FOR KIDS BY PARENTS, INC.

Patent Trials and Appeals Board

Aug 27, 2021

2021002663 (P.T.A.B. Aug. 27, 2021)

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.
16/364,495 03/26/2019 Joseph Michael Conrad III 132793-2 8319
27384 7590 08/27/2021
Briscoe, Kurt G.
Norris McLaughlin, PA
7 Times Square, 21st Floor
New York, NY 10036-6524
EXAMINER
LE, HUYEN D
ART UNIT PAPER NUMBER
3754
NOTIFICATION DATE DELIVERY MODE
08/27/2021 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):
jarcher@norris-law.com
nmanfredi@norris-law.com
PTOL-90A (Rev. 04/07)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________

Ex parte JOSEPH MICHAEL CONRAD III and
KURT G. BRISCOE

Appeal 2021-002663
Application 16/364,495
Technology Center 3700
____________

Before JOHN C. KERINS, JILL D. HILL, and
CYNTHIA L. MURPHY, Administrative Patent Judges.

Opinion for the Board filed by MURPHY, Administrative Patent Judge.

Opinion Concurring filed by KERINS, Administrative Patent Judge.

MURPHY, Administrative Patent Judge.

DECISION ON APPEAL
The Appellant1 appeals from the Examiner’s rejection of claims 1–16
under 35 U.S.C. § 103. We REVERSE.2

1 The Appellant is the “applicant” as defined by 37 C.F.R. § 1.42 (e.g., “the
inventor or all of the joint inventors”). “The real party in interest is For Kids
By Parents, Inc.” (Appeal Br. 1.)
2 We have jurisdiction under 35 U.S.C. §§ 6(b) and 134(a). An oral hearing
was held on August 11, 2021.
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THE APPELLANT’S INVENTION
The Appellant’s invention is “directed to a potty training device that
functions as a urine deflector when attached to the underside of an adult
sized toilet seat.” (Spec. ¶ 3.) “The invention is designed to block the
opening formed between the toilet seat and the toilet bowl” so as to
“reduc[e] accidental wetting of clothing and the floor.” (Id.)
ILLUSTRATIVE CLAIM
1. A potty training device comprising:
a bendable urine-deflector;
a plurality of attachment tabs, wherein said plurality of
attachment tabs arc in contact with the top of said bendable
urine-deflector and are permanently positioned substantially at
right angles to the bendable urine-deflector; and
a means for attaching said potty training device to the
underside of a toilet seat;
wherein the device lacks a folding seam between said
bendable urine-deflector and said plurality of attachment tabs;
wherein said bendable urine-deflector can be positioned
in a curved configuration and attached in said curved
configuration via said means for attaching to the underside of
said toilet seat to block an opening formed between the toilet
seat and a toilet bowl to which said toilet seat is attached, and a
surface of said bendable urine-deflector serves as a urine-
deflecting surface to deflect a urine stream directed towards
said opening into the toilet bowl.
REJECTION
The Examiner rejects claims 1–16 under 35 U.S.C. § 103(a) as
unpatentable over Conrad3 in view of Raviendran.4 (Final Action 2.)

3 US 2007/0151009 A1, published July 5, 2007.
4 US 2007/0056086 A1, published March 15, 2007.
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ANALYSIS
Independent claim 1 sets forth a potty training device comprising
“attachment tabs” and a “urine-deflector.” (Appeal Br., Claims App.) The
Examiner finds that Conrad discloses a potty training device comprising
these elements. (See Final Action 2.)
Conrad discloses a potty training device comprising “attachment
tabs 1” and a “urine-deflecting surface 4.” (Conrad ¶ 10, see also Figs. 1–3.)
Conrad’s potty training device is constructed from “a sheet material 100
having a folding seam 3.” (Id. ¶ 11.) “The sheet material 100 is attached to
the underside of [a] toilet seat 50” by “folding the plurality of attachment
tabs 1 down and away from the urine deflecting surface 4 along the folding
seam 3, resulting in the sheet material 100 having an L-shaped
configuration.” (Id. ¶¶ 51–52.) Thus, when Conrad’s potty training device
is in its installed condition, there is a right-angle attachment between the
attachment tabs 1 and the urine-deflector (urine-deflecting surface 4) with
the folding seam 3 positioned therebetween. (See id., ¶ 16, Fig. 3.)
Independent claim 1 sets forth that the attachment tabs are
“permanently positioned substantially at right angles to the bendable urine-
deflector” and that “the device lacks a folding seam” between the attachment
tabs and the urine-deflector. (Appeal Br., Claims App.) The Examiner finds
that Raviendran teaches a potty training device in which such a right-angle
attachment “is integrally formed with no seam line.” (See Final Action 3.)
Raviendran teaches a potty training device comprising “a shield
wall 12 integrally formed with a traverse fastening wall 52.” (Raviendran
¶ 45, see also Figs. 2–4.) Thus, when Raviendran’s potty training device is
in its installed condition, there is a right-angle attachment between an
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attachment tab (the fastening wall 52) and a urine-deflector (the shield
wall 12) with no folding seam positioned therebetween. (See id., ¶ 16,
Fig. 4.)
The Examiner determines that it would have been obvious, in view of
Raviendran’s teachings, “to have made [Conrad’s] urine deflector integrally
attached to the attachment tabs at the right angles” with “no seam line.”
(Final Action 3.) The Examiner’s determination is premised upon a
technical explanation of why this modification would “improve the structure
integrity and strength of the connection between the urine deflector and
attachment tabs.” (Id.) Specifically, the Examiner explains that “[t]he
structure of a folding seam cannot maintain a 90 degree attachment as strong
as a structure with no folding seam” (id. at 4) and, therefore, “[m]odifying
[Conrad’s] device in view of Raviendran” would “strengthen the right angle
attachment” (id. at 5).
The Examiner’s technical explanation, left unchallenged, would be
sufficient to show that a person of ordinary skill would have been motivated
to modify Conrad’s potty training device in the proposed manner.5 Here,
however, the Appellant challenges the Examiner’s technical explanation,
and, moreover, offers evidence to support this challenge.
Specifically, the Appellant offers declaratory evidence in an attempt
to establish that, in Conrad’s potty training device, the right-angle
attachment does not “suffer any lack of structural integrity and strength.”
(Declaration ¶ 5.) The Declaration spells out why “the device in use is
exposed only to minimal forces” (id. ¶ 6) and provides test data intended to
show that “the device is not inherently weak” (id. ¶ 12). The Declaration

5 See In re Conrad, 759 F. App’x 982 (Fed. Cir. 2019).
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also discusses certain disadvantages associated with a “right-angle fixed
configuration,” such as cost increases involved in “manufacturing,” “sales,”
“production,” and “packaging,” as compared with providing an initially flat
configuration. (Id. ¶ 14.)
As indicated above, the Examiner’s determination of obviousness is
premised upon a technical explanation of why one of ordinary skill in the art
would pursue the proposed modification. We share the Appellant’s
sentiment that the Declaration plausibly rebuts the Examiner’s technical
explanation. (See Appeal Br. 6; see also Reply Br. 3–4.) The Examiner
must, therefore, provide us with evidence supporting his/her explanation
(e.g., cites to prior art of record) and/or provide us with reasons why the
Appellant’s evidence does not alter the ultimate outcome of the obviousness
evaluation. Here, the Examiner does neither.
Consequently, on the record before us, we cannot sustain the
Examiner’s obviousness rejection.6
CONCLUSION
Claims
Rejected
35 U.S.C.
§
Reference(s)/
Basis
Affirmed Reversed
1–16 103 Conrad,
Raviendran
1–16
REVERSED

6 The rest of the claims on appeal depend from, or otherwise incorporate the
content of independent claim 1. (See Appeal Br., Claims App.) The
Examiner’s further findings and determinations with respect to claims 2–16
do not compensate for the above-discussed shortcomings in the rejection of
independent claim 1. (See Final Action 3–4.)
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KERINS, Administrative Patent Judge, concurring.
I agree and concur with the majority’s determination that the
preponderance of the evidence does not support the Examiner’s proffered
reason as to why it would have been obvious to modify Conrad in view of
Raviendran. The evidence or record adequately supports the proposition that
the person of ordinary skill in the art would not recognize any deficiency in
the strength of the attachment in Conrad, given the environment in which the
Conrad device is to be used.
I write separately to express concern that certain teachings in the
Raviendran reference that I find to be pertinent to the question of
patentability of at least claims 1 and 2 do not appear to have been given
appropriate consideration. Claim 1 is directed to a potty training device
requiring a bendable urine-deflector, a plurality of attachment tabs, a means
for attaching the potty training device to the underside of a toilet seat, and
requiring the absence of a folding seam between the urine-deflector and the
plurality of attachment tabs. Raviendran, in my understanding, discloses all
of these elements, with the exception of the plurality of attachment tabs,
instead employing a monolithic fastening wall 52 disposed at a right angle to
its urine-deflector.
Raviendran, at first blush, may appear to disfavor the use of a
bendable urine-deflector, and indeed, Appellant argues, with respect to
dependent claim 2, that Raviendran teaches away from providing a
“bendable urine-deflector having a flat configuration when not attached to
the underside of the toilet seat.” Appeal Br. 14 (Heading “D.”). In
particular, Appellant maintains that Raviendran provides a “curved shield
wall 12” that is pre-formed in the shape of an arc so as to be under minimal
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deformation stress that might tend to loosen the adhesion between the shield
wall 12 and seat 16. Id. Since the claimed “flat configuration” feature is
disclosed in the Conrad device, and relied on by the Examiner in the
rejection, it is unclear what the effect of this argument may have had on the
Examiner’s consideration of the teachings of Raviendran as a whole.
A more careful reading of Raviendran reveals that, not only may the
“shield wall 12 also [] be flexible so that it can be conformed to other arcs as
may be required,” but also that “shield wall 12 [] is shaped as an arc or
shapable as an arc,” and, most notably, “shield wall 12 and fastening wall 50
[may] initially [] be provided in linear shape.” Raviendran ¶¶ 33, 39, 44.
Thus, contrary to Appellant’s “teaching away” assertion, Raviendran
contains an explicit teaching that its potty training device includes a
bendable urine-deflector that has a flat configuration when not attached to a
toilet seat, and that is bendable or shapable into the final arc-shaped
configuration, just as are both Appellant’s claimed device and the Conrad
device.
Admittedly, as suggested by Appellant, Raviendran expresses concern
that deformation stresses in its shield may adversely affect the adhesion of
the shield to a toilet seat, and indicates that one measure that may be
employed to avoid or minimize such stresses is to pre-form the shield wall
into an arc shape. Raviendran ¶ 33. Raviendran says much the same for
fastening wall 50, when such is used to attach the shield to the seat. Id. ¶ 43.
Pre-forming the shield and fastening wall is not, however, the only
possibility discussed in Raviendran. Immediately preceding the passage
discussing the provision of the shield wall and fastening wall “in linear
shape,” Raviendran discusses “selection of an appropriate component
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material and a treatment of the component material,” including application
of pressure, tension, or compression, and, especially, heat, to permanently
reshape the potty training device by “remov[ing] memory or forming stress.”
Id. ¶ 44.
Therefore, it is apparent that Raviendran discloses not only a seam-
free, flexible potty training device, as required by claim 1, but also one in
which the urine-deflector is in a flat configuration prior to being attached to
the underside of a toilet seat. As I note at the outset, Raviendran does not,
however, disclose the use of a plurality of attachment tabs, but instead
discloses a fastening wall having a substantially continuous attachment face
traversing the full length of the shield wall disposed at a right angle thereto.
See, e.g., Raviendran, Fig. 3.
However, given the concerns expressed by Raviendran with residual
stresses from bending the potty shield device into a final configuration to
conform to the shape of a particular toilet seat, and the measures disclosed to
alleviate those concerns, it appears at least conceivable that a person of
ordinary skill in the art might look to Conrad, and its disclosure of using a
plurality of attachment tabs that fan out as the shield wall is bent or flexed,
to modify Raviendran, as an alternative approach to Raviendran’s
application of heat, etc., in providing a fastening wall that avoids or
minimizes residual stress as a result of the urine-deflector being bent from a
flat to a curved configuration. Without the benefit of having the Examiner’s
and Appellant’s positions as to whether such would have been obvious, it
would be premature for me to affirmatively assert that claims 1 and 2 would
have been obvious based on the above considerations.