2020003684 (P.T.A.B. May. 10, 2021)

Zinus Inc.

Patent Trials and Appeals BoardMay 10, 2021

2020003684 (P.T.A.B. May. 10, 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. 15/253,770 08/31/2016 Youn Jae Lee ZIN-034-1P-1P-1C 5631 47713 7590 05/10/2021 IMPERIUM PATENT WORKS P.O. BOX 607 Pleasanton, CA 94566 EXAMINER TOLIN, MICHAEL A ART UNIT PAPER NUMBER 1745 MAIL DATE DELIVERY MODE 05/10/2021 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 YOUN JAE LEE Appeal 2020-003684 Application 15/253,770 Technology Center 1700 Before KAREN M. HASTINGS, CHRISTOPHER C. KENNEDY, and JENNIFER R. GUPTA, Administrative Patent Judges. HASTINGS, 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 37–55. See Final Act. 1. We have jurisdiction under 35 U.S.C. § 6(b). We AFFIRM. 1 We use the term “Appellant” to refer to “applicant” as defined in 37 C.F.R. § 1.42. Appellant identifies the real party in interest as Zinus, Inc. (Appeal Br. 1). Appeal 2020-003684 Application 15/253,770 2 CLAIMED SUBJECT MATTER The claims are directed to a method of manufacturing a foam seating article. Claim 37, reproduced below, is illustrative of the claimed subject matter: 37. A method of manufacturing a seating article, comprising: molding a foam core of foam having a first hardness, wherein the foam core has an exterior surface, wherein a portion of the foam core forms a seat back portion, and wherein a lumbar support protrusion is disposed on the seat back portion of the foam core; placing the foam core in a mold; molding an outer layer of foam completely around and contacting the entire exterior surface of the foam core, wherein the outer layer of foam is conformally molded around the seat back portion of the foam core, wherein the outer layer of foam has a second hardness, and wherein the first hardness is greater than the second hardness; and placing a covering around the outer layer of foam and the foam core. Claims Appendix 26. Independent claim 47 is directed to a similar method as claim 37, and additionally recites that the hardness of the foam core is “greater than 25 Shore A” (Claims Appendix 27). Appeal 2020-003684 Application 15/253,770 3 REFERENCES The prior art relied upon by the Examiner is: Name Reference Date Watkinson US 3,920,587 Nov. 18, 1975 Schaefer US 4,502,234 Mar. 5, 1985 Tamano US 5,100,927 Mar. 31, 1992 Burchi US 5,400,490 Mar. 28, 1995 Albecker, III US 5,425,567 June 20, 1995 St. Thomas US 5,681,090 Oct. 28, 1997 Landvik US 6,159,574 Dec. 12, 2000 Embach US 2006/0273650 A1 Dec. 7, 2006 Neff US 7,208,531 B2 Apr. 24, 2007 Rancourt US 2010/0005594 A1 Jan. 14, 2010 REJECTIONS2 Claims 37, 39–41, and 43 are rejected under 35 U.S.C. § 102(a)(1) as being anticipated by Albecker. Final Act. 3. Claims 37, 39–41, and 43 are rejected under 35 U.S.C. § 103 as being unpatentable over Albecker and St. Thomas. Final Act. 4. Claims 38, 47, 49–51, and 55 are rejected under 35 U.S.C. § 103 as being unpatentable over Albecker, Burchi and Tamano, and optionally, St. Thomas, and either one of Schaefer or Rancourt. Final Act. 5. Claim 42 is rejected under 35 U.S.C. § 103 as being unpatentable over Albecker, Landvik, and optionally, and St. Thomas. Final Act. 7. 2 The Examiner withdrew the rejection of claim 46 under 35 U.S.C. § 112(b) as being indefinite because it was overcome by the entered amendment (Final Act. 2; Ans. 12). Appeal 2020-003684 Application 15/253,770 4 Claim 44 is rejected under 35 U.S.C. § 103 as being unpatentable over Albecker, with either one of Neff or Embach, and optionally, St. Thomas. Final Act. 8. Claims 45 and 46 are rejected under 35 U.S.C. § 103 as being unpatentable over Albecker, Burchi, and Watkinson, and optionally, St. Thomas. Final Act. 9. Claim 48 is rejected under 35 U.S.C. § 103 as being unpatentable over Albecker, Burchi, and Tamano, and optionally, St. Thomas, and optionally, either one of Schaefer or Rancourt, and Landvik. Final Act. 11. Claims 52 and 53 are rejected under 35 U.S.C. § 103 as being unpatentable over Albecker, Burchi, and Tamano, and optionally, St. Thomas, and optionally, either one of Schaefer or Rancourt, and Watkinson. Final Act. 11. Claim 54 is rejected under 35 U.S.C. § 103 as being unpatentable over Albecker, Burchi, and Tamano, and optionally, St. Thomas, and optionally, either one of Schaefer or Rancourt, and either one of Neff or Embach. Final Act. 12. OPINION We have reviewed Appellant’s arguments for patentability. However, we determine that a preponderance of the evidence supports the Examiner’s finding that the claimed subject matter of representative claim 37 is anticipated within the meaning of § 102 in view of the applied prior art of Albecker. Accordingly, we will sustain all of the Examiner’s rejections for essentially those reasons expressed in the Examiner’s Response to Argument section in the Answer, and we add the following primarily for emphasis. Appeal 2020-003684 Application 15/253,770 5 Appellant’s main argument is that Albecker does not describe, within the meaning of § 102, “molding an outer layer of foam completely around and contacting the entire exterior surface of the foam core, wherein the outer layer of foam is conformally molded around the seat back portion of the foam core” as recited in independent claim 37. However, as the Examiner points out in the Answer, Albecker explicitly describes this scenario when read as a whole (e.g., Ans. 12, 13 relying on Albecker col. 19, l. 57 to col. 20, l. 14 and col. 21, l. 52 to col. 22, l. 9). Appellant’s assertion that Albecker only describes injection molding this cushion over another cushion 26 which is already glued to the foundation foam (e.g., Appeal Br. 7–10; Reply Br. 5–10) is not persuasive of reversible error in the Examiner’s anticipation rejection. It is clear from a fair reading of the relied upon passages of Albecker that an alternative embodiment is being described where the injection molded foam cushion is de facto the softer cushion 26 being conformally molded onto the firmer foam core foundation. A preponderance of the evidence supports the Examiner’s position that one of ordinary skill in the art would have readily recognized or inferred that the method described in Albecker is indeed encompassed by the claim language in dispute (Ans. 12–15). In re Preda, 401 F.2d 825, 826 (CCPA 1968) (In determining whether a reference anticipates the subject matter recited in a claim, “it is proper to take into account not only specific teachings of the reference but also the inferences which one skilled in the art would reasonably be expected to draw therefrom.”); cf. In re Schaumann, 572 F.2d 312, 317 (CCPA 1978) (In order to anticipate, a reference must identify something falling within the Appeal 2020-003684 Application 15/253,770 6 claimed subject matter with sufficient specificity to constitute a description thereof within the purview of § 102.). Thus, a preponderance of the evidence supports the Examiner’s position that one of ordinary skill in the art would have at once envisaged or inferred from Albecker’s disclosure that a method as recited in independent claim 37 is indeed described therein (Ans. generally). The Examiner also rejected claim 37 as obvious over Albecker and St. Thomas. St. Thomas was only applied if needed to exemplify that a covering may be placed around the entire seating article (e.g., Ans. 16). The plain language of claim 37 does not recite or require covering the entire seating article; thus, St. Thomas is not even needed. In any event, Appellant’s argument that St. Thomas teaches away from the claimed invention because it uses a cut block-from polystyrene for the core of the furniture (Appeal Br. 14) does not show reversible error in the rejection for reasons explained by the Examiner (Ans. 16, 17). Accordingly, we affirm the Examiner’s anticipation rejection, as well as the § 103 rejection based on Albecker and St. Thomas. No further substantive arguments were made regarding the remaining § 103 rejections. Thus, we also affirm the remaining § 103 rejections. CONCLUSION The Examiner’s rejections are AFFIRMED. Appeal 2020-003684 Application 15/253,770 7 DECISION SUMMARY Claim(s) Rejected 35 U.S.C. § Reference(s)/Basis Affirmed Reversed 37, 39–41, 43 102(a)(1) Albecker 37, 39–41, 43 37, 39–41, 43 103 Albecker, St. Thomas 37, 39–41, 43 38, 47, 49– 51, 55 103 Albecker, Burchi, Tamano, St. Thomas, Schaefer, Rancourt 38, 47, 49– 51, 55 42 103 Albecker, Landvik, St. Thomas 42 44 103 Albecker, Neff, Embach, St. Thomas 44 45, 46 103 Albecker, Burchi, Watkinson, St. Thomas 45, 46 48 103 Albecker, Burchi, Tamano, St. Thomas, Schaefer, Rancourt, Landvik 48 52, 53 103 Albecker, Burchi, Tamano, St. Thomas, Schaefer, Rancourt, Watkinson 52, 53 54 103 Albecker, Burchi, Tamano, St. Thomas, Schaefer, Rancourt, Neff, Embach 54 Overall Outcome 37–55 Appeal 2020-003684 Application 15/253,770 8 RESPONSE 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