Ex Parte Anderson et al

Patent Trials and Appeals Board

Mar 28, 2019

14750323 - (D) (P.T.A.B. Mar. 28, 2019)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
14/750,323 06/25/2015
62763 7590 03/28/2019
Tod T. Tumey
TumeyLLP
P.O. BOX 22188
HOUSTON, TX 77227-2188
FIRST NAMED INVENTOR
J.T. Anderson
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.
3230-00101 6261
EXAMINER
YU, JUSTINE ROMANG
ART UNIT PAPER NUMBER
3785
MAIL DATE DELIVERY MODE
03/28/2019 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 J.T. ANDERSON and LINDA C. ANDERSON
Appeal2018-007549
Application 14/750,323 1
Technology Center 3700
Before EDWARD A. BROWN, JILL D. HILL, and
LISA M. GUIJT, Administrative Patent Judges.
BROWN, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Appellant seeks review under 35 U.S.C. § 134(a) of the Examiner's
decision rejecting claims 1--4 and 6-8, which are the pending claims. We
have jurisdiction under 35 U.S.C. § 6(b ).
We REVERSE.
1 Ergo-Flex Technologies, LLC ("Appellant") is the Applicant and is
identified as the real party in interest. 37 C.F.R. § 1.46; Appeal Br. 3.
Appeal2018-007549
Application 14/750,323
CLAIMED SUBJECT MATTER
Illustrative claim 1 reads:
1. A reclinable therapeutic massage chair for use in
exercising and strengthening the muscles in the back,
redeveloping the muscles in the back; restoring motion to joints
and alleviating soreness and stiffness in the joints and muscles of
the back comprising:
a floor support assembly,
a chair support frame pivotably attached to the floor
support assembly,
a linear actuator extending between the floor support
assembly and the chair support frame for moving the chair
support frame from an inclined position to a horizontal position,
an upper back support mounted on the chair support frame
and
a lower body support member having a lower back support
surface, a thigh support surface and a lower leg support surface,
said lower body support member being mounted for both
reciprocal and oscillating movement in a same plane on the chair
support frame,
the thigh support surface forming an obtuse angle with the
lower back support surface and the lower leg surface is at an
angle with respect to the thigh support surface, wherein the lower
back support surface is located in the same plane as the upper
back support, the thigh support surface and the lower leg support
surface form an angle having an apex, with the apex adapted to
be positioned behind a user's knee whereby when the chair is in
the horizontal position, the user's thighs will be inclined
upwardly toward the apex and the user's[2J lower leg will extend
downwardly from the apex.
Appeal Br. 8 (Claims App.).
2 As explained in the Examiner's Answer, claim 1 in the Claims Appendix
incorrectly recites "user's" (second occurrence) instead of "users." Ans. 2.
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Application 14/750,323
REJECTIONS
Claims 1-3 and 6-8 stand rejected under 35 U.S.C. § 103 as
unpatentable over Bass (US 7,654,974 B2, issued Feb. 2, 2010). 3
Claim 4 stands rejected under 35 U.S.C. § 103 as unpatentable over
Bass and Leonard (US 5,437,609, issued Aug. 1, 1995).
ANALYSIS
Obviousness over Bass (Claims 1-3 and 6-8)
The Examiner finds that Bass discloses, in part, a traction chair having
an upper back support (seat back portion 208), and a lower body support
member having a thigh support surface (seat bottom 204) and a lower leg
support surface 206. Final Act. 3--4 (citing Figs. 13-18). The Examiner
finds that the embodiment of Figures 13-18 of Bass does not disclose,
among other things, a lower back support surface, as claimed. Id. at 4. The
Examiner also finds that the embodiment of Figures 1-10 of Bass teaches an
alternative support arrangement for a traction chair, including a lower back
support surface ("shown in [F]ig. 1 as the cushion behind the user's lower
back and above the seat cushion 18, which is a thigh support surface"). Id.;
see also Ans. 7 (Examiner's annotated version of Bass Fig. 1 identifying
"lower back support surface"). The Examiner concludes that it would have
been obvious to one of ordinary skill in the art to provide the traction chair
of the embodiment of Figures 13-18 of Bass with a lower back support with
a lower back support surface "to provide alternative possible arrangements
3 As discussed below, the rejection heading incorrectly indicates that the
claims are "rejected under 35 U.S.C. 102(a)(l) as obvious over Bass." Final
Act. 3 ( emphasis added).
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Application 14/750,323
for the supports of the traction chair to enable more options for users'
comfort." Id. at 4--5. The Examiner explains that in the proposed
modification of the embodiment of Figures 13-18 of Bass to include the
lower back support surface of Figures 1-5, "the lower back support surface
cushion would be positioned just above the thigh support surface 204 and
below the back support surface 208, in front of the shaft shown positioned
behind the back support surface 208 in [F]igures 13 and 15 of Bass." Ans.
9.
Appellant contends that, because the Examiner is modifying one
embodiment of Bass in view of another embodiment, Bass does not
anticipate claim 1. Appeal Br. 6. In response, the Examiner explains that
the rejection of claims 1-3 and 6-8 is not under 35 U.S.C. § 102, but
instead, is under 35 U.S.C. § 103(a). Ans. 3. The Examiner acknowledges
the typographical error in the rejection heading in the Final Action. Id.
Appellant appears to recognize this error, stating "[i]n the Final Office
Action, the examiner presumably rejected claim 1 under 35 U.S.C. 103 as
being obvious over Bass '974." Appeal Br. 6.
Appellant disagrees that the embodiment of Figures 1-12 of Bass
discloses a lower back support above cushion 18. Appeal Br. 6. Appellant
contends that claim 1 recites that the lower back support surface is part of the
lower body support member (id.), whereas Figures 1 and 2 of Bass show a
gap between cushion 18 and the unnumbered element that the Examiner
finds is a lower back support (Reply Br. 2). Appellant also contends that
Figures 1 and 2 of Bass evidence that no cushion engages the user's lower
back portion. Appeal Br. 6. Appellant asserts, "even if the element could
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Application 14/750,323
contact the patient's body, it would be at a location well below the patient's
waist at or about the buttocks, not at the lower back." Reply Br. 2.
Claim 1 requires "a lower body support member having a lower back
support surface." Appeal Br. 8 (Claims App.) (emphasis added). Figure 1
of Appellant's application illustrates that lower back support surface 18
forms part of lower body support member 17, which also includes thigh
support surface 19 and lower leg surface 20. See Spec. ,r 12. In Figure 1,
lower back support surface 18 appears to be attached to thigh support
surface 19. Appellant's Specification describes, "[ c ]hair 2 also includes a
lower body support member 17 that has three support sections 18, 19, and 20
integrally formed together as a unit." See id. Consistent with the
Specification and drawings, we agree with Appellant that claim 1 requires
the lower back support surface to be a part of the lower body support
member.
We also agree with Appellant that Figures 1 and 2 of Bass do not
show clearly that the "lower back support surface" found by the Examiner is
part of the structure including seat-bottom 18 and lower leg portion 19. In
fact, the Examiner agrees, stating "[F]igures 1 and 2 of Bass show a slight
space between the user's lower back and the lower back support surface."
Ans. 8.
The Examiner construes the limitation "a lower back support surface"
to "require[] a support surface that is capable of supporting a user's lower
back but ... [to] not positively require engagement with a user's lower back
as part of the claimed therapeutic massage chair. Id. at 7-8. The Examiner
submits that "a user sliding back in the therapeutic massage chair would
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Application 14/750,323
have their lower back portion come into contact with the lower back support
surface." Id. at 8.
We observe, however, that Figures 1 and 2 of Bass show that head
piece 24 and seat back portion 20 are positioned and configured such that a
user's back contacts only seat back portion 20 because the "lower back
support surface" is spaced rearwardly from the user's back. We agree with
Appellant that the "lower back support surface" is shown to be located at a
height level well below the user's waist at or about the buttocks, but not at
the lower back. Id. Additionally, the Examiner does not identify any
description in Bass as to the location, structure, or purpose of the "lower
back support surface" shown in Figures 1 and 2. Accordingly, the Examiner
has not established by a preponderance of the evidence that Bass's "lower
back support surface" shown in Figures 1 and 2 is even capable of
supporting a user's lower back.
In the Examiner's Answer, the Examiner discusses Figures 3-5 of
Bass and provides annotated versions of these figures to indicate the location
of the "lower back support surface." See id. at 6-7. The Examiner submits,
"[i]t is clear in the embodiment of Bass [F]igures 1-5 that the lower back
support surface cushion is distinct from upper back support 20 and
positioned on the lower body support separately from the back support
surface 20." Id. at 9 (emphasis added). We are not persuaded that Figures
3-5 of Bass necessarily show the "lower back support surface cushion"
"positioned on the lower body support," as asserted by the Examiner. We
note that Bass describes Figure 3 as being a "front transparent view" of the
traction table of Figure 1, and describes Figures 4 and 5 as front transparent
views of the traction table of Figure 3. See Bass, col. 3, 11. 4--9.
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Application 14/750,323
Accordingly, the Examiner's position that the "lower back support surface
cushion" is "positioned on the lower body support" in Figures 3-5 is
inconsistent with the position of the "lower back support surface" shown in
Figures 1 and 2, as found by the Examiner. Figures 1 and 2 appear to show
that the "lower back support surface" is attached to top frame portion 14. As
Figures 3-5 are disclosed as additional figures illustrating the traction table
of Figure 1, the Examiner has not shown that Figures 3-5 are more relevant
than Figure 1 as to the "lower back support surface." For the reasons
discussed above for Figure 1 of Bass, the Examiner likewise has not
established by a preponderance of the evidence that Bass's "lower back
support surface" shown in Figures 3-5 is even capable of supporting a user's
lower back.
The Examiner also submits that "[ t ]he embodiment shown in
[F]igures 13 and 15 of Bass clearly shows a void above the thigh support
surface 204 and below the back support surface 208 where such a lower
back support surface may be positioned attached to the lower body support
204." Ans. 9 (emphasis added). We also note, however, that claim 1 recites
that "the lower back support surface is located in the same plane as the
upper back support." Appeal Br. 8 (Claims App.) (emphasis added). The
Examiner does not explain adequately how the embodiment of Bass shown
in Figures 13-18 would be modified to somehow incorporate the "lower
back support surface" as part of the lower body support member and also
satisfy the "in the same plane" limitation, and further with the modified
traction table being able to operate in the vertical position shown in Figure
13 and the reclined positon shown in Figure 15, for example, and with the
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added "lower back support surface" being able to support a user's lower
back in both of these positions.
As the underlying factual basis for the rejection of claim 1 stated by
the Examiner is not supported by a preponderance of the evidence, the
Examiner has not established an adequate reason with rational underpinnings
to modify Bass to result in the therapeutic massage chair recited in claim 1.
See In re Warner, 379 F.2d 1011, 1017 (CCPA 1967) (footnote omitted)
(holding that "[t]he legal conclusion of obviousness must be supported by
facts. Where the legal conclusion is not supported by facts it cannot
stand."). Accordingly, we do not sustain the rejection of claim 1, or of
claims 2, 3, and 6-8 as unpatentable over Bass.
Obviousness over Bass and Leonard (Claim 4)
The Examiner's reliance on Leonard in rejecting claim 4 fails to cure
the deficiencies in the rejection of parent claim 1. We do not sustain the
rejection of claim 4 as unpatentable over Bass and Leonard.
DECISION
We reverse the rejections of claims 1--4 and 6-8.
REVERSED
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