Rebecca BALLARD

Patent Trials and Appeals Board

Oct 4, 2021

2021001571 (P.T.A.B. Oct. 4, 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.
13/949,438 07/24/2013 Rebecca Anna BALLARD 773_001 NP 6672
25191 7590 10/04/2021
BURR & BROWN, PLLC
PO BOX 869
FAYETTEVILLE, NY 13066
EXAMINER
YIP, JACK
ART UNIT PAPER NUMBER
3715
NOTIFICATION DATE DELIVERY MODE
10/04/2021 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):
tpreston@burrandbrown.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
____________________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________________

Ex parte REBECCA ANNA BALLARD
____________________

Appeal 2021-001571
Application 13/949,438
Technology Center 3700
____________________

Before JENNIFER D. BAHR, PHILLIP J. KAUFFMAN, and
SEAN P. O’HANLON, Administrative Patent Judges.

BAHR, Administrative Patent Judge.

DECISION ON APPEAL

STATEMENT OF THE CASE
Appellant appeals under 35 U.S.C. § 134(a) from the Examiner’s
decision rejecting claims 1–3, 7–9, 11, 14, 17, 19–21, 24, and 31–34. 1 We
have jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM.

1 We use the term “Appellant” to refer to “applicant” as defined in 37 C.F.R.
§ 1.42. Appellant, Rebecca Anna Ballard, is the real party in interest.
Appeal Br. 1.
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THE CLAIMED SUBJECT MATTER
Claim 1, reproduced below, is illustrative of the claimed subject
matter.
1. A sensory input device comprising:
at least one contact structure that comprises a first surface
and a second surface, the first surface and the second surface
being major surfaces of the contact structure, the first surface
and the second surface on respective opposite sides of the
contact structure, and
at least one handle,
an image of a left hand and an image of a right hand on
the first surface,
an image of a left foot and an image of a right foot on the
second surface,
the image of a left hand to the left of the image of a right
hand,
the image of a left hand being substantially the same size
as the image of a right hand,
the image of a left foot to the left of the image of a right
foot,
the image of a left foot being substantially the same size
as the image of a right foot,
an orientation of the image of a left hand being
substantially the same as an orientation of the image of a right
hand,
an orientation of the image of a right foot being
substantially the same as an orientation of the image of a left
foot.
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EVIDENCE
The prior art relied upon by the Examiner is:
Name Reference Date
Marvy US 5,031,683 July 16, 1991
Edwards US 2007/0066467 A1 Mar. 22, 2007
Boitet-Ball US 2009/0276957 A1 Nov. 12, 2009
Ng US 2012/0317719 A1 Dec. 20, 2012
MaLossi US 2013/0236866 A1 Sept. 12, 2013

Stageplayacting, Puzzle with Platform Swing Advanced, YouTube
(Feb. 6, 2012), available at https://www.youtube.com/watch?v=
XLBEFUSZV1A (last visited Sept. 17, 2021) (hereinafter
“Stageplayacting”).2
UniquePrintsTherapy, Sensory Processing Disorder – Sensory
Integration Therapy, YouTube (Feb. 21, 2012), available at https://
www.youtube.com/watch?v=k4SwtyuTUTo (last visited Sept. 17, 2021)
(hereinafter “UniquePrintsTherapy”).3
Flexible Cartwheel Mats, Tiffin Mats, Inc. (Apr. 15, 2012), available
at https://web.archive.org/web/20120415152459/https://www.tiffinmats.com
/products/flexible-cartwheel-mat/ (last visited Sept. 17, 2021) (hereinafter
“TiffinMats”).4

2 Printed screenshots from YouTube video available in the electronic file of
the present application (Jan. 31, 2019).
3 Printed screenshots from YouTube video available in the electronic file of
the present application (Jan. 31, 2019).
4 Printed screenshots from website available in the electronic file of the
present application (Jan. 31, 2019).
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REJECTIONS
I. Claims 1–3, 7, 19, 20, and 24 stand rejected under 35 U.S.C.
§ 103(a) as unpatentable over MaLossi and Edwards.
II. Claims 21, 32, and 33 stand rejected under 35 U.S.C. § 103(a)
as unpatentable over MaLossi, Edwards, and Boitet-Ball.
III. Claims 31 and 34 stand rejected under 35 U.S.C. § 103(a) as
unpatentable over MaLossi, Edwards, and
UniquePrintsTherapy.
IV. Claims 8, 9, and 11 stand rejected under 35 U.S.C. § 103(a) as
unpatentable over Marvy and MaLossi.
V. Claims 14 and 17 stand rejected under 35 U.S.C. § 103(a) as
unpatentable over Marvy, MaLossi, Ng, and Boitet-Ball.
VI. Claims 1–3, 19, and 20 stand rejected under 35 U.S.C. § 103(a)
as unpatentable over TiffinMats, MaLossi, and Edwards.
VII. Claims 7, 21, 24, 32, and 33 stand rejected under 35 U.S.C.
§ 103(a) as unpatentable over TiffinMats, MaLossi, Edwards,
and Boitet-Ball.
VIII. Claims 31 and 34 stand rejected under 35 U.S.C. § 103(a) as
unpatentable over TiffinMats, MaLossi, Edwards, and
UniquePrintsTherapy.
IX. Claims 8, 9, and 11 stand rejected under 35 U.S.C. § 103(a) as
unpatentable over MaLossi and Marvy.
X. Claims 14 and 17 stand rejected under 35 U.S.C. § 103(a) as
unpatentable over MaLossi, Marvy, Ng, and Boitet-Ball.
XI. Claims 31 and 34 stand rejected under 35 U.S.C. § 103(a) as
unpatentable over Stageplayacting, MaLossi, and Edwards.
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OPINION
Claim Interpretation – Printed Matter
The Examiner determines that the claim limitations specifying that the
images on the sensory input device (claims 1 and 19) and sensory input
apparatus (claim 8) are hands and feet constitute printed matter recitations
that are merely supported by a substrate. Final Act. 2–3. In particular, the
Examiner explains that
there is no novel and unobvious functional relationship between
the printed matter (i.e., “images of left and right hand”,
“images of left and right foot”, “a first axis of substantial
symmetry”, “a second axis of substantial symmetry”, “at least
one representation of a hand perceptible”, “at least one
representation of a foot perceptible”) and the substrate (i.e.,
“the first surface”; “the second surface” and “the contact
surface”) which is required for patentability.
Id. at 2–3.
Referring to the June 15, 2017, Declaration under 37 C.F.R. § 1.132
of Rebecca Anna Ballard (hereinafter “Declaration”), Appellant argues that
there is a “functional relationship between the recited images and the contact
structure that delivers jarring sensations to the person with whom the device
is being used.” Appeal Br. 8–9 (citing Declaration 3, ¶¶ 11–12). Appellant
asserts that comparative tests between the claimed device and one with
different images showed the following different responses among persons:
[t]he device that included images as recited in claim 1 and
claim 19 were effective in prompting the persons to hold up
their hands or feet such that sensory input could be received
(i.e., the persons held up their hands or feet in each of fifty total
tests), whereas the device that included images that were not as
recited in claim 1 and claim 19 were not effective in prompting
the persons to hold up their hands or feet such that sensory
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input could be received (i.e., in only one out of fifty total tests
did the person hold up his/her hands or feet).
Id. at 9. According to Appellant, “there is clearly a functional relationship
between [1] the images on the surfaces of the contact structure of the device
according to the present invention and [2] the contact structure itself; by
which sensory input is delivered to such persons.” Id. (citing Declaration 8,
¶ 18). Appellant’s argument does not apprise us of Examiner error.
Here, the particular content of the images (i.e., left hand, right hand,
left foot, and right foot) is not functionally related to the substrate (i.e., the
contact structure) and, thus, will not distinguish the claimed invention from
the prior art in terms of patentability. See In re Ngai, 367 F.3d 1336, 1339
(Fed. Cir. 2004) (quoting In re Gulack, 703 F.2d 1381, 1385 (Fed. Cir.
1983)) (“Where the printed matter is not functionally related to the substrate,
the printed matter will not distinguish the invention from the prior art in
terms of patentability.”). The hand and foot images appearing on the
surfaces of the contact structure communicate a message to a viewer to use
their hands or feet to make contact with the contact structure. In other
words, the substance of the images on the contact surface merely conveys
information and cannot impart patentability because it is “useful and
intelligible only to the human mind.” See In re Lowry, 32 F.3d 1579, 1583
(Fed. Cir. 1994) (quoting In re Bernhart, 417 F.2d 1395, 1399 (CCPA
1969)). Moreover, even if the particular images appearing on the contact
surface (i.e., hands and feet) did serve to patentably distinguish the claims
from the prior art, the Examiner’s obviousness rejections of record include
findings that the prior art specifically discloses hand and feet images as
recited in the claims. See Final Act. 4–30.

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Rejection I – Obviousness Based on MaLossi and Edwards
Appellant presents arguments for independent claims 1 and 19
together (Appeal Br. 7–12) and relies on the same arguments for dependent
claims 2, 3, 7, 20, and 24 (id. at 12). We select claim 1 as representative,
and claims 2, 3, 7, 19, 20, and 24 stand or fall with claim 1. See 37 C.F.R.
§ 41.37(c)(1)(iv).
The Examiner finds that MaLossi discloses a sensory input device
including most of the limitations recited in claim 1, but does not explicitly
disclose at least one handle. Final Act. 3–5. However, the Examiner finds
that Edwards discloses a yoga mat having handles in the form of loop holes.
Id. at 5 (citing Edwards, Figs. 1A, 1B, 10, 13). The Examiner determines
that it would have been obvious to modify MaLossi’s sensory input device
to include loop holes because “Edwards suggests . . . holes running through
a yoga mat or yoga strap fabric sheet of the invention with a location and
size appropriate for formation of constrictable loops, gripping with hands or
feet, and/or for insertion of appendages for support during yoga exercises.”
Id. (citing Edwards ¶ 29).
Appellant argues that MaLossi “is not directed to a sensory input
device, and the ability to provide jarring sensations is clearly not a reason to
modify the children’s exercise play set disclosed in MaLossi.” Appeal
Br. 10. Appellant asserts that none of the cited references “contains any
disclosure that would give a person of skill in the art any reason to modify
the device disclosed in MaLossi . . . to have loop holes as disclosed in
Edwards.” Id. at 11; see also id. at 10 (asserting that the Examiner “has not
alleged that there is any reason disclosed in MaLossi” to modify the
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reference to include handles as proposed). For the reasons that follow, this
line of argument is unpersuasive.
Appellant appears to insist on an explicit teaching, suggestion, or
motivation in the cited references to establish obviousness, but such a
requirement has been foreclosed by the Supreme Court. KSR Int’l Co. v.
Teleflex Inc., 550 U.S. 398, 419 (2007) (stating that a rigid insistence on
teaching, suggestion, or motivation is incompatible with the Court’s
precedent concerning obviousness). The Court noted that an obviousness
analysis “need not seek out precise teachings directed to the specific subject
matter of the challenged claim, for [an examiner] can take account of the
inferences and creative steps that a person of ordinary skill in the art would
employ.” Id. at 418. Instead, the relevant inquiry is whether the Examiner
has set forth “some articulated reasoning with some rational underpinning to
support the legal conclusion of obviousness.” In re Kahn, 441 F.3d 977, 988
(Fed. Cir. 2006), cited with approval in KSR, 550 U.S. at 418.
Here, as discussed above, the Examiner reasons that one of ordinary
skill in the art would have modified MaLossi’s device to include handles for
“gripping with hands or feet, and/or for insertion of appendages for support.”
Final Act. 5. The Examiner also explains that “Edwards further suggests
that the hole in the mat (together with a strap) can be used to form a snare
that captures and/or compresses the object for carrying or storage (Edwards,
[0013]),” and, “[f]urthermore, it was known in the art to form holes on a mat
for carrying by hand and hanging on the wall.” Ans. 40. In this regard,
Appellant does not identify error in the Examiner’s articulated reasoning.
Even if the Examiner’s reason for the proposed modification of MaLossi is
not based on “the ability to provide jarring sensations” (Appeal Br. 10), it is
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not necessary that the prior art suggest the modification to achieve the same
advantage or result discovered by an applicant. See, e.g., In re Kemps, 97
F.3d 1427, 1430 (Fed. Cir. 1996) (citing In re Dillon, 919 F.2d 688, 693
(Fed. Cir. 1990) (en banc) (“Although the motivation to combine here differs
from that of the applicant, the motivation in the prior art to combine the
references does not have to be identical to that of the applicant to establish
obviousness.”)).
For the above reasons, Appellant does not apprise us of error in the
Examiner’s conclusion that the subject matter of claim 1 would have been
obvious. Accordingly, we sustain the rejection of claim 1, and of claims 2,
3, 7, 19, 20, and 24 falling therewith, under 35 U.S.C. § 103(a) as
unpatentable over MaLossi and Edwards.

Rejection II – Obviousness Based on MaLossi, Edwards, and Boitet-Ball
Appellant presents arguments for patentability of claims 21, 32, and
33 together as a group. Appeal Br. 12–13. We select claim 21 as
representative, and claims 32 and 33 stand or fall with claim 21.
The Examiner finds that MaLossi does not explicitly disclose the first
and second dimensions recited in claim 21. Final Act. 8. However, the
Examiner finds that Boitet-Ball discloses the claimed first and second
dimensions and determines that it would have been obvious to modify the
contact structure of MaLossi to have the first and second dimensions taught
by Boitet-Ball because Boitet-Ball suggests that the particular dimensions
are intended for use by adolescents or children. Id. at 9 (citing Boitet-Ball
¶ 35).
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Appellant initially relies on the same arguments presented for
patentability of independent claims 1 and 19, from which claims 21, 32, and
33 depend. See Appeal Br. 12–13 (asserting that “the ability to provide
jarring sensations” is not a reason to modify MaLossi, and the Examiner has
not alleged that Boitet-Ball would remedy the argued deficiencies in the
combination of MaLossi and Edwards). For the same reasons discussed
above, we are not persuaded by these arguments.
Appellant further argues that the Examiner “gave no reason as to why,
when designing a children’s exercise play set as disclosed in MaLossi . . . ,
one would look to a yoga mat disclosed in Boitet-Ball . . . for dimensions.”
Appeal Br. 13. This argument is unpersuasive. As discussed above, the
Examiner reasons that Boitet-Ball suggests that the first and second
dimensions recited in the claim would be appropriate for use by adolescents
or children. See Final Act. 9 (citing Boitet-Ball ¶ 35). The Examiner also
explains that Boitet-Ball discloses “the different size and shapes of the
exercise mat can be customized based on the type of exercise and the age of
the user.” Ans. 41 (citing Boitet-Ball ¶ 35). In other words, the Examiner
does provide a reason to support the proposed combination of reference
teachings. Appellant does not specifically address the Examiner’s reasoning
articulated in support of the conclusion of obviousness. Given that MaLossi
discloses an apparatus intended for children (see MaLossi, Abstract), the
Examiner’s articulated reasoning has rational underpinnings. See Kahn, 441
F.3d at 988.
Moreover, to the extent Appellant appears to argue that Boitet-Ball is
non-analogous art (see Appeal Br. 13 (suggesting that one of ordinary skill
in the art would not look to the disclosure of a yoga mat for dimensions of a
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children’s exercise play mat)), this argument is unpersuasive because it
appears to address only the first criterion in the analogous art inquiry,
namely, whether the art is from the same field of endeavor. However,
Appellant’s argument does not address whether Boitet-Ball satisfies the
second criterion, namely, whether it is reasonably pertinent to the particular
problem with which Appellant is involved. Accordingly, Appellant does not
apprise us of error in the Examiner’s reliance on Boitet-Ball in the rejection.
For the above reasons, Appellant does not apprise us of error in the
Examiner’s conclusion that the subject matter of claim 21 would have been
obvious. Accordingly, we sustain the rejection of claim 21, and of claims 32
and 33 falling therewith, under 35 U.S.C. § 103(a) as unpatentable over
MaLossi, Edwards, and Boitet-Ball.

Rejection III – Obviousness Based on MaLossi, Edwards, and
UniquePrintsTherapy
In contesting this rejection, Appellant presents arguments for claim 31
(Appeal Br. 13–14) and relies on the same arguments for claim 34 (id. at
14). We select claim 31 as representative, and claim 34 stands or falls with
claim 31.
The Examiner finds that “MaLossi does not explicitly disclose
positioning a person who has been characterized as having compromised
sensory functions on a swing that can swing to a location where the person's
hands or feet can contact a sensory input device.” Final Act. 10. However,
the Examiner finds that UniquePrintsTherapy discloses treatment activities
for autistic children, including a swing positioned relative to a contact
sensory device in the form of a ball, such that a child’s hands or feet can
touch the ball. Id. The Examiner determines that it would have been
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obvious to use MaLossi’s tiles in place of a ball as shown in
UniquePrintsTherapy
because [Appellant] has not disclosed that such design provides
an advantage, is used for a particular purpose, or solves a stated
problem. Since both tile and ball provide some bounces when
the user makes contact with their surface, one of ordinary skill
in the art, would have expected both the ball and the cushion
would provide the sensation needed for the sensory therapy.
Id. at 11.
Appellant argues that
[t]he notion that the tile disclosed in MaLossi . . . would
“provide some bounces” would not be a valid reason for
replacing the ball disclosed in UniquePrintsTherapy[] with a
play set as disclosed in MaLossi . . . . Clearly, persons with
skill in the art of treating autistic persons and persons with
sensory processing disorders (as well as most persons with only
minimal knowledge or experience in the field) recognize that
the item by which sensory input is delivered is of great
importance, and would never be taken lightly (e.g., by choosing
any material that has “some bounces”).
Appeal Br. 14. We are not persuaded by this argument.
The Examiner responds in the Answer that UniquePrintsTherapy
“suggests that the nervous system of a patient with sensory processing
disorder (i.e., autism) can be ‘organized’ through rhythmic ‘bonks’
sensations (similar to [Appellant’s] ‘jarring sensations’) from the kicking
motion on the swing.” Ans. 45 (citing UniquePrintsTherapy 5). In this
regard, Appellant does not persuasively refute the Examiner’s position.
Appellant baldy asserts that the Examiner’s reasoning would not be valid
(Appeal Br. 14) without proffering any evidence or persuasive technical
rationale to apprise us of error in the Examiner’s conclusion of obviousness.
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Accordingly, we sustain the rejection of claim 31, and of claim 34
falling therewith, under 35 U.S.C. § 103(a) as unpatentable over MaLossi,
Edwards, and UniquePrintsTherapy.

Rejection IV – Obviousness Based on Marvy and MaLossi
Claims 8 and 9
The Examiner finds that Marvy discloses a sensory input apparatus
including most of the limitations recited in claim 8, except for “at least one
representation of a hand perceptible on the first surface” and “at least one
representation of a foot perceptible on the second surface.” Final Act. 12.
However, the Examiner finds that MaLossi teaches these features. Id.
(citing MaLossi, Figs. 1, 2, 6, 9; ¶¶ 30, 46). The Examiner determines that it
would have been obvious to modify Marvy to include images of hands and
feet as taught by MaLossi. Id. The Examiner explains that “[i]t was known
in the art to provide different images aesthetically pleasing, entertaining and
familiar to a child,” and “[o]ne of an ordinary skill in the art would have
readily provided any image that is entertaining and familiar to a viewer.” Id.
at 13.
Appellant argues that the Examiner has not identified “a reason to
modify Marvy . . . by replacing the foam board 15 in Marvy . . . with a
children’s floor exercise apparatus as disclosed in MaLossi” and “has not
explained how such a modified device would be constructed and function as
a floor exercise apparatus.” Appeal Br. 16. For the reasons that follow, this
argument is unpersuasive.
The Examiner responds in the Answer that “the hand and foot
[representations] are printed matter given no patentable weight,” and “it was
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known in the art to provide different images aesthetically pleasing,
entertaining and familiar to a target audience (i.e., a child).” Ans. 46
(emphasis omitted). The Examiner explains that “[t]he combination of
Marvy and MaLossi would yield an exhibition stand that displays human
anatomies.” Id. (citing MaLossi ¶ 33); see also Marvy, col. 1, l. 11
(mentioning “portable displays”). Thus, the Examiner does provide a reason
for the proposed modification of Marvy, and Appellant does not
persuasively refute the Examiner’s position. Moreover, Appellant does not
proffer factual evidence or persuasive technical reasoning to explain how
combining the teachings of Marvy and MaLossi in an operable manner
would be beyond the level of ordinary skill in the art. See KSR, 550 U.S. at
421 (“A person of ordinary skill is also a person of ordinary creativity, not
an automaton.”). In other words, we are not persuaded that successfully
combining the teachings of Marvy and MaLossi would be beyond the skill
and creativity of an ordinary artisan.
For the above reasons, Appellant does not apprise us of error in the
Examiner’s conclusion that the subject matter of independent claim 8 would
have been obvious. Accordingly, we sustain the rejection of claim 8, and its
dependent claim 9, for which Appellant does not present separate
patentability arguments, under 35 U.S.C. § 103(a) as unpatentable over
Marvy and MaLossi.

Claim 11
In rejecting claim 11, which depends indirectly from claim 8, the
Examiner finds that MaLossi discloses hand and foot representations that are
structural. Final Act. 13–14 (citing MaLossi ¶ 61). The Examiner
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determines that it would have been obvious to “provid[e] the structural
representation as taught by MaLossi, in order to allow a user to see and
physically (i.e., a visually impaired individual) feel the images.” Id. at 14.
Appellant initially relies on the same arguments asserted for
patentability of independent claim 8, from which claim 11 depends. Appeal
Br. 16. For the same reasons discussed above with respect to the rejection of
claim 8, these arguments do not apprise us of error in the rejection of
claim 11.
Appellant further argues that claim 11 is patentable because the
Examiner has not identified a disclosure in Marvy or MaLossi “of structural
representations of hands and feet (‘a decal or an adhesive material or sticker
affixed to the surface of the tile’ (Final Office Action, page 14, line 1) are
not structural representations of hands and feet[)].” Id. For the reasons that
follow, this argument is unpersuasive.
MaLossi discloses “anatomy indicia may be an image resembling a
part of the body, such as an image of a human hand or foot.” MaLossi ¶ 61.
The indicium may be a physical feature of the tile material and
may be formed by any suitable mechanical or chemical process,
such as by heat branding, chemical etching, molding,
mechanical pressing, or machining. The indicium may also be
in the form of ink, paint, stain, dye, or the like and be applied to
the tile surface by any suitable means. The indicium may also
be in the form of a decal or an adhesive material or sticker
affixed to the surface of the tile.
Id. The Examiner “takes the position that a decal or a sticker of hands and
feet has a thickness that can be felt by a user,” and “[t]he thickness of the
decal represents a physical structure placed above the substrate.” Ans. 47.
In this regard, Appellant does not persuasively refute the Examiner’s
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position. The Specification describes, in relevant part, that the
representations of hands and feet may be
structural rather than images (the regions of the representation
of a left hand back side 34 and the representation of a right
hand back side 35 are all indented in the first surface 32, and
the regions of the representation of a left foot top side 36 and
the representation of a right foot top side 37 are all indented in
the second surface 33). Alternatively, any regions (or portions
thereof) could protrude from the first surface 32 or the second
surface 33.
Spec. 23, ll. 22–30 (emphasis added). In other words, the Examiner’s broad
interpretation that MaLossi’s hand and foot decal representations are
structural because they have thickness protruding above the surface of the
contact structure (Ans. 47) is consistent with Appellant’s Specification.
Moreover, as the Examiner correctly observes, claim 11 does not recite any
limitations requiring a particular type of structure for the representations.
Ans. 47.
For the above reasons, Appellant does not apprise us of error in the
Examiner’s conclusion that the subject matter of independent claim 11
would have been obvious. Accordingly, we sustain the rejection of claim 11
under 35 U.S.C. § 103(a) as unpatentable over Marvy and MaLossi.

Rejection V – Obviousness Based on Marvy, MaLossi, Ng, and Boitet-Ball
In contesting this rejection of claims 14 and 17, which depend from
independent claim 8, Appellant argues for patentability of claims 14 and 17
together as a group. Appeal Br. 16–17. We select claim 14 as
representative, and claim 17 stands or falls with claim 14.
Claim 14 recites that
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the first surface and the second surface are each generally
rectangular, with a first dimension in the range of from about
six inches to about fourteen inches and a second dimension in
the range of from about eighteen inches to about four feet, and
the first surface and the second surface are substantially
parallel and spaced from each other by from about one inch to
about two inches.
Appeal Br. A-3–A-4, Claims App. The Examiner finds that Marvy does not
disclose the dimension and spacing limitations recited in claim 14. See Final
Act. 14 (finding that “Marvy does not explicitly disclose the thickness of the
picture frame” and “the dimension of the frame”). However, the Examiner
finds that “Ng teaches an apparatus and method for an exercise mat that
includes a first side and an opposed second side” that “are substantially
parallel and spaced from each other by from about one inch to about two
inches.” Id. (citing Ng, code (57), ¶ 17). The Examiner determines that it
would have been obvious to modify Marvy “to include an exercise mat with
thickness of one inch to two inches, since it has been held that discovering
an optimum value of a result effective variable involves only routine skill in
the art.” Id. Additionally, the Examiner determines that “[i]t would have
been obvious to one having ordinary skill in the art at the time the invention
was made to design thickness of the exercise mat according to the type of
exercise.” Id.
The Examiner also finds that Boitet-Ball “teaches the claimed
dimensions.” Appeal Br. 14–15 (citing Boitet-Ball ¶ 35). The Examiner
determines that it would have been obvious to modify the combination of
Marvy and MaLossi to have the dimensions taught by Boitet-Ball because
Boitet-Ball suggests that the particular dimensions are intended for use by
adolescents or children. Id.
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Appellant argues that the Examiner “has not referred to any basis for
asserting that thickness of a device . . . is a result-effective variable, or that
‘optimizing’ thickness for exercise mats would be relevant (let alone result
in the same thickness) to optimizing thickness for a sensory input device.”
Appeal Br. 17. We agree with Appellant that the Examiner’s reasoning
based on routine optimization is deficient.
As our reviewing court explained in In re Applied Materials, Inc., 692
F.3d 1289, 1296 (Fed. Cir. 2012):
“[W]here the general conditions of a claim are disclosed in the
prior art, it is not inventive to discover the optimum or
workable ranges by routine experimentation.” [In re] Aller, 220
F.2d [454,] 456 [(CCPA 1955)]. This rule is limited to cases in
which the optimized variable is a “result-effective variable.” In
re Antonie, 559 F.2d 618, 620 (CCPA 1977); see [In re]
Boesch, 617 F.2d [272,] 276 [(CCPA 1980)] (“[D]iscovery of
an optimum value of a result effective variable . . . is ordinarily
within the skill of the art.”). In the present case, because the
prior art disclosed values overlapping the claimed ranges, the
“general conditions” of the claim are disclosed. See Aller, 220
F.2d at 456; see also Boesch, 617 F.2d at 276. The question is
whether the dimensions were known to be result-effective
variables.
Here, the Examiner does not point to any evidence in the record
before us showing that the dimensions and spacing of the first surface and
the second surface of the contact structure were known by those of ordinary
skill in the art at the time of the invention to be result-effective variables.
Thus, the Examiner does not establish the requisite factual basis to support
the determination that the dimensions recited in claim 14 amount to nothing
more than routine optimization of result-effective variables.
However, as discussed above, the Examiner additionally determines
that, based on Ng’s teaching of a mat thickness ranging between three-
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eighths inch and two inches, it would have been obvious to modify the
combination of Marvy and MaLossi to design the thickness of the claimed
contact surface (i.e., the spacing between first and second surfaces) for a
given type of exercise. See Final Act. 14 (citing Ng ¶ 17). The Examiner
also explains that it would have been obvious to “design thickness of the
picture frame [to] increase the rigidity of the structure.” Ans. 48. Appellant
does not specifically address this additional reasoning or contest the
Examiner’s finding as to the disclosure of Ng. Thus, Appellant does not
apprise us of error in the Examiner’s determination that a one to two inch
spacing (i.e., thickness) between surfaces of the contact structure would have
been obvious.
Appellant does not contest the Examiner’s finding that “Boitet-Ball
teaches the claimed dimensions” (Final Act. 14). Rather, Appellant argues
that the Examiner “gave no reason as to why, when designing a children’s
exercise play set as disclosed in MaLossi . . . , one would look to a yoga mat
disclosed in Boitet-Ball . . . for dimensions.” Appeal Br. 17. This argument
is unpersuasive. As discussed above, the Examiner reasons that Boitet-Ball
suggests that the first and second dimensions disclosed therein would be
appropriate for use by adolescents or children. See Final Act. 14–15. The
Examiner also explains that it would have been obvious to “design thickness
of the picture frame [to] increase the rigidity of the structure,” and “[o]ne of
an ordinary skill in the art would have readily customize[d] the size of the
picture frame based on the distance between the picture and the viewer and a
desired size of the image.” Ans. 48. In other words, the Examiner does
provide a reason to support the proposed combination of reference teachings.
Appellant does not specifically address the Examiner’s reasoning articulated
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in support of the conclusion of obviousness, and thus does not identify error
in this reasoning.
Moreover, to the extent Appellant may be arguing that Boitet-Ball is
non-analogous art (see Appeal Br. 17 (suggesting that one of ordinary skill
in the art would not look to the disclosure of a yoga mat for dimensions of a
children’s exercise play mat)), this argument is unpersuasive because it
appears to address only the first criterion in the analogous art inquiry,
namely, whether the art is from the same field of endeavor. However,
Appellant’s argument does not address whether Boitet-Ball satisfies the
second criterion, namely, whether it is reasonably pertinent to the particular
problem with which Appellant is involved.
For the above reasons, Appellant does not apprise us of error in the
Examiner’s conclusion that the subject matter of claim 14 would have been
obvious. Accordingly, we sustain the rejection of claim 14, and of claim 17
falling therewith, under 35 U.S.C. § 103(a) as unpatentable over Marvy,
MaLossi, Ng, and Boitet-Ball.

Rejection VI – Obviousness Based on TiffinMats, MaLossi, and Edwards
In contesting this rejection, Appellant presents arguments for
independent claims 1 and 19 together (Appeal Br. 17–18) and relies on the
same arguments for dependent claims 2, 3, and 20 (id. at 18). We select
claim 1 as representative, and claims 2, 3, 19, and 20 stand or fall with
claim 1.
The Examiner finds that TiffinMats discloses a sensory input device
including most of the limitations recited in claim 1. Final Act. 15–17. The
Examiner finds that TiffinMats does not explicitly disclose, in relevant part,
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one or more handles. Id. at 17. However, the Examiner finds that Edwards
teaches “a first handle and a second handle, the first handle comprising a
first hole extending from the first surface to the second surface, and the
second handle comprising a second hole extending from the first surface to
the second surface.” Id. (citing Edwards, Figs. 1A, 1B, 10, 13). The
Examiner determines that it would have been obvious to modify
TiffinMats’s device to include Edwards’s loop holes because “Edwards
suggests . . . holes running through a yoga mat or yoga strap fabric sheet of
the invention with a location and size appropriate for formation of
constrictable loops, gripping with hands or feet, and/or for insertion of
appendages for support during yoga exercises.” Id. (citing Edwards ¶ 29).
Appellant argues that TiffinMats “is not directed to a sensory input
device, and the ability to provide jarring sensations is clearly not a reason to
modify the children's exercise play set disclosed in Tiffin[M]ats.” Appeal
Br. 18. Appellant asserts that none of the cited references “contains any
disclosure that would give a person of skill in the art any reason to modify
the device disclosed in Tiffin[M]ats to have loop holes as disclosed in
Edwards.” Id. at 18; see also id. (asserting that the Examiner “has not
alleged that there is any reason disclosed in Tiffin[M]ats for the tiles in
Tiffin[M]ats to be modified such that they would have handles”). For the
reasons that follow, this line of argument is unpersuasive.
Appellant appears to insist on an explicit teaching, suggestion, or
motivation in the cited references to establish obviousness, but such a
requirement has been foreclosed by the Supreme Court. KSR, 550 U.S. at
419; see also Kahn, 441 F.3d at 988 (explaining that the relevant inquiry is
whether the Examiner has set forth “some articulated reasoning with some
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rational underpinning to support the legal conclusion of obviousness”). As
discussed above, the Examiner reasons that one of ordinary skill in the art
would have modified TiffinMats’s device to include handles for “gripping
with hands or feet, and/or for insertion of appendages for support.” Final
Act. 17; see also Ans. 49 (explaining that “Edwards further suggests that the
hole in the mat (together with a strap) can be used to form a snare that
captures and/or compresses the object for carrying or storage (Edwards,
[0013]),” and, “[f]urthermore, it was known in the art to form holes on a mat
for carrying by hand and hanging on the wall”). In this regard, Appellant
does not specifically address or identify error in the Examiner’s articulated
reasoning. Even if the Examiner’s reason is not based on “the ability to
provide jarring sensations” (Appeal Br. 18), it is not necessary that the prior
art suggest the modification to achieve the same advantage or result
discovered by an applicant. See, e.g., Kemps, 97 F.3d at 1430 (citing Dillon,
919 F.2d at 693).
For the above reasons, Appellant does not apprise us of error in the
Examiner’s conclusion that the subject matter of claim 1 would have been
obvious. Accordingly, we sustain the rejection of claim 1, and of claims 2,
3, 19, and 20 falling therewith, under 35 U.S.C. § 103(a) as unpatentable
over TiffinMats, MaLossi, and Edwards.

Rejection VII – Obviousness Based on TiffinMats, MaLossi,
Edwards, and Boitet-Ball
In contesting this rejection, Appellant relies on the same arguments
we found unpersuasive in connection with claims 1 and 19, from which
claims 7, 21, 24, 32, and 33 depend. See Appeal Br. 18–19 (relying on the
alleged deficiencies in the combination of TiffinMats and MaLossi, and
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asserting that Boitet-Ball fails to remedy such deficiencies). Accordingly,
for the same reasons discussed above with respect to Rejection VI, we also
sustain the rejection of claims 7, 21, 24, 32, and 33 under 35 U.S.C. § 103(a)
as unpatentable over TiffinMats, MaLossi, Edwards, and Boitet-Ball.

Rejection VIII – Obviousness Based on TiffinMats, MaLossi,
Edwards, and UniquePrintsTherapy
In contesting this rejection, Appellant presents arguments for claim 31
(Appeal Br. 19–20) and relies on the same arguments for claim 34 (id. at
20). We select claim 31 as representative, and claim 34 stands or falls with
claim 31.
The Examiner finds that UniquePrintsTherapy discloses treatment
activities for autistic children, including a swing positioned relative to a
contact sensory device in the form of a ball such that hands or feet can touch
the ball. Final Act. 19–20. The Examiner determines that it would have
been obvious to use TiffinMats’ device in place of a ball as shown in
UniquePrintsTherapy
because [Appellant] has not disclosed that such design provides
an advantage, is used for a particular purpose, or solves a stated
problem. Since both cushion and ball provide some bounces
when the user makes contact with their surface, one of ordinary
skill in the art[] would have expected both the ball and the
cushion would provide the sensation needed for the sensory
therapy.
Id. at 21.
Appellant argues that
[t]he notion that the cushion disclosed in Tiffin[M]ats
would “provide some bounces” would not be a valid reason for
replacing the ball disclosed in UniquePrintsTherapy[] with a
cartwhee[l] mat as disclosed in Tiffin[M]ats. Clearly, persons
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with skill in the art of treating autistic persons and persons with
sensory processing disorders (as well as most persons with only
minimal knowledge or experience in the field) recognize that
the item by which sensory input is delivered is of great
importance, and would never be taken lightly (e.g., by choosing
any material that has “some bounces”).
Appeal Br. 20. We are not persuaded by this argument.
The Examiner responds in the Answer that UniquePrintsTherapy
“suggests that the nervous system of a patient with sensory processing
disorder (i.e., autism) can be ‘organized’ through rhythmic ‘bonks’
sensations from the kicking motion on the swing.” Ans. 52 (citing
UniquePrintsTherapy 5). In this regard, Appellant does not persuasively
refute the Examiner’s position. Appellant baldy asserts that the Examiner’s
reasoning would not be valid (Appeal Br. 20) without proffering any
evidence or persuasive technical rationale to apprise us of error in the
Examiner’s conclusion of obviousness.
For the above reasons, Appellant does not apprise us of error in the
Examiner’s conclusion that the subject matter of claim 31 would have been
obvious. Accordingly, we sustain the rejection of claim 31, and of claim 34
falling therewith, under 35 U.S.C. § 103(a) as unpatentable over TiffinMats,
MaLossi, Edwards, and UniquePrintsTherapy.

Rejection IX – Obviousness Based on MaLossi and Marvy
In contesting this rejection, Appellant references certain limitations
recited in independent claim 8, but otherwise presents arguments without
regard to any particular claim. See Appeal Br. 20–21. We select claim 8 as
representative, and claims 9 and 11 stand or fall with claim 8.
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The Examiner finds that MaLossi discloses a sensory apparatus
including most of the limitations recited in claim 8. Final Act. 21. The
Examiner finds that “MaLossi does not explicitly disclose at least one
support structure, the sensory input device being attached to the support
structure such that the representation of a hand and the representation of a
foot are upright.” Id. at 22. However, the Examiner finds that Marvy
teaches a support structure as claimed. Id. (citing Marvy Fig. 5; col. 3,
ll. 63–68). The Examiner determines that it would have been obvious “to
modify the device described in MaLossi, by providing the stand as taught by
Marvy, in order to show both sides of the tiles to a plurality of users to
explain the instruction of the game.” Id.
Appellant argues that “[n]othing to which the USPTO referred would
be a reason to modify MaLossi . . . by modifying the children’s floor
exercise apparatus as disclosed in MaLossi . . . to be mounted upright in a
stand as disclosed in Marvy.” Appeal Br. 21. Appellant also asserts that the
Examiner “has not explained how such a modified device would be
constructed and function as a floor exercise apparatus.” Id. We are not
persuaded by this argument.
In response to Appellant’s argument, the Examiner
takes the position that placing the MaLossi’s tile in an upright
position would allow a user to demonstrate images from both
sides of the tile. Furthermore, it was known in the art to mount
[a] tile in an upright position so that the tile can be easily
viewed by the viewers since the images are perpendicular to the
viewers. Additionally, [t]iles can be stored in an upright
position for space efficiency and ease of retrieval.
Ans. 53. In this regard, Appellant does not specifically address the
Examiner’s position or explain why the Examiner’s articulated reasoning
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would be deficient. Moreover, Appellant does not proffer factual evidence
or persuasive technical rationale to explain how combining the teachings of
MaLossi and Marvy in an operable manner would be beyond the level of
ordinary skill in the art. See KSR, 550 U.S. at 421.
For the above reasons, Appellant does not apprise us of error in the
Examiner’s conclusion that the subject matter of claim 8 would have been
obvious. Accordingly, we sustain the rejection of claim 8, and of claims 9
and 11 falling therewith, under 35 U.S.C. § 103(a) as unpatentable over
MaLossi and Marvy.

Rejection X – Obviousness Based on MaLossi, Marvy, Ng, and Boitet-Ball
In contesting this rejection, Appellant argues for patentability of
claims 14 and 17 together as a group. Appeal Br. 21–22. We select claim
14 as representative, and claim 17 stands or falls with claim 14.
This rejection of claim 14 is based upon findings and reasoning that
are substantially similar to those presented in Rejection V. Compare Final
Act. 23–24, with id. at 14–15. In particular, the Examiner finds that the
combination of MaLossi and Marvy does not disclose the dimension and
spacing limitations recited in claim 14, and determines that these features
would have been obvious to one of ordinary skill in the art based on the
teachings of on Ng and Boitet-Ball. Id. at 23–24.
Appellant argues that the Examiner “has not referred to any basis for
asserting that thickness of a device . . . is a result-effective variable, or that
‘optimizing’ thickness for exercise mats would be relevant (let alone result
in the same thickness) to optimizing thickness for a sensory input device.”
Appeal Br. 21–22. As discussed above in connection with Rejection V, we
agree that the Examiner’s reasoning based on routine optimization of result
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effective variables is deficient. However, Appellant does not address or
identify error in the Examiner’s additional reasoning that it would have been
obvious to modify MaLossi and Marvy to have the spacing (i.e., thickness)
taught by Ng as a matter of designing the thickness according to the type of
exercise. See Final Act. 23.
Appellant also argues that the Examiner “gave no reason as to why,
when designing a stand as disclosed in Marvy . . . , one would look to a yoga
mat disclosed in Boitet-Ball . . . for dimensions.” Appeal Br. 22. This
argument is unpersuasive for the same reasons, discussed supra, that
Appellant’s similar argument with respect to the proposed combination of
Marvy, MaLossi, Ng, and Boitet-Ball in Rejection V is not persuasive.
Appellant does not specifically address the Examiner’s reasoning articulated
in support of the proposed modification based on Boitet-Ball. See Final
Act. 23–24; Ans. 54. Moreover, to the extent Appellant may be arguing that
Boitet-Ball is non-analogous art (see Appeal Br. 22), this argument is
unpersuasive because it appears to address only the first criterion in the
analogous art inquiry, namely, whether the art is from the same field of
endeavor. However, Appellant’s argument does not address whether
Boitet-Ball satisfies the second criterion, namely, whether it is reasonably
pertinent to the particular problem with which Appellant is involved.
For the above reasons, Appellant does not apprise us of error in the
Examiner’s conclusion that the subject matter of claim 14 would have been
obvious. Accordingly, we sustain the rejection of claim 14, and of claim 17
falling therewith, under 35 U.S.C. § 103(a) as unpatentable over MaLossi,
Marvy, Ng, and Boitet-Ball.

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Rejection XI – Obviousness Based on Stageplayacting,
MaLossi, and Edwards
In contesting this rejection, Appellant references certain limitations
recited in claim 31, but otherwise presents arguments without regard to any
particular claim. See Appeal Br. 22–23. We select claim 31 as
representative, and claim 34 stands or falls with claim 31.
The Examiner finds that Stageplayacting discloses a method of using
a sensory input device including a contact structure having first and second
surfaces on opposite sides of the contact structure. See Final Act. 24
(finding that Stageplayacting discloses a contact surface in the form of a
“puzzle board include[ing] an image of a cartoon which includes two hands
and two feet and a plurality of colored dots”). The Examiner finds that
Stageplayacting does not disclose images of hands and feet on opposing
sides of the contact surface, and at least one handle. Id. at 24–25. However,
the Examiner finds that MaLossi teaches a contact surface (i.e., exercise tile)
with hand images that are substantially the same size and orientation, foot
images that are substantially the same size and orientation, and the images
appear on both faces of the contact surface. Id. The Examiner determines
that it would have been obvious “to provide tiles with images (i.e., anatomy
images: hands and feet) taught in MaLossi on the tiles instead of tiles with a
cartoon character (with hands and feet) and a plurality of colored dots as
taught by Stageplayacting.” Id. at 25 (emphasis omitted). The Examiner
explains that “[i]t was known in the art to provide different images
aesthetically pleasing, entertaining and familiar to a child,” and “[o]ne of an
ordinary skill in the art would have readily provided any image that is
entertaining and familiar to a child.” Id. (emphasis omitted).
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The Examiner also finds that Edwards teaches a yoga mat having
handles in the form of loop holes. Final Act. 25–26 (citing Edwards,
Figs. 1A, 1B, 10, 13). The Examiner determines that it would have been
obvious to modify the sensory input device based on the combination of
MaLossi and Marvy to include Edwards’s loop hole handles because
“Edwards suggests that holes running through a yoga mat or yoga strap
fabric sheet of the invention with a location and size appropriate for
formation of constrictable loops, gripping with hands or feet, and/or for
insertion of appendages for support during yoga exercises.” Id. at 26 (citing
Edwards ¶ 29).
Appellant argues that the Examiner did not
provide any basis for asserting that a person of skill in the art
would have any reason to provide images of left and right feet
(or images of left and right hands) on a bottom side of the
puzzle board, opposite to a top side of the puzzleboard, the top
side including spaces into which the puzzle pieces fit.
Appeal Br. 23. For reasons that follow, this argument is unpersuasive.
The Examiner responds that
[t]he anatomical visual indicia (i.e., hand and foot prints) are
simple to understand when the viewing audience is a child
(MaLossi, [0013]; [0059]; [0058]). Furthermore, the
combination of Stageplayacting and MaLossi will allow a
player to use the board from upper and lower side. The Office
takes the position that a wire loop can goes through the hole for
carrying and/or storing the game board (Edwards, [0058], “The
constrictable loop can be used ... for carrying or storage”). It
was known in the art to place holes on a game board for
hanging with a nail on the wall when it’s not being used. For
packing, multiple game boards can be looped together through
the hole on each of the game board with a single cable.
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Ans. 55. In other words, the Examiner does provide a reason for the
proposed combination of reference teachings, which Appellant does not
persuasively refute. Appellant does not specifically address the Examiner’s
articulated reasoning for the proposed combination of Stageplayacting and
MaLossi and does not identify error in said reasoning.
Appellant argues that none of the cited references “contains any
disclosure that would give a person of skill in the art any reason to modify
the device disclosed in Stageplayacting to have loop holes as disclosed in
Edwards.” Appeal Br. 23. This argument is unpersuasive because it insists
on an explicit teaching, suggestion, or motivation in the cited references to
establish obviousness, but such a requirement has been foreclosed by the
Supreme Court. KSR, 550 U.S. at 419; see also Kahn, 441 F.3d at 988. As
discussed above, the Examiner reasons that one of ordinary skill in the art
would have modified the contact surface of Stageplayacting to include
handles for “gripping with hands or feet, and/or for insertion of appendages
for support.” Final Act. 26. In this regard, Appellant does not specifically
address or identify error in the Examiner’s articulated reasoning for the
proposed modification of Stageplayacting based on Edwards.
For the above reasons, Appellant does not apprise us of error in the
Examiner’s conclusion that the subject matter of claim 31 would have been
obvious. Accordingly, we sustain the rejection of claim 31, and of claim 34
falling therewith, under 35 U.S.C. § 103(a) as unpatentable over
Stageplayacting, MaLossi, and Edwards.

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CONCLUSION
In summary:
Claim(s)
Rejected 35 U.S.C. § Reference(s)/Basis Affirmed Reversed
1–3, 7, 19,
20, 24
103(a) MaLossi, Edwards 1–3, 7, 19,
20, 24

21, 32, 33 103(a) MaLossi, Edwards,
Boitet-Ball
21, 32, 33
31, 34 103(a) MaLossi, Edwards,
UniquePrintsTherapy
31, 34
8, 9, 11 103(a) Marvy, MaLossi 8, 9, 11
14, 17 103(a) Marvy, MaLossi,
Ng, Boitet-Ball
14, 17
1–3, 19, 20 103(a) TiffinMats, MaLossi,
Edwards
1–3, 19,
20

7, 21, 24, 32,
33
103(a) TiffinMats, MaLossi,
Edwards, Boitet-Ball
7, 21, 24,
32, 33

31, 34 103(a) TiffinMats, MaLossi,
Edwards,
UniquePrintsTherapy
31, 34
8, 9, 11 103(a) MaLossi, Marvy 8, 9, 11
14, 17 103(a) MaLossi, Marvy,
Ng, Boitet-Ball
14, 17
31, 34 103(a) Stageplayacting,
MaLossi, Edwards
31, 34
Overall
Outcome
1–3, 7–9,
11, 14, 17,
19–21, 24,
31–34

No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a). See 37 C.F.R.
§ 1.136(a)(1)(iv).
AFFIRMED