Wearwell, Inc.

Patent Trials and Appeals Board

Aug 3, 2020

15843494 - (R) (P.T.A.B. Aug. 3, 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 08/03/2020
CLARK & BRODY
1700 Diagonal Road
Suite 310
Alexandria, VA 22314
EXAMINER
FORD, GISELE D
ART UNIT PAPER NUMBER
3633
MAIL DATE DELIVERY MODE
08/03/2020 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 REHEARING
STATEMENT OF THE CASE
Pursuant to 37 C.F.R. § 41.52(a), Appellant timely filed a Request for
Rehearing on June 2, 2020 (“Req. Reh’g”) seeking reconsideration of our
Decision on Appeal mailed April 9, 2020 (“Decision” or “Dec.”). We have
jurisdiction over the Request for Rehearing under 35 U.S.C. § 6(b). This
Decision on Rehearing incorporates the Decision on Appeal, including any
abbreviations defined therein for citations to the record, in accordance with
37 C.F.R. § 41.52(a)(1).
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ANALYSIS
A request for rehearing “must state with particularity the points
believed to have been misapprehended or overlooked by the Board.”
37 C.F.R. § 41.52(a). Appellant makes two somewhat interrelated
arguments in support of the Request for Rehearing. As detailed below, we
supplement, but do not change the outcome of our Decision.
Both of Appellant’s arguments regard the limitation of claim 1
reciting “each male connector extend[s] downwardly from the underside of
the top portion and [is] located inward of the periphery formed by the
structures, and each of the openings of the female connectors [is] located
outward of the periphery formed by the structures.” Req. Reh’g 3–6 (citing
Appeal Br. 15; Reply Br.). This limitation deals with the location of the
connectors, meaning the male connector positioned inward of the periphery,
and the female connector positioned outward of the periphery.
To put Appellant’s arguments in the proper context, it is important to
understand that the Examiner proposed to modify Barlow’s connectors in
two respects: the extension of the connectors and the location of the
connectors. Specifically, the Examiner found that Fuccella discloses male
and female connectors that extend and are located as required by claim 1,
and concluded 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.” Dec. 4.
First, Appellant argues that Barlow’s female connector is within the
periphery instead of outward of the periphery as claim 1 requires. Req.
Reh’g 4. This argument does not acknowledge that the proposed
combination relies on Fuccella for the location of the connectors. In light of
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this, Appellant has not challenged the Examiner’s finding that Fuccella
discloses connectors located as claimed. See Dec. 4.
The Examiner’s finding that Fuccella discloses connectors located as
claimed is well supported by the record. Fuccella’s male connectors
(downward projecting support legs 15) are located inward of the periphery
of the top portion of the mat body (top surface 11 of tile 10), and Fuccella’s
female connectors (interlocking connectors 20) are located outward of the
periphery of the top portion of the mat body (top surface 11 of tile 10).
Fuccella ¶ 52, Figs. 1, 2; Final Act. 4; see also Dec. 4 (explaining that the
Examiner proposed to modify Barlow to have connectors located as taught
by Fuccella).
Appellant has not demonstrated error in the Examiner’s finding that
Fuccella discloses connectors located as required by claim 1. Consequently,
Appellant’s argument does not persuade us that the outcome of our Decision
should be changed.
Second, Appellant asks that the Board “consider Appellant’s Reply
Brief and the lack of any reasoning to remove the bottom support structure
that exists beneath the female connector 14 of Barlow.” Req. Reh’g 5. In
the Reply Brief, Appellant argued that the portion of Barlow cited by the
Examiner (see Ans. 3 (citing Barlow 4:19–20, 7:30–31)) states that
alternative connectors may be used, but that disclosure does not “give the
Examiner leeway to change the function of Barlow.” Reply Br. 1–2; see
also Appeal Br. 11 (asserting that it is a fundamental principle in Barlow
that bottom support structure 7 is shock absorbing material that comes into
contact with the ground). In other words, Appellant argued that Barlow’s
disclosure that alternative connectors may be used does not sufficiently
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justify casting aside Barlow’s intent that bottom support structure 7 is a
supporting structure. Reply Br. 2. In sum, Appellant is arguing that the
Examiner did not give a sufficient rationale for the proposed modification
because the loss of Barlow’s shock absorbing material (bottom support
structure 7) under the female connectors1 would have changed the function
of Barlow.
Appellant’s argument, however, does not address the rationale
provided by the Examiner (to provide more friction between the connectors
and, thus, a stronger interlock between adjacent mats). See Final Act. 4;
Ans. 3; Reply Br. 1–5. In other words, the rational underpinning for the
Examiner’s reason for the modification remains unchallenged.
As the Examiner has acknowledged, Barlow’s female connectors
(upward facing steps 14) are supported by bottom support structure 7;
however, the portion of bottom support structure 7 beneath the female
connectors is a small fraction of the area beneath planar top surface 11. See
Ans. 3; Barlow, 2:39–40, 3:61–65, 4:34–36, Fig. 3. Consequently, the
proposed modification would only slightly decrease the area of bottom
support structure 7. As the Examiner explained, bottom support structure 7
would adequately perform its shock absorption function, even if the area
beneath the female connecting structures is removed. Ans. 3. Appellant has
not effectively challenged that explanation.
We stand by our determination that Appellant has not apprised us of
error by the Examiner. We deny the request for rehearing.

1 We note that the proposed combination includes Fuccella’s female
connectors (interlocking connectors 20), not Barlow’s (upward facing steps
14 with mating depression 18).
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CONCLUSION
Outcome of Decision on Rehearing:

Claims
Rejected
35 U.S.C.
§
Reference(s)/Basis Denied Granted
1–5, 8–11 103 Barlow, Fuccella 1–5, 8–11
Overall
Outcome
1–5, 8–11

Final Outcome of Appeal after Rehearing:

Claims
Rejected
35 U.S.C.
§
Reference(s)/Basis Affirmed Reversed
1–5, 8–11 103 Barlow, Fuccella 1–5, 8–11
Overall
Outcome
1–5, 8–11

DENIED