Ex Parte SEGERS

Patent Trial and Appeal Board

Aug 1, 2018

14532908 (P.T.A.B. Aug. 1, 2018)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
14/532,908 11/04/2014
23505 7590 08/03/2018
CONLEY ROSE, P.C.
575 N. Dairy Ashford Road
Suite 1102
HOUSTON, TX 77079
FIRST NAMED INVENTOR
Jason SEGERS
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.
3250-00200 9589
EXAMINER
CHAI,RAYMONDREI-YANG
ART UNIT PAPER NUMBER
2844
NOTIFICATION DATE DELIVERY MODE
08/03/2018 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):
pathou@conleyrose.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte JASON SEGERS
Appeal 2018-001133
Application 14/532,908
Technology Center 2800
Before KAREN M. HASTINGS, BRIAND. RANGE, and
LILAN REN, Administrative Patent Judges.
HASTINGS, Administrative Patent Judge.
DECISION ON APPEAL
Appellant1 appeals under 35 U.S.C. § 134(a) from the Examiner's
rejection of claims 1---6, 8-13, 15, 16, and 18-23 under 35 U.S.C. § 103(a) as
unpatentable over at least the Odland (US 2010/01289971 Al, published
Nov. 18, 2010), in view of Jeffway, Jr. (US 7,428,994 Bl, issued Sep. 30,
2008). We have jurisdiction over the appeal pursuant to 35 U.S.C. § 6(b).
WE AFFIRM.
Claim 1 is illustrative of the claimed subject matter:
1. A programmable garment, comprising:
a slot extending into the programmable garment;
1 The real party in interest is stated to be Jason Segers (Appeal Br. 3).
Appeal 2018-001133
Application 14/532,908
a visual stimuli network comprising a plurality of sources
of visual stimuli;
a data storage medium comprising a pattern and color
code, wherein the data storage medium is configured to be both
inserted into and housed within the slot, and to be removed from
the slot; and
a color pattern control system coupled to the garment and
in signal communication with the visual stimuli network;
wherein the color pattern control system is configured to
display a color pattern on a display surface of the garment
corresponding to the pattern and color code stored on the data
storage medium;
wherein the slot is configured such that when the data
storage medium is inserted within the slot, the data storage
medium becomes physically coupled to and placed in signal
communication with the color pattern control system and the
color pattern control system displays the color pattern on the
display surface of the garment corresponding to the pattern and
color code stored on the inserted data storage medium;
wherein the slot is configured such that when the data
storage medium is removed from the slot, the data storage
medium becomes physically separated from the color pattern
control system.
Appeal Br. 26 (Claims Appendix).
Independent claim 8 is a programmable garment similar to claim 1, and
claim 16 is a method of displaying a color pattern on a programmable
garment, each claim reciting a data storage medium that may be inserted into,
and removed from, a slot of the garment (Appeal Br. 27-30, Claims
Appendix).
ANALYSIS
Upon consideration of the evidence on this appeal record and each of
Appellants' contentions, we find that the preponderance of evidence on this
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Application 14/532,908
record supports the Examiner's conclusion that the subject matter of
Appellants' claims is unpatentable over the applied prior art. We sustain the
Examiner's§ 103 rejections essentially for the reasons set out by the
Examiner in the Answer.
We add the following for emphasis.
Appellant's main arguments are that 1) the modification of Odland
proposed by the Examiner would impermissibly change a principle of
operation of Odland by physically separating the memory from its CU 1, and
2) the Examiner used impermissible hindsight to place a slot into the garment
( e.g. footwear) of Odland for its removable memory based on the slot of
Jeffway, Jr. (Appeal Br. 17-22; also Reply Br. generally). With respect to
independent claim 16, Appellant mainly repeats these same arguments
(Appeal Br. 22-24).
Appellant's arguments do not convince us of reversible error since they
do not fully appreciate the inferences of the applied references that are
presented on this record for our review.
It has been established that "the [obviousness] analysis need not seek
out precise teachings directed to the specific subject matter of the challenged
claim, for a court can take account of the inferences and creative steps that a
person of ordinary skill in the art would employ." KSR Int 'l Co. v. Teleflex
Inc., 550 U.S. 398,418 (2007). Likewise, it is also well settled that a
reference stands for all of the specific teachings thereof as well as the
inferences one of ordinary skill in the art would have reasonably been
expected to draw therefrom. See In re Fritch, 972 F.2d 1260, 1264---65 (Fed.
Cir. 1992).
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Application 14/532,908
There is no dispute that Odland teaches that removable memory such
as an SD card may be used in a garment ( e.g. shoe) for customizing the color
and/or design thereof (Odland ,r,r 50, 6, 7, 8). Appellant has not identified
reversible error in the Examiner's determination that one of ordinary skill in
the art would have inferred that placement of a slot extending into the
garment ( e.g. shoe) of Odland would have been desirable whenever
removable memory is used. It was common knowledge that a slot may be
located in a product having customized colors to accommodate removable
memory as exemplified in Jeffway, Jr. (col. 4, 11. 46-52). Thus, Appellant has
not identified any error in the Examiner's determination that it would have
been obvious to one skilled in the art, using no more than ordinary creativity,
to have placed a slot in the sole of the shoe of Odland in light of the known
use of a slot for removable memory in a toy product having customized
colors, as exemplified by Jeffway, Jr. (e.g., Ans. 3-5). In re Keller, 642 F.2d
413,425 (CCPA 1981) ("The test for obviousness is not whether the features
of a secondary reference may be bodily incorporated into the structure of the
primary reference .... Rather, the test is what the combined teachings of
[those] references would have suggested to those of ordinary skill in the
art."); In re Nievelt, 482 F .2d 965, 968 ( CCP A 1973) ("Combining the
teachings of references does not involve an ability to combine their specific
structures.").
Even assuming arguendo that Appellant's contention that the proposed
modification would result in Odland having a superfluous I/0 unit is correct
(e.g., Appeal Br. 17; Reply Br. 3), this is not persuasive of reversible error.
Redundant and/or superfluous components in a control system are not
necessarily indicative of non-obviousness. Appellant has not asserted that
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Application 14/532,908
the proposed modification of Odland to include a slot that would enable the
use of removable memory in its customized color control scheme would have
been beyond the capabilities of a person of ordinary skill in the art. Absent
such an assertion, we "take account of the inferences and creative steps that a
person of ordinary skill in the art would employ," and find a person of
ordinary skill in the art would have overcome those difficulties within their
level of skill. KSR Int 'l 550 U.S. at 418; see also id. at 421 ("A person of
ordinary skill is also a person of ordinary creativity, not an automaton."); Ball
Aerosol & Specialty Container, Inc. v. Limited Brands, Inc., 555 F.3d 984,
993 (Fed. Cir. 2009) (under the flexible inquiry set forth by the Supreme
Court, the PTO must take account of the "inferences and creative steps," as
well as routine steps, that an ordinary artisan would employ ( emphasis
omitted)).
Accordingly, we affirm the Examiner's rejections.
The Examiner's decision 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).
AFFIRMED
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