Ex Parte Alfano

Patent Trial and Appeal Board

Sep 23, 2016

13491548 (P.T.A.B. Sep. 23, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
13/491,548 06/07/2012
109138 7590 09/26/2016
Kenneth Alfano
41635 Copper Creek Drive
Canton, MI 48187
FIRST NAMED INVENTOR
Kenneth Alfano
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.
1513
EXAMINER
CHEN,JOSEV
ART UNIT PAPER NUMBER
3637
MAILDATE DELIVERY MODE
09/26/2016 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 KENNETH ALF ANO
Appeal2014-009026
Application 13/491,548
Technology Center 3600
Before LINDA E. HORNER, LYNNE H. BROWNE, and
PAUL J. KORNICZKY, Administrative Patent Judges.
BROWNE, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Kenneth Alfano (Appellant) appeals under 35 U.S.C. § 134 from the
rejection of claims 1-20. We have jurisdiction under 35 U.S.C. § 6(b ).
We affirm-in-part.
Appeal2014-009026
Application 13/491,548
CLAIMED SUBJECT MATTER
Claim 1, reproduced below, is illustrative of the claimed subject
matter:
1. A vehicle seat assembly for increasing legroom available
to a rear-facing passenger, comprising:
a vehicle seat backrest; and
a cavity in said backrest, said cavity being configured to
provide limited additional legroom for a rear-facing passenger;
wherein said cavity is essentially confined to said
backrest's lumbar support area.
REFERENCES
The prior art relied upon by the Examiner in rejecting the claims on
appeal is:
Rossi us 5,690,384 Nov. 25, 1997
REJECTIONS
I. Claims 1, 11, and 16 stand rejected under 35 U.S.C. § 102(b) as
anticipated by Rossi.
II. Claims 2-10, 12-15, and 17-20 stand rejected under 35 U.S.C.
§ 103(a) as unpatentable over Rossi.
DISCUSSION
Rejection I
Claims 1 and 16
Claim 1 requires a cavity that "is essentially confined to said
backrest's lumbar support area." Appeal Br. 18. Claim 16 similarly requires
an opening "being located only approximately where said backrest would
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Application 13/491,548
ordinarily provide lumbar support." Id. at 20. The Examiner finds that
Rossi discloses a "cavity [that] is essentially confined to the backrest's
lumbar support area, and the opening located in approximately where the
backrest would ordinarily provide lumbar support." Final Act. 2.
Appellant contends that "Rossi does not teach or suggest restricting
the cavity to within the lumbar-support area." Appeal Br. 6. In support of
this contention, Appellant argues that "use of the term 'lumbar support area'
here is understood by those in the art to refer to an area of a seat backrest
that is designed/manufactured for such purpose, rather than any region that
could conceivably do such for 'at least one' person (as suggested by
Examiner)." Id. at 7.
An ordinary and customary meaning of the claim term "lumbar" is
"relating to or lying near the lower back." Merriam-webster.com,
http://www.merriam-webster.com/dictionary/lumbar (last accessed
September 13, 2016); see also In re Trans Texas Holdings Corp., 498 F.3d
1290, 1299 (Fed. Cir. 2007) (Dictionaries may clarify the meaning of claim
terms during prosecution). Thus, we understand the lumbar support area,
and likewise the location that would ordinarily provide lumbar support, of a
vehicle seat to correspond to a region designed to lie near the lower back of
the user.
Rossi's cavity is not within or confined to this lumbar region as
required by claims 1 and 16. Rather, Rossi's cavity 40 is designed to
support the entire back of the user, not only the lumbar region. See Rossi,
Fig. 4. Thus, the Examiner's finding is in error.
For this reason, we do not sustain the Examiner's decision rejecting
claims 1 and 16 as anticipated by Rossi.
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Appeal2014-009026
Application 13/491,548
Claim 11
Claim 11 requires "cavitational means in said backrest for increasing
legroom for a rear-facing passenger, whereby said legroom remains of
limited depth." Appeal Br. 19 (emphasis added). The Examiner finds that
Rossi discloses a "cavity being configured to provide limited additional
legroom for a rear-facing passenger." Final Act. 2.
Noting that "the 'means' language (with respect to the cavity in the
backrest) serves to trigger interpretation under Section 112(6), whereby
claim scope is limited to structures as disclosed in the application (and
structural equivalents)," Appellant argues that such construction "exclude[ s]
from claim scope any cavitational/cavity 'means' that substantially exceeds
in area (e.g. on the front of the backrest) what would be suitable for rear-
facing legroom purposes- or as phrased in Applicant's specification
summary, 'an area of the backrest approximately where feet of rear-facing
children typically go."' Appeal Br. 10-11.
In order for a prior art element to meet a section 112, paragraph 6
means-plus-function limitation, the prior art element must either be the same
as the disclosed structure or be a section 112, paragraph 6 equivalent. In re
Donaldson Co., 16 F.3d 1189, 1195 (Fed. Cir. 1994) (en bane). Two
structures may be "equivalent" for purposes of section 112, paragraph 6 if
they perform the identical function, in substantially the same way, with
substantially the same result. Kemco Sales, Inc. v. Control Papers Co., 208
F.3d 1352, 1364 (Fed. Cir. 2000). "The statute requires two structures to be
equivalent, but it does not require them to be 'structurally equivalent,' i.e., it
does not mandate an equivalency comparison that necessarily focuses
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Application 13/491,548
heavily or exclusively on physical structure." IMS Tech., Inc. v. Haas
Automation, Inc., 206 F.3d 1422, 1436 (Fed. Cir. 2000).
In this case, the disclosed structure is a cavity. Rossi discloses a
cavity. The fact that the disclosed structure is smaller than the prior art
cavity does not, in this instance, preclude the prior art cavity from
performing the function claimed, i.e., increasing legroom for a rear-facing
passenger, whereby said legroom remains of limited depth. Accordingly,
Rossi's cavity meets the means-plus-function limitation at issue.
We sustain the Examiner's decision rejecting claim 11.
Rejection II
Claims 2-10 and 17-20
Claims 2-10 depend from claim 1, and claims 17-20 depend from
claim 16. The rejection of these claims as unpatentable over Rossi suffers
from the same deficiency as the rejection of claims 1 and 16 as anticipated
by Rossi.
Accordingly, we do not sustain the Examiner's decision rejecting
claims 2-10 and 17-20.
Claims 12 and 13
Referring to the arguments pertaining to claim 11, Appellant argues
that "such nonobviousness considerations are likewise applicable to claims
12-15 (which were rejected on Section 103 grounds)." Appeal Br. 13.
Appellant provides no additional arguments for the separate patentability of
claims 12 and 13. Id. As we find no deficiency in the rejection of claim 11,
Appellant's argument is unconvincing.
We sustain the Examiner's decision rejecting claims 12 and 13.
Claim 14
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Application 13/491,548
The Examiner finds that "[t]he peripheral structure/frame of Rossi is a
protective periphery." Ans. 4. Noting that claim 14 requires a cavitational
means that provides a protective periphery around said legroom, Appellant
argues that "for the periphery to meaningfully be 'protective' with respect to
the legroom, it cannot be so large as to exceed an area reasonably selected
for such purposes." Appeal Br. 13. However, claim 14 does not indicate
what the claimed "protective periphery" is intended to protect. Rossi's
protective periphery is disposed around said legroom and protects the user
from contact with the internal components of its seat back support. Thus,
Rossi meets the limitation at issue.
We sustain the Examiner's decision rejecting claim 14.
Claim 15
Claim 15 requires "closing means for rendering said legroom
inaccessible on demand." Appeal Br. 20. The Examiner finds that "the
structure inserted into the cavity is a closing means in as much as the
structure inserted in to the cavity of the instant invention." Ans. 4.
Noting that "the 'closing means' with respect to the additional
legroom is an invocation of Section 112(6), which ... should serve to limit
claim construction to structures disclosed in the specification and structural
'equivalents,"' Appellant argues that "this 'means' function should likewise
be construed as limited to such structures compatible with the size and
position of the correspondingly limited structures of claim 11." Appeal Br.
14.
Claim 15 is not so limited. Rather, as discussed supra, Section 112,
sixth paragraph does not require structural identity. Here, the structure
corresponding to the closing means is a removable portion of seat material.
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Application 13/491,548
See, e.g., Spec. i120. Rossi discloses central portion 20 which is a
removable portion of seat material. See Rossi, 1:67-2: 19. Thus, Rossi
meets the limitation at issue.
We sustain the Examiner's decision rejecting claim 15.
DECISION
The Examiner's rejection of claims 11-15 is AFFIRMED.
The Examiner's rejection of claims 1-10 and 16-20 is REVERSED
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-IN-PART
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