Ex Parte Rensink

Patent Trial and Appeal Board

Aug 9, 2017

13666253 (P.T.A.B. Aug. 9, 2017)

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.
13/666,253 11/01/2012 Bob Rensink 84020-854850 3483
20350 7590 08/11/2017
KTT PATRTrK TOWNSFND fr STOrKTON T T P
EXAMINER
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NOTIFICATION DATE DELIVERY MODE
08/11/2017 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.
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PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte BOB RENSINK
Appeal 2016-006838
Application 13/666,253
Technology Center 3600
Before ALLEN R. MacDONALD, CARL W. WHITEHEAD JR., and
BRADLEY W. BAUMEISTER, Administrative Patent Judges.
WHITEHEAD JR., Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Appellant is appealing the final rejection of claims 1—8 and 16 under
35 U.S.C. § 134(a). Appeal Brief 4. We have jurisdiction under 35 U.S.C.
§ 6(b) (2012).
We affirm.
Introduction
The invention is directed to a “mattress that utilize a core made up of
a matrix of foam elements.” Specification, paragraph 2.
Appeal 2016-006838
Application 13/666,253
Illustrative Claim
1. A mattress comprising:
a core comprising a matrix of foam pieces that are adhesively
bonded together by coating the foam pieces with a binder or resin
and compressing the foam pieces to a desired density up to
8 pounds per cubic foot, wherein the core has a thickness in the
range from 3 inches to about 10 inches, and an IFD [indentation
force deflection] of about 28 to 65, the core having a top surface
and a bottom surface;
a cushion layer coupled to the top surface, wherein the cushion
layer comprises a polyurethane foam or latex, has a density in the
range from about 2 pounds per cubic foot to about 6 pounds per
cubic foot, a height in the range from 2 inches to about 6 inches
and an IFD of about 6 to about 18; and
a base layer coupled to the bottom surface of the core, the base
layer comprising a support foam layer having a thickness in the
range from 0.25 inch to 2 inches with a density of about 1 pound
per cubic foot to about 2 pounds per cubic foot and an IFD of
about 28 to about 70.
Rejection on Appeal
Claims 1—8 and 16 stand rejected under 35 U.S.C. § 103(a) as being
unpatentable over Robinson (US Patent 6,782,575 Bl; issued August 31,
2004), Mikkelsen (US Patent Application Publication 2006/0288490 Al;
published December 28, 2006) and Fink (US Patent Application Publication
2006/0106124 Al; published May 18, 2006). Non-final Rejection 5—9.
ANALYSIS
Rather than reiterate the arguments of Appellant and the Examiner,
we refer to the Appeal Brief (filed November 23, 2015), the Reply Brief
(June 28, 2016), the Non-final Rejection (mailed June 24, 2015) and the
Answer (mailed April 29, 2016) for the respective details.
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Appeal 2016-006838
Application 13/666,253
Appellant argues mattress layers’ claimed thickness ranges
ARE CRITICAL
Appellant contends the claimed mattress comprising three layers
having three different thicknesses wherein the base layer is relatively thin
when compared to the core and the cushion top surface layer. Appeal
Brief 5—6. Appellant further contends the dimensions of the mattress layers
are “critical in ensuring that the base layer can be constructed to be relatively
light and relatively inexpensive, but also able to hold the core in place when
the mattress is compressed and then rolled prior to shipping.” Appeal
Brief 5. Appellant’s Specification, paragraph 6 discloses wherein “a base
layer is coupled to the bottom surface of the core, and a cushion layer is
coupled to the top surface” and, therefore, “[i]n this way, remnant foam
pieces that may otherwise be discarded may be used to form a relatively
dense mattress core.”
However, we find the Specification does not establish criticality based
upon dimension or “parameters set forth in claim 1” of the layers, nor is
there any evidence of unexpected results.1 See Appeal Brief 6.
1 Appellants bear the burden of showing unexpected results. In re Geisler,
116 F.3d 1465, 1469-70 (Fed. Cir. 1997); In re Klosak, 455 F.2d 1077, 1080
(CCPA 1972). To establish unexpected results, the claimed subject matter
must be compared with the closest prior art. In re Baxter Travenol Labs.,
952 F.2d 388, 392 (Fed. Cir. 1991). “It is well settled that unexpected
results must be established by factual evidence. Mere argument or
conclusory statements in the specification does not suffice.” In re Soni,
54 F.3d 746, 750 (Fed. Cir. 1995) (quoting In re De Blauwe, 736 F.2d 699,
705 (Fed. Cir. 1984)). A showing of “unexpected results” requires that “the
claimed invention exhibits some superior property or advantage that a
person of ordinary skill in the relevant art would have found surprising or
unexpected.” Soni, 54 F.3d at 750.
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Appeal 2016-006838
Application 13/666,253
The Examiner finds Robinson discloses a mattress having three layers
(base core 11, upper layer 12 and lower layer 13). Non-final Rejection 5;
see Robinson Figure 1. Appellant argues Robinson discloses that the upper
and lower layers are identical, whereas “the claimed ranges of the cushion
layer and base layer do not overlap and are thus not identical.” Appeal
Brief 7. The Examiner finds that it would have been an obvious design
choice to modify the size of Robinson’s mattress layers within the claimed
ranges because such modifications would be a mere change in size. Non-
final Rejection 6. We agree with the Examiner’s findings. As we noted
above, the criticality of the claimed dimensions of the layers has not been
established.2
Appellant argues mattress layers’ claimed IFD ranges are
CRITICAL
Appellant argues “[a]s the outer layers of Robinson are identical they
cannot teach or suggest a base layer and a cushion layer that have different
IFD values as is now claimed.” Appeal Brief 7. Appellant further argues:
The Office Action attempts to address this deficiency by stating
that it is known to vary IFD values in layers to achieve an optimal
comfort level. Even assuming, arguendo, that it is generally
known to vary IFD values, it is still not obvious to vary the IFD
values of the outer layers of Robinson since the reference
explicitly teaches that the layers are identical.
Appeal Brief 7.
2 Appellant’s specification merely requires that “[t]he core should be thick
enough to provide appropriate support for sleeping and/or otherwise
supporting one or more people, but should be thin enough that the mattress
does not become unwieldy to transport or so large that sheets are difficult to
secure in place about the mattress.” Specification, paragraph 21.
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Appeal 2016-006838
Application 13/666,253
We agree with Appellant that Robinson does not teach or disclose
varying the IFD values of the outer layers. However, Appellant has not
demonstrated that such variation is critical or has produced unexpected
results. Appellant’s Specification discloses in paragraph 18 that the IFD
“refers to the hardness or softness of the foam” and the core may be
constructed to be relatively dense with an IFD range “about 28 to 65.”
Paragraph 19 of the Specification further discloses:
A wide variety of optional layers may be coupled to the top
and/or bottom surface of the core. For example, another dense
foam material may be coupled to the bottom of the core. A
variety of layers may be placed on top of the core, including
additional padding layers, ticking, foam, a quilted layer, or the
like.
The Examiner finds Appellant’s Specification fails to establish
criticality for the claimed IFD values because the Specification discloses,
“[t]he various layers may have different densities and or IFD ratings.” Non-
Final Rejection 6 (citing Spec, paragraph 24); see also Spec, paragraph 25
(stating “[t]he various layers may have different densities and or IFD
ratings”). Consequently, we agree with the Examiner’s finding that varying
IFD values in mattress layers to achieve optimal comfort level was well
known in the art especially considering achieving the optimal comfort level
is dependent upon subjective factors such as personal preferences as
opposed to having an objective standard. See Non-final Rejection 5—6.
Appellant argues Mikkelsen fails to address the alleged
DEFICIENCY OF ROBINSON
Appellant argues Mikkelsen fails to address Robinson’s failure to
disclose the claimed densities of the layers because the rejection relies upon
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Appeal 2016-006838
Application 13/666,253
densities that are taught in two distinct embodiments of Mikkelsen. Appeal
Brief 8. Appellant argues “[t]he two embodiments of Robinson utilize
different materials having different densities to provide mattresses having
different qualities.” Appeal Brief 8. Appellant contends “the parameters of
the claimed mattress including the thickness, density and indentation force
deflection (IFD) are all interrelated and critical to providing the necessary
comfort and support” and, therefore, there is no motivation to combine
Mikkelsen with Robinson because “Robinson describes a three-layer
mattress, while both of the cited embodiments of Mikkelsen relate to two-
layer mattresses that do not include a core layer.” Appeal Brief 8.
Appellant’s Specification discloses in paragraph 25:
The density of this cushion layer may be in the range from about
2 pounds per cubic foot to about 6 pounds per cubic foot. In a
particular embodiment, the density may range from about 2
pounds per cubic foot to about 5 pounds per cubic foot, and may
specifically be about 3 pounds per cubic foot or about 3.5 pounds
per cubic foot.
Appellant has not establish any criticality associated with the claimed
densities wherein the densities are merely fundamental characteristics of the
materials used to form the claimed mattress layers. We do not find
Appellant’s argument persuasive and agree with the Examiner’s findings
that modifying the densities of Robinson’s layers in view of Mikkelsen’s
teachings would have been obvious to one of ordinary skill in the art. See
Non-final Rejection 6—7.
We sustain the Examiner’s obviousness rejection of independent
claims 1 and 16, as well as, dependent claims 2—8 not separately argued.
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Appeal 2016-006838
Application 13/666,253
DECISION
The Examiner’s obviousness rejection of claims 1—8 and 16 is
affirmed.
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a)(1). See 37 C.F.R.
§ 1.136(a)(l)(iv).
AFFIRMED
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