Appeal No. 2006-1670 Page 8
Application No. 10/336,729
The appellants argue, on page 9 of the brief, that Ghanem’s criticism of using a moisture
proof panel covering the entirety of the mattress is an express teaching away from a modification
of the Blake patent. We do not agree. While Ghanem may also provide a suggestion to modify
Blake to provide a moisture proof panel covering only a portion of the mattress, so as to maintain
as much air permeable area as possible for comfort, Ghanem also illustrates an alternate means
of fastening the upper panel to the lower panel in a manner that is easily releasable and yet
evidently more secure than the two strips of hook and loop fasteners disclosed by Blake and thus
would have provided ample suggestion to one of ordinary skill in the art to modify Blake by
providing a fastener portion, such as one side of a zipper, on the lower panel located on side
surfaces of the mattress and a fly and fastener portion, such as a mating side of a zipper, on the
top panel to cooperate with the fastener portion on the lower panel to securely fasten the upper
panel to the lower panel about the periphery of the mattress.
In light of the above, we shall sustain the rejection of claim 45, as well as claims 1, 2, 5,
8-10, 12-15, 17-21, 23-25, 27, 28, 31, 34-36, 38, 40, 41, 43, 44, 46, 47 and 49-51 which stand or
fall with claim 45, as being unpatentable over Blake in view of Ghanem.
With respect to the examiner’s rejections of claims 3 and 29 as being unpatentable over
Blake in view of Ghanem or Ghanem in view of Blake further in view of Fukuroi and claims 11,
13, 37 and 39 as being unpatentable over Blake in view of Ghanem or Ghanem in view of Blake
further in view of O’Connell, the appellants rely on the arguments discussed above against the
rejections based on Blake in view of Ghanem or Ghanem in view of Blake. For the reasons set
forth above, we do not find those arguments persuasive. It follows that we shall sustain these
rejections as well.
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