 9, ll. 1-13). Simply put, Gipple teaches such a multi-layer
construction feature enhances delamination resistance and one of ordinary
skill in the art would have reasonably expected similar benefits from
employing such a boundary between layers of the mat of D’Luzansky.
Appellant has not established otherwise, on this record.

CONCLUSION/ORDER
The Examiner’s decision to reject claims 1-6, 12, 14, and 15 under 35
U.S.C. § 103(a) as being unpatentable over Chang in view of Glydon and
any of Eiden, Gipple, or Grove; to reject claims1-16 under 35 U.S.C. §
103(a) as being unpatentable over D’Luzansky in view of either Field or
McMahon and any of Eiden, Gipple, or Grove; and to reject claims 1-16
under 35 U.S.C. § 103(a) as being unpatentable over Glydon in view of
McMahon and any of Eiden, Gipple, or Grove 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).

AFFIRMED

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