Geoffrey KwongDownload PDFPatent Trials and Appeals BoardMay 3, 20212020005947 (P.T.A.B. May. 3, 2021) Copy Citation 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. 15/408,181 01/17/2017 Geoffrey Erik Kwong GEOFF 1003 23857 7590 05/03/2021 MARC BOBYS PO Box 492194 Los Angeles, CA 90049 EXAMINER MOON, MATTHEW RYAN ART UNIT PAPER NUMBER 3785 NOTIFICATION DATE DELIVERY MODE 05/03/2021 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): ipdude@hotmail.com marc.bobys@gmail.com mbobys@alumni.ucla.edu PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte GEOFFREY ERIK KWONG Appeal 2020-005947 Application 15/408,181 Technology Center 3700 Before DANIEL S. SONG, WILLIAM A. CAPP, and CARL M. DEFRANCO, Administrative Patent Judges. DEFRANCO, Administrative Patent Judge. DECISION ON APPEAL Pursuant to 35 U.S.C. § 134(a), Appellant1 appeals from the Examiner’s decision in the Final Office Action rejecting claims 1 and 3–9. Claims 2 and 10–16 are canceled.2 We have jurisdiction under 35 U.S.C. § 6(b). We AFFIRM. CLAIMED SUBJECT MATTER Appellant’s claimed invention relates to a combined massage roller and exercise mat carrier that includes a hollow tube and a desiccant 1 We use the term “Appellant” to refer to “applicant” as defined in 37 C.F.R. § 1.42(a). Appellant identifies the real party in interest as Geoffrey Erik Kwong. Appeal Br. 2. 2 See Appellant’s After Final Amendment (dated Dec. 13, 2019), at 7. Appeal 2020-005947 Application 15/408,181 2 compartment for drying a rolled-up wet exercise mat carried inside the tube. Spec. ¶ 4. Claim 1, the only independent claim, recites: 1. An exercise mat carrier comprising: a) a rigid hollow tube enclosing a space for storing an exercise mat; b) a pair of containers for holding desiccant within the containers and fluidly connected with the space in the rigid hollow tube for drying the exercise mat; c) a pair of ring-shaped rolling supports encircling the rigid hollow tube for engaging in rolling contact with a surface when using the rigid hollow tube as a massage roller; and d) a flexible and removable cover placed around the outside of the rigid hollow tube and extending between the pair of ring-shaped rolling supports; and e) wherein both the flexible cover and the pair of containers for holding desiccant within the containers are removably attached to the pair of ring-shaped rolling supports and thereby secured to the exercise mat carrier. Appeal Br. 15 (Claims App.). EXAMINER’S REJECTIONS 1. Claim 1, 3, and 9 stand rejected under 35 U.S.C. § 103 as unpatentable over Sanchez (US 2017/0071817 A1., pub. Mar. 16, 2017), Townsend (US 2016/0008692 A1, pub. Jan. 14, 2016), and Steinberg (US 2016/0304264 A1, pub. Oct. 20, 2016). Final Act. 3–7. 2. Claim 4 stands rejected under 35 U.S.C. § 103 as unpatentable over Sanchez, Townsend, Steinberg, and Babiarz (US 2015/0313789 A1, pub. Nov. 5, 2015). Id. at 8–9. 3. Claims 5, 6, and 8 stand rejected under 35 U.S.C. § 103 as unpatentable over Sanchez, Townsend, Steinberg, and Severa (US 2003/0192789 A1, pub. Oct. 16, 2003). Id. at 9–11. Appeal 2020-005947 Application 15/408,181 3 4. Claim 7 stands rejected under 35 U.S.C. 103 as unpatentable over Sanchez, Townsend, Steinberg, and Chen (GB 2523606 A, pub. Sept. 2, 2015). Id. at 11–12. ANALYSIS A. Claims 1 and 33 Beginning with claim 1, the Examiner finds that Sanchez discloses a massage roller comprising hollow tube carrier 212 for storing sundry items such as exercise clothing, and, thus, “would be capable of storing an exercise mat.” Final Act. 3 (citing Sanchez ¶¶ 15, 83, 105, Figs. 30–36). As the Examiner also finds, Sanchez’s massage roller includes: (1) ring-shaped roller supports 222, 223 at each end of the tube for smoothly rolling on a surface; and (2) flexible and removable cover 210 that mates with each of the roller supports via a tongue and groove connection. See id. at 5–6 (annotating Sanchez Fig. 33 to show connection between pad 210 and rolling support 223). In the event the hollow tube of Sanchez’s massage roller “is not large enough to store a large exercise mat,” the Examiner finds that Townsend teaches making a massage roller with a hollow tube long enough to hold an exercise mat. Id. at 4 (citing Townsend ¶ 19, Fig. 1). According to the Examiner, a skilled artisan would have known from Townsend to make Sanchez’s hollow tube of a length that would hold an exercise mat rather than carrying it separately. Id. Indeed, Sanchez itself discloses that massage rollers may be “up to approximately 36 inches in length.” Sanchez ¶ 4. 3 Although the Examiner rejects claim 9 along with claims 1 and 3, we address the rejection of claim 9 in conjunction with claim 8 below, as claim 8 is the claim from which claim 9 depends directly. Appeal 2020-005947 Application 15/408,181 4 While acknowledging that Sanchez does not disclose “containers for holding desiccant,” as called for by claim 1, the Examiner notes Sanchez’s disclosure of cup-shaped containers 236 (and associated cover plates 226) for holding personal items within the rolling support. Id. at 4 (citing Sanchez ¶ 108, Figs. 30, 34, 35); see also Ans. 12 (citing Sanchez ¶ 83). More specifically, Sanchez discloses that the cup-shaped container and end plate “might be provided and attached to, or be carried by, one of the end caps 18/20, as depicted in Fig. 14 and . . . the container would be press-fit into the cap and be removably retained therein.” Sanchez ¶ 83, Figs. 14, 15. Pointing to Steinberg’s teaching of providing storage containers with slotted sub-containers for the purpose of holding desiccant to keep stored items dry, the Examiner reasons that a skilled artisan would have been led to replace Sanchez’s removable cup-shaped containers with the desiccant- holding sub-containers taught by Steinberg “for the purpose of allowing a user to keep the mat and/or other items within the rigid hollow tube in a dry state and thereby prevent water damage.” Id. at 4 (citing Steinberg ¶¶ 12, 14, Figs. 1–3). This would have been an obvious modification, according to the Examiner, because the skilled artisan would have understood that “desiccants are a conventional feature for drying clothing and personal items, and . . . the desiccant of Steinberg would be capable of drying an exercise mat to some degree and therefore would achieve the predictable result of drying an exercise mat.” Id. at 4–5. Appellant does not dispute the Examiner’s finding that the combination of Sanchez and Townsend discloses a massage roller capable of carrying a rolled-up exercise mat. See Appeal Br. 8. Noting that neither Sanchez nor Townsend “suggests using desiccant to dry a rolled-up exercise Appeal 2020-005947 Application 15/408,181 5 mat” and that Steinberg “shows little more than a container for holding desiccant,” Appellant instead disputes the Examiner’s finding that a skilled artisan would have had a reason to incorporate Steinberg’s desiccant container within the modified Sanchez massage roller. Id. at 8. Appellant explains that, “[b]ased on the prior art of record, desiccant has never been used to dry an exercise mat in an exercise mat carrier or even to dry an exercise mat at all,” and, “[i]n fact, exercise mats have always been dried by unrolling them and hanging them to dry.” Id. According to Appellant, then, “[t]here is no teaching or suggestion anywhere to use desiccant to dry an exercise mat or even that such a combination would work at all.” Id. at 8–9. In our view, the evidence of record more persuasively supports the Examiner’s position. That the prior art may not explicitly disclose the use of desiccant for drying an exercise mat per se does not foreclose the likelihood that a skilled artisan would have found such a use obvious. Here, both Sanchez and Townsend are directed to tubular storage containers for holding exercise materials, which necessarily means they will be wet with sweat. And though Sanchez and Townsend are silent regarding the use of desiccant for drying the stored exercise materials, the record evidence supports that a skilled artisan would recognize that a desiccant is often used to keep materials dry within a storage container without the desiccant being in physical contact with the stored materials. See Steinberg ¶¶ 1–3. Indeed, Appellant concedes that is well-known to use a desiccant to dry materials such as clothing. See Appeal Br. 9. Those prior art disclosures, along with Appellant’s view of the prior art, support the Examiner’s reasoning that “because the use of desiccants is a conventional means for drying items within storage containers and/or Appeal 2020-005947 Application 15/408,181 6 maintaining a dry environment for items within the storage container, the use of a desiccant for drying an exercise mat within a space would be obvious to one of ordinary skill in the art . . . and would yield a predictable result of drying, in at least some degree, an exercise mat or other accessories within the storage container.” Ans. 12–13. And because Sanchez discloses that its massage roller includes “easily interchangeable parts and feature that can be mixed and matched to accommodate the particular needs and convenience of a wide range of users,” (Sanchez ¶ 13), we agree with the Examiner that a skilled artisan would have been led to replace Sanchez’s removable cup-shaped compartment with the desiccant-containing compartment taught by Steinberg “for the purpose of allowing a user to keep the mat and/or other items within the rigid hollow tube in a dry state and thereby prevent water damage.” Ans. 4. Appellant also disputes the Examiner’s finding that Sanchez discloses the roller cover being “removably attached” to the roller supports, as called for by claim 1. See Appeal Br. 9–10; According to Appellant, Sanchez’s roller pad 210 and roller supports 223 “are actually only touching each other” and “are not attached to each other.” Id. at 10. We disagree. As the Examiner notes, “attached” means “connected or joined to something.” Ans. 14 (citing “Merriam-Webster”). Given that definition, we agree with the Examiner that the tongue and groove connection between the roller pad and roller support of Sanchez amounts to more than simply a “touching” there between. See Ans. 15 (annotating Figure 33 of Sanchez to highlight tongue and groove connection). Thus, Appellant does not persuade us that Sanchez lacks disclosure of its roller cover being “removably attached” to its roller supports. Appeal 2020-005947 Application 15/408,181 7 In sum, we discern no error in the Examiner’s reasoning for combining the teachings of Sanchez, Townsend, and Steinberg. Rather, because the Examiner articulates sufficient reasoning with rational underpinning for (1) making Sanchez’s hollow tube of a length to accommodate an exercise mat, as taught by Townsend, and (2) using a slotted desiccant compartment, as taught by Steinberg, in place of the cup- shaped compartments in Sanchez’s tubular storage container, we sustain the Examiner’s rejection of claim 1 as obvious over the combined teachings of Sanchez, Townsend, and Steinberg. And because Appellant does not argue claim 3 separately from claim 1, we likewise sustain the Examiner’s rejection of that dependent claim. See Appeal Br. 10–11. B. Claim 4 Claim 4 recites that the flexible cover around the hollow tube is “microwaveable.” Pointing to Babiarz’s teaching of providing a massage roller with a microwavable, removable cover, the Examiner finds that a skilled artisan would have been led to modify the removable cover of Sanchez’s massage roller “to be made of a microwaveable material as taught by Babiarz in order to allow a user to receive heat therapy when using the device, which is known to provide positive results during massaging such as vasoconstriction, anti-inflammation, pain reduction, etc.” Final Act. 9 (citing Babiarz ¶¶ 53, 55, 62, Fig. 8). In turn, Appellant responds that Babiarz’s microwaveable cover “is in no way attached to the [e]nds 16, 18 of Babiarz,” and instead “is attached to the roller 10 . . . and therefore cannot satisfy the claimed limitation of ‘removably attached to the pair of ring- shaped rolling supports’.” Appeal Br. 11–12. Appeal 2020-005947 Application 15/408,181 8 Appellant does not persuade us of error in the Examiner’s rejection of claim 4. That is because Appellants appears to disregard the rejection as articulated by the Examiner. To be clear, the Examiner relies on Babiarz solely for teaching that Sanchez’s flexible cover may be made of a microwaveable material. See Ans. 9. Nowhere does the Examiner rely on Babiarz for its attachment means, as Appellant mistakenly believes. Instead, as discussed above, the Examiner relies on Sanchez for disclosing the manner of attaching its removable cover to the ends of its massage roller. Having focused on an irrelevant aspect of Babiarz, Appellant does not persuade us of error in the Examiner’s rejection. Thus, we sustain the Examiner’s rejection of claim 4 as unpatentable over Sanchez, Townsend, Steinberg, and Babiarz. C. Claims 5–9 Appellant argues that dependent claims 5–8 “should be allowed for the reasons explained with respect to Claim 1.” Appeal Br. 12–13. Because, as discussed above, Appellant’s reasons with respect to claim 1 are unpersuasive, we sustain the Examiner’s rejection of dependent claims 5–8.4 4 Despite failing to present substantive argument for claims 8 and 9 in its opening brief, Appellant argues them at length in its reply brief. Compare Appeal Br. 10–11, with Reply Br. 3–7. Because Appellant fails to show good cause for raising these arguments anew in its reply brief, we do not consider them. See 37 C.F.R. § 41.41(b)(2). Appeal 2020-005947 Application 15/408,181 9 CONCLUSION Claims Rejected 35 U.S.C. § Basis Affirmed Reversed 1, 3 103 Sanchez, Townsend, Steinberg 1, 3 4 103 Sanchez, Townsend, Steinberg, Babiarz 4 5, 6, 8, 9 103 Sanchez, Townsend, Steinberg, Severa 5, 6, 8, 9 7 103 Sanchez, Townsend, Steinberg, Chen 7 Overall Outcome 1, 3–9 TIME PERIOD FOR RESPONSE 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)(iv). AFFIRMED Copy with citationCopy as parenthetical citation