Ex Parte 6799341 et al

Patent Trial and Appeal BoardMar 27, 2013

90011779 (P.T.A.B. Mar. 27, 2013)

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. 90/011,779 06/30/2011 6799341 HOMT-47804US1 1451 116 7590 03/27/2013 PEARNE & GORDON LLP 1801 EAST 9TH STREET SUITE 1200 CLEVELAND, OH 44114-3108 EXAMINER ENGLISH, PETER C ART UNIT PAPER NUMBER 3993 MAIL DATE DELIVERY MODE 03/27/2013 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 HOMTEX, INC. 1 Appellant, Patent Owner ____________________ Appeal 2013-003370 Reexamination Control 90/011,779 Patent No. US 6,799,341 B2 2 Technology Center 3900 ____________________ Before DANIEL S. SONG, MICHAEL L. HOELTER and SCOTT E. KAMHOLZ, Administrative Patent Judges. SONG, Administrative Patent Judge. DECISION ON APPEAL 1 Homtex, Inc. is the real party in interest (Appeal Brief (hereinafter "App. Br.") 3). 2 Issued October 5, 2004 to Wootten, Jr. (hereinafter "'341 patent"). Appeal 2013-003370 Reexamination Control 90/011,779 Patent No. US 6,799,341 B2 2 The Appellant appeals under 35 U.S.C. Â§Â§ 134(b) and 306 from a Final Rejection of claims 1-14, 16, 18, 19, 21, 23 and 26. We have jurisdiction under 35 U.S.C. Â§Â§ 134(b) and 306. In addition to the Appeal Brief, the Patent Owner also relies on a Reply Brief (hereinafter "Reply Br."), declarations of Mr. Strongwater who is a co-inventor of an applied prior art patent, Mr. Wootten, Jr., who is the inventor of the subject '341 patent, and a draftsperson Mr. Zusy. An oral hearing with the Patent Owner's legal representative was conducted March 20, 2013, a transcript of which will be entered into the electronic record in due course. The '341 patent was the subject of litigation entitled Homtex, Inc. v. Leggett & Platt, Inc. et al., 5:11-cv--01349-CLS (NDAla.) which has been settled and dismissed with prejudice (Reply Br. 1). The invention is directed to a fitted mattress sheet. Representative independent 1 reads as follows (App. Br. 45, Claims Appendix, emphasis added): 1. (Original) A fitted sheet for a mattress which comprises an elongated main body section which defines opposite first and second side sections and opposite first and second end sections, adjacent edges of said side and end sections being attached together, a first end panel which is stitched to said first end section and stitched to said respective first and second side sections, a second end panel which is stitched to said second end section and stitched to said respective first and second side sections, and an elastic band which is connected to inner peripheries of said first and second side sections and said first and second end panels so that said side sections, said end sections and said end panels will tightly fit against the sides of a mattress and extend thereunder to tightly fit the fitted sheet on the mattress. Appeal 2013-003370 Reexamination Control 90/011,779 Patent No. US 6,799,341 B2 3 REJECTIONS The Examiner rejected various claims of the '341 patent as follows: 1. Claims 1-5 and 8 under 35 U.S.C. Â§ 102(b) as anticipated by Mink 3 ; 2. Claims 6 and 7 under 35 U.S.C. Â§ 103(a) as unpatentable over Mink in view of Allaire 4 ; 3. Claims 1-6, 8-14, 16, 18-19, 21, 23 and 26 under 35 U.S.C. Â§ 103(a) as unpatentable over Gusman 5 in view of Keene 6 and Mink; 4. Claim 7 under 35 U.S.C. Â§ 103(a) as unpatentable over Gusman in view of Keene, Mink and Allaire; 5. Claims 1-6, 8-14, 16, 18, 19 and 21 7 under 35 U.S.C. Â§ 103(a) as unpatentable over Kasem 8 in view of Keene. 6. Claim 7 under 35 U.S.C. Â§ 103(a) as unpatentable over Kasem in view of Keene and Allaire. We AFFIRM-IN-PART. ISSUES The following issues are dispositive in the present appeal. 3 Franklin Mink et al., U.S. 6,226,815 B1 (May 8, 2001). 4 Ralph M. Allaire, Jr., U.S. 4,261,048 (July 24, 1984). 5 Irwin J. Gusman, U.S. 4,703,530 (November 3, 1987). 6 James Henry Keene, III, U.S. 6,108,836 (August 29, 2000). 7 Whereas the Patent Owner identifies claim 26 as being part of this rejection (App. Br. 4), the Answer does not include this claim (Ans. 6). 8 Jean Kasem, U.S. 6,230,352 B1 (May 15, 2001). Appeal 2013-003370 Reexamination Control 90/011,779 Patent No. US 6,799,341 B2 4 1. Whether the Examiner erred in finding that the elastic strip of Mink satisfies the limitation "end panel" recited in the claims. 2. Whether the Examiner erred in finding that an end panel of Gusman is "stitched to" a side section. 3. Whether the Examiner erred in concluding obviousness of modifying the sheet of Kasem to provide a separate end panel in view of Keene. PRINCIPLES OF LAW "Anticipation requires the presence in a single prior art reference disclosure of each and every element of the claimed invention, arranged as in the claim." Lindemann Maschinenfabrik GMBH v. American Hoist and Derrick Co., 730 F.2d 1452, 1458 (Fed. Cir. 1984). Claims are to be given their broadest reasonable interpretation consistent with the specification, reading claim language in light of the specification as it would be interpreted by one of ordinary skill in the art. In re Am. Acad. of Sci. Tech. Ctr., 367 F.3d 1359, 1364 (Fed. Cir. 2004). "Section 103 forbids issuance of a patent when 'the differences between the subject matter sought to be patented and the prior art are such that the subject matter as a whole would have been obvious at the time the invention was made to a person having ordinary skill in the art to which said subject matter pertains.'" KSR Int'l Co. v. Teleflex Inc., 550 U.S. 398, 406 (2007). In KSR, the Supreme Court explained that "[i]f a person of ordinary skill can implement a predictable variation, Â§103 likely bars its patentability," and that "if a technique has been used to improve one device, Appeal 2013-003370 Reexamination Control 90/011,779 Patent No. US 6,799,341 B2 5 and a person of ordinary skill in the art would recognize that it would improve similar devices in the same way, using the technique is obvious unless its actual application is beyond his or her skill." Id. at 417. Furthermore, making elements of a device integral or separate is considered to be an obvious design choice and does not render an invention patentable. See In re Larson, 340 F.2d 965, 968 (CCPA 1965). ANALYSIS Preliminary Issues We preliminarily address the various arguments of the Patent Owner presented in its briefs that are not directed to the Examiner's substantive rejections of the claims. In particular, the Patent Owner asserts that the drawings contain various errors, and refers to the Declaration of Mr. Zusy in support thereof, the submission including corrected drawings (App. Br. 41- 43; Decl. of Zusy). The Patent Owner's request to enter corrected drawings was rejected by the Examiner who stated that the corrected drawings contain new matter (Ans. 15). The Patent Owner requests the Board to consider the issue and enter the submitted drawings (App. Br. 42; Reply Br. 10, 11). However, as noted by the Examiner (Ans. 15), this issue is not properly before the Board because it is a petitionable issue, not an appealable one. In fact, the Patent Owner filed a Petition Under 37 C.F.R. Â§ 1.181 Requesting Entry of Drawing Amendments which has already been denied (App. Br. 7- 8). The Patent Owner also states that the Examiner did not address the prior objections to the amendments to the specification of the '341 patent in Appeal 2013-003370 Reexamination Control 90/011,779 Patent No. US 6,799,341 B2 6 the Answer (Reply Br. 9). However, it is evident that such matters are also not within the purview of the Board. Rejection 1 The Examiner rejects claims 1-5 and 8 as being anticipated finding that Mink discloses each and every limitation of these claims. The Examiner, inter alia, finds that Mink satisfies the recited "end panel" limitation by its provision of the wide elastic strip 18 (Ans. 2-3). The Patent Owner, inter alia, disputes this finding and contends that the wide elastic strip 18 of Mink "is not the same as a panel, as claimed, because elastic has specific properties that are not normally associated with a panel." (App. Br. 24, 26). The Patent Owner argues that "the term 'panel,' which is inherently a fabric as know [sic, known] by those of skill in the art, does not encompass an elastic band 20 as that term is understood by those of skill in the art." (Reply Br. 2). In support, the Patent Owner relies on the Declaration of Strongwater who is a co-inventor of Mink to assert that this evidence establishes that the elastic strip 18 is not a panel, and that a person of ordinary skill in the art would not consider it to be a panel (App. Br. 18- 19, 25; Reply Br. 2-3). The Patent Owner further argues that the Examiner improperly discounted the Declaration of Strongwater (App. Br. 25). The Examiner responds that the Patent Owner's arguments and the declaration evidence "are not persuasive because they rely on the presupposition that the end panels are 'fabric' end panels." (Ans. 9). In this regard, the Examiner observes that the rejected claims do not recite "fabric" Appeal 2013-003370 Reexamination Control 90/011,779 Patent No. US 6,799,341 B2 7 end panels and further asserts that conventional definition of "panel" does not require it to be made of fabric (Ans. 9-10). However, the evidence of record, while limited, supports the Patent Owner's contention. The specification of the '341, while not explicitly defining "panel," denominates the elastic component of the sheet as an "elastic binder." ('341 patent, col. 2, ll. 51-56). Mink also distinguishes between fabric components of the sheet and those components exhibiting elasticity, such components being identified as "wide elastic strip" and "narrow elastic strip." (Mink, col. 2, ll. 24-32). In addition to explaining that the panel 12 of Mink was made of fabric (Decl. of Strongwater, Â¶ 12), Mr. Strongwater's declaration is directed to how one of ordinary skill in the art would understand the term "panel" in the pertinent art, and further states that the elastic strip 18 would not be considered a panel in the art. In particular, the declarant states that: 10. One of skill in the relevant art would not find that the elastic band 18, in my patent, is the same as a panel. Moreover, an elastic strip is not the same thing as a panel. â€¦ 13. â€¦The elastic 18 is different from a panel. 14. The elastic strip 18 has different characteristics from the panel 18 [sic, 12]. The elastic strip is typically a very strong, thick material that requires special handling in the manufacturing process. A panel, on the other hand, is a fabric that can be easily sewn with traditional sewing techniques. 15. For these reasons, the elastic strip 18 in my patent is not the same thing as a panel. (Decl. of Strongwater, Â¶Â¶ 10, 13, 14, 15). Appeal 2013-003370 Reexamination Control 90/011,779 Patent No. US 6,799,341 B2 8 Thus, the evidence indicates that in the pertinent art, components exhibiting elasticity are specifically identified as being "elastic" in contrast to the other components or portions of the sheets which are made of fabric. While the claims may not explicitly set forth that the panels are made of fabric as noted by the Examiner, the evidence indicates that the conventional definition of "panel" to a person in this art is limited to fabrics, and is distinguished from elastic components. There is no persuasive evidence in the record which supports the finding that the term "panel" encompasses such elastic strip of Mink relied upon by the Examiner. Hence, because we agree with the Patent Owner that the elastic strip 18 of Mink does not satisfy the recitation for an "end panel" in the claims, we do not sustain Rejection 1. The remaining arguments of the Patent Owner are moot. Rejection 2 Claims 6 and 7 depend from claim 1 and stand rejected as obvious over Mink in view of Allaire. This rejection is premised on the finding that the elastic strip 18 of Mink satisfies the limitation "end panel" recited in independent claim 1, the Examiner merely relying on Allaire for disclosing cotton and linen materials (Ans. 3). The Patent Owner relies on dependency on claim 1 for patentability of these claims (App. Br. 28). Thus, Rejection 2 is not sustained for the reason discussed supra with respect to Rejection 1. Appeal 2013-003370 Reexamination Control 90/011,779 Patent No. US 6,799,341 B2 9 Rejection 3 The Examiner rejects claims 1-6, 8-14, 16, 18-19, 21, 23 and 26 as obvious over Gusman in view of Keene and Mink. The Examiner, inter alia, finds that Gusman discloses "the end panels 24 being sewn to the side panels 22 (which form part of the first and second side sections 16) at the corners 20," and edge elastic 36 (Ans. 3). Whereas the Examiner concedes that Gusman fails to disclose end panels which are stitched to end sections because they are made as one piece therewith, the Examiner concludes that such separate construction and stitching would have been obvious and merely a matter of design choice in view of Keene's teachings (Ans. 4). The Patent Owner argues that the rejection is improper because, inter alia, Gusman discloses a conventional fitted sheet without end panels, and "Gusman does not teach separate end panels that are stitched to the end sections." (App. Br. 29; Reply Br. 3). We generally agree with the Patent Owner. We first observe that the end panels 18 with retaining flaps 24 at the ends of the fitted sheet 12 of Gusman extend from top 14 of the sheet to the same extent as the side panels 16 and retaining flaps 22 (Gusman, col. 2, l. 62-col. 3, l. 11; Figs. 1, 2). To the extent that the Examiner distinguishes the retaining flaps 24 portion from the remainder of the end panel 18 so that the retaining flaps 24 corresponds to the recited "end panel" and the remainder of the end panel 18 corresponds to the recited "end section," it follows that the retaining flaps 22 are distinguished from the remainder of the side panels 16, the side panels 16 extending from the top 14 to the same extent as the end panels 18. Appeal 2013-003370 Reexamination Control 90/011,779 Patent No. US 6,799,341 B2 10 In making the retaining flaps 24 a separate component that is stitched to the remaining portion of the end panel 18, the result is that the retaining flaps 24 are "stitched to" the retaining flaps 22 instead of the remainder of the side panels 16 that corresponds to the "side section" recited in the claims. Whereas the Examiner states that the side panels 22 "form part of the first and second side sections 16," the entirety of the reference must be considered, and the Examiner's selective use of the fitted sheet 12 disclosed in Gusman is, in our view, improper. See generally, In re Wesslau, 353 F.2d 238, 241 (CCPA 1965) ("It is impermissible within the framework of section 103 to pick and choose from any one reference only so much of it as will support a given position, to the exclusion of other parts necessary to the full appreciation of what such reference fairly suggests to one of ordinary skill in the art."). Therefore, in view of the above, we agree with the Patent Owner that Gusman does not disclose end panels that are stitched to the end sections, and correspondingly, do not sustain Rejection 3. The remaining arguments of the Patent Owner with respect to this rejection are moot. Rejection 4 Claim 7 depends from claim 1 and stands rejected as unpatentable over Gusman in view of Keene, Mink and Allaire. This rejection is premised on the finding that Gusman discloses end panels stitched to the end sections, the Examiner relying on Allaire for disclosing use of linen material (Ans. 6). The Patent Owner relies on dependency on claim 1 for Appeal 2013-003370 Reexamination Control 90/011,779 Patent No. US 6,799,341 B2 11 patentability of claim 7 (App. Br. 32). Thus, Rejection 4 is not sustained for the reason discussed supra with respect to Rejection 3. Rejection 5 The Examiner rejects claims 1-6, 8-14, 16, 18, 19 and 21 as obvious over Kasem in view of Keene (Ans. 6-8). Kasem discloses a safety sheet for a crib (Title). Figures 5 and 8 of Kasem are reproduced below. FIG. 5 FIG. 8 Figure 5 of Kasem shows a blank from which the crib sheet is made, the blank including a central region 70, flaps 72 and elastic gatherers 74 (col. 1, ll. 55-56; col. 2, ll. 40-45; Fig. 5). Figure 8 of Kasem shows the sheet 100 installed on conventional crib mattress 90 (col. 1, ll. 61-62; col. 3, ll. 1-5; Fig. 8). Kasem further discloses that the sides of the blank are folded and sewn to define a rectangular volume, "each flap 72 being folded and sewn to the central region 70" to define a pocket at either end of the rectangular volume (col. 2, ll. 46-52). Thus, contrary to Gusman discussed supra, Kasem clearly discloses ends of the sheet that extend from the main top surface to a greater extent than the sides thereof (see Fig. 8). Appeal 2013-003370 Reexamination Control 90/011,779 Patent No. US 6,799,341 B2 12 The Examiner finds that Kasem discloses end panels "which are formed in one piece" with the end section, the end panels being sewn to the side panels which form part of the side sections (Ans. 6). The Examiner also finds that Kasem also discloses an edge elastic 74 attached to, and extending along, the inner periphery of the side and end panels (Ans. 6-7). The Examiner concedes that "Kasem fails to disclose first and second end panels which are stitched to the first and second end sections." (Ans. 7). The Examiner relies on Keene for teaching: that various panels of the fitted sheet 112 can be either formed in one piece with each other or, alternatively, formed as separate pieces that are sewn together (see column 4, ll. 11-16, 23-27, 35-39 and 51-56). That is, Keene, III teaches that choosing to separate one-piece panels into separate panels that are stitched together is within the level of ordinary skill in the art and is merely a matter of design choice. Further, Keene, III teaches that one advantage of forming panels as separate pieces that are then stitched together is that this allows the panels of the fitted sheet to all be cut from a single fabric blank, thereby improving efficiency of manufacture and reducing waste (see column 6, lines 36-48). (Ans. 7). We agree with the Examiner's findings with respect to both Kasem and Keene. Based on these findings, the Examiner concludes that it would have been obvious to one of ordinary skill in the art to modify the sheet of Kasem to have separate end panels that are stitched to end sections as a mere matter of design choice, and to allow panels to be cut from a single fabric blank so as to improve manufacturing efficiency and reduce waste (Ans. 7). We Appeal 2013-003370 Reexamination Control 90/011,779 Patent No. US 6,799,341 B2 13 agree with the Examiner's conclusion of obviousness and address the Patent Owner's various arguments below. The Patent Owner initially argues that "although Kasem uses elastic, it discourages the use of elastic when the elastic is used to hold the sheet of the mattress" whereas the claimed invention utilizes an elastic to pull the sheet tightly on the mattress (App. Br. 34-35). However, as noted, Kasem itself utilizes "elastic gatherers 74" along the side sections that are below the mattress (col. 2, ll. 44-46; Figs. 5, 6, 8) and Kasem further teaches that such elastic gatherers can be provided on the "short sides" of the sheet (col. 3, ll. 10-15). While Kasem also states that "[i]n another embodiment, the elastic gathers are eliminated entirely," it is clearly setting forth an alternative embodiment (Col. 3, ll. 15-16). Hence, Kasem merely teaches various embodiments of the sheet, with and without an elastic gather. In the embodiment where the elastic gather is provided along the long and short sides of the sheet, we agree with the Examiner that "the edge elastic 74 of Kasem functions, in cooperation with the pocket structure formed by the sheet panels, to hold the sheet on the mattress." (Ans. 12; see also Kasem, Fig. 8). The Patent Owner also argues that the secondary reference Keene teaches away from use of elastic because it mentions that elastic bands can wear after repeated use (Keene, col. 1, ll. 37-39) and does not utilize an elastic in its disclosed sheet (App. Br. 36; see also Reply Br. 6). The Patent Owner argues that the Examiner erred in rejecting these claims based on Kasem and Keene because "the combination of Keene and Kasem would be unlikely by those of skill in the art." (App. Br. 36; see also Reply Br. 6). Appeal 2013-003370 Reexamination Control 90/011,779 Patent No. US 6,799,341 B2 14 This line of argument is also unpersuasive. Firstly, we observe that the rejection is not based on physically combining the structures of Kasem with Keene (see Ans. 7 reproduced supra). Rather, the Examiner relies on Keene for establishing that it was known to those in the art to provide separate panels or components in a sheet, and to sew these separate panels together (id.). The Examiner also relies on Keene for its teaching that it was known to those in the art to improve manufacturing efficiency and reduce waste by cutting the panels from a single fabric blank (id.). Secondly, while the disclosed sheet of Keene does not utilize anelastic, that does not negate or detract from the fact that Keene clearly establishes that sewing separate panels in a sheet was already known and practiced by those in the art. The provision of an elastic is not the basis of distinction between the claimed invention and the prior art disclosed in Kasem. Rather, it is the provision of an end panel as a separate component which is sewn to the sheet that distinguishes the claimed invention from Kasem. Providing a separate end panel does not relate to the provision of an elastic. The Patent Owner appears to assert that even if a prior art reference includes numerous different teachings therein, as long as one aspect thereof can be considered to "teach away" from the claimed invention, the prior art reference (and the other teachings therein) becomes contaminated so that the reference cannot be relied upon at all, even with respect to other teachings unrelated to the aspect that is said to be taught away (App. Br. 36). We do not share this view. Whereas the Patent Owner cites cases in support (App. Br. 30, fn. 3), these cases do not appear to support the Patent Owner's Appeal 2013-003370 Reexamination Control 90/011,779 Patent No. US 6,799,341 B2 15 apparent position. Instead, a reference must be evaluated for all its teachings. See In re Inland Steel Co., 265 F.3d 1354, 1361 (Fed. Cir. 2001) (The claimed invention required addition of antimony and avoidance of annealing during a specific period. The primary reference disclosed the claim except for addition of antimony. The secondary reference disclosed annealing in addition to the adding of antimony. The appellant argued that the secondary reference teaches away but the court stated "[t]he fact that [the secondary reference] teaches that annealing in addition to adding antimony produces optimal results does not negate [the secondary reference's] additional teaching that adding antimony is effective even in non-annealed steel"; see also citations therein); see also In re Bode, 550 F.2d 656, 661 (CCPA 1977). Clearly, if the distinction between the claimed invention and Kasem was in the implementation of the disclosed elastic, it may be argued that Keene teaches away from the use of elastics in view of the fact that it does not use an elastic and notes the disadvantage of their use. However, the distinction between the claims and Kasem is that of the separateness of an end panel that is sewn to the sheet. Keene includes other teachings pertinent to sheets and manufacturing thereof that do not relate to elastics of which one of ordinary skill in the art would be aware, namely that panels can be separately sewn on, and the desirability of cutting such panels from a single fabric blank. Such aspects of sheets are not related to elastics, and thus, Keene cannot be said to teach away therefrom based on the lack of elastics. Thus, we agree with the Examiner's conclusion that providing a portion of flap 72 as a separate piece that is stitched to the remainder of the Appeal 2013-003370 Reexamination Control 90/011,779 Patent No. US 6,799,341 B2 16 blank would have been merely a design choice that is within the skill of one of ordinary skill, and thus obvious. See also KSR, 550 U.S. at 417; In re Larson, 340 F.2d at 968. The Patent Owner further relies on the Declaration of Wootten to argue that the rejection is improper because Kasem would require a wider piece of fabric than normally required for making sheets thereby resulting in greater amount of waste, whereas in contrast, Keene strives for efficiency in its design (App. Br. 36). Hence, the Patent Owner asserts that the person of ordinary skill in the art "knowing the inefficient teaching of Kasem would steer clear of teachings for combination with Keene, which promotes efficiency." (App. Br. 36-37). This argument is without merit. A person of ordinary skill in the art, knowing the inefficiency of the sheet described in Kasem would seek to improve efficiency using knowledge and techniques known in the art such as those evidenced by the teachings of Keene, namely, to provide separate sewn panels, and to cut panels from a single blank to improve manufacturing efficiency and reduce waste as the Examiner has articulated (Ans. 7, 13). See also KSR, 550 U.S. at 417; Medichem, S.A. v. Rolabo, S.L., 437 F.3d 1157, 1165 (Fed. Cir. 2006) ("a given course of action often has simultaneous advantages and disadvantages, and this does not necessarily obviate motivation to combine."). The Patent Owner further argues that the sheet of Kasem does not have a separate end panel, and teaches a single flap so that there is no stitching of a separate end panel to an end section (App. Br. 37; Reply Br. 6). According to the Patent Owner, because Keene merely teaches an end section that does not extend under mattress, the combination of Kasem and Appeal 2013-003370 Reexamination Control 90/011,779 Patent No. US 6,799,341 B2 17 Keene fails to result in invention even if combined (App. Br. 37; Reply Br. 7). However, the Patent Owner mischaracterizes the rejection which as noted, is not premised on physically combining the structures of Kasem and Keene, but is based on modifying the sheet of Kasem to provide separate end panels that are sewn to the end section in view of Keene, which demonstrates that such separation and sewing of panels were known in the pertinent art (see Ans. 7). In addition, non-obviousness cannot be established by attacking references individually. In re Merck, 800 F.2d 1091, 1097 (Fed. Cir. 1986); In re Keller, 642 F.2d 413, 425 (CCPA 1981). Moreover, as the Examiner explained, the degree to which end sections and end panels of Kasem extend under the mattress depends on thickness of the mattress (Ans. 13). Claims 12-14 and 16 The Patent Owner observes that these claims require the width of the side and the end panels be the same and argues that "[i]f the end panel of Keene were provided on end flap of Kasem, the result would be a sheet with side sections that are wider than the respective end sections." (App. Br. 39). However, this argument is misdirected because, as observed by the Examiner (Ans. 13-14), the rejection is not premised on physically combining the structures of Kasem and Keene. The Patent Owner further argues that because the end flap of Kasem has a trapezoid shape, it does not satisfy claim 12 which requires substantially the same length between end panel and end section (App. Br. 39). The Examiner disagrees and points out that the claims only require the Appeal 2013-003370 Reexamination Control 90/011,779 Patent No. US 6,799,341 B2 18 end panel be "substantially" the same in length as the end, and further finds that because that the trapezoid shape in Fig. 8 of Kasem has a shallow taper, the end panel would be "substantially" the same length as the end section (Ans. 14). The Patent Owner argues that "substantially" is a term of estimation that merely allows for slight variations (Reply Br. 7-8). However, the Patent Owner does not provide any persuasive evidence as to the meaning of "substantially" in the art or otherwise as used in the claim to support this contention. Thus, we not find mere attorney argument unpersuasive. In addition, the Examiner also states that the lengths at the adjoining edges of the end panels and end sections are the same and further states that selection of a rectangular shape for end panels in place of a trapezoidal shape is within the level of ordinary skill in the art (Ans. 14). These reasons for rejecting the claims are not persuasively addressed by the Patent Owner. Thus, we agree with the Examiner and sustain the rejection of these claims. Claims 18, 19 and 21 These claims require the side and end sections have substantially the same width. The Patent Owner argues that "[i]f the end panel[s] of Keene were provided on the end flap of Kasem, the result would be a sheet with side sections that are wider than the respective end sections." (App. Br. 40; see also Reply Br. 7). However, as the Examiner notes (Ans. 14) and as discussed supra, the Patent Owner mischaracterizes the rejection as being based on combining the structures of Kasem and Keene. Furthermore, with respect to dividing the flap 72 of Kasem, it would have been an obvious Appeal 2013-003370 Reexamination Control 90/011,779 Patent No. US 6,799,341 B2 19 matter of design choice and a predictable variation to provide such division at the location where the flap extends beyond the side sections to which the flap is attached. Such division results in the recited end panel of the claims which is attached to the remaining portion of the flap that corresponds to the recited end section. Therefore, we are not persuaded of any error in the Examiner's rejection of claims 1-6, 8-14, 16, 18, 19 and 21 as obvious over Kasem in view of Keene. Correspondingly, we sustain Rejection 5. Rejection 6 The Examiner rejected claim 7 as unpatentable over Kasem in view of Keene and Allaire, the Examiner relying on Allaire for disclosing linen (Ans. 8). The Patent owner merely relies on dependency on claim 1 for patentability of claim 7 (App. Br. 38). Thus, in view of the above, we sustain Rejection 6. CONCLUSIONS 1. The Examiner erred in finding that the elastic strip of Mink satisfies the limitation "end panel" recited in the claims. 2. The Examiner erred in finding that an end panel of Gusman is "stitched to" a side section. 3. The Examiner did not err in concluding obviousness of modifying the sheet of Kasem to provide a separate end panel in view of Keene. Appeal 2013-003370 Reexamination Control 90/011,779 Patent No. US 6,799,341 B2 20 ORDERS 1. Rejections 1 to 4 are REVERSED. 2. Rejections 5 and 6 are AFFIRMED. Requests for extensions of time in this ex parte reexamination proceeding are governed by 37 C.F.R. Â§ 1.550(c). See 37 C.F.R. Â§ 41.50(f). AFFIRMED-IN-PART ack cc Patent Owner: PEARNE & GORDON LLP 1801 EAST 9TH STREET Suite 1200 CLEVELAND, OH 44114-3108