Howard Velasco

Patent Trials and Appeals Board

Oct 29, 2019

14677549 - (D) (P.T.A.B. Oct. 29, 2019)

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.
14/677,549 04/02/2015 Howard Velasco 6541-0013-1 2422
35301 7590 10/29/2019
MCCORMICK, PAULDING & HUBER LLP
CITY PLACE II
185 ASYLUM STREET
HARTFORD, CT 06103
EXAMINER
VERAA, CHRISTOPHER
ART UNIT PAPER NUMBER
3636
NOTIFICATION DATE DELIVERY MODE
10/29/2019 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@ip-lawyers.com
PTOL-90A (Rev. 04/07)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________

Ex parte HOWARD VELASCO

Appeal 2019-002390
Application 14/677,549
Technology Center 3600
____________

Before PHILIP J. HOFFMANN, KENNETH G. SCHOPFER, and
TARA L. HUTCHINGS, Administrative Patent Judges.

SCHOPFER, Administrative Patent Judge.

DECISION ON APPEAL
Pursuant to 35 U.S.C. § 134(a), Appellant1 appeals from the
Examiner’s decision to reject claims 1, 2, 4–12, and 14–23.2 We have
jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM.

1 We use the word “Appellant” to refer to “applicant” as defined in 37
C.F.R. § 1.42. Appellant identifies the real party in interest as Franklin
Products, Inc. Appeal Br. 2.
2 The rejections of claim 13 have been withdrawn. Ans. 3.
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BACKGROUND
The Specification discloses that “[t]he invention relates to upholstered
furniture[, and p]articular embodiments of the invention relate to means for
attaching upholstery covers to furniture frames.” Spec. ¶ 2.

CLAIMS
Claims 1, 6, 14, and 18 are the independent claims on appeal. Claim 1
is illustrative of the appealed claims, and recites:
1. An upholstery cover adapted for attachment to a frame,
said frame including a mating feature for receiving the
upholstery cover, said upholstery cover comprising:
a pad;
a facing laminated to one side of the pad;
a backing scrim laminated to the other side of the pad
opposite the facing; and
an edge attachment article secured to a perimeter of at least
one of the pad, the facing, or the backing scrim, wherein the edge
attachment article comprises a ribbon of spring material, which
is formed to define a securement portion that is secured along the
perimeter of the upholstery cover, and to define a catch portion
that is not secured to the upholstery cover and protrudes
contiguous from the securement portion partway across the
upholstery cover; said catch portion being adapted for
engagement with the mating feature of the frame to which the
upholstery cover is to be attached via the edge attachment article
and wherein said securement portion is formed as loops
projecting from the catch portion.
Appeal Br. 23.
REJECTIONS
1. The Examiner rejects claim 7 under 35 U.S.C. § 112(a) as failing to
comply with the written description requirement.
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2. The Examiner rejects claim 7 under 35 U.S.C. § 112(b) as indefinite.
3. The Examiner rejects claims 1, 2, 6, 7, 11, 14, 15, 18, and 21–23 under
35 U.S.C. § 103 as unpatentable over Neely3 in view of Waldrop.4
4. The Examiner rejects claims 4 and 5 under 35 U.S.C. § 103 as
unpatentable over Neely in view of Waldrop and Padden.5
5. The Examiner rejects claims 8, 17, and 20 under 35 U.S.C. § 103 as
unpatentable over Neely in view of Waldrop and Zuzga.6
6. The Examiner rejects claims 9 and 19 under 35 U.S.C. § 103 as
unpatentable over Neely in view of Waldrop and York.7
7. The Examiner rejects claims 10, 12, and 16 under 35 U.S.C. § 103 as
unpatentable over Neely in view of Waldrop and Deley.8
DISCUSSION
Written Description
The Examiner finds that written description support is lacking for
claim 7 because:
In claim 7, the claim recites tabs formed on catch portion,
while amended claim 1 recites loops formed on the securement
portion. Loops are understood to pertain to embodiments where
the edge attachment article is made from wire, while tabs are
understood to be formed in plastic. The subject matter of claim 7
is thus mixing features of these different embodiments,
combining loops on one side and tabs on the other, which is not
supported by the written description.

3 Neely et al., US 2,876,826, iss. Mar. 10, 1959.
4 Waldrop et al., US 6,632,756 B1, iss. Oct. 14, 2003.
5 Padden, US 7,395,997 B2, iss. July 8, 2008.
6 Zuzga et al., US 2007/0040421 A1, pub. Feb. 22, 2007.
7 York et al., US 2007/0200417 A1, pub. Aug. 30, 2007.
8 Deley et al., US 4,872,724, iss. Oct. 10, 1989.
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Final Act. 2–3. The Examiner further explains:
Loops are only described for embodiments where the edge
attachment article is formed from loops of wire. The
specification provides no explicit description of a catch portion
formed as tabs, except by a tangential interpretation of paragraph
0019, which is assumed to refer to an embodiment with plastic
tabs illustrated by three of the alternatives in figure 4. In view of
the specification, the meaning of “tabs” formed on the edge
attachment article is best understood to refer to an alternative to
“loops”.
Ans. 3–4.
Appellant argues that a tab is not limited to any particular material
either by its standard definition or by any disclosure provided in the
Specification. Appeal Br. 12. Further, Appellant asserts that one of
ordinary skill in the art would recognize that embodiments depicted in
Figure 4 include tabs that “comport with the standard understanding of the
term ‘tab’ as used in pending claim 7.” Id.
“Adequate written description means that the applicant, in the
specification, must ‘convey with reasonable clarity to those skilled in the art
that, as of the filing date sought, he or she was in possession of the [claimed]
invention.’” Agilent Techs., Inc. v. Affymetrix, Inc., 567 F.3d 1366, 1379
(Fed. Cir. 2009) (citation omitted) (brackets in original), reh’g en banc
denied Sep. 18, 2009. We agree with Appellant that the Specification here
provides adequate support for the limitation of claim 7. Specifically,
Figure 4 shows a variety of shapes that the edge attachment article may take.
See Spec. 19. Contrary to the Examiner’s indication, we see no disclosure in
the Specification that limits any particular shape depicted in this Figure to
any particular material. We also see no indication in this Figure, the
Specification, or the claim that indicates that claim 7 is mixing different
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embodiments such that the claim requires something that is not reasonably
disclosed in the Specification. Rather, we find that Figure 4 conveys with
reasonable clarity that any of the depicted configurations may be described
as including tabs under the ordinary meaning of that term, as argued by
Appellant. See Appeal Br. 12. Thus, we are persuaded of error and we do
not sustain the rejection of claim 7 here.
Indefiniteness
The Examiner finds that claim 7 is indefinite because “the recitation
of tabs conflicts with the amended limitations of claim 1 which recites that
the securement portion is formed as loops, as explained above regarding 35
U.S.C. [§] 112(a). The structure of the claimed article therefore cannot be
clearly understood in view of the disclosure.” Final Act. 4. As discussed
above, we agree with Appellant that the Specification provides adequate
support for the limitation of claim 7 under 35 U.S.C. § 112(a). The
Examiner has not otherwise explained why claim 7 includes any structure
that “cannot be clearly understood in view of the disclosure.” Thus, we
determine that the Examiner erred here, and accordingly, we do not sustain
this rejection.
Obviousness over Neely in view of Waldrop
Claims 1, 2, 11, 14, and 18
With respect to claim 1, the Examiner finds that Neely teaches an
upholstery cover and edge attachment article as claimed, except that Neely
does not disclose a cover with a facing, pad, and backing scrim as claimed.
Final Act. 4–5 (citing Neely Figs. 1–9; col. 3, ll. 29–47). The Examiner
finds that Waldrop teaches a seat cover with a facing, pad, and backing
scrim, and the Examiner determines it would have been obvious to use a
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cover as taught by Waldrop with Neely’s device “in order to provide more
support and structural integrity of the fabric.” Id. at 5.
We agree with and adopt the Examiner’s findings and conclusion with
respect to claim 1. See Final Act. 4–5; Ans. 4–5. As discussed below, we
are not persuaded of error in the rejection of claim 1 by Appellant’s
arguments.
Appellant first argues that “Neely fails to disclose an edge attachment
article having a ‘securement portion’ comprised of loops attached at the
perimeter of an upholster cover.” Appeal Br. 15. More specifically,
Appellant asserts that element 12 in Neely’s device are not loops and
“merely take the form of alternating bends.” Id. at 16. We disagree for the
reasons provided by the Examiner. See Ans. 4. Specifically, as noted by the
Examiner, Neely describes element 12 as “loops” that are “tightly wrapped
around core member 9 to secure the wire member to said core member in
tangential relation with respect thereto.” Neely col. 3, ll. 40–43. In light of
this express disclosure in Neely, Appellant does not explain adequately why
the claimed loops would not read on Neely’s loops. On this point, the
Specification does not appear to provide any limiting disclosure regarding
what may be considered a loop as claimed. Rather, the Specification only
discloses “closed loops” that are “secured to at least one layer of the cover as
a securement portion” without further explanation as to what constitutes a
loop. Spec. ¶ 17. Thus, we agree with the Examiner that the Specification
uses the term “loop” broadly. See Ans. 4.
Next, Appellant asserts that the claim 1 requires a ribbon of spring
material for the edge attachment article and “that the edge attachment article
itself is secured along the perimeter of the upholstery cover.” Appeal
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Br. 16–17. Appellant also asserts that the ribbon of spring material required
by the claim allows for “a flatter attachment system” and a “level of
flexibility and flatness [that] is not possible with the Neely approach, which
utilizes a core member.” Id. at 17.
We are not persuaded by Appellant.
First, we note that Appellant does not specifically identify any
claimed structure that is missing from Neely’s device, as identified by the
Examiner. To the extent Appellant asserts that Neely’s approach does not
provide for a certain “level of flexibility and flatness,” no such requirements
are expressly present in the claims as currently worded. And Appellant has
not otherwise explained why the inclusion of a core member, as in Neely,
shows that the claimed edge attachment article does not read on Neely’s
device. Second, the Examiner finds that Neely’s edge attachment members
“have at least the capacity to act as a spring” because Neely describes
element 11 “as providing ‘resilient V-shaped, flange-like lateral
extensions.’” Ans. 4–5 (citing Neely col. 3, ll. 29–48). To the extent
Appellant is arguing that Neely does not include a ribbon of spring material,
Appellant does not explain why the Examiner’s findings in this regard are in
error. Third, to the extent Appellant is arguing that Neely’s edge attachment
article is not itself directly attached to the perimeter of the upholstery cover,
Neely discloses that an edge of the cover 5 is wrapped around the core
member and loops 12 and then stitched together. We fail to see why this
arrangement does not teach that the loops are secured along the perimeter of
the cover, as required by the claim. We note that there is no specific claim
requirement that a core cannot be present or that the loops must be directly
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attached to the perimeter of the cover such as by stitching the loops onto the
cover.
Based on the foregoing, we are not persuaded of any error in the
rejection of claim 1, and thus, we sustain the rejection of claim 1. Appellant
relies on the same arguments with respect to the rejection of independent
claims 14 and 18, and does not provide separate arguments regarding
dependent claims 2 and 11. Thus, we also sustain the rejection of claims 2,
11, 14, and 18.
Claim 6
Independent claim 6 is similar to claim 1, but does not require that the
securement portion is formed of loops and instead requires that the catch
portion and securement portion “are formed of contiguous alternating bends
of identical size and shape.” Appeal Br. 24. Regarding this claim
requirement, Appellant argues that Neely does not disclose such a
configuration. Appeal Br. 15; see also Reply Br. 6. However, the Examiner
identifies the embodiment shown in Neely Figures 10–15 with respect to this
claim limitation. Final Act. 5. The Examiner’s finding appears to be
supported by the embodiment shown in Figure 13, which depicts a zigzag-
shaped attachment article. See Neely Fig. 13; col. 2, ll. 36–40. Thus,
without further explanation, we are not persuaded of error by Appellant’s
argument, and we sustain the rejection of claim 6.
Claim 7
Claim 7 depends from claim 1 and further requires that “the catch
portion is formed as tabs projected away from the securement portion.”
Appeal Br. 24. The Examiner finds that “Neely teaches a further
embodiment comprising tabs.” Final Act. 6 (citing Neely Fig. 19–21).
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Appellant argues that the cited Figures of Neely refer to an embodiment that
does not include a ribbon of spring material and a securement portion
formed of loops as required by claim 1. Appeal Br. 17–18. We are not
persuaded of reversible error. Neely teaches an embodiment in which the
catch portion is made of plastic elongated flanges, which may be considered
tabs, as relied upon by the Examiner. Neely Fig. 19; col. 2, ll. 51–54.
Similarly, Neely discloses embodiments including “resilient flange
portions 10,” which were relied upon by the Examiner as a catch portion, as
noted above. One of ordinary skill in the art would recognize that either
flange portion may be considered a tab, within the broadest reasonable
interpretation of the claim. Thus, we generally agree with the Examiner that
Neely teaches a catch portion formed as a tab, as required by claim 7, and
therefore, we are not persuaded of reversible error by Appellant’s argument.
Accordingly, we sustain the rejection of claim 7.
Claim 15
Claim 15 depends from claim 14 and further requires that “the mating
feature comprises a lip for engaging the catch portion of the edge attachment
article.” Appeal Br. 25. The Examiner finds that Neely’s device includes a
mating feature with “a lip 40 for engaging the catch portion 10.” Final
Act. 6 (citing Neely Fig. 3). The Examiner further explains that “[t]he edges
of female member 8 of Neeley, e.g. sidewalls 40 (see Neeley [F]igures 7
and 9) can be considered a lip within the broadest reasonable interpretation
of the claim.” Ans. 5.
Appellant argues that “the attachment according to the Neely
invention does not rely on looping or hooking a wire around any type of lip.
Instead, the Neely invention relies on the resiliency of the male member 7 to
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secure it within a channel formed by the female member.” Appeal Br. 18.
Appellant asserts that the claim requires an added retaining element, e.g., a
lip, beyond the sidewalls 39, 40 forming the channel in Neely’s female
member. Reply Br. 4. Appellant further asserts that Neely discloses a
different mechanism for engagement “involving bending the V-shaped
portions 10 so they fit into the channel.” Id. at 5.
We are not persuaded of error by Appellant’s arguments because we
find they are not commensurate with the scope of the claim. As noted,
claim 15 recites that “the mating feature comprises a lip for engaging the
catch portion.” This claim language does not require that the lip is a
separate or additional structure to the “mating feature” recited in claim 14.
Further, the claim language does not require a specific form of engagement
between the mating portion and the catch portion. We agree with the
Examiner that Neely’s side walls 39 and 40 form a channel that may be
considered a female mating portion into which the male portion 10 of the
edge attachment article is inserted. See Neely Figs. 3, 9. Further, we agree
with the Examiner that side wall 40 can be considered a lip that is designed
to engage the catch portion, as shown in Neely Figure 9. Thus, without
further explanation from Appellant, we are not persuaded of error in the
rejection of claim 15, and accordingly, we sustain this rejection.
Claims 21–23
Claims 21–23 depend from independent claims 1, 14, and 18,
respectively. See Appeal Br. 26–27. Each of these claims requires that “the
catch portion comprises generally straight sections of the ribbon of spring
material extending between the loops comprising the securement portion.”
Id. The Examiner finds that “Neely shows generally straight sections of the
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ribbon of spring material extending between the loops.” Final Act. 7 (citing
Neely Fig. 4). Appellant argues that Neely depicts bent catch portions in
Figure 4, which are described in Neely as V-shaped. Appeal Br. 18–19
(citing Neely col. 3, ll. 44–48, 55–56). Appellant further argues that the
catch portion required by claims 21–23 must be straight. Reply Br. 5–6. We
are not persuaded of error. The claim requires that the catch portion
comprises “generally straight sections,” and we agree with the Examiner that
each V-shaped catch portion in Neely includes two generally straight
sections between the loops 12. Appellant does not persuade us that these
claims should be interpreted such that the entirety of each catch portion must
be one straight piece. Accordingly, we sustain the rejection of claims 21–23.
Remaining Obviousness Rejections
Appellant does not provide separate arguments regarding the
rejections of claims 4, 5, 8–10, 12, 16, 17, 19, and 20. Appeal Br. 19–22.
For the reasons discussed above, we sustain the rejections of these claims.
CONCLUSION
In summary:
Claims
Rejected
35 U.S.C. § Basis Affirmed Reversed
7 112(a) Written
description
7
7 112(b) indefinite 7
1, 2, 6, 7, 11,
14, 15, 18,
21–23
103 Neely, Waldrop 1, 2, 6, 7,
11, 14, 15,
18, 21–23

4, 5 103 Neely,
Waldrop,
Padden
4, 5
8, 17, 20 103 Neely,
Waldrop, Zuzga
8, 17, 20
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Claims
Rejected
35 U.S.C. § Basis Affirmed Reversed
9, 19 103 Neely,
Waldrop, York
9, 19
10, 12, 16 103 Neely,
Waldrop, Deley
10, 12, 16
Overall
Outcome
1, 2, 4–12,
14–23

AFFIRMED