Ex Parte GLADNEY et al

Patent Trial and Appeal BoardOct 24, 2018

13354571 (P.T.A.B. Oct. 24, 2018)

UNITED STA TES p A TENT AND TRADEMARK OFFICE APPLICATION NO. FILING DATE FIRST NAMED INVENTOR 13/354,571 01/20/2012 RICHARD F. GLADNEY 23413 7590 10/26/2018 CANTOR COLBURN LLP 20 Church Street 22nd Floor Hartford, CT 06103 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 ATTORNEY DOCKET NO. CONFIRMATION NO. SSB0030USC 1037 EXAMINER THROOP, MYLES A ART UNIT PAPER NUMBER 3673 NOTIFICATION DATE DELIVERY MODE 10/26/2018 ELECTRONIC 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. Notice of the Office communication was sent electronically on above-indicated "Notification Date" to the following e-mail address(es): usptopatentmail@cantorcolbum.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte RICHARD F. GLADNEY, COREY WESTERMAN, and MICHAEL S. DEFRANKS Appeal2017-009886 Application 13/354,571 Technology Center 3600 Before WILLIAM V. SAINDON, JEREMY M. PLENZLER, and ERIC C. JESCHKE, Administrative Patent Judges. PLENZLER, Administrative Patent Judge. DECISION ON APPEAL STATEMENT OF THE CASE Appellant seeks our review under 35 U.S.C. Â§ 134 of the Examiner's Decision rejecting claims 1, 6, 7, 10-14, 16-19, 21, 22, 25, and 28-31. We have jurisdiction under 35 U.S.C. Â§ 6(b ). We AFFIRM. Appeal2017-009886 Application 13/354,571 CLAIMED SUBJECT MATTER Claims 1, 13, 28, and 29 are independent, with claims 6, 7, 10-14, 16- 19, 21, 22, 2 5, 3 0, and 31 depending from claim 1 or 13. Claim 1 is representative of the claims on appeal, and is reproduced below: 1. A mattress assembly, comprising: at least one upper support layer having a perimeter; a mattress core comprising a gel infused polyurethane foam consisting of a porous closed cell foam body and a gel intermixed with the foam body such that the gel occupies air pockets of the porous foam body, wherein the gel is a dimensionally stable gel selected from the group consisting of a silicone gel, a PVC gel, a polyorganosiloxane gel, a NCO-prepolymer gel, a polyol gel, a polyurethane gel, a polyisocyanate gel, and a gel including a pyrogenically produced oxide; at least one lower support layer having a perimeter, wherein the mattress core is sandwiched between the upper and lower support layers; and sidewalls attached to the perimeters of the upper and lower support layers and along a side border region of the mattress core. REJECTIONS 1. Claims 6 and 25 are rejected under 35 U.S.C. Â§ 112, fourth paragraph. 2. Claims 1, 6, 7, 10-14, 16-19, 21, 22, 25, and 28-31 are rejected under 35 U.S.C. Â§ 103 as being unpatentable over Schwartz (US 5,819,349, issued Oct. 13, 1998), Chen (US 5,633,286, issued May 27, 1997), and Schapel (US 5,362,834, issued Nov. 8, 1994). 3. Claims 6 and 25 are rejected under 35 U.S.C. Â§ 103 as being unpatentable over Schwartz, Chen, Schapel, and Lachenbruch (US 2003/0109908 Al, published June 12, 2003). 2 Appeal2017-009886 Application 13/354,571 OPINION 35 USCÂ§ 103 Appellant argues claims 1, 6, 7, 10-14, 16-19, 21, 22, 25, and 28-31 as a group. Br. 8-11. We select claim 1 as representative. Claims 6, 7, 10- 14, 16-19, 21, 22, 25, and 28-31 stand or fall with claim 1. See 37 C.F.R. Â§ 4I.37(c)(l)(iv). Appellant presents a number of arguments, but does not address the rejection presented by the Examiner. The Examiner finds that Schwartz teaches each limitation of claim 1, but does not specifically teach that its mattress core includes a gel-infused closed cell foam. Final Act. 3--4. Appellant does not dispute the Examiner's findings related to Schwartz. The Examiner finds that "Chen teaches foam that has gel physically interlocked in the air spaces of the foam." Id. at 3 (emphasis omitted). The Examiner acknowledges that "Chen does not explicitly teach 'closed cell' polyurethane foam." Id. at 4. The Examiner explains that "Chen discloses that his materials are beneficial in several applications relevant to beds, such as cervical pillows, bed wedge pillows, leg rest cushions, neck cushions, bed pads, wheelchair cushions" and, therefore, "one of ordinary skill in the art would have therefore found it obvious to use a gel infused foam such as Chen's in order to provide a mattress element with the predictable established function of gel infused foams in order to provide further customization capability to the apparatus of Schwartz." Id. Appellant does not dispute the Examiner's findings related to Chen noted above. Rather, Appellant contends that "[ c ]learly, Chen does not teach 'a gel infused polyurethane foam consisting of a porous closed cell foam body and a gel intermixed with the foam body such that the gel 3 Appeal2017-009886 Application 13/354,571 occupies air pockets of the porous foam body."' Br. 9. As is clear from our explanation of the rejection above, however, the Examiner does not rely on Chen teaching a closed cell foam or the specific gel recited in the claim. See Final Act. 4--5. Appellant also contends that "none of the articles [in Chen] are mattress assemblies" and, "[i]nstead, Chen refers to a laundry list of articles including cervical pillows, bed wedge pillows, leg rest cushions, neck cushions, and bed pads; all of which are generally known to be disposed on top of the mattress assembly." Br. 11. Appellant fails to explain, nor do we see, how this identifies reversible error in the Examiner's rejection because there is no dispute regarding the Examiner's finding, noted above, that "Chen discloses that his materials are beneficial in several applications relevant to beds." Final Act. 4. Moreover, Appellant's own Specification notes the relevance of mattress toppers to the present application. See, e.g., Spec. ,r 5 ("The systems and methods described herein include improved gel-based mattresses [ and] mattress toppers."). The Examiner takes official notice that closed cell foams were well known in the art. Final Act. 4. The Examiner reasons that using a closed cell foam would have been obvious because it involves simply "choosing from a finite number of identified, predictable solutions ( open cell or closed cell foam), with a reasonable expectation of success" and also because it "would have been simple substitution of one known element for another ( closed cell foam substituted for open cell foam) to obtain predictable results." Id. at 4--5. Appellant does not dispute this finding or rationale. The Examiner finds that Schapel teaches the specific gels recited in claim 1, and reasons that "it would have been obvious for one of ordinary skill to have selected the claimed gel since it has been held to be within the 4 Appeal2017-009886 Application 13/354,571 general skill of a worker in the art to select a known material on the basis of its suitability for the intended use as a matter of obvious design choice" and to "provide further customization capability for the apparatus of Schwartz." Id. at 4--5. Appellant does not dispute that Schapel teaches the gels recited in claim 1. Rather, Appellant responds that "[ n Jone of Schapel 's polyurethane gels are infused into foams" (Br. 9) and "[ n ]owhere does Schapel teach or even suggest mattress assembly including a gel infused foam layer" (id. at 11). Appellant notes that "the Office found Appellant's featured gels would have been a matter of obvious design choice" and "respectfully disagrees," without meaningful explanation as to why the Examiner's rationale is deficient. Id. at 10. Based on this general allegation, we are not apprised of any particular error in the Examiner's findings or rationale related to Schapel. Schapel expressly states, for example, that "[p ]ressure-distributing elements containing gel compounds according to the invention may be used in various ways, for example as gel cushions in ... beds." Schapel 11 : 1-5. For at least these reasons, we are not apprised of Examiner error in the rejection of claims 1, 6, 7, 10-14, 16-19, 21, 22, 25, and 28-31 as unpatentable over Schwartz, Chen, and Schapel. Because Appellant does not present separate arguments for the rejection of claims 6 and 25 as additionally being unpatentable over Schwartz, Chen, Schapel, and Lachenbruch, we also are not apprised of Examiner error in the additional rejection of those claims. 35 USCÂ§ 112,fourth paragraph The Examiner rejects claims 6 and 25 under 35 U.S.C. Â§ 112, fourth paragraph, "as being of improper dependent form for failing to include all 5 Appeal2017-009886 Application 13/354,571 the limitations of the claim upon which it depends." Final Act. 2. The Examiner notes that although "[ c ]laims 1 and 13 recite 'a dimensionally stable gel' ... claims 6 and 25 are directed toward a material that 'is configured to transition from a liquid to a solid."' Id. The Examiner reasons that "[u]pon changing phase, a material fails to remain 'dimensionally stable."' Id. Appellant responds that the claims recite "a property of the gel featured in the respective independent claim in that the gel is configured to harden upon application of heat and pressure, i.e., transition from a liquid to a solid ... occup[ying] air pockets of a porous foam body and is thus confined by the dimensions therein," and "[t]he gel of claims 6 and 25 are dimensionally stable." Br. 8. Appellant's contentions are persuasive. There is no dispute, for example, that the gel is dimensionally stable in the hardened condition. We read claims 6 and 25 as further specifying the material used to form the mattress assembly, which ultimately includes the gel in the hardened condition. Accordingly, we agree with Appellant that the Examiner erred in this rejection of claims 6 and 25. DECISION We REVERSE the Examiner's decision to reject claims 6 and 25 under 35 U.S.C. Â§ 112, fourth paragraph. We AFFIRM the Examiner's decision to reject claims 1, 6, 7, 10-14, 16-19, 21, 22, 25, and 28-31 under 35 U.S.C. Â§ 103. 6 Appeal2017-009886 Application 13/354,571 No time period for taking any subsequent action in connection with this appeal may be extended under 37 C.F.R. Â§ 1.136(a)(l )(iv). AFFIRMED 7