Lori Skerjanz

Patent Trials and Appeals Board

May 24, 2021

2020000170 (P.T.A.B. May. 24, 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.
15/659,158 07/25/2017 Lori Anne Skerjanz SKJ-002 1075
52554 7590 05/24/2021
Southeast IP Group, LLC.
P.O. Box 14156
GREENVILLE, SC 29610
EXAMINER
THOMAS, ALEXANDER S
ART UNIT PAPER NUMBER
1783
MAIL DATE DELIVERY MODE
05/24/2021 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 LORI ANNE SKERJANZ
____________

Appeal 2020-000170
Application 15/659,158
Technology Center 1700
____________

Before JEFFREY T. SMITH, JEFFREY B. ROBERTSON, and
MERRELL C. CASHION, JR., Administrative Patent Judges.

CASHION, Administrative Patent Judge.

DECISION ON APPEAL

STATEMENT OF THE CASE
Appellant1 appeals under 35 U.S.C. § 134(a) from the Examiner’s
decision to finally reject claims 1–5. 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 the
Applicant/Inventor Lori Anne Skerjanz. Appeal Br. 1.
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The invention relates generally to devices used in yoga, strength
training, massage therapy and others for overall health and wellness. Spec.
1. Claim 1 illustrates the subject matter claimed and is reproduced below
from the Claims Appendix to the Appeal Brief:
1. A weighted mat comprising:

a top layer of material;

a bottom layer of material attached to said top layer of
material;

a series of tubular compartments positioned in parallel
relation between said top and bottom layers of material; and

a weighted material disposed within each of said tubular
compartments and only partially filling said tubular compartments so
that said weighted material may freely flow throughout and within
each said tubular compartment, and wherein said weighted material
may be unevenly distributed throughout said mat so portions of said
mat are counterweighted to provide balance and stability for
placement of said mat.

Appellant requests review of the following rejections:2
I. Claims 1, 4, and 5 rejected under 35 U.S.C. § 103 as
unpatentable over PORTABELL KEEP FIT SYSTEMS LTD (hereinafter
“Portabell”)3 (GB Patent 1,568,081, published May 21, 1980) and Allen (US
2007/0049135 A1, published Mar. 1, 2007); and

2 The Examiner withdrew the rejection of claim 1–5 under 35 U.S.C. § 103
over Daniel and Allen as a cumulative rejection. Ans. 3. Accordingly, this
rejection is not before us for review on appeal.
3 For the purposes of this opinion, we refer to the assignee of GB Patent
1,568,081 to identify the reference.
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II. Claims 2 and 3 rejected under 35 U.S.C. § 103 as unpatentable
over Portabell, Allen, and Daniel (US 2008/0070760 A1, published Mar. 20,
2008).
Appellant presents specific arguments only for the following claims:
(a) claim 1 (Rejection I); (b) claims 2 and 3 (Rejection II). Appeal Br. 3–7.
Appellant relies on these arguments to address the rejections of the
remaining claims. Id. Accordingly, we select claims 1–3 as representative
of the subject matter claimed and decide the appeal as to all grounds of
rejections based on the arguments presented for claims 1–3.

OPINION
After review of the respective positions that Appellant presents in the
Appeal Brief and the Examiner presents in the Final Office Action and the
Answer, we affirm the Examiner’s prior art rejections of claims 1–5 under
35 U.S.C. § 103 essentially for the reasons the Examiner presents. We add
the following.

Claim 1 (Rejection I)
Claim 1 recites a weighted mat comprising a series of tubular
compartments partially filled with a weighted material disposed within each
of said tubular compartments.
We adopt the Examiner’s factual findings, analyses, and conclusions
as our own and add the following for emphasis. Final Act. 2–3. In re Cree,
Inc., 818 F.3d 694, 698 n.2 (Fed. Cir. 2016); In re Brana, 51 F.3d 1560,
1564 n.13 (Fed. Cir. 1995).
Appellant argues that Portabell does not disclose a mat having a
weighted material freely flowing within tubular compartments. Appeal Br.
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4. That is, Appellant contends that the claimed weighted mat possesses
structural features that distinguishes the claimed invention from Portabell’s
exercise article.
Appellant’s arguments are not persuasive of reversible error.
As the Examiner explains in the Answer, the structure of Portabell’s
exercise article and the claimed mat are formed by providing a top and
bottom layer and both comprising a series of tubular components to hold
discrete weighted materials.4 Ans. 3; see Spec. 9; Application Figures 1–4;
Portabell’s Figure, 1 (ll. 42–50, 95–100), 2 (ll. 1–4). The Specification
describes the mat “may be formed into any desired shape, including a
square, rectangle, circle, triangle. . .” Spec. 8. Further, both the claimed
exercise mat and Portabell’s exercise article can be draped over parts of the
user’s body. See Spec. 9, 10; Application Figures 5–7; Portabell 1 (ll. 55–
56).
Appellant argues that Portabell’s exercise article does not allow a
weighted material freely flowing within tubular compartments. Appeal Br.
4, 6.
Appellant’s argument is unavailing because it does not address the
Examiner’s rejection.
The Examiner relies principally on Allen to establish the obviousness
of partial filling tubular compartments with weighted material. Allen
describes a weighted exercise article, an elongated hollow member partially
filled with a quantity of granular material. Allen ¶¶ 3, 8, 20, 29, 30.
However, as Appellant acknowledges, Portabell teaches the use of weighted

4 The claimed invention does not specify the amount or degree of weighted
material necessary to achieve partial filling.
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material in the form of metal particles, lead shots, and sand. Appeal Br. 4;
Portabell 1 (ll. 42–50). One skilled in the art would have recognized the
partial filling of the tubular compartments of Portabell’s exercise article with
weighted granular materials would have allowed the weighted materials to
freely flow within tubular compartments when the weighted material is
adjusted for exercises as suggested by Allen. One skilled in the art, using no
more than ordinary creativity, would have had sufficient skill to adjust the
weighted material in Portabell’s exercise article to achieve a desired
mechanical load for exercising the various muscles. See KSR Int’l Co. v.
Teleflex Inc., 550 U.S. 398, 421 (2007).
We have also considered Appellant’s arguments with respect to Allen,
but they do not address the rejection the Examiner presents. Appeal Br. 4–7.
As we discuss above, Portabell teaches an exercise article with tubular
members containing weighted granular materials. The Examiner relies upon
Allen to show that partially filling an exercise article with weighted material
results in variations in the exercise experience. Final Act. 2.
Moreover, Portabell teaches the use of weighted material in the form
of metal particles, lead shots, and sand. Appeal Br. 4; Portabell 1 (ll. 42–
50). One skilled in the art would have reasonably inferred from this
disclosure that a user would be able to adjust the weighted material placed
into the compartments of Portabell’s exercise article depending on the type
of exercise, the user’s physical condition, and the body part to be exercised
to achieve a desired level of resistance or result. See In re Fritch, 972 F.2d
1260, 1264–65 (Fed. Cir. 1992) (holding that a reference stands for all of the
specific teachings thereof as well as the inferences one of ordinary skill in
the art would have reasonably been expected to draw therefrom). Thus, one
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skilled in the art would have reasonably inferred from this disclosure that the
tubular compartments of Portabell’s exercise article can be partially filled
with the weighted material, which would allow the weighted material to
freely flow within tubular compartments while performing the desired
exercises.
In view of this, Appellant fails to explain adequately how the claimed
invention is structurally different from Portabell’s exercise article.

Claims 2 and 3 (Rejection II)
Claims 2 and 3 recite specific materials from which top and bottom
layers of the article are made.
The Examiner relies on Daniel as teaching that it was known to use
the claimed materials as top and bottom layers to make an exercise article
similar to Portabell’s exercise article. Final Act. 3; Daniel ¶ 29. The
Examiner determines that it would have been obvious to one of ordinary
skill in the art to use Daniel’s disclosed materials to make Portabell’s
exercise article because it involves the simple substitution of one know
element for another to obtain predictable results. Final Act. 3.
Appellant argues there is no motivation to combine either Portabell or
Allen with Daniel because the references have no need for free-flowing
weighted materials, since the references are concerned with devices having
attachment means for securing to a user’s body thus obviating the need for
any counterbalancing. Appeal Br. 7.
Appellant’s argument is not persuasive of reversible error. The
Examiner relies upon Daniel to address the specific materials used for the
top and bottom layers of the exercise article. Final Act. 3. Appellant’s
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argument does not address the reasons for combining the references set forth
within the rejection. Moreover, claim 1 is written using the open transitional
language “comprising,” which does not exclude the use of attachments with
the claimed exercise article (mat). Nor does Appellant explain why the use
of attachment would necessarily prevent the weighted material in Portabell’s
exercise article to freely flow in the tubular compartments when partially
filled while performing exercises. Moreover, the partial filling of the tubular
compartments with weighted material would allow for better conformity to
the body part.
Arguments not specifically addressed are deemed not persuasive for
the reasons the Examiner presents.
Accordingly, we affirm the Examiner’s prior art rejections under 35
U.S.C. § 103 of claims 1–5 for the reasons the Examiner presents and we
give above.
The Examiner cited Allen for establishing the obviousness of partial
filling tubular compartments with weighted material. Allen describes a
weighted exercise article, an elongated hollow member partially filled with a
quantity of granular material. Allen ¶¶ 3, 8, 20, 29, 30.

DECISION SUMMARY
In summary:

Claim(s)
Rejected
35 U.S.C. § Reference(s)/Basis Affirmed Reversed
1, 4, 5 103 Portabell, Allen 1, 4, 5
2, 3 103 Portabell, Allen,
Daniel
2, 3
Overall
Outcome
1–5
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Application 15/659,158

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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). See 37 C.F.R.
§ 1.136(a)(1)(iv).
AFFIRMED