Ex Parte 6,030,047 et al

Patent Trial and Appeal Board

Oct 8, 2013

90009903 (P.T.A.B. Oct. 8, 2013)

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.
90/009,903 04/22/2011 6,030,047 41100.00.001 2145
7590 10/09/2013
BARNESS & THORNBURG
11 SOUTH MERIDIAN STREET
INDIANAPOLIS, IN 46201
EXAMINER
WILLIAMS, CATHERINE SERKE
ART UNIT PAPER NUMBER
3993
MAIL DATE DELIVERY MODE
10/09/2013 PAPER
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.
PTOL-90A (Rev. 04/07)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________________

Ex parte COSCO MANAGEMENT, INC.1
Appellant, Patent Owner
____________________

Appeal 2013-007225
Reexamination Control 90/009,903
Patent No. 6,030,0472
Technology Center 3900
____________________

Before DANIEL S. SONG, MEREDITH C. PETRAVICK and
WILLAIM V. SAINDON, Administrative Patent Judges.

SONG, Administrative Patent Judge.

DECISION ON APPEAL

1 Cosco Management, Inc. is the real party in interest (Appeal Brief
(hereinafter "App. Br.") 1).
2 Issued February 29, 2000 (hereinafter "'047 patent").
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Patent No. 6,030,047

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The Patent Owner appeals under 35 U.S.C. §§ 134(b) and 306 from a
Final Rejection of claims 4, 10-14, 42, 44-47 and 49-53 (App. Br. 1-2). The
remaining claims are either not subject to reexamination, have been
confirmed, or have been canceled (App. Br. 1-2). We have jurisdiction
under 35 U.S.C. §§ 134(b) and 306. In addition to the Appeal Brief, the
Patent Owner also relies on a Reply Brief (hereinafter "Reply Br."),
declarations of Mr. Richard Glover and of Ms. Erika Jones dated February
28, 2012, and the exhibits submitted with the declarations. An oral hearing
was held on September 11, 2013 with the representative of the Patent
Owner, the transcript of which will be entered into the record in due course.
The invention is directed to a child vehicle seat with a child-restraint
harness adjustment mechanism (Title). Independent claim 42 and dependent
claim 10 read as follows (App. Br. 14-15, Claims App'x, emphasis added):

42. A child-restraint seat comprising
a seat shell including a bottom seat portion and a back
support portion, the seat shell being adapted to be coupled to a
vehicle seat by a seat anchor coupled to the vehicle,
a child-restraint harness coupled to the seat shell, and
a harness-control panel formed to include a belt-receiving
opening receiving a shoulder belt portion of the child-restraint
harness, the harness-control panel being mounted on the seat
shell for up and down movement relative to the seat shell to
raise and lower the shoulder belt portion of the child-restraint
harness with respect to the bottom seat portion to harness small-
sized children and large-sized children in a restrained position
in the seat shell, the harness-control panel being positioned to
lie in front of a front surface of the back support portion to
cause a child seated in the seat shell to rest against the
harness-control panel.

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10. The child-restraint seat of claim 1, wherein the back
support portion of the seat shell is positioned to lie at an angle
to the bottom seat portion and formed to include a guide slot
extending therethrough and the harness-control panel includes a
back plate formed to include the belt-receiving opening and
arranged to lie adjacent to a front surface of the seat shell to
cause a child seated in the seat shell to rest against the back
plate and a support arm coupled to the back plate and arranged
to extend through the guide slot formed in the back support
portion and reciprocate up and down therein as the back plate
moves up and down relative to the back support portion
between a low position adapted to suit a small-sized child and a
higher position adapted to suit a larger-sized child.

Claim 10 depends from canceled claim 1 which mirrors claim 42
except that it recites the harness-control panel is "positioned to lie adjacent
to a front surface of the back support portion" instead of in front of a front
surface of the back support portion as recited in claim 42.
The Examiner rejects claims 10, 13, 42, 49 and 52 under 35 U.S.C.
§ 102(b) as anticipated by Nakano.3
The Examiner rejects claims 4, 11, 12, 44-46, 50 and 51 under 35
U.S.C. § 103(a) as obvious over Nakano in view of Burleigh '601.4
The Examiner further rejects claims 14, 47 and 53 under 35 U.S.C.
§ 103(a) as obvious over Nakano in view of Burleigh '601 and Burleigh
'639.5
We AFFIRM-IN-PART.

3 Japanese Utility Model H02-008636 issued January 19, 1990 to Nakano
(citations to the English translation of record).
4 U.S. Patent No. 4,790,601 issued December 13, 1988 to Burleigh et al.
5 U.S. Patent No. 4,854,639 issued August, 1989 to Burleigh et al.
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ISSUES
The following issues have been raised in the present appeal.
1. Whether the Examiner erred in finding that Nakano discloses a
back support portion with "a guide slot extending therethrough," and a
support arm "arranged to extend through the guide slot."
2. Whether the Examiner erred in finding that Nakano discloses a
"harness-control panel being positioned to lie in front of a front surface of
the back support portion to cause a child seated in the seat shell to rest
against the harness-control panel."

PRINCIPLES OF LAW
While the PTO is obligated to give claims their broadest reasonable
interpretation, "any such construction [must] be 'consistent with the
specification, . . . and . . . claim language should be read in light of the
specification as it would be interpreted by one of ordinary skill in the art.'"
In re Suitco Surface, Inc., 603 F.3d 1255, 1259-60 (Fed. Cir. 2010) (citation
omitted). Meaning of a claim term may be determined by reviewing
reference sources, such as dictionaries. Ferguson Beauregard/Logic v.
Mega Systems, 350 F.3d 1327, 1338 (Fed. Cir. 2003). However, the words
used in a claim must be considered in context:
In construing claim terms, the general meanings gleaned from
reference sources, such as dictionaries, must always be compared
against the use of the terms in context, and the intrinsic record must
always be consulted to identify which of the different possible
dictionary meanings is most consistent with the use of the words by
the inventor. 'Where there are several common meanings for a claim
term, the patent disclosure serves to point away from the improper
meanings and toward the proper meanings.'
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Id. (citation omitted). In this regard, "it would be unreasonable for the PTO
to ignore any interpretive guidance afforded by the applicant's written
description." In re Morris, 127 F.3d 1048, 1054 (Fed. Cir. 1997).

ANALYSIS
Anticipation Rejection Based on Nakano
The Examiner rejects claims 10, 13, 42, 49 and 52 finding that the
Child Car Seat of Nakano includes a slideable member 12 corresponding to
the recited control panel, a back portion 3 with a guide slot extending
therethrough, and guide rails 16 corresponding to the recited support arms
that extends through the guide slot (Answer (hereinafter "Ans.") 2-3).

Claim 10
The Patent Owner argues with respect to claim 10 that Nakano fails to
disclose a back support portion with "a guide slot extending therethrough,"
or a support arm "arranged to extend through the guide slot." (App. Br. 5).
The Patent Owner argues that the guide slots of Nakano do not extend
"through" the back portion, because they only extend partially into the main
body 4, and that the guide rails of Nakano also do not extend through the
guide slots (App. Br. 5). The Patent Owner relies on a dictionary as defining
"through" as "in one side and out the other side." (App. Br. 5, citing,
Webster's II New College Dictionary (2001)). The Patent Owner argues that
the use of these terms in the '047 patent and the illustration thereof in the
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figures make evident the proper meaning, and that the Examiner's reference
to other definitions fails to consider their contexts (Reply Br. 2-3).
The Examiner's position is that in Nakano, the "two guide slots (as
shown in figure 4, near reference #17) in the back support portion (3) that
receive the two support arms (16) of the back plate (12)" satisfies the
limitations of claim 10 (Ans. 3). The Examiner asserts that "[t]he term
'therethrough' or 'through' is an exceedingly broad claim limitation" which
imparts only "a general relationship between the two claim elements." (Ans.
6). While not providing/adopting a particular definition, the Examiner refers
to the alternative definitions of "through" in the dictionary such as: "[i]n the
midst of"; "[f]rom one end or side to another or opposite end or side"; and
"[p]assing or extending from one end, side, or surface to another." (Ans. 7).
The Examiner contends that the guide slots may be vertical as in Nakano
"and in this way extends therethrough and the arm, likewise, extends
through this guide slot." (Ans. 8).
We agree with the Patent Owner that the broadest reasonable
interpretation of the terms "through" and "therethrough" in view of the
specification of the '047 patent requires the recited guide slot to extend into
one side and out the other side of the back support portion, and requires the
arms to extend into and out of the guide slot. While not explicitly defined,
the use of these terms within the specification, and illustrations of the figures
make their meanings clear (see col. 5, ll. 18-39; Figs. 2-6). In contrast, the
'047 patent does not provide any support for the Examiner's apparent
position that the terms encompass partially extending through the back
support portion or the guide slot. In addition, while the Examiner is correct
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that the claims do not preclude vertical orientation of the guide slot and the
arm, the claims nonetheless require the guide slot to extend through the back
support portion, and the arm to extend through the guide slot. The child car
seat of Nakano does not satisfy these claim limitations. Correspondingly,
the Examiner's rejection of claim 10 as being anticipated by Nakano is
reversed as being based on an unreasonably broad claim interpretation.

Claim 49
The Patent Owner relies on the same arguments proffered with respect
to claim 10 for claim 49 which includes similar limitations, including a back
support with a "guide slot extending therethrough" and "a support arm
arranged to extend through the guide slot." (App. Br. 6; see also Claims
App'x.). Hence, the Examiner's anticipation rejection of claim 49 based on
Nakano is reversed for the reasons discussed supra.

Claims 13 and 52
The Patent Owner relies on the dependency of claim 13 (on claim 10)
and of claim 52 (on claim 49), and the arguments submitted with respect to
claim 10 for patentability (App. Br. 6). Thus, the Examiner's rejection of
claims 13 and 52 as being anticipated by Nakano is reversed.

Claim 42
Claim 42 does not include the above discussed limitations reciting
"extending therethrough" or "extend through." The Examiner rejects this
claim as also anticipated by Nakano finding that slideable member 12 of
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Nakano corresponds to the harness-control panel of claim 42, and that the
slideable member 12 is positioned to lie adjacent to and in front of a front
surface of the back-portion 3 to cause a child to rest against the slideable
member 12 (Ans. 3).
The Patent Owner argues that the Examiner's findings are erroneous
for various reasons. Firstly, the Patent Owner argues that "[t]he front
surface (behind control panel 12) of recess 17 of [Nakano] is not part of the
back support portion" so that the control panel 12 does not lie "in front of a
front surface of the back support portion" as required by claim 42 (App. Br.
6). According to the Patent Owner, the front surface of recess of Nakano is
not part of the back support portion, because "[a] child's back could not be
supported by this front surface of recess 17" and under forces of an accident,
the child's back would be forced against the edges of the recess so as to
injure the child (App. Br. 6-7; see also Reply Br. 5-6). In this regard, the
Patent Owner further relies on the declarations of Glover and Jones to assert
that the recess 17 "would injure the child by impact with the surrounding
surfaces that are offset by sharp edges, etc." (Reply Br. 6; see also App. Br.
7-8). These arguments are unpersuasive.
We observe that the '047 patent utilizes the term "back support portion
20" within the specification to generally refer to a portion of the seat shell 12
that is at an angle to the bottom seat portion 18, and does not limit it to some
specific portion of the seat shell (col. 4, ll. 24-27). The figures of the '047
patent also identify the back support portion 20 as referring generally to the
angled portion of the seat shell, and does not limit it to some specific portion
thereof (see e.g., Figs. 1, 5-8, 10). In addition, the back of a child is
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disclosed and claimed as actually resting against the back plate 58 of
movable the harness control panel 54 (col. 4, l. 58-col. 5, l. 17; Figs. 1, 3).
Hence, it is clear that the back support portion recited in claim 42 refers to
the generally vertical portion of the seat shell, and does not refer to a specific
portion thereof, or require contact with the child's back.
Nakano discloses that "the slideable member 12 is supported in a
slidable manner inside a recess 17 on the front side of the back-portion 3 by
means of a pair of the guide rails 16, 16." (Nakano, pg. 4; Fig. 3). While a
child's back may not contact the recess 17 generally, such contact is not
required for the structure to be a "back support portion" as discussed supra.
As such, we agree with the Examiner that Nakano discloses a harness-
control panel (slideable member 12) positioned to lie in front of a front
surface of the back-portion 3 to cause a child to rest there against, thereby
satisfying the limitation at issue.
We also find unpersuasive the Patent Owner's assertions of injury
during an accident when actual contact with the child's back actually occurs.
The fact that the car seat of Nakano is not ideal in protecting the child
occupant, and injury may occur due to the presence of "edges" formed by
the recess 17, do not diminish the fact that the car seat 1 of Nakano includes
a back-portion 3, or the fact that the slideable member 12 is positioned to lie
in front of a front surface of the back-portion 3. Secondly, the Patent
Owner/declarants merely address the child seat of Nakano in one illustrated
configuration with the slideable member 12 in its highest position, but do not
consider the adjustability of the slideable member 12 based on the size of the
child occupant. When the slidable member 12 is positioned in its lowest
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position (for example, for a small child), no such edges are present near the
back of the child occupant since the slideable member 12 is flush with the
remaining surface of the back-portion (see Fig. 3). Furthermore, such edges
can be said to also exist in the child vehicle seat of the '047 patent as well
when the back plate 58 of the harness control panel 54 is in its higher
positions, the bottom most edge of the back plate 58 forming an edge that is
raised compared to the surface of the nearby back support portion 20.
As to the Patent Owner's reliance on the declarations of Glover and of
Jones stating that the child car seat of Nakano could cause injury and fails to
comply with regulations of the United States (see, generally, Decl. of Glover
and Decl. of Jones), such arguments do not persuade us of Examiner error
for the reasons substantively discussed supra. Whether the Nakano is an
ideal child seat or whether it complies with the regulations of the United
States are not at issue or diminish Nakano's disclosure of a child car seat
with the limitations recited in claim 42. The Patent Owner also relies on
Exhibit B in the Declaration of Glover showing the car seat of the '047
patent beside the car seat of Nakano to assert that the car seat of Nakano
would be hazardous, because child would be injured (App. Br. 8). However,
not only are drawings not considered to be to scale, as noted supra, the
drawings merely show the child seat of Nakano in one configuration, and the
Patent Owner/declarants do not consider the adjustability thereof.
The Patent Owner further argues that Nakano is not enabling, and
thus, is not prior art, because the child car seat of Nakano is "not an
operative baby/child seat." (App. Br. 9, citing to the declarations of Glover
and Jones). Again, the basis of this assertion is that the child car seat of
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Nakano is unsafe due to the edges and a child may be injured in the event of
an accident (App. Br. 9-10). However, this argument is unpersuasive for
substantially the same reasons discussed supra.
The Patent Owner further relies on the Board's decision in Ex parte
Kain, Appeal No. 2005-0496 (BPAI 2005) in support of novelty of claim 42
and argues that an unsafe disclosure is not anticipatory prior art (App. Br.
10-11). However, we observe that non-precedential decisions of the Board
are not binding. In addition, the Patent Owner's argument is without merit
because, as recognized by the Patent Owner (App. Br. 10), that case was
decided based on the Board's disagreement with the Examiner's untenable
position that the applied prior art's "arm rest or console is a 'juvenile seat' or
'juvenile booster seat.'" (Ex parte Kain at 3; see also App. Br. 10). In Kain,
the Board found this position to be "unreasonable and untenable." (Id.). In
the present appeal, the applied prior art is Nakano which is directed to a
"CHILD CAR SEAT" (Nakano, Title), which is the very same subject
matter of the '047 patent. Thus, the Patent Owner's argument based on Kain
is also unpersuasive.
In view of the above, we agree with the Examiner that Nakano
discloses the child seat of claim 42 and affirm the Examiner's rejection.

Obviousness Rejection Based on Nakano and Burleigh '601
The Examiner rejects claims 4, 11, 12, 44-46, 50 and 51 as obvious
over Nakano in view of Burleigh '601, the Examiner relying on Burleigh
'601 for disclosing the specific arrangement and configuration of the
channels or the slots recited in these claims (Ans. 4).
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Claims 4 and 46
The Patent Owner relies on the arguments discussed above in arguing
that Nakano does not disclose support arms that are "arranged to extend
through one of the guide slots" as recited in claims 4 and 46 (App. Br. 11-
12). The Patent Owner further notes that "Burleigh '601 is not cited for and
does not make up for the deficiency of this feature in [Nakano]." (Id.). We
agree with the Patent Owner and reverse the rejection of these claims.

Claims 11 and 12
The Patent Owner relies on the dependency on claim 10 for
patentability of these claims (App. Br. 11). The Examiner's application of
Burleigh '601 does not cure the deficiencies of Nakano. Hence, we reverse
the rejection of these claims.

Claims 44 and 45
The Patent Owner also relies on the dependency on claim 42 for
patentability of these claims (App. Br. 12). However, no deficiency has
been found with respect to the Examiner's rejection of claim 42.
Correspondingly, these claims fall with claim 42 and the Examiner's
rejection is affirmed.

Claims 50 and 51
The Patent Owner relies on the dependency on claim 49 for
patentability of these claims (App. Br. 12). The Examiner's application of
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Burleigh '601 does not cure the deficiencies of Nakano. Hence, we reverse
the rejection of these claims.

Obviousness Rejection Based on Nakano, Burleigh Patents
The Examiner rejects claims 14, 47 and 53 as being obvious over
Nakano in view of Burleigh '601 and Burleigh '639. The Patent Owner
relies on the ultimate dependency of these claims for patentability (App. Br.
12-13). The Examiner's application of the Burleigh references does not cure
the deficiencies of Nakano as to claims 14 and 53 that depend from claims
10 and 49, respectively. However, claim 47 depends from claim 44 which in
turn, depends from 42. We discern no error with respect to the Examiner's
rejection of claims 42 and 44. Correspondingly, we affirm the Examiner's
rejection as to claim 47, but reverse the rejection as to claims 14 and 53.

CONCLUSIONS
1. The Examiner erred in finding that Nakano discloses a back
support portion with "a guide slot extending therethrough," and a support
arm "arranged to extend through the guide slot."
2. The Examiner did not err in finding that Nakano discloses a
"harness-control panel being positioned to lie in front of a front surface of
the back support portion to cause a child seated in the seat shell to rest
against the harness-control panel."

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ORDERS
1. The rejection claims 10, 13, 42, 49 and 52 as being anticipated by
Nakano is decided as follows:
A. Rejection of claim 42 is AFFIRMED; and
B. Rejection of claims 10, 13, 49 and 52 is REVERSED.

2. The rejection of claims 4, 11, 12, 44-46, 50 and 51 as obvious over
Nakano in view of Burleigh '601 is decided as follows:
A. Rejection of claims 44 and 45 AFFIRMED; and
B. Rejection of claims 4, 11, 12, 46, 50 and 51 is REVERSED.

3. The rejection of claims 14, 47 and 53 as obvious over Nakano in
view of the Burleigh references is decided as follows:
A. Rejection of claim 47 is AFFIRMED; and
B. Rejection of claims 14 and 53 is REVERSED.

Requests for extensions of time in this ex parte reexamination
proceeding are governed by 37 C.F.R. § 1.550(c).

AFFIRMED-IN-PART

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PATENT OWNER:
BARNESS & THORNBURG
11 South Meridian Street
Indianapolis, IN 46201

THIRD PARTY REQUESTER:
LAW OFFICE OF JOHN W. HARBST
1180 Litchfield Lane
Bartlett, IL 60103