Wearwell, Inc.

Patent Trials and Appeals Board

Apr 9, 2020

15843494 - (D) (P.T.A.B. Apr. 9, 2020)

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.
15/843,494 12/15/2017 Philip C. HUSS 12176-0020 1040
22902 7590 04/09/2020
CLARK & BRODY
1700 Diagonal Road
Suite 310
Alexandria, VA 22314
EXAMINER
FORD, GISELE D
ART UNIT PAPER NUMBER
3633
MAIL DATE DELIVERY MODE
04/09/2020 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 PHILIP C. HUSS
___________________

Appeal 2019-005281
Application 15/843,494
Technology Center 3600
____________________

Before PHILLIP J. KAUFFMAN, TARA L. HUTCHINGS, and
ALYSSA A. FINAMORE, Administrative Patent Judges.

KAUFFMAN, 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 1–5 and 8–11. Final Act. 2–5. Claims
6 and 7 are allowed. Advisory Action, mailed Nov. 21, 2018 (“Advisory
Act.”). 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 Wearwell,
Inc. Appeal Br. 3.
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CLAIMED SUBJECT MATTER
The claimed invention relates to “an interlocking modular mat that
employs a sponge insert that resides in a cavity formed by a top portion of
the mat and a plurality of structures extending around a periphery of the
mat.” Spec. 1.
Claims 1 and 3 are reproduced below.
1. An interlocking modular mat comprising:
a mat body, the mat body having a top portion, the top
portion having four sides, first and second sides of the four
sides including a set of female connectors and third and fourth
sides of the four sides including a set of male connectors, each
female connector having an opening configured to interface
with a male connector of an adjacent interlocking modular mat
so that a side of the interlocking modular mat with the female
connectors can connect to a side of an adjacent interlocking
modular mat having male connectors, the mat body including a
plurality of structures extending from an underside of the top
portion and forming a periphery of the top portion, the
structures forming a cavity with the underside of the top
portion, each male connector extending downwardly from the
underside of the top portion and located inward of the periphery
formed by the structures, and each of the openings of the female
connectors located outward of the periphery formed by the
structures; and
a sponge insert, the sponge insert fitting within the cavity
formed in the mat body, the sponge insert having a height
dimension such that when in the cavity, a bottom portion of the
sponge extends beyond a bottom of the plurality of structures
extending from an underside of the top portion of the mat body
as well as bottoms of the female and male connectors.

3. The interlocking modular mat of claim 1, wherein the
plurality of structures further comprises a plurality of second
spaced apart wall structures extending along the third and
fourth sides, adjacent second spaced part wall structures
forming a space in the periphery of the top portion, each male
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Application 15/843,494

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connector positioned in the space between adjacent second
spaced apart wall structures.

REJECTION2
Claims 1–5 and 8–11 are rejected under 35 U.S.C. § 103 as
unpatentable over Barlow and Fuccella.3 Final Act. 3–5.

ANALYSIS

Claims 1, 2, 5, 8, and 94
The Examiner concludes that the subject matter of independent
claim 1 would have been obvious from the combined teachings of Barlow
and Fuccella. Final Act. 3–5.

2 In the Final Office Action, the Examiner also rejected claims 1–11 under
35 U.S.C. § 112(b) as indefinite. Final Act. 2. In response to the Final
Office Action, Appellant filed an amendment in which Appellant amended
claim 1 to address the indefiniteness rejection and amended claims 6 and 7
to place them in a condition for allowance. Amendment under 37 C.F.R.
§ 1.116, filed Oct. 30, 2018, at 2. In the Advisory Action, the Examiner
acknowledges that amended claims 6 and 7 are allowed, so we understand
the Examiner has entered the Amendment. Adv. Act. 1. In view of the
amendment to claim 1 and the omission of the indefiniteness rejection from
the Answer, we understand that the Examiner has withdrawn the
indefiniteness rejection, which is consistent with the Appellant’s
understanding. See Appeal Br. 5.

3 Barlow (US 9,631,375 B1, issued Apr. 25, 2017); Fuccella et al.
(US 2005/0252109 A1, published Nov. 17, 2005).

4 Claims 2, 5, 8, and 9 stand or fall with independent claim 1. Appeal Br. 9;
37 C.F.R. § 41.37(c)(1)(iv).
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The decisive issue on appeal relates to the requirement of independent
claim 1 that the sponge insert have a height dimension such that, when
positioned in the cavity formed in the mat body, the bottom portion of the
sponge extends beyond the bottoms of the male and female connectors. For
the reasons given below, Appellant’s arguments misapprehend the
Examiner’s findings related to this limitation and therefore do not persuade
us of error by the Examiner.
The Examiner found that Barlow discloses an interlocking modular
mat as claimed (interlocking panel 10), except for the configuration of
Barlow’s set of male and female connectors. Final Act. 3–4. Specifically,
the Examiner found that Barlow’s male connectors (downward facing step
20 having a downward pointing projection 22) do not extend downwardly
from the underside of the top portion and are not located inward of the
periphery formed by the structures, and Barlow’s set of female connectors
(upward facing step 14 having a mating depression 18) are not located
outward of the periphery formed by the structures. Final Act. 3–4; Barlow
2:35–38, 4:19–25, Figs. 1–2. The Examiner found that Fuccella discloses a
set of male and female connectors (downward projecting support legs 15,
female interlocking connectors 20) that extend and are located as claimed.
Final Act. 4; Fuccella ¶ 52, Fig. 2. The Examiner determined that it would
have been obvious to modify Barlow by configuring Barlow’s set of male
and female connectors to extend and be located like Fuccella’s connectors.
Id. The Examiner reasoned that a person of ordinary skill in the art would
have made this substitution because Fuccella’s connecting structures are
longer than Barlow’s so that there is greater friction produced between the
male and female connectors. Id.
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Appellant argues that the Examiner has not established a prima facie
case of obviousness. Appeal. Br. 11–17. In support of that argument,
Appellant characterizes Barlow as having bottom support structure 7 formed
of a shock absorbant material that contacts the ground and supports the load
placed on planar top portion 9 of the mat. Appeal Br. 11–14. According to
Appellant, when Barlow is modified as proposed by the Examiner, the
bottom support structure 7 would no longer support the load placed on the
mat, jettisoning the most important aspect of Barlow. Id. at 15. Appellant
further contends both that Barlow teaches away from such a modification,
and that the Examiner has employed hindsight in reaching the conclusion
that the proposed modification would have been obvious. Id. at 16–17.
Appellant’s entire argument is premised on a mischaracterization of
the proposed combination. Specifically, Appellant argues as if the male
connectors of the proposed combination (Fuccella’s downward projecting
support legs 15) would support the mat and a load placed on the mat such
that the sponge insert (Barlow’s bottom support structure 7) would not
support the load placed on top of the mat. As detailed below, that is
inaccurate.
The Examiner relied upon Barlow’s disclosure of a sponge insert
(bottom support structure 7) that fits within the cavity formed by the mat
body, and explicity found that Barlow discloses “a height dimension such
that when in the cavity, a bottom of the sponge insert extends
beyond . . . [the] bottoms of the female and male connectors.” Final Act. 3
(citing Barlow, Fig. 1). The Examiner proposed to modify Barlow’s set of
male and female connectors to be longer, like those disclosed by Fuccella.
Id. at 4. Although the modified male and female connectors are longer than
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Barlow’s original connectors, the Examiner explicitly found that the height
dimension of the sponge insert extends beyond the bottoms of the male and
female connectors. In such a configuration, bottom support structure 7
supports the load placed on planar top portion 9 of the mat.
Consequently, Appellant has failed to apprise us of error by the
Examiner. We sustain the rejection of claims 1, 2, 5, 8, and 9 under 35
U.S.C. § 103 as unpatentable over Barlow and Fuccella.

Claims 3 and 4
Claims 3 and 4 depend from independent claim 1. Each claim
requires an interlocking modular mat comprising “a plurality of second
spaced apart wall structures extending along the third and fourth sides,
adjacent second spaced [a]part wall structures forming a space in the
periphery of the top portion, each male connector [is] positioned in the space
between adjacent second spaced apart wall structures.” The Examiner
correctly finds that Fuccella describes this arrangement. Final Act. 4 (citing
Fuccella, Fig. 2). Appellant’s arguments relating to claims 3 and 4 are
directed to the teachings of Barlow only. See Appeal Br. 17–18; Reply
Br. 5. We agree with the Examiner that Appellant fails to address the effect
of substituting the connecting structures and spaced apart walls taught by
Fuccella for the connecting structures described by Barlow. See Ans. 3. We
sustain the rejection of claims 3 and 4 under 35 U.S.C. § 103 as unpatentable
over Barlow and Fuccella.

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Claims 10 and 11
Appellant contends that claim 10 and its dependent claim 11 are
patentable because “claim 10 uses the mat of claim 1 as part of the method
and claim 1 is patentable.” Appeal Br. 18. Because Appellant does not
apprise us of error in the Examiner’s rejection of claim 1 as unpatentable
under 35 U.S.C. § 103, we likewise sustain the rejection of claims 10 and 11
under 35 U.S.C. § 103 as unpatentable over Barlow and Fuccella.

CONCLUSION
In summary:
Claims
Rejected
35 U.S.C. § Reference/Basis Affirmed Reversed
1–5, 8–11 103 Barlow,
Fuccella
1–5, 8–11

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) (2011).

AFFIRMED