2020004051 (P.T.A.B. Jun. 11, 2021)

FOSBROOKE, INC.

Patent Trials and Appeals BoardJun 11, 2021

2020004051 (P.T.A.B. Jun. 11, 2021)

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. 15/891,887 02/08/2018 DANNY HONIG 035503.00113 1081 4372 7590 06/11/2021 ARENT FOX LLP 1717 K STREET, NW WASHINGTON, DC 20006-5344 EXAMINER MATZEK, MATTHEW D ART UNIT PAPER NUMBER 1786 NOTIFICATION DATE DELIVERY MODE 06/11/2021 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): patentdocket@arentfox.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte DANNY HONIG, JOHN THOMAS MARINO, TYLER MARINO, and CHRISTOPHER ROBERT LEE Appeal 2020-004051 Application 15/891,887 Technology Center 1700 Before TERRY J. OWENS, MICHAEL P. COLAIANNI, and LILAN REN, Administrative Patent Judges. OWENS, Administrative Patent Judge. DECISION ON APPEAL STATEMENT OF THE CASE Pursuant to 35 U.S.C. § 134(a), the Appellant1 appeals from the Examiner’s decision to reject claims 1–22. We have jurisdiction under 35 U.S.C. § 6(b). We AFFIRM. 1 “Appellant” refers to “applicant” as defined in 37 C.F.R. § 1.42. The Appellant identifies the real party in interest as Tuft & Needle, LLC (Appeal Br. 1). Appeal 2020-004051 Application 15/891,887 2 CLAIMED SUBJECT MATTER The claims are directed to a flame retardant cover. Claim 1, reproduced below, is illustrative of the claimed subject matter: 1. A flame retardant cover, comprising: a fabric comprising a network of yarns comprising a plurality of interlocked fibers; wherein at least a portion of the fibers, yarns or fabric is treated with a blend comprising one or more flame retardant compounds such that the one or more flame retardant compounds provide an increase in weight of the fabric of about 8% to about 12%; the fibers comprise one or more cellulosic fibers and optionally one or more thermoplastic fibers; the fabric is substantially free of a flame barrier element; and the flame retardant cover is adapted for at least partially enclosing a core mass of stuffing material. REFERENCES The prior art relied upon by the Examiner is: Name Reference Date Ahluwalia ’460 US 2003/0228460 A1 Dec. 11, 2003 Ahluwalia ’152 US 2005/0215152 A1 Sept. 29, 2005 Mio US 2007/0190877 A1 Aug. 16, 2007 REJECTION Claim(s) Rejected 35 U.S.C. § Reference(s)/Basis 1–22 103 Ahluwalia ’152, Ahluwalia ’460, Mio OPINION The Appellant states that the claims stand or fall together (Appeal Br. 2). We therefore limit our discussion to one claim, i.e., claim 1. (See 37 C.F.R. § 41.37(c)(1)(iv) (2013). Appeal 2020-004051 Application 15/891,887 3 Ahluwalia ’152 discloses a mattress covered with a fire resistant fabric material comprising a cellulosic material-containing substrate coated with a coating made from a material consisting essentially of water, ammonium polyphosphate, and a binder material (¶¶ 19–23, 26, 36). Mio discloses a flame retardant fabric comprising at least two fibers selected from a halogen-containing fiber, a cellulosic fiber, a flame-retardant cellulosic fiber, and a polyester fiber, and having a flame retardant content of 2 wt% or more (¶¶ 14, 17). An exemplified flame retardant fabric comprises a fabric having a 35/65 weight ratio of silicic acid-containing rayon fiber to cotton fiber and contains 10.5 wt% flame retardant (which increases the weight of the untreated fabric by about 12%) (¶ 75, Example 8).2 The Appellant argues that one of ordinary skill in the art would not have combined Ahluwalia ’152 and Mio because Mio strongly prefers to react antimony-containing flame retardant with halogen-containing modacrylic fibers to generate an oxygen-deficient gas when burned that helps self-extinguish a flame, and Ahluwalia ’152’s fabric does not have halogen-containing fibers (Appeal Br. 5; Reply Br. 6–7). References are not limited to their preferred embodiments. See In re Kohler, 475 F.2d 651, 653 (CCPA 1973); In re Mills, 470 F.2d 649, 651 (CCPA 1972); In re Bozek, 416 F.2d 1385, 1390 (CCPA 1969). Instead, all disclosures in a reference must be evaluated for what they would have fairly suggested to one of ordinary skill in the art. See In re Boe, 355 F.2d 961, 965 (CCPA 1966). Mio’s Example 8 would have suggested, to one of ordinary 2 A discussion of Ahluwalia ’460 is not necessary to our decision. Appeal 2020-004051 Application 15/891,887 4 skill in the art, adding an amount of flame retardant to Ahluwalia ’152’s fabric to increase its weight by about 12%. The Appellant’s claimed flame retardant cover, therefore, would have been prima facie obvious to one of ordinary skill in the art over the applied references. The Appellant argues, in reliance upon the Declaration of Danny Honig, that the Appellant’s flame retardant cover has an unexpected combination of acceptable flame retardant properties and acceptable utility (Appeal Br. 5). We have begun anew and determined that for the following reasons the totality of the evidence supports a conclusion of obviousness of the Appellant’s claimed flame retardant cover. See In re Rinehart, 531 F.2d 1048, 1052 (CCPA 1976). Honig provides evidence of a fabric having acceptable flame retardation and acceptable utility when an amount of flame retardant is added to fabric that increases its weight by 8 to 12%, and states that this combination of acceptable properties is surprising (Decl. ¶¶ 6, 11, 12). Evidence of unexpected results must not merely show an unrecognized property but, rather, must show an unexpected difference in a property between the claimed invention and the prior art. See In re Freeman, 474 F.2d 1318, 1324 (CCPA 1973). The Appellant has not provided a side- by-side comparison, commensurate in scope with the claims, of the claimed invention with the closest prior art (Mio’s Example 8) and explained why the results would have been unexpected by one of ordinary skill in the art. See In re Baxter Travenol Labs., 952 F.2d 388, 392 (Fed. Cir. 1991); In re De Blauwe, 736 F.2d 699, 705 (Fed. Cir. 1984); In re Grasselli, 713 F.2d 731, 743 (Fed. Cir. 1983); In re Clemens, 622 F.2d 1029, 1035 (CCPA Appeal 2020-004051 Application 15/891,887 5 1980); Freeman, 474 F.2d at 1324; In re Klosak, 455 F.2d 1077, 1080 (CCPA 1972). Accordingly, based upon the totality of the evidence, we conclude that the Appellant’s claimed flame retardant cover would have been obvious to one of ordinary skill in the art over the applied references. CONCLUSION The Examiner’s decision to reject claims 1–22 is affirmed. DECISION SUMMARY Claim(s) Rejected 35 U.S.C. § Reference(s)/Basis Affirmed Reversed 1–22 103 Ahluwalia ’152, Ahluwalia ’460, Mio 1–22 RESPONSE No time period for taking any subsequent action in connection with this appeal may be extended under 37 C.F.R. § 1.136(a). See 37 C.F.R. § 1.136(a)(1)(iv). AFFIRMED