Mark Murphy

Patent Trials and Appeals Board

Oct 18, 2021

2021000118 (P.T.A.B. Oct. 18, 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.
15/492,381 04/20/2017 Mark J. Murphy MMY-109 6299
27014 7590 10/18/2021
John R. Benefiel
25129 Dequindre Road
Suite 8
Madison Heights, MI 48071
EXAMINER
NORDMEYER, PATRICIA L
ART UNIT PAPER NUMBER
1788
NOTIFICATION DATE DELIVERY MODE
10/18/2021 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):
jbenefiel@sbcglobal.net
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte MARK J. MURPHY
Appeal 2021-000118
Application 15/492,381
Technology Center 1700

Before JEFFREY B. ROBERTSON, JAMES C. HOUSEL, and
DEBRA L. DENNETT, Administrative Patent Judges.

ROBERTSON, Administrative Patent Judge.

DECISION ON APPEAL1
STATEMENT OF THE CASE
Pursuant to 35 U.S.C. § 134(a), Appellant appeals from the
Examiner’s decision to reject claims 15 and 16.2 Appeal Br. 1. We have
jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM.

1 This Decision includes citations to the following documents:
Specification filed April 20, 2017 (“Spec.”); Final Office Action entered
October 9, 2019 (“Final Act.”); Appeal Brief filed April 3, 2020 (“Appeal
Br.”); and Examiner’s Answer entered April 21, 2020 (“Ans.”).
2 “Appellant” refers to “applicant” as defined in 37 C.F.R. § 1.42.
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Application 15/492,381

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CLAIMED SUBJECT MATTER
Appellant states the invention relates to a covering for boats or other
large items, which is reusable. Spec. 1. Claim 15, reproduced below, is
illustrative of the claimed subject matter (Appeal Br., Claims Appendix 7,
paragraphing added for clarity):
15. A reusable cover for a watercraft having a hull with
spaced apart sides and opposite ends, an upper structure located
between said hull sides and projecting substantially above said
hull, and elongated supports extending down from either side of
a top of said upper structure to each end of said hull,
said cover being formed by a series of overlapping strips
of a flexible ultraviolet resistant sheet plastic,
said series of overlapping strips extending along the
length of said watercraft which are assembled together, each
strip extending from one side of said hull to the other side and
over any portions of said upper structure or said supports which
are intervening,
said overlapped strips each having an adhesive area
covered by a peelable nonadhesive material, with each strip
successively positioned over said watercraft overlapping a
previously positioned strip, but with at least one initially
positioned strip not overlapping a previously positioned strip,
said initially positioned strip being held in a position
extending over said watercraft hull, by an adhesive attachment,
each successive overlapped strip bonded by said adhesive area
to a next adjacent strip after a successive strip is positioned on
said watercraft overlapping a previously installed strip by
removing said non-adhesive covering while holding said strip
in said overlapping position relative a previously installed strip
and pressing said strip against said adhesive areas to bond each
of said strips together,
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said watercraft cover comprised of said series of bonded
together strips supported on said watercraft by resting on said
upper portion and said supports;
said cover so formed also having an attachment
arrangement releasably attaching said cover to said hull, said
cover able to be freely lifted from said watercraft after release
of said attachment arrangement and folded up for storage;
said cover thereafter able to be reused by unfolding said
cover and placing said unfolded cover back on said watercraft
so as to again be fitted to said hull, said supports, and said
upper structure of said watercraft.

REFERENCES
The prior art relied upon by the Examiner is:
Name Reference Date
Bettoli US 3,300,927 Jan. 31, 1967
Zirkelbach et al.
(“Zirkelbach”)
US 8,875,646 B2 Nov. 4, 2014
Spellman US 8,950,416 B1 Feb. 10, 2015
Serlachius US 2014/0076472 A1 Mar. 20, 2014
Snyder et al.
(“Snyder”)
US 2016/0002914 A1 Jan. 7, 2016

REJECTIONS3
1. Claims 15 and 16 are rejected under 35 U.S.C. § 112(b) as
being indefinite. Final Act. 2–4.

3 Although in stating the rejections, the Examiner lists both pre-AIA and
AIA versions of the statute, the Examiner makes clear in the Final Action
that the instant application is being examined under the first to file
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2. Claim 15 is rejected under 35 U.S.C. § 103 as being
unpatentable over Snyder, Bettoli, and Spellman. Final Act. 5–
7.
3. Claim 16 is rejected under 35 U.S.C. § 103 as being
unpatentable over Snyder, Bettoli, Spellman, Zirkelbach, and
Serlachius. Final Act. 7–8.

OPINION
Rejection 1
The Examiner’s Rejection
In rejecting claim 15, the Examiner determined the claim is vague and
indefinite, because the preamble is directed to a reusable cover having an
intended use with a watercraft, but the body of the claim “contains multiple
limitations directed towards the method of using the cover in combination
with the watercraft while containing minimal limitations with regard to the
physical structure of the cover.” Final Act. 3–4. The Examiner relied on a
similar position for claim 16. Id. at 4.

Appellant’s Arguments
Appellant argues claim 15 is directed to a cover, and that claim 15
contains recitations that are essentially product-by-process limitations,
which are not indefinite. Appeal Br. 2–4.

provisions of the AIA. Final Act. 2. Thus, we reproduce only the AIA
versions of the statutes in listing the rejections on appeal.
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Discussion
During examination, “[a] claim is indefinite when it contains words or
phrases whose meaning is unclear.” In re Packard, 751 F.3d 1307,
1310, 1314 (Fed. Cir. 2014 (per curiam) (citing MPEP § 2173.05(e) (9th ed.
Rev. 10.2019, rev. June 2020)).
In this case, we are of the view that claims 15 and 16 are sufficiently
clear. That is, claim 15 expressly recites “[a] reusable cover,” where the
cover is “comprised of [a] series of bonded together strips” of “a flexible
ultraviolet resistant sheet plastic.” Appeal Br. 7. The strips forming the
cover are “overlapped strips” that are bonded to each other by “adhesive
areas.” Id. The cover includes “an attachment arrangement” for releasable
attachment and is capable of being “folded up for storage.” Id.
Although as the Examiner points out, there are a number of recitations
regarding a watercraft in claim 15, this does not change the fact that the
claim recites a cover. In this regard, we understand that claim 15 recites a
process of forming the cover as a watercraft cover, and that this informs the
arrangement of overlapped strips. However, we are of the view that the
number of limitations relating to the process and use of the cover with a
watercraft relative to the number of limitations relating to the structure of the
cover itself, does not, without more, raise an issue of indefiniteness for claim
15, absent any lack of clarity to the structure of the cover itself. In this
regard, to the extent claim 15 defines the size of the cover, it does so relative
to the size of the structure with which the cover is intended to be used in a
general manner. Thus, although the scope of claim 15 may be broad, claim
15 is not indefinite as a result of the process used to form the cover. In re
Miller, 441 F.2d 689, 693 (CCPA 1971) (“[B]readth is not to be equated
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with indefiniteness”); In re Gardner, 427 F.2d 786, 788 (CCPA 1970)
(“Breadth is not indefiniteness.”)
Because the Examiner sets forth a similar rationale for claim 16,
which also depends from claim 15, our reasoning applies equally to the
Examiner’s rejection of claim 16.
Accordingly, we reverse the Examiner’s rejection of claims 15 and 16
as being indefinite.

Rejection 2
The Examiner’s Rejection
In rejecting claim 15, the Examiner found Snyder discloses a
protective cover formed from overlapping strips of flexible plastic including
adhesive areas that can be applied to a variety of surfaces. Final Act. 5–6,
citing Snyder, Figs. 1–5, ¶¶ 18, 34. Regarding the language in claim 15
relating to a watercraft and watercraft structure, the Examiner found such
language was intended use language, which did not result in a structural
difference between the claims and the prior art. Id.
The Examiner found Snyder fails to disclose an ultraviolet resistant
plastic sheeting, the cover is able to be freely lifted after release of the
attachment arrangement and folded up for storage, and the cover is able to
be reused. Final Act. 6. The Examiner found Bettoli discloses a protective
cover with a plurality of strips made of ultraviolet resistant plastic sheeting
covering material for protecting a variety of surfaces. Id. at 7. The
Examiner found Spellman discloses a cover that may folded and stored,
unfolded and reinstalled, for the purpose of having a lightweight cover that
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is removable and securely protects an object from severe weather conditions.
Id.
The Examiner determined it would have been obvious to have used an
ultraviolet resistant plastic sheeting covering material and to have provided
removability to the cover in Snyder in order to cover and protect a variety of
surfaces as taught by Bettoli and to have a lightweight cover that removably
and securely protects an object from severe weather conditions as taught by
Spellman. Final Act. 7.

Appellant’s Arguments
Appellant argues Snyder and Bettoli disclose coverings that are
intended to be permanently attached to a building, and are not readily
releasable. Appeal Br. 5. In particular, Appellant argues Snyder discloses
adhesive tapes and staples are used to mechanically fasten the membrane
disclosed therein to a building. Id. Appellant contends Bettoli discloses
strips that are attached to a deck using roofing asphalt. Id. As a result,
Appellant contends no one skilled in the art would consider attaching a
removable watercraft cover using a permanent bond to mount a temporary
watercraft cover to a watercraft. Id. Appellant argues Spellman uses a
single sheet attached to a frame of a watercraft and not a plurality of
overlapping strips engaged with features of a watercraft as set forth in claim
15. Id. Appellant contends that Spellman’s cover has no direct contact with
the watercraft itself, but rather the cover is only in contact with the frame,
which is much less convenient to use and would increase the cost of the
cover. Id. at 5–6. As a result, Appellant contends Spellman teaches away
from the cover set forth in claim 15. Id. at 6.
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Discussion
We are not persuaded by Appellant’s arguments. At the outset, we
emphasize that as discussed above, claim 15 recites a cover formed from
overlapping strips of a flexible ultraviolet resistant sheet plastic bonded
together, the cover further including an attachment arrangement.
Snyder discloses a flexible sheet of spunbonded polypropylene fabric4
(12) with integrated adhesive tape (adhesive strips 22) that are used to join
overlapping seams of sheets of the polypropylene fabric material. Snyder
¶¶ 34, 38; Figs. 1–5. Snyder discloses the use of steel staples as “temporary
fasteners during installation.” Id. ¶ 38. Thus, Snyder itself discloses a cover
that is similar to the cover recited in claim 15.
Although Appellant contends that Snyder discloses coverings that are
intended to be permanently attached to a building, as discussed above,
Snyder discloses the use of staples as temporary fasteners, which do not
prohibit the covering from being removed. Again, we emphasize that claim
15 is directed to a cover, and as such, Appellant’s arguments with respect to
the intent of Snyder’s cover in comparison with the intent of the cover
recited in claim 15 are not persuasive.

4 Snyder discloses the polypropylene sheet material may be WallShield® or
WrapShieldTM. Snyder ¶ 37. Although the Examiner found Snyder does not
disclose a UV resistant plastic sheeting, WallShield® and WrapShieldTM
both appear to be UV resistant for 6 months (180 days). Id. ¶ 36;
https://vaproshield.com/products/wall-wrb-ab/wrapshield;
https://vaproshield.com/products/flashing/vaprobond/coverage/22-
products/wallshield.
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In this regard, whether, as Appellant argues, Bettoli discloses its strips
are permanently bonded to a deck using roofing asphalt is not relevant to the
Examiner’s rejection as the Examiner relied on Bettoli for the ultraviolet
plastic sheeting covering material used in overlapping covering strips to
protect an object from weather conditions, and not for the means of
attachment to the object. Final Act. 7.
In addition, Appellant contends Spellman discloses a single sheet
cover for a watercraft. Appeal Br. 5; Spellman, col. 3, ll. 56–65. The cover
disclosed in Spellman appears to differ from the claimed cover in that
Spellman’s cover is one piece rather than a series of strips assembled
together via an adhesive. As the Examiner explained in the Answer, both
Snyder and Bettoli disclose that it was known to use overlapping strips of
flexible ultraviolet resistant sheet plastic attached together with adhesive
areas in order to protect a surface. Ans. 16; Snyder ¶¶ 18, 34, 38; Figs. 1–5;
Bettoli, col. 1, ll. 8–12, col. 6, ll. 4–15, Fig. 3. Thus, Appellant’s argument
for distinguishing Spellman on this basis is not persuasive, as such bonded
strips are well-known alternatives to single piece covers in protecting a
variety of surfaces as evidenced by Snyder and Bettoli.
Although Appellant additionally contends Spellman teaches away
from the cover of claim 15 due to the presence of the adjustable frame in
Spellman (Appeal Br. 5–6), Appellant does not specifically discuss how the
presence of a frame structurally distinguishes claim 15, which is directed to
a cover.
Accordingly, we affirm the Examiner’s rejection of claim 15.

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Rejection 3
Claim 16 is the subject of Rejection 3. As indicated in the Appeal
Brief, Appellant relies on the dependency of claim 16, as a basis for
patentability. Appeal Br. 6.
Accordingly, we affirm Rejection 3 for similar reasons as discussed
above for Rejection 2.
DECISION SUMMARY
In summary:
Claim(s)
Rejected
35 U.S.C. § Reference(s)/Basis Affirmed Reversed
15, 16 112(b) Indefiniteness 15, 16
15 103 Snyder, Bettoli,
Spellman
15
16 103 Snyder, Bettoli,
Spellman,
Zirkelbach,
Serlachius
16
Overall
Outcome
15, 16

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