Richard Maebe

Patent Trials and Appeals Board

Feb 1, 2022

2021001468 (P.T.A.B. Feb. 1, 2022)

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. 16/517,481 07/19/2019 Richard Maebe 623703USC1 9542 94956 7590 02/01/2022 The Law Offices of Eric W Peterson 2441 E Street, #201 SAN DIEGO, CA 92102 EXAMINER WENDELL, MARK R ART UNIT PAPER NUMBER 3636 MAIL DATE DELIVERY MODE 02/01/2022 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 RICHARD MAEBE Appeal 2021-001468 Application 16/517,481 Technology Center 3600 Before CHARLES N. GREENHUT, JEREMY M. PLENZLER, and LEE L. STEPINA, Administrative Patent Judges. STEPINA, Administrative Patent Judge. DECISION ON APPEAL STATEMENT OF THE CASE Pursuant to 35 U.S.C. § 134(a), Appellant1 appeals from the Examiner’s decision to reject claims 1-3.2 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 Richard Maebe as the real party in interest. Appeal Br. 2. 2 The Examiner indicated that claims 4-25 are “objected to,” but no further description of the status of these claims is provided in the Non-Final Office Action. Non-Final Act. 1. Appeal 2021-001468 Application 16/517,481 2 CLAIMED SUBJECT MATTER Appellant’s disclosure is directed to a cushion for the armrest of a chair. Claim 1, reproduced below with emphasis added, is illustrative of the claimed subject matter. 1. A cushion for releaseably engaging an armrest, said cushion comprising: a first padded portion, a base having a bottom side, and a non-tightening attachment means configured to releaseably engage the cushion to an armrest, wherein said attachment means comprises a hook member and a loop member, wherein said hook member attaches to the bottom side of the base, and wherein said loop member is configured to attach to an armrest. Appeal Br. 16 (Claims App.). REFERENCES The prior art relied upon by the Examiner is: Name Reference Date Artsvelyan US 2002/0130538 A1 Sept. 19, 2002 Adhesive Backed VELCRO® Brand DuraGrip® Adhesive Hook and Loop (“HookandLoop.co m”) https://web.archive.org/web/201605 16143224/https:// hookandloop.com/products/peel-stic ... 2019 Appeal 2021-001468 Application 16/517,481 3 REJECTION3 Claims 1-3 are rejected under 35 U.S.C. § 103 as unpatentable over Artsvelyan and HookandLoop.com. OPINION Claims 1-3 (Artsvelyan and HookandLoop.com) The Examiner finds that Artsvelyan discloses many of the elements recited in claim 1, including “an attachment means configured to releaseably engage the cushion to an armrest (straps 207, 209, 211, 213).” Non-Final Act. 3. However the Examiner also finds that “Artsvelyan does not distinctly disclose [its] attachment means comprises a hook member and a loop member (which are non-tightening), wherein said hook member [is] attached to the bottom side of the base, and wherein said loop member is configured to attach to an armrest.” Id. The Examiner finds the teachings of HookandLoop.com remedy these deficiencies by disclosing a hook and loop (Velcro) product in which one strip includes the hook portion of the fastener and one strip includes the loop portion of the fastener. Each strip has a back side that has a pressure sensitive adhesive that is used to stick onto one of the objects a user wishes to fasten to another object. Id. The Examiner reasons that a person of ordinary skill in the art would have found it obvious to replace the attachment means disclosed by 3 In light of the filing of a Terminal Disclaimer, the Examiner withdrew a rejection of claim 1 on the ground of obviousness-type double patenting. See Non-Final Act. 4-5; Ans. 4. Appeal 2021-001468 Application 16/517,481 4 Artsvelyan with the hook and loop strips disclosed by HookandLoop.com to improve the ease of connection of Artsvelyan’s device, as well its aesthetic appeal. Id. at 3-4. Further, the Examiner finds “such fasteners are well- known and Artsvelyan contemplates such a modification in paragraph [0030].” Appellant argues Artsvelyan fails to disclose non-tightening means configured to releaseably engage the cushion to an armrest.4 See Appeal Br. 3-14. Specifically, according to Appellant, when Artsvelyan describes tightening straps 207 and 209, this means that these straps draw cushion 200 tautly against an armrest. Id. Appellant asserts that this action of tightening (or drawing taut) in Artsvelyan contravenes the requirement in claim 1 for a non-tightening attachment means configured to releaseably engage the cushion to an armrest. Id. Appellant further argues “Artsvelyan does not teach or suggest a non- tightening attachment means positioned directly between the bottom of the cushion and the top of the armrest as claimed by Applicant.” Id. at 4. According to Appellant, “[Artsvelyan’s] straps [207 and 209] and alternative examples of the straps are clearly positioned around the cushion and armrest.” Id. at 5. In response, the Examiner reiterates the findings made in the Non- Final Office Action and notes that the rejection of claims 1-3 explicitly acknowledges Artsvelyan does not disclose the claimed details of the recited 4 Appellant devotes page 3 of the Appeal Brief to an argument against an anticipation rejection of claims 1-3 based on Artsvelyan. See Appeal Br. 3. However, the Non-Final Office Action dated January 24, 2020, from which this Appeal is taken, includes no rejection based on anticipation. See Non- Final Act. 2-9; Ans. 4. Appeal 2021-001468 Application 16/517,481 5 attachment means and that the rejection relies on HookandLoop.com to disclose these details. Ans. 4-6. In this regard, the Examiner explains: The Non-Final Rejection of 1/24/2020 specifically states that, within the rejection, Artsvelyan is modified by replacing the strap connection with the hook and loop product of Hookandloop.com in which “one strip includes the hook portion of the fastener and one strip includes the loop portion of the fastener. Each strip has a back side that has a pressure sensitive adhesive that is used to stick onto one of the objects a user wishes to fasten to another object.” Ans. 5 (quoting Non-Final Act. 3). The Examiner summarizes the rejection by stating, “[t]he ‘tightening means’ or connection of Artsvelyan is being replaced by the well-known ‘non-tightening means’ or connection of Hookandloop.com.” Id. Appellant’s arguments in the Appeal Brief do not apprise us of Examiner error because they merely attack Artsvelyan individually and not the Examiner’s proposed combination of the teachings of Artsvelyan and HookandLoop.com. See Appeal Br. 3-15; Non-Final Act. 3-4. Specifically, the Examiner relies on HookandLoop.com, not Artsvelyan, to teach the “non-tightening” and positional limitations of the attachment means recited in claim 1. See Non-Final Act. 3-4. Appellant does not contest the Examiner’s findings regarding the disclosure in HookandLoop.com. See Appeal Br. 3-15. Nor do Appellant’s arguments in the Appeal Brief address the Examiner’s rationale for the proposed modification to Artsvelyan’s device based on HookandLoop.com’s teachings. See id. In reply, Appellant sets forth only a series of arguments attacking the Examiner’s reasoning for the proposed modification to Artsvelyan’s Appeal 2021-001468 Application 16/517,481 6 cushion. See Reply Br. 2-8. These arguments are presented in the Reply Brief for the first time. Appellant’s new arguments do not address an argument raised in the Examiner’s Answer (the reasoning in rejection of claims 1-3 was clearly stated in the Non-Final Office Action and is not changed in the Answer). Further, Appellant does not attempt to show good cause for presenting these arguments in the Reply Brief, but not in the Appeal Brief. Accordingly, we do not consider the untimely arguments in the Reply Brief. See 37 C.F.R. § 41.41(b)(2) (“Any argument raised in the reply brief which was not raised in the appeal brief, or is not responsive to an argument raised in the examiner’s answer, including any designated new ground of rejection, will not be considered by the Board for purposes of the present appeal, unless good cause is shown.”). We have considered all of Appellant’s timely arguments in support of the patentability of claim 1, but find them unavailing. Accordingly, we sustain the rejection of claim 1, and associated dependent claims 2 and 3, for which Appellant sets forth no additional arguments. CONCLUSION The Examiner’s rejections are sustained. DECISION SUMMARY Claims Rejected 35 U.S.C. § Basis Affirmed Reversed 1-3 103 Artsvelyan, HookandLoop.com 1-3 Appeal 2021-001468 Application 16/517,481 7 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