Ex Parte Ammann Jr.

Board of Patent Appeals and Interferences

Feb 22, 2002

09248742 (B.P.A.I. Feb. 22, 2002)

The opinion in support of the decision being entered today was not written
for publication and is not binding precedent of the Board.
Paper No. 9
UNITED STATES PATENT AND TRADEMARK OFFICE
____________
BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
____________
Ex parte LESLIE AMMANN JR.
____________
Appeal No. 2001-2512
Application No. 09/248,742
____________
ON BRIEF
____________
Before MCQUADE, NASE, and CRAWFORD, Administrative Patent Judges.
CRAWFORD, Administrative Patent Judge.
Decision on Appeal
This is a decision on appeal from the examiner’s final
rejection of claims 8, 9 and 11 through 19. Claims 1 through 7
have been allowed and claim 10 has been objected to.
The appellant’s invention is a folding chair which rotates
between a first position for carrying the folding chair and a
second position for sitting. An understanding of the invention can
be derived from a reading of exemplary claim 8 which appears in the
appendix to the appellant’s brief.
The prior art
Appeal No. 2001-2512
Application No. 09/248,742
2
The prior art references of record relied upon by the examiner
in rejecting the appealed claims are:
Batie et al. (Batie) 3,077,327 Feb. 12, 1963
Fanslau et al. (Fanslau) 4,527,829 July 9, 1985
Bradbury 4,676,548 June 30, 1987
Rettenberger 5,722,717 March 3, 1998
Amato 3,895,839 July 22, 1975
The rejections
Claims 8, 9 and 14 stand rejected under 35 U.S.C. § 103 as
being unpatentable over Batie in view of Fanslau.
Claim 16 stands rejected under 35 U.S.C. § 103 as being
unpatentable over Rattenberger in view of Bradbury.
Claims 16 and 19 stand rejected under 35 U.S.C. § 103 as being
unpatentable over Batie in view of Bradbury.
Claims 11 and 15 stand rejected under 35 U.S.C. § 103 as being
unpatentable over Batie in view of Fanslau and Bradbury.
Claims 12 and 13 stand rejected under 35 U.S.C. § 103 as being
unpatentable over Batie in view of Fanslau and Amato.
Claims 17 and 18 stand rejected under 35 U.S.C. § 103 as being
unpatentable over Batie in view of Bradbury and Amato.
Claims 17 and 18 stand rejected under 35 U.S.C. § 103 as being
unpatentable over Rettenberger in view of Bradbury and Amato.
Rather than reiterate the conflicting viewpoints advanced
Appeal No. 2001-2512
Application No. 09/248,742
3
by the examiner and the appellant regarding the above-noted
rejections, we make reference to the answer (Paper No. 8) for the
examiner’s complete reasoning in support of the rejections, and to
the brief (Paper No. 7) for the appellant’s arguments thereagainst.
Opinion
In reaching our decision in this appeal, we have given careful
consideration to the appellant’s specification and claims, to the
applied prior art references, and to the respective positions
articulated by the appellant and the examiner. As a consequence
of our review, we make the determinations which follow.
We turn first to the rejection of claims 8, 9 and 14 under
35 U.S.C. § 103 as being unpatentable over Batie in view of
Fanslau. In the examiner’s view, Batie teaches all of the elements
of the invention except for the use of a headrest having a head
supporting surface. The examiner relies on Fanslau for teaching a
chair with a headrest hingedly connected to a back support frame
and a headrest which has a head supporting surface which lies
within the back supporting frame when the chair is folded.
The examiner concludes:
It would have been obvious to one of ordinary skill in
the art at the time of the invention to modify the chair
of Batie et al., with the headrest of Fanslau et al., in
order to provide more head support and comfort to an
occupant of the chair. [answer at pages 3 and 4]
Appeal No. 2001-2512
Application No. 09/248,742
4
Appellant argues that the headrest disclosed in Fanslau is not
attached to the chair so that in the closed position the headrest
is mounted “within” or inside the back support frame and in the
open position is supported by the back support frame. We find
ourselves in agreement with the appellant that in Figure 3, which
depicts the closed position of the chair, the headrest of Fanslau
does not lie “within” or inside the back support frame. As such, we
will not sustain the rejection as it is directed to claim 8 and
claims 9 and 14 dependent therefrom.
We turn next to the examiner’s rejection of claims 11 and 15
under 35 U.S.C. § 103 as being unpatentable over Batie in view of
Fanslau and Bradbury. Claims 11 and 15 are dependent on claim 8.
We have reviewed the disclosure of Bradbury, and find that Bradbury
does not cure the deficiencies noted above for Batie and Fanslau.
Therefore, we will not sustain this rejection for the same reasons
stated above in connection with the rejection of claim 8 over Batie
in view of Fanslau.
We turn next to the examiner’s rejection of claims 12 and 13
under 35 U.S.C. § 103 as being unpatentable over Batie in view of
Fanslau and Amato. Claims 12 and 13 are dependent on claim 8.
We have reviewed the disclosure of Amato, and find that Amato
does not cure the deficiencies noted above for Batie and Fanslau.
Appeal No. 2001-2512
Application No. 09/248,742
1 The examiner also found that Batie does not disclose
means for removably connecting the support frames, shoulder strap
means and connecting means.
5
We will not sustain this rejection for the same reasons as stated
above in connection with the rejection of claims 8 over Batie and
Fanslau.
We turn next to the examiner’s rejection of claims 16 and 19
as being unpatentable over Batie in view of Bradbury. The examiner
finds that Batie discloses essentially the invention as claimed
except the use of a storage means connected to a back support
frame.1 Bradbury is relied on for disclosing a storage means
connected to a back support frame. The examiner concludes:
It would have been obvious to one of ordinary skill in
the art at the time of the invention to modify the chair
of Batie et al., with the storage means and shoulder
strap means and the connecting means of Bradbury, in
order to provide more stability, storage space and better
transport of the chair. [answer at page 5]
Appellant argues that it would not have been obvious to
combine the teachings of Batie and Bradbury because Batie discloses
a three frame folding chair and Bradbury discloses a lawn chair and
it would not be obvious to transfer the structures of one chair
type to the other. Specifically, the appellant argues that were a
backpack placed on the back of the Batie chair, the chair would
Appeal No. 2001-2512
Application No. 09/248,742
6
fall backward unless the backpack has a very small weight compared
to the rest of the chair.
We do not agree with the appellant that the Batie chair would
fall over backwards because of the weight of the backpack. We note
that claims 16 is broad enough to cover an empty backpack. In
addition, the appellant has not submitted any evidence to establish
that the Batie chair would fall over if a backpack were attached.
It is well established that arguments of counsel can not take the
place of evidence. In re Pearson, 495 F.2d 1399, 1405, 181 USPQ
641, 646 (CCPA 1974). Therefore, we will sustain this rejection as
it is directed to claim 16. We will also sustain this rejection as
it is directed to claim 19 as this claims stands or falls with
claim 16 as appellant has not argued the separate patentability of
claim 19. See In re Nielson, 816 F.2d 1567, 1572, 2 USPQ2d 1525,
1528 (Fed. Cir. 1987).
We turn next to the examiner’s rejection of claims 17 and 18
under 35 U.S.C. § 103 as being unpatentable over Batie in view of
Bradbury and Amato.
In response to this rejection, appellant argues that the Batie
chair would fall if a backpack were attached to the back of the
Batie chair. We will sustain this rejection for the same reasons
Appeal No. 2001-2512
Application No. 09/248,742
7
stated above for the rejection of claims 16 and 19 over Batie in
view of Bradbury.
We turn next to the examiner’s rejection of claim 16 as being
unpatentable over Rettenberger in view of Bradbury. The examiner
is of the opinion that Rettenberger discloses all of the elements
of the invention of claim 16 except the use of a backpack (or
storage means) joined directly to the back support frame. The
examiner relies on Bradbury for teaching the conventional use of a
backpack that is directly joined to a back support frame. The
examiner concludes:
It would have been obvious to one of ordinary skill in
the art at the time of the invention to modify the chair
of Rettenberger, to have a backpack on the back support
frame, a shoulder strap means and connection means, as
taught by Bradbury, in order to provide additional
storage means and a more comfortable way of transporting
the chair. [answer at page 4]
The appellant argues that because Rettenberger discloses of a
three-frame folding chair and Bradbury discloses a lawn chair, it
would not have been obvious to transfer the structures of one chair
type for the other because the Rettenberger chair would fall over
backwards because of the weight of the Bradbury backpack.
We do not agree with the appellant that the Rettenberger chair
would fall over backwards because of the weight of a backpack. We
note that claim 16 is broad enough to cover an empty storage means
Appeal No. 2001-2512
Application No. 09/248,742
8
or backpack. In addition, the appellant has not submitted any
evidence to establish that the Rettenberger chair would fall over
if a backpack were attached. It is well established that arguments
of counsel can not take the place of evidence. Pearson at 495 F.2d
1405; 181 USPQ at 646.
In view of the foregoing, we will sustain the examiner’s
rejection of claim 16 as being unpatentable over Rettenberger in
view of Bradbury.
We turn next to the examiner’s rejection of claims 17 and 18
over Rettenberger in view of Bradbury and Amato. Appellant, in
response to this rejection, argues that it would not be obvious to
combine the Rettenberger chair with the Bradbury back pack because
Bradbury teaches a lawn chair style folding chair and Rettenberger
discloses a three frame folding chair and it would not be obvious
to transfer the structure of one chair type to the other. The
appellant also argues that were the back pack disclosed in Bradbury
put on the back of the Rettenberger chair, the Rettenberger chair
would fall backward.
We will sustain this rejection for the same reasons as stated
above for the rejection of claim 16 over Rettenberger in view of
Bradbury.
Appeal No. 2001-2512
Application No. 09/248,742
9
In summary,
The examiner’s rejection of claims 8, 9 and 14 under 35 U.S.C.
§ 103 as being unpatentable over Batie in view of Fanslau is not
sustained.
The examiner’s rejection of claim 16 under 35 U.S.C. § 103 as
being unpatentable over Rettenberger in view of Bradbury is
sustained.
The examiner’s rejection of claims 16 and 19 under 35 U.S.C.
§ 103 as being unpatentable over Batie in view of Bradbury is
sustained.
The examiner’s rejection of claims 11 and 15 under 35 U.S.C.
§ 103 as being unpatentable over Batie and Fanslau in view of
Bradbury is not sustained.
The examiner’s rejection of claims 12 and 13 under 35 U.S.C.
§ 103 as being unpatentable over Batie in view of Fanslau and Amato
is not sustained.
The examiner’s rejection of claims 17 and 18 under 35 U.S.C.
§ 103 as being unpatentable over Batie in view of Bradbury and
Amato is sustained.
The examiner’s rejection of claims 17 and 18 under 35 U.S.C.
Appeal No. 2001-2512
Application No. 09/248,742
10
§ 103 as being unpatentable over Rettenberger in view of Bradbury
and Amato is sustained.
No time period for taking any subsequent action in
connection with this appeal may be extended under 37 CFR
§ 1.136(a).
Affirmed-in-Part
JOHN P. MCQUADE )
Administrative Patent Judge )
)
)
)
) BOARD OF PATENT
JEFFREY V. NASE ) APPEALS
Administrative Patent Judge ) AND
) INTERFERENCES
)
)
)
MURRIEL E. CRAWFORD )
Administrative Patent Judge )
MEC/jrg
Appeal No. 2001-2512
Application No. 09/248,742
11
ERIC K. KARICH
905 TURNBERRY DRIVE
MANSFIELD, TX 76063