Ex Parte 6955397 et al

Patent Trial and Appeal Board

Jun 6, 2016

90012836 (P.T.A.B. Jun. 6, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR
90/012,836 04/12/2013
34007 7590 06/07/2016
BROOKS KUSHMAN P,C, I LEAR CORPORATION
1000 TOWN CENTER
TWENTY-SECOND FLOOR
SOUTHFIELD, MI 48075-1238
6955397
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
ATTORNEY DOCKET NO. CONFIRMATION NO.
LEAR05601RX1 2674
EXAMINER
ENGLISH, PETER C
ART UNIT PAPER NUMBER
3993
MAILDATE DELIVERY MODE
06/07/2016 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 Lear Corporation,
Patent Owner and Appellant
Appeal2015-005304
Reexamination Control 90/012,836
Patent 6,955,397 C 1
Technology Center 3900
Before JEFFREY B. ROBERTSON, DANIEL S. SONG, and
JOSIAH C. COCKS, Administrative Patent Judges.
ROBERTSON, Administrative Patent Judge.
DECISION ON APPEAL
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Lear Corporation, the owner of the patent under reexamination
(hereinafter the "'397 Patent"), appeals under 35 U.S.C. §§ 134(b) and 306
from a final rejection of claims 1, 2, 4--7, 12, 13, 15, 20-43, 45--49, 52---62,
64, 66, and 71-77 1 (see Appeal Brief filed October 6, 2014, hereinafter
"Appeal Br.," 4; Final Office Action mailed July 3, 2014). We have
jurisdiction under 35 U.S.C. §§ 134(b) and 306.
We AFFIRM.
STATEMENT OF THE CASE
The current reexamination proceeding arose from a third-party request
for ex parte reexamination filed by TS Tech North America, Inc. (Request
for Ex Parte Reexamination filed April 12, 2013, hereinafter "Request").
The '397 Patent previously was subject to reexamination in Reexam
Control No. 90/011,745, which was the subject of an appeal (Appeal No.
2012-009763) and resulted in a Board Decision reversing the rejections of
the claims. (Decision in Appeal No. 2012-009763, mailed December 27,
2012.) An Ex Parte Reexamination Certificate issued on February 8, 2013
where claims 10 and 19 were cancelled, claims 1 and 11 were determined to
1 Claims 3, 8, 9, 14, 17, 18, 44, 65, and 67-70 have been canceled. (Final
Rejection mailed July 3, 2014.) Claim 11, 16, 50, 51, and 63 were
disclaimed and claims 11, 16, 50, 51, and 63 have been cancelled. (See
Reply Brief filed December 18, 2014, pg. 1, Advisory Action mailed
February 4, 2015, Supplemental Examiner's Answer mailed February 11,
2015.) We observe also that Patent Owner has filed a Supplemental
Amendment under 37 C.F.R. §§ 1.530 and 41.33(b) on October 6, 2015
cancelling claims 45 and 66.
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be patentable as amended, claims 2-9 and 12-18 were determined to be
patentable as being dependent on the amended claims, and added claims 20-
70 were determined to be patentable.
The '397 Patent was also the subject of Inter Partes Review Case No.
IPR2014-01200 (the '1200 proceeding) in which a Final Written Decision
was entered on February 2, 2016 holding claims 52, 53, 59, and 60
unpatentable. (Final Written Decision under 35 U.S.C. § 318(a) at 22.)2
We also understand that the '397 Patent was the subject of a patent
infringement action, captioned Lear Corporation v. TS Tech USA
Corporation, et al., Case No. 2:11-cv-00245, in the Southern District of
Ohio, Eastern Division, which was dismissed on August 29, 2014.
The '397 Patent
The '397 Patent states that the invention relates to a vehicle seat
assembly having an active head restraint system. (Col. 1, 11. 7-9.)
2 Because the Trial Certificate in IPR 2014-01200 has not yet issued, we
shall address these claims in this Opinion.
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Figure 3 of the '397 Patent is reproduced below:
Figure 3 is a rear perspective view of the seat assembly according to
the invention of the '397 Patent, the seat assembly including a seatback
frame 38 (not shown), an upper armature 50 including a head restraint 34
(not shown), a lower armature 52, a first linkage 92, a second linkage 100, a
drag link 108, and a biasing member 106. (Col. 2, 11. 64---65, col. 4, 11. 6-22,
col. 6, 1. 26 - col. 7, 1. 26.)
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Claim 1 on appeal reads as follows:
1. A vehicle seat assembly comprising:
a seatback frame;
an upper armature including a head restraint;
a lower armature;
at least one first linkage moveably connected to said
seatback frame, operatively connected to said upper armature,
and operatively connected to said lower armature;
at least one second linkage moveably connected to said
seatback frame and operatively connected to said lower
armature;
at least one drag link operatively interconnecting said
first linkage and said second linkage; and
at least one biasing member interconnecting said
seatback frame and one of said first linkage and said second
linkage, said biasing member operable to bias said head
• ,..1 • h ..
restramt towaru an upngut pos1t10n;
wherein said lower armature is operable to concurrently
move each of said first linkage and said second linkage relative
to said seatback frame in response to a predetermined force
applied to said lower armature to thereby move said upper
armature and move said head restraint toward the occupant.
(Claims App'x 1, Appeal Br.)
The Examiner rejected the claims as follows:
I. Claims 1, 2, 5-7, 12, 13, 20, 21, 33, 38--43, 48, 52, 53, 64, 66,
71, 72, and 74--77 under 35 U.S.C. § 102(a) as anticipated by
Lindenberg (DE 10 49 265 B3, citations to English translation
of record);
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II. Claims 34--37, 45, 46, and 73 under 35 U.S.C. § 103(a) as
obvious over Lindenberg;
III. Claims 7, 22-27, 40, 42, 43, 54, 59, 60, 66, and 74--77 under 35
U.S.C. § 103(a) as obvious over Lindenberg in view of
Farquhar '363 (US Publication No. 2004/0061363 Al);
IV. Claim 7 under 35 U.S.C. § 103(a) as obvious over Lindenberg
in view of Klinger (U.S. Patent 6,682,144 B2);
V. Claims 1, 2, 4--7, 12, 13, 15, 20, 21, 33--43, 45, 46, 48, 52, 53,
64, 66, 71, 72, and 74--77 under 35 U.S.C. § 103(a) as obvious
over JP 10-138814 A, published May 26, 1998 (hereinafter
"Ogawa '814", citations to English translation of record), JP
10-138811 A, published May 26, 1998 (hereinafter "Ogawa
'811 ", citations to English translation of record), and JP
2000-211410 A, published August 2, 2000 (hereinafter
"Taoka", citations to English translation of record);
VI. Claims 22-32, 47, 49, and 54--62 under 35 U.S.C. § 103(a) as
obvious over Ogawa '814, Ogawa '811, Taoka, and Farquhar
'363 (US Publication No. 2004/0061363 Al).
Rejections over Lindenberg
Patent Owner's main argument with respect to rejections based on
Lindenberg, is that Lindenberg in not prior art. (Appeal Br. 35-52, 53-54,
55-56.)
Accordingly, we first address the status of Lindenberg as prior art.
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Status of Lindenberg as Prior Art
The '397 Patent was filed as application 10/950,711 on September 27,
2004. Lindenberg, which has a publication date of February 26, 2004, is
applied as prior art against the claims under 35 U.S.C. § 102(a). Appellant
contends that Lindenberg is not prior art to the '397 Patent in view of the
Declaration ofMladen Rumer under 37 C.F.R. § 1.131 (executed on July 12,
2013, the "Rumer Declaration"), the sole inventor of the '397 Patent, who
declared that he "conceived of the invention by at least May 19, 2003" and
that he "worked continuously on developing the invention of claims 1, 2,
4-9, 11-13, 15-18, 20-43, 45-64 and 66 of the '397 patent" for the period of
January 23, 2004 to the filing of the application for the '397 Patent on
September 27, 2004. (Rumer Deel. paras. 2, 3; Appeal Br. 36.)
The Examiner found the Rumer Declaration to be insufficient because
it failed "to provide a complete showing of both the structure and function of
the claimed invention-both the requisite means and their interaction as
defined in the patent's claims." (Ans. 11.)
Appellant contends that sufficient evidence exists to corroborate Mr.
Rumer's statements that he conceived of the claimed invention by at least
May 19, 2003, in the form of Exhibit 1 to the Rumer Declaration, which is
represented to be an invention disclosure, and further arguing that Exhibits 3
and 5 to the Rumer Declaration, which are represented to be notes and a
schematic illustration of a variation of the claimed invention respectively,
show conception by at least February 11, 2004. (Appeal Br. 38-51, 53-54;
Rumer Deel. paras. 2, 8, 10, and 12.) Appellant contends that "a person
skilled in the art could understand all of the claim limitations of claims 1, 7,
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12, 33, 37, 40, 42, 48, 52, 63, 66 and 71 from Exhibits 1, 3, and 5 to Exhibit
A." (Appeal Br. 49.)
Accordingly, a dispositive issue in the present appeal is whether the
evidence of conception presented by Patent Owner is sufficient to remove
Lindenberg as prior art to the claims?
ANALYSIS
In evaluating Declarations under 3 7 C.F .R. § 1.131, "( 1) all the
evidence must be considered in its entirety, including the Rule 131
declarations and accompanying exhibits ... (2) an accompanying exhibit
need not support all of the claimed limitations but rather a missing feature
may be supplied by the declaration itself ... and (3) it is entirely appropriate
for appellants to rely on a showing of facts set forth in the Rule 131
declarations themselves to establish conception of the invention prior to the
effective date of the reference." Ex Parte Ovshinsky, IO USPQ2d 1075,
1077 (BP AI 1989) (citations omitted).
In this regard, Mr. Rumer, in his declaration, states: "I conceived of
the invention by at least May 19, 2003." (Rumer Deel., para. 2.) For
support, Mr. Rumer refers to Exhibit 1, which is "an invention disclosure for
the invention of the '3 97 patent, documenting my earlier conception of the
claimed invention. The exploded view is dated May 19, 2003." (Rumer
Deel., para. 8.) Mr. Rumer states also that for the period between January
23, 2004 and September 27, 2004 "my colleagues and I worked continuously
on developing the invention of claims 1, 2, 4-9, 11-13, 15-18, 20-43, 45-64
and 66 of the '397 patent." (Rumer Deel. para. 3.) Other paragraphs of the
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Rumer Declaration refer generally to images, drawings, and illustrations of
"variations of the claimed invention." (See e.g., Rumer Deel., paras. 7, 9--
14, 16-18, 21-24.)
We agree with the Examiner that the Rumer Declaration is
insufficient to provide sufficient evidence that the inventor conceived of the
invention prior to the publication date of Lindenberg. Specifically, the
exploded view of the invention disclosure depicted in Exhibit 1 to the
Rumer Declaration depicts a "Self Aligning Head Restraint" (SAHR), which
Mr. Rumer declares contains an upper armature that receives post of a head
restraint. (Rumer Deel. para. 1.) However, there is no description in the
Rumer Declaration or Exhibit 1 of how the linkages in the exploded view
interact with each other or detailed description of how the exploded view
correlates to the claim limitations, particularly the structural relationships
and functional limitations of the linkages, the seatback frame, and upper and
lower armatures recited in the claims. The particular attachment of such
elements depicted in Exhibit 1 is crucial in this regard as it relates directly to
the capability of structures to provide the function recited in claim 1 of
"mov[ing] each of said first linkage and said second linkage relative to said
seatback frame in response to a predetermined force applied to said lower
armature to thereby move said upper armature and move said head restraint
toward the occupant."
Appellant provides Exhibit B, which purports to be "[a Jn annotated
copy of the exploded view from Exhibit 1 of the declaration of Exhibit A,
with reference numerals added from the 6,955,397 patent." (Appeal Br. 36,
54, Evidence Appendix.) Appellant also provides arguments that one of
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ordinary skill in the art "could understand" all the limitations of the claims
from Exhibits 1, 3, and 5 to the Rumer Declaration. (Appeal Br. 3 9--51.)
However, there is no corresponding evidence supporting Patent Owner's
position, which is in the form of attorney argument that the relationships and
attachment points set forth in the annotated versions of the claims were
conceived of as of May 19, 2003. In this regard, we emphasize that the
Rumer Declaration provides only general statements without sufficient
detail to correlate the limitations recited in the claims with the exploded
view of Exhibit 1. In addition, while Exhibits 3 and 5 provide additional
details about the SAHR assembly, the Rumer Declaration does not establish
a clear correlation between the notes in Exhibit 3 and the schematic in
Exhibit 5, and the recited features in the claims. (See Rumer Deel., paras. 10
and 12.) Further, Exhibit 3 is dated January 26, 2004 and Exhibit 5 is
asserted as having the date of February 11, 2004, which, while both being
prior to the publication date of Lindenberg, are after the alleged conception
date of May 19, 2003, and thus cloud the date of conception set forth by Mr.
Rumer in the Declaration. Id.
Accordingly, we agree with the Examiner that Lindenberg is prior art
to the '3 97 Patent.
Lindenberg in combination with Farquhar '363
Appellant contends also that Farquhar '363 is not prior art based on
the same evidence and reasoning as argued with respect to Lindenberg.
(Appeal Br. 55.) We are unpersuaded by Appellant's arguments for the
same reasons as discussed above with respect to the Rumer Declaration.
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Claims 37, 40, 42, 43, 66, and 73-77
Appellant presents separate arguments for claims 37, 40, 42, 43, 66,
and 73-77, which recite that at least one impact body is disposed proximate
to a pelvic area and lumbar area of an occupant or that the impact body
receives pelvic and lumbar forces in the event of a rear collision. (Appeal
Br. 53-55.)
The Examiner's position is that Lindenberg describes impact plate 12
as in a "lower region" of the seat back frame, which one of ordinary skill in
the art would appreciate is "proximate" to the pelvic and lumbar "area" as
recited in the claims. (Ans. 13.)
Appellant contends that Lindenberg discloses that impact plate 12 is
disposed in a buttocks area, and thus only receives pelvic impact forces from
the occupant of the seat in the event of a rear-end crash. (Appeal Br. 53.)
To that end, Appellant argues that Lindenberg fails to disclose an impact
body disposed proximate to a pelvic area and lumbar area of an occupant,
and that as a result, Lindenberg does not receive pelvic and lumbar forces as
recited in the claims. (Appeal Br. 53.)
Accordingly, a central issue with respect to these claims is whether
the Examiner erred in finding that impact plate 12 of Lindenberg is
proximate to a pelvic area and lumbar area of an occupant?
FINDINGS OF FACT ("FF")
1. Lindenberg discloses a motor-vehicle seat with a crash-active
headrest as depicted below in Figure 1. (Para. 0001.)
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-1
\
Figure 1 of Lindenberg depicts an oblique front view of
the frame construction of a motor-vehicle seat back in normal
use position. (Lindenberg, para. 11.) Figure 1 depicts frame
structure of seatback 1, including two side bars 3, connected by
traverse 4 and traverse 5, headrest 2, which is connected to
impact plate 12 "disposed in a lower region between side bars
3." (Paras. 17-19.) The connecting means include headrest
support frame 13, two thrust rods 14, and two swiveling levers
15. (Para. 19.)
2. Lindenberg discloses that in the event of a rear-end crash, "the
strong negative acceleration causes the buttocks part of a seat
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occupant to strike the upholstery of seat back 1 and thus impact
plate 12 with great momentum." (Para. 23.)
ANALYSIS
Upon review of the evidence of record, we determine that Appellant
has not shown error in the Examiner's finding that the impact plate 12 of
Lindenberg satisfies the requirements of the claims. That is, the claims
recite that the impact body is disposed "proximate" to pelvic "area" and a
lumbar "area" of an occupant. Accordingly, the claims do not recite a
specific location sufficient to distinguish the claimed location from the
location of the impact plate 12 of Lindenberg. Indeed a comparison of
locations the impact plate 12 as depicted in Figure 1 of Lindenberg (FF 1)
and impact plate 76 as depicted in Figure 3 of the '397 Patent reproduced
above, reveals that the respective impact plates appear to be in the same
general area with respect to the overall vehicle seat. Thus, the impact plate
12 of Lindenberg is disposed "proximate" to pelvic "area" and a lumbar
"area" of an occupant.
Lindenberg' s reference to the "buttocks part" of an occupant striking
the impact plate 12 during a rear-end crash (FF2) does not convince us
otherwise. Given the location of the impact plate 12 relative to the occupant
of the seat, we find that the impact plate 12 would receive forces from both
pelvic and lumbar areas. Lindenberg does not place a limit as to from where
the forces would be received, and given the broad language of the claims, we
have not been directed to sufficient evidence that the impact plate 12 of
Lindenberg would not receive forces from both of the claimed "areas."
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Accordingly, the impact plate 12 of Lindenberg would also receive forces
from pelvic and lumbar areas as recited in the claims.
Thus, having considered the record before us, we affirm the
Examiner's rejections of claims 37, 40, 42, 43, 66, and 73-77.
103 Rejections based on Ogawa '814 in view of Ogawa '811 and
Taoka
ISSUE
Appellant contends that at least six modifications are required of
Ogawa '814 in view of Ogawa '811 and Taoka in order to reach the
limitations recited in the claims, which Appellant argues are all made with
impermissible hindsight and that there is no evidence that all of the proposed
modifications were within the level of ordinary skill at the time the invention
was made. (Appeal Br. 57---60.) Appellant argues also that the proposed
modifications of the references would impermissibly change the operation of
Ogawa '814 by eliminating the feature that the headrest frame is slidable in
the front and rear direction. (Appeal Br. 60.) Appellant contends that by
utilizing the quadrilateral linkage feature of Ogawa '811, the combination
renders Ogawa '814 unsatisfactory for its intended purpose. (Appeal Br.
60.)
Appellant contends that Ogawa '811 teaches away from the proposed
modifications, because Ogawa '811 relies on quadrilateral link mechanisms
as a solution to the problem to be solved, but neither the Requester, nor the
Examiner rely on the quadrilateral link mechanisms in the rejection.
(Appeal Br. 61.) Similarly, Appellant argues that Ogawa '814 discloses
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more parts to the seat assembly than Ogawa '811, which discloses that the
number of parts is small and the configuration is simple so that Ogawa '811
teaches away from the proposed modifications. (Appeal Br. 61.)
The Examiner incorporated pages 283-336, 340-381, 384--437, and
4 77-54 7 of the Request for Reexamination for the application of the cited
prior art to the claims. (Ans. 5---6.) In responding to Appellant's arguments,
the Examiner stated that sufficient explanation had been provided to support
the combination of the prior art to the claims of the '397 Patent. (Ans. 14.)
In this regard, the Examiner determined that application of the teachings of
Ogawa '811 to Ogawa '814 would have been straightforward because both
Ogawa '811 and Ogawa '814 disclose similar linkage structures to facilitate
movement of the headrest to the occupant. (Ans. 14.) The Examiner stated
that Taoka provides confirmation that the headrest of Ogawa '811 moves
upward and forward and explains the associated benefits with such
movement. (Ans. 14.) The Examiner determined that both Ogawa '811 and
Taoka teach how the linkage of Ogawa '814 can be modified to produce the
desired upward and forward movement. (Ans. 14--15.) As a result, the
Examiner was not persuaded that Ogawa '811 and Ogawa '814 teach away
from the combination, because rather than replacing the mechanism
disclosed in Ogawa '814, Ogawa '811 and Taoka teach how to supplement
the active head restraint system disclosed in Ogawa '814. (Ans. 15.) The
Examiner also stated that the modification of Ogawa '814 in view of Ogawa
'811 and Taoka takes advantage of the small number of parts and simple
configuration intended by Ogawa '811. (Ans. 15.)
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Thus, the principal issue in this appeal is:
Did the Examiner err in concluding that the claims would have been
obvious in view of Ogawa '814, Ogawa '811, and Taoka?
FINDINGS OF FACT ("FF")
3. Figures 3 and 4 of Ogawa '814 are reproduced below:
[FlG 3] [FIG 4]
~$
rr 4l 45 e? , , '! t ·-· --/·]Trro
·-~-ao
~l!~~'ic-'-i_ !,._. Tlfl
Figure 3 is a partially sectioned side view showing a part of the
headrest system according to the invention and Figure 4 is a
partially sectioned side view showing a working state of the
headrest system according to the invention. The headrest
system includes seatback frame 20, guide parts 30 and 31,
headrest frame 40, headrest stay 56, support member 45, driver
60, rod 61, back member 62, upper link 72, drive-side link 71,
intermediate link 73, and urging member 76. (Ogawa '814,
Pgs. 4--5, paras. [0006]-[0016], Pg. 6.)
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4. Ogawa '814 discloses that in operation, when an automobile is
struck from behind, the back member 62 is pushed by the
passenger's body from the position shown in Figure 3 to that in
Figure 4, causing the drive-side link 71 to rotate
counterclockwise and the intermediate link 73 is pulled, causing
the upper link 72 to rotate counterclockwise around the second
shaft 80 advancing the support member 45 and moving headrest
frame 40 along guide parts 30 and 31, and moving headrest 12
toward the passenger's head. (Ogawa '814, Pgs. 4, 5, paras.
[0008], [0017].)
5. Figure 3 of Ogawa '811 is reproduced below:
( "' ..... J if.n
Figure 3 depicts a side view of a headrest system. Figure 3(A)
depicts the headrest system in a first position and Figure 3(B)
depicts the headrest system in a second position. (Paras. 7,
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18.) The headrest system includes a link mechanism 30, with
upper link 33, lower link 34, which are pivotally mounted in
the front and rear direction by a first shaft 31 and a second
shaft 32 extending in the horizontal direction, and a
longitudinal link 35 connecting both of the links 33 and 34 to
each other. The longitudinal link 3 5 is pivotally mounted on
the upper link 33 and lower link 34 by horizontal connecting
shafts 40 and 41. (Para. 7 .)
6. Ogawa '811 discloses that when the automobile is struck from
behind, back member 57 is pushed turning arm part 42 and
lower link 34 counterclockwise around second shaft 32, also
turning upper link 33 counterclockwise around first shaft 31 via
longitudinal link 35, advancing headrest 12 to approach the
passenger's head. (Paras. 5, 15.)
7. Ogawa '811 discloses that the headrest frame 45 is fixed to the
longitudinal link 3 5 by welding, such that "the headrest frame
45 can move integrally with the longitudinal links 35 from a
first position on the rear shown in Figure 3(A) to a second
position on the front shown in Figure 3(B)." (Para. 9.)
8. Taoka discloses:
Also, in Japanese Patent Laid-Open No. 10-138811, a
device is disclosed in which a headrest is rotated
diagonally forward and upward along an arc-shaped
trajectory around a shaft core while its attitude is
maintained by movement of a pressure receiving portion
through a lever-link mechanism having a parallel link
mechanism.
(Para 7.)
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PRINCIPLES OF LAW
Section 103 forbids issuance of a patent when "the
differences between the subject matter sought to be patented
and the prior art are such that the subject matter as a whole
would have been obvious at the time the invention was made
to a person having ordinary skill in the art to which said
subject matter pertains."
KSR Int'! Co. v. Teleflex Inc., 550 U.S. 398, 406 (2007) (quoting 35 U.S.C.
§ 103 (a) (2006)). Regarding the use of hindsight, the Court indicated that a
factfinder "must be cautious of arguments reliant upon ex post reasoning,"
but went on to state that "[ r ]igid preventative rules that deny factfinders
recourse to common sense, however, are neither necessary under our case
law nor consistent with it." KSR, 550 U.S. at 421.
ANALYSIS
We agree with the Examiner that it would have been obvious in view
of the combined disclosure of the prior art, to have produced the structures
recited in the claims. 3 That is, we agree with the Examiner that it would
have been obvious to modify the structure of Ogawa '814 in view of the
disclosure of Ogawa '811 as additionally evidenced by Taoka to allow the
3 Although not we do not rely on the following, we also observe that one of
ordinary skill in the art could have just as easily started with the disclosure
of Ogawa '811 and incorporated a spring (biasing member) as disclosed in
Ogawa '814 to control the degree ofheadrest movement that occurs as a
result of the force applied to the seatback frame during a rear collision or to
establish a requisite magnitude of force for actuation of the headrest
movement.
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headrest to move forward and upward toward the head of an occupant during
a rear collision. 4
In this regard, Ogawa '811 and Taoka provide teachings as to the
desirability of moving a headrest toward the head of an occupant during the
event of a rear collision. (FF5-FF8.) In contrast to the prior reexamination,
Ogawa '811 provides structural components in order to achieve such
movement, and the Examiner, via the Request, provided modifications that
one of ordinary skill in the would have made in order to achieve that result.
(Request 305-309.) In particular, the proposed modifications involve
welding the upper link 72 to headrest frame 40 and eliminating guide parts
31 and 32 as shown below (reproduced from the Request, para. 372, p. 307):
Figure 3 of JP '8l4 ·· Ori_giuul l;Jgllr~.J .. ~.r.Jr.~~1+.~.M(111m~~~·.~~.1µ~!~l~~.~.
Righi AHadunenl
4 Although not argued by the Examiner or the Appellant, the result of this
modification would appear to satisfy the claim limitation that the biasing
member is "operable to bias said head restraint toward an upward position"
as recited in claim 1 for example.
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The figures reproduced above show the original version and modified
version of Figure 3 of JP '814 to include rigid attachment of the upper link
72 to headrest frame 40 and eliminating guide parts 31 and 32.
In addition, the modification involves rotating the upper link 72 to
allow the headrest frame to move upward toward the seat occupant's head as
reproduced below (Request para. 373, pp. 307-308):
The figures above depict a modified version of link 72 of Ogawa '814
in a resting position, and also in an articulated position upward toward the
head of a seat occupant.
The modifications rely on the disclosures of Ogawa '811 and Taoka
as to the desirability of moving a headrest frame upward as well as forward
in the event of a rear collision as well as the particular manner applied in
Ogawa '811 of welding the link and headrest together, rather than having a
pivotal connection and guide parts as is present in Ogawa '814. (FF3-FF7.)
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Accordingly, Appellant's arguments that the combination was made with
improper hindsight are not persuasive.
As to Appellant's argument that there is no evidence that the proposed
modifications would have been within the level of ordinary skill in the art,
we disagree. Ogawa '814 and Ogawa '811 provide evidence that different
linkages were known to one of ordinary skill in the art in order to move a
headrest toward the head of an occupant in the event of a rear collision.
(FF3-FF7). Given the variety of linkages available and the express
teachings of Ogawa '811, we are not persuaded that one of ordinary skill in
the art would have been unable to apply the proposed modifications to
Ogawa '814.
We are also unpersuaded that the proposed modifications would
render the references unsatisfactory for the intended purposes of the
references. (Appeal Br. 60-61.) The intended purpose of both Ogawa '814
and Ogawa '811 is to provide headrest frames that support the head of the
passenger during a rear collision. (Ogawa '814, para. 3; Ogawa '811,
para. 3.) While the headrest of Ogawa '814 may be slidable, we disagree
that the proposed modification would impermissibly change its operation.
That is, the headrest would still be operable by action of forces on back
member 62 of Ogawa '814. (See FF3.) The omission of the slidable
capability of the headrest is a tradeoff in favor of the additional movement of
the headrest upward and toward the head of an occupant in the event of a
rear collision, the desirability of such movement being established in the art
applied.
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Last, the disclosure of Ogawa '811 that the number of parts is small
and the configuration is simple does not render the references unsatisfactory
for their intended purposes or teach away from the proposed combination.
Initially, we observe that the proposed combination actually makes the
number of parts present in Ogawa '814 less, by at least eliminating the guide
parts 31and32. (FF3.) Even ifthe modified combination of Ogawa '814
and Ogawa '811 results in more parts than are present in Ogawa '811 alone,
that is not dispositive and unpersuasive of teaching away because nothing in
Ogawa '814 teaches the desirability of more parts. As noted, the proposed
modification simplifies and reduces the parts of the Ogawa '814 headrest
system and such simplification and reduction in parts would have been
desirable. See Dystar Textilfarben GmbH & Co. Deutsch/and KG v. CH
Patrick Co., 464 F.3d 1356, 1368 (Fed. Cir. 2006) (implicit motivation to
combine can exist when the improvement is technology-independent and the
combination of references results in a product that is more desirable (e.g.,
stronger, cheaper, cleaner, faster, lighter, smaller, more durable, or more
efficient)). In this case, in addition to reduction of parts, the suggested
combination provides the added benefit of the headrest in Ogawa '814
moving up as well as toward the head during the rear collision thereby
providing additional motivation for the combination.
Rejection VI- Ogawa '814, Ogawa '811, Taoka, and Farquhar '363
Appellant relies on similar arguments with respect to this rejection as
discussed above. (Appeal Br. 61.) In addition, Appellant argues that
Farquhar '363 is not prior art, based on the same evidence and arguments set
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forth with respect to Lindenberg. (Appeal Br. 61---62.) We are not
persuaded by these arguments for similar reasons as discussed above.
DECISION
The Examiner's decision to reject claims 1, 2, 4--7, 12, 13, 15, 20-43,
45--49, 52---62, 64, 66, and 71-77 under 35 U.S.C. § 102(a) 35 U.S.C.
§ 103(a) is affirmed.
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)(l )(iv).
AFFIRMED
FOR PATENT Ow1~ER:
BROOKS KUSHMAN P.C./LEAR CORPORATION
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