Jesse Richardson

Patent Trials and Appeals Board

Sep 2, 2021

2021000541 (P.T.A.B. Sep. 2, 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.
15/237,951 08/16/2016 Jesse Fredrick Richardson JR.0001 4940
138757 7590 09/02/2021
QuickChore Corp.
3775 Industrial Blvd. #980275
West Sacramento, CA 95798
EXAMINER
SPATZ, ABBY M
ART UNIT PAPER NUMBER
3732
NOTIFICATION DATE DELIVERY MODE
09/02/2021 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):
anthony.whittington1@gmail.com
awhittington@quickchore.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte JESSE FREDRICK RICHARDSON

Appeal 2021-000541
Application 15/237,951
Technology Center 3700
Before ANNETTE R. REIMERS, BRANDON J. WARNER, and
MICHAEL L. WOODS, Administrative Patent Judges.
WOODS, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Pursuant to 35 U.S.C. § 134(a), Appellant1 appeals from the
Examiner’s decision to reject claims 1–3, 5–9, 11–15, and 17–19. Appeal
Br. 2. Claims 4, 10, 16, and 20 have been cancelled. See id. at 11–13
(Claims App.). We have jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM.

1 We use the word Appellant to refer to “applicant” as defined in 37 C.F.R.
§ 1.42(a). Appellant identifies Jesse Richardson as the real party in interest.
Appeal Br. 2.
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CLAIMED SUBJECT MATTER
The application is titled “Means and Apparatus for Interchanging
Images on a Hat.” Spec. 1 (capitalization omitted). Claims 1, 9, and 15 are
independent. Appeal Br. 11–13 (Claims App.). We reproduce claims 1 and
6, below, with emphases added to particular language addressed in this
Decision:
1. A cap with one or more images comprising:
a crown having one or more panels; and
a visor connected to the crown of the cap, wherein the one
or more images have a border, and are removably attachable to
one or more portions of the cap to alter the appearance of the cap
and the one or more images have a back side with circles of hook
fastener and pile material, wherein the circles of hook fastener
and pile material are in a top row and a bottom row on a surface
of the cap and the border is constructed of raised stitching and
has an inlay for a flush fit.
6. The cap of claim 1, wherein the cap is comprised of:
cloth, nylon, mesh, and polyester.
Appeal Br. 11 (Claims App.) (emphases added).
REFERENCES
The prior art relied upon by the Examiner is:
Name Reference Date
DuPont US 5,348,510 Sept. 20, 1994
Soergel US 5,509,144 Apr. 23, 1996
Taguchi US 6,519,779 B1 Feb. 18, 2003
Woo US 2013/0326791 A1 Dec. 12, 2013
See Final Act. 2–8.
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REJECTIONS
The following rejections are before us on appeal:
Claims Rejected 35 U.S.C. § Reference(s)/Basis
6, 12, 18 112(a) Written Description
1–3, 5–9, 11–15, 17–
19
112(b) Indefiniteness
1–3, 7–9, 13–15, 19 103 Taguchi, DuPont
5, 11, 17 103 Taguchi, DuPont, Soergel
6, 12, 18 103 Taguchi, DuPont, Woo
See Final Act. 3–13.
OPINION
1. Objection to Drawings
In the Final Office Action, the Examiner objected to the drawings.
Final Act. 2–3. The Examiner finds that the drawings do not show every
feature of the claims, including the limitation, “the border is constructed of
raised stitching and has an inlay for a flush fit.” Id. at 2 (emphasis omitted).
Appellant asks that we withdraw the objection. See Appeal Br. 4–5.
Ordinarily, an objection is reviewable by petition under 37 C.F.R.
§ 1.181, and a rejection is appealable to the Patent Trial and Appeal Board.
See Ex Parte Frye, 94 USPQ2d 1072 (BPAI 2010). Accordingly, the
drawing objections are not properly before us for decision on appeal.
We note, however, upon consideration of the indefinite rejection,
which is before us on appeal and discussed below, that the Examiner is
correct in that the drawings do not show a “border constructed of raised
stitching and has an inlay for a flush fit.” See infra § 3. To the extent that
the objection to the drawings turns on the same issue(s) as the rejection
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under 35 U.S.C. § 112(b), our decision with respect to the rejection is
dispositive as to this objection.

2. Written Description Rejection
The Examiner rejects claims 6, 12, and 18 for lacking written
description support under 35 U.S.C. § 112(a). Final Act. 3–4.
The written description requirement of 35 U.S.C. § 112 provides, in
pertinent part, that “[t]he specification shall contain a written description of
the invention.” That requirement is satisfied if the inventor “convey[s] with
reasonable clarity to those skilled in the art that, as of the filing date sought,
he or she was in possession of the invention, and demonstrate[s] that by
disclosure in the specification of the patent.” Centocor Ortho Biotech, Inc.,
v. Abbott Labs., 636 F.3d 1341, 1348 (Fed. Cir. 2011) (quoting Carnegie
Mellon Univ. v. Hoffmann–La Roche Inc., 541 F.3d 1115, 1122 (Fed.
Cir. 2008)). “The essence of the written description requirement is that a
patent applicant, as part of the bargain with the public, must describe his or
her invention so that the public will know what it is and that he or she has
truly made the claimed invention.” AbbVie Deutschland GmbH & Co. v.
Janssen Biotech, Inc., 759 F.3d 1285, 1298 (Fed. Cir. 2014); Nuvo
Pharmaceuticals (Ireland) Designated Activity Company v. Dr Reddy’s Labs
Inc., 923 F.3d 1368, 1377 (Fed. Cir. 2019).
The Examiner finds that the following limitation lacks written
description support: “wherein the cap is comprised of: cloth, nylon, mesh,
and polyester.” Final Act. 3–4; Appeal Br. 11 (Claims App., claim 6)
(emphasis added); see also Appeal Br. 12 (Claims App., claims 12, 18). The
Examiner explains that the “limitation lacks support in the original
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disclosure and therefore constitutes new matter because applicant discloses
‘the materials may include cloth, nylon mesh, polyester, nylon, or any
material known by those skilled in the art.” Final Act. 3–4 (quoting Spec.
¶ 27) (emphasis added).
Appellant argues that in paragraph 27 of the Specification, “Appellant
has clearly defined that ‘wherein the cap is comprised of cloth, nylon, mesh,
and polyester’ in accordance with MPEP 2111.01 IV.” Appeal Br. 5–6
(citations omitted).
Appellant’s argument is not persuasive. The claims recite “and,” not
“or,” and, as such, require the cap to be made of at least four materials;
“cloth, nylon, mesh, and polyester.” Appeal Br. 11 (Claims App.).
Paragraph 27 of the Specification does not provide written description
support for a single cap that comprises a combination of those four
materials. As correctly explained by the Examiner, paragraph 27 of the
Specification “provides the recited materials as alternatives to one another
and does not support the cap including the combination of materials.”
Ans. 3 (emphasis added); see also Spec. ¶ 27 (“The materials may include
cloth, nylon mesh, polyester, nylon, or any material known by those skilled
in the art.”).
Accordingly, Appellant’s argument does not identify error in the
Examiner’s rejection of claims 6, 12, and 18 as failing to comply with the
written description requirement. As such, we affirm the rejection of these
claims under 35 U.S.C. § 112(a).

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3. Indefiniteness Rejection
The Examiner rejects claims 1–3, 5–9, 11–15, and 17–19 as being
indefinite under 35 U.S.C. § 112(b). Final Act. 5. In particular, the
Examiner takes issue with independent claim 1 for reciting “the border is
constructed of raised stitching and has an inlay for a flush fit.” See id. at 5.
The Examiner also rejects independent claims 9 and 15 for reciting similar
limitations. See id. at 5–6. The Examiner rhetorically questions,
How does the border have an inlay for a flush fit? What structure
does the inlay provide a flush fit for? Is this referring to a border
surrounding an opening in the hat that the image sit within to be
flush with the hat body, or a border that is part of the image and
surrounding an opening within the image that receives a panel
that sits flush with the border, or does the border itself have an
inlaid piece within the border?
Id. at 5.
Appellant contests the rejection, arguing that “[t]he claim,
specification, and drawings clearly sufficiently describe this feature.”
Appeal Br. 6. Appellant quotes paragraph 24 of the Specification, which
states, “[t]he border 304 of the logo or image 102 may be constructed of
raised stitching and have a 0-100 inches inlay for a flush fit to help with
everyday wear.” Id. Appellant further quotes the MPEP § 2111.01 IV,
which states, “An appellant is entitled to be his or her own lexicographer
and may rebut the presumption that claim terms are to be given their
ordinary and customary meaning by clearly setting forth a definition of
the term that is different from its ordinary and customary meaning(s).” Id.
at 6–7 (citing In re Paulsen, 30 F.3d 1475, 1480 (Fed. Cir. 1994)).
Appellant argues that “the phrase: ‘raised stitching’ and ‘inlay for a flush
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fit’ [are] supported by Appellant’s specification and interpretation are well
known to those skilled in the art.” Id. at 7.
Appellant’s argument is not persuasive. Even if paragraph 24 of the
Specification states that “[t]he border 304 of the logo or image 102 may be
constructed of raised stitching and have an 0-100 inches inlay for a flush fit
to help with everyday way,” as pointed out by Appellant (see Appeal Br. 6),
and a skilled artisan would have understood the terms “raised stitching” and
“inlay for a flush fit,” this does not save the claim from being indefinite.
The Examiner’s confusion stems from not knowing the structure that the
inlay provides a flush fit for. See Ans. 4 (“it is not clear what structure the
inlay provides a flush fit for”). Indeed, the Examiner submits multiple
possible interpretations of the claimed phrase, explaining,
(1) It is not clear if the border having an inlay for a
flush fit is referring to a border surrounding an opening in the
cap that the image sits within to be flush with the cap body, or
(2) [I]f the border is part of the image and surrounds
an opening within the image that receives a panel that sits flush
with the border, or
(3) [I]f the border itself has an inlaid piece within the
border.
Id. (numbering and indentations added). The Examiner’s three
proposed constructions highlight the limitation’s lack of clarity.
As to Appellant’s argument that the drawings provide clarity as to the
claimed limitation (see Appeal Br. 6), we disagree. To illustrate, we
reproduce Appellant’s Figure 3, below:
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Figure 3 of the subject application “illustrat[es] an exemplary embodiment
of the invention.” Spec. ¶ 18. The Specification describes, “The border 304
of the logo or image 102 may be constructed of raised stitching and have an
0-100 inches inlay for a flush fit to help with everyday wear.” Id. ¶ 24.
We do not find the Figures or the Specification as providing clarity for
construing the claimed phrase, “the border is constructed of raised stitching
and has an inlay for a flush fit.” Appeal Br. 11 (Claims App.). Indeed, the
Figures do not depict this feature. See Final Act. 2 (objecting to the
drawings for failing to show this feature). We agree with the Examiner that
“it is not clear what structure the inlay provides a flush fit for” (Ans. 4) and
determine that the claims are indefinite.
Accordingly, we affirm the rejection of claims 1–3, 5–9, 11–15, and
17–19 as being indefinite under 35 U.S.C. § 112(b).

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4. Obviousness Rejection Over Taguchi and DuPont
The Examiner rejects claims 1–3, 7–9, 13–15, and 19 as unpatentable
over Taguchi and DuPont. Final Act. 7. Appellant argues these claims as a
group. See Appeal Br. 7–8, 9–10. We select independent claim 1 as the
representative claim, with claims 2, 3, 7–9, 13–15, and 19 standing or falling
with claim 1. 37 C.F.R. § 41.37(c)(1)(iv).
In rejecting independent claim 1, the Examiner cites to Taguchi’s
Figure 1 (Final Act. 7), a copy of which we reproduce, below:

Figure 1 of Taguchi depicts a perspective view of a baseball cap. See
Taguchi, 3:21–23. The Examiner finds that Taguchi teaches cap 200 with
one or more images 300 comprising crown 210, 220 having one or more
panels 210 and visor 230 connected to the crown. Final Act. 7 (citations
omitted). The Examiner further finds that Taguchi’s “one or more images”
300 have a border, that the images are removably attachable to alter the
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appearance of the cap, and that the images have a back side with hook and
fastener material, “but fails to teach the hook fastener and pile material are
circles arranged in a top row and a bottom row on a surface of the cap,” as
called for in the claim. See id. (citations omitted).
To address the missing limitation, the Examiner relies on DuPont for
teaching a cap with hook-and-loop fasteners having “circular pieces aligned
in at least a top row and a bottom row on a surface of headware.” Id. (citing
DuPont, Figs. 1B, 2A, 2B, 3). We reproduce DuPont’s Figure 2A, below:

Figure 2A of DuPont depicts “discrete pieces of hook fastener elements
secured to the compound curved surface representing the forehead of the
puppet, hat, mask or like items.” DuPont 2:42–45 (emphasis added).
In combining the teachings of DuPont with Taguchi, the Examiner
reasons that a skilled artisan would have been motivated to
configure[] the hook fastener and pile material of Taguchi as
circles arranged in a top row and a bottom row on a surface of
the cap in order to allow increased flexibility so that the image
and underlying structure can better conform to the curvature of
the wearer’s head. The [E]xaminer notes that [Appellant] has
not provided any criticality for the arrangement and shape of the
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hook fastener and pile material on the surface of the cap.
Therefore, it would have been obvious to one of ordinary skill in
the art at the time of the effective filing date of the claimed
invention to have configured the hook fastener and pile material
of Taguchi as circles arranged in a top row and a bottom row on
a surface of the cap because a change in form or shape is
generally recognized as being within the level of ordinary skill
in the art, absent any showing of unexpected results.
Final Act. 7–8 (citations omitted, emphasis added).
In contesting the rejection, Appellant presents numerous arguments,
which we address separately, below.
First, Appellant argues that “Du[P]ont merely teaches a surface of a
cap with circular pieces . . . not a border that is constructed of raised
stitching and has an inlay for a flush fit as required by claim 1.” Appeal
Br. 7 (emphasis and citation omitted). Appellant further submits that
“Judge[] and Soergel fail to mention a border that is constructed of raised
stitching and has an inlay for a flush fit. Thus, the Examiner’s position is
erroneous.” Id. at 8.
Appellant’s first argument is not persuasive, as the Examiner does not
rely on DuPont, Judge, or Soergel for teaching or disclosing raised stitching
and an inlay for a flush fit. Rather, the Examiner relies on Taguchi for
teaching this structure. See Final Act. 7; see also Ans. 5 (explaining the
same).
Second, Appellant argues that “there is no explicit or implicit
motivation to combine Du[P]ont, Judge, and Soergel together” to satisfy the
claimed limitation, “wherein the circles of hook fastener and pile material
are in a top row and a bottom row on a surface of the cap and the border is
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constructed of raised stitching and has an inlay for a flush fit,” as recited in
claim 1. Appeal Br. 8.
Appellant’s second argument is inapposite. The rejection is not based
on DuPont, Judge, and Soergel, but rather Taguchi and DuPont. Compare
Final Act. 7, with Appeal Br. 8; see also Ans. 5 (“Taguchi and Du[P]ont
teach this limitation.”).
Third, Appellant argues that the Examiner’s assertion of “routine
optimization” or “design choice” without additional reasoning is insufficient
to support an obviousness determination. See Appeal Br. 9–10.
Appellant’s third argument is not persuasive. As explained above, the
Examiner does not merely rely on “routine optimization” or “design choice.”
Rather, the Examiner reasons that a skilled artisan would have been
motivated to modify Taguchi’s hook fastener “as circles arranged in a top
row and a bottom row on a surface of the cap in order to allow increased
flexibility so that the image and underlying structure can better conform to
the curvature of the wearer’s head.” Final Act. 7–8. The Examiner’s
reasoning for modifying Taguchi is supported by DuPont’s teaching of two
rows of circular hook fastener elements that cooperate with the curved
surface of a forehead. See DuPont 2:41–46, Fig. 2A.
For the foregoing reasons, Appellant’s arguments do not apprise us of
Examiner error in the rejection of claim 1. Accordingly, we affirm the
rejection of claim 1, and of claims 2, 3, 7–9, 13–15, and 19, which fall
therewith (37 C.F.R. § 41.37(c)(1)(iv)), as unpatentable over Taguchi and
DuPont.

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5. Obviousness Rejection Over Taguchi, DuPont, and Soergel
The Examiner rejects dependent claims 5, 11, and 17 as unpatentable
over Taguchi in view of DuPont and Soergel. Final Act. 12.
Appellant does not present additional arguments contesting the
rejection of these claims. See generally Appeal Br. Accordingly, we affirm
the rejection of claims 5, 11, and 17 as unpatentable over Taguchi, DuPont,
and Soergel.

6. Obviousness Rejection Over Taguchi, DuPont, and Woo
The Examiner rejects dependent claims 6, 12, and 18 as unpatentable
over Taguchi in view of DuPont and Woo. Final Act. 13.
In rejecting these claims, the Examiner finds that “Woo teaches
headware that can be made of cloth, nylon, mesh, and polyester.” Id. (citing
Woo ¶¶ 69, 75). In further combining Woo’s teaching with Taguchi and
DuPont, the Examiner reasons that a skilled artisan would have been
motivated to modify Taguchi’s cap to be comprised of cloth, nylon, mesh,
and polyester, as taught by Woo, “because cloth is a flexible material
commonly used in apparel, nylon and polyester are sturdy water resistant
materials and mesh would allow breathability.” Id.
Appellant contests the rejection, arguing that the prior art fails to teach
this structure. See Appeal Br. 9.
Appellant’s argument is not persuasive. Woo discloses, inter alia,
that “cotton fabric . . . works well with baseball caps” and that “[o]ther
materials may also be used, including, but not limited to, silk, wool, nylon,
rayon, polyester, polyethylene, other synthetic materials, and/or blends of
any of the above.” Woo ¶ 75 (emphasis added). The Examiner’s reasoning
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for further modifying Taguchi’s hat is supported by the express teachings of
Woo.
Accordingly, we affirm the rejection of claims 6, 12, and 18 as
unpatentable over Taguchi, DuPont, and Woo

CONCLUSION
We affirm the rejections of claims 1–3, 5–9, 11–15, and 17–19 as
unpatentable.
DECISION SUMMARY
In summary:
Claim(s)
Rejected
35
U.S.C. §
Reference(s)/Basis Affirmed Reversed
6, 12, 18 112(a) Written Description 6, 12, 18
1–3, 5–9,
11–15, 17–
19
112(b) Indefiniteness 1–3, 5–9, 11–15,
17–19

1–3, 7–9,
13–15, 19
103 Taguchi, DuPont 1–3, 7–9, 13–15,
19

5, 11, 17 103 Taguchi, DuPont,
Soergel
5, 11, 17
6, 12, 18 103 Taguchi, DuPont, Woo 6, 12, 18
Overall
Outcome
1–3, 5–9, 11–15,
17–19

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).

AFFIRMED