Ex Parte Samuel

Patent Trial and Appeal BoardAug 23, 2017

12785857 (P.T.A.B. Aug. 23, 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. 12/785,857 05/24/2010 Chen Samuel Chen.SelflnflatingPool 1755 23616 7590 NEWHOPE LAW, PC CLEMENT CHENG, ESQ. 4522 Katella Avenue #200 Los Alamitos, CA 90720 EXAMINER CRANE, LAUREN ASHLEY ART UNIT PAPER NUMBER 3754 MAIL DATE DELIVERY MODE 08/23/2017 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 CHEN SAMUEL Appeal 2015-007610 Application 12/785,8571 Technology Center 3700 Before JENNIFER D. BAHR, STEFAN STAICOVICI, and SEAN P. O’HANLON, Administrative Patent Judges. STAICOVICI, Administrative Patent Judge. DECISION ON APPEAL STATEMENT OF THE CASE Chen Samuel (Appellant) appeal under 35 U.S.C. § 134(a) from the Examiner’s decision rejecting claims 1—14. We have jurisdiction over this appeal under 35 U.S.C. § 6(b). SUMMARY OF DECISION We AFFIRM. 1 According to Appellant, Sportspower Ltd. is the real party in interest. Appeal Br. 1 (filed Feb. 9, 2015). Appeal 2015-007610 Application 12/785,857 INVENTION Appellant’s invention relates to self-inflating pools. Spec. 1,1. 8. Claim 1, the sole independent claim, is representative of the claimed invention and reads as follows (underlining omitted): 1. A water conservation pool comprising: a. a water bladder having an inlet, wherein the water bladder is hollow and flexible for filling with water, wherein the water bladder is strong enough to support the weight of children on top; b. a bounce surface disposed on a top surface of the water bladder; c. an inflatable rim above the water bladder bounce surface; d. a sidewall extending from the water bladder to the inflatable rim for retaining water in a water open area, wherein the sidewall is collapsible when the pool is empty, wherein the sidewall panel is a flexible sheet connecting between the inflatable rim and the bounce surface, wherein the sidewall is configured as a water wall for retaining a pool of water over the water bladder, wherein the sidewall forms a vertically extending water wall that surrounds the water bladder and allows the pool to retain water. REJECTIONS The following rejections are before us for review: I. The Examiner rejected claims 1, 2, and 5 under 35 U.S.C. § 103(a) as being unpatentable over Stefanini (GB 2 037 580 A, published July 16, 1980) and Amelung (US 4,186,457, issued Feb. 5, 1980). 2 Appeal 2015-007610 Application 12/785,857 II. The Examiner rejected claims 3, 4, 6, and 7 under 35 U.S.C. § 103(a) as being unpatentable over Stefanini, Amelung, and Zheng (US 7,699,186 B2, issued Apr. 20, 2010). III. The Examiner rejected claims 8, 9, and 12 under 35 U.S.C. § 103(a) as being unpatentable over Stefanini, Amelung, and Hasselquist (US 2,714,726, issued Aug. 9, 1955). IV. The Examiner rejected claims 10, 11, 13, and 14 under 35 U.S.C. § 103(a) as being unpatentable over Stefanini, Amelung, Hasselquist, and Zheng. ANALYSIS Rejection I Appellant has not presented arguments for the patentability of claims 2 and 5 apart from claim 1. See Appeal Br. 6—8. Therefore, in accordance with 37 C.F.R. § 41.37(c)(l)(iv), we select claim 1 as the representative claim to decide the appeal of the rejection of these claims, with claims 2 and 5 standing or falling with claim 1. The Examiner finds that Stefanini discloses most of the limitations of independent claim 1, but “fails to show the bladder being filled with water.” Non-Final Act. 3 (mailed Sept. 25, 2014). Nonetheless, the Examiner finds that Amelung discloses a water mattress that includes a water bladder. Id. (citing Amelung, Fig. 9). The Examiner concludes that “[wjhether the bladder is filled with air or water [it] still ensures a bouncy soft surface and therefore [air and water] are functional equivalents that fails to patentably distinguish.” Id. 3 Appeal 2015-007610 Application 12/785,857 Appellant argues that because Stefanini discloses an air filled chamber for retaining a water pool and Amelung discloses a water bladder for providing a dry enclosure, the combined teachings of Stefanini and Amelung cannot disclose “a bottom water bladder with a top water pool.” Appeal Br. 7. According to Appellant, “[t]wo references that teach one water member each, [do] not teach two water members.” Id. at 8. We are not persuaded by Appellant’s arguments because Appellant cannot show nonobviousness by attacking Stefanini and Amelung individually when the rejection as articulated by the Examiner is based on a combination of Stefanini and Amelung. See In re Merck & Co. Inc., 800 F.2d 1091, 1097 (Fed. Cir. 1986). We agree with the Examiner that, because “Stefanini shows an inflatable pool that includes a bladder (2) and sidewalls (7)” and “Amelung teaches a water mattress” that “includes a water bladder,” the resulting combination “would yield a water bladder and water pool, therefore two water members.” Ans. 6 (mailed July 14, 2015). We further agree with the Examiner’s position that “[fjilling the bladder [of Stefanini] with water instead of air is well within the level of one of ordinary skill in the art because they are both fluids” and “[t]he combination yields a device with two water members.” Id. Given that air and water are both fluids, both are capable of providing a bouncy soft surface to Stefanini’s pool, and as Amelung discloses that water can be used to inflate a bladder, the Examiner has a sound basis for concluding that water would have been a suitable substitute for the air in Stefanini’s bladder. Appellant provides no persuasive reason why a person of ordinary skill in the art could not have implemented such a substitution. Neither does Appellant provide any persuasive reason why the results of the substitution would have been 4 Appeal 2015-007610 Application 12/785,857 unpredictable. Hence, the Examiner is correct in concluding that such a substitution would have been obvious. Appellant further argues that each of Zheng and Hasselquist also discloses a single water member and, thus, cannot be combined with Stefanini and Amelung to show a water pool having two water members. See Appeal Br. 6—7. We are not persuaded by Appellant’s argument because neither Zheng nor Hasselquist was employed by the Examiner in rejecting independent claim 1. See Non-Final Act. 3. Accordingly, Appellant’s arguments are not commensurate with the Examiner’s rejection and, thus, are not persuasive. In conclusion, for the foregoing reasons, we sustain the rejection under 35 U.S.C. § 103(a) of independent claim 1 as unpatentable over Stefanini and Amelung. Claims 2 and 5 fall with claim 1. Rejections II—IV As noted above, Appellant argues that each of Zheng and Hasselquist also discloses a single water member and, thus, cannot be combined with Stefanini and Amelung to show a water pool having two water members. See Appeal Br. 6—7. However, neither Zheng nor Hasselquist was employed by the Examiner to show a bottom water bladder in combination with a top water pool. As discussed supra, the combined teachings of Stefanini and Amelung disclose a bottom water bladder with a top water pool. See Ans. 6. Appellant is attacking the disclosures of Stefanini, Amelung, Zheng, and Hasselquist individually rather than the Examiner’s combination of their teachings. See Appeal Br. 7. Specifically, Zheng was used by the Examiner 5 Appeal 2015-007610 Application 12/785,857 to disclose stabilizing chambers and Hasselquist was used for its disclosure of inflatable ribs 12. See Ans. 7. Appellants do not provide any other additional arguments. See Appeal Br. 9—11. Accordingly, for the reasons discussed above, we sustain the rejections under 35 U.S.C. § 103(a) of claims 3, 4, 6, and 7 as unpatentable over Stefanini, Amelung, and Zheng; of claims 8, 9, and 12 as unpatentable over Stefanini, Amelung, and Hasselquist; and of claims 10, 11, 13, and 14 as unpatentable over Stefanini, Amelung, Hasselquist, and Zheng. SUMMARY The Examiner’s decision to reject claims 1—14 under 35 U.S.C. § 103(a) 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)(l)(iv). AFFIRMED 6