11494428 (P.T.A.B. Aug. 26, 2015)

Ex Parte Baverso

Patent Trial and Appeal BoardAug 26, 2015

11494428 (P.T.A.B. Aug. 26, 2015)

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. 11/494,428 07/27/2006 Paul Baverso 1009 7590 08/26/2015 Alan G. Towner Pietragallo, Bosick & Gordon LLP One Oxford Centre, 38th Floor 301 Grant Street Pittsburgh, PA 15219 EXAMINER BAKER, LORI LYNN ART UNIT PAPER NUMBER 3754 MAIL DATE DELIVERY MODE 08/26/2015 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 PAUL BAVERSO ____________________ Appeal 2013-007269 Application 11/494,428 Technology Center 3700 ____________________ Before JILL D. HILL, SUSAN L. C. MITCHELL, and LEE L. STEPINA, Administrative Patent Judges. HILL, Administrative Patent Judge. DECISION ON APPEAL STATEMENT OF THE CASE Paul Baverso (Appellant) appeals under 35 U.S.C. § 134 from the Examiner’s decision rejecting claims 1, 3, 4, 6–15, 17–34, and 37–39. We have jurisdiction under 35 U.S.C. § 6(b). We REVERSE. CLAIMED SUBJECT MATTER Independent claims 1, 29, and 38 are pending. Independent claim 1 illustrates the subject matter on appeal, and is reproduced below with the key disputed limitation italicized. Appeal 2013-007269 Application 11/494,428 2 1. A support chair for a patient comprising: a seat adjustable to different inclination angles measured from a horizontal direction; a back adjustable to different reclining angles measured from a vertical direction, wherein the seat and back are adjustable to different positions in relation to each other; and at least one stirrup mounted directly on the seat structured and arranged to support a body cast of the patient, wherein the at least one stirrup is adjustably mountable at different angular orientations with respect to the seat measured in a plane of the seat. Claims App. REJECTIONS I. Claims 1, 3, 4, 6–8, 10–15, 17, 20–25, 28–34, and 37–39 stand rejected under 35 U.S.C. § 103(a) as unpatentable over Meara (US 6,056,353, iss. May 2, 2000) and Weatherford (US 1,252,751, iss. Jan. 8, 1918). Final Act. 2. II. Claim 9 stands rejected under 35 U.S.C. § 103(a) as unpatentable over Meara, Weatherford, and Stillinger (US 6,770,013 B2, iss. Aug. 3, 2004). Final Act. 4. III. Claims 18 and 19 stand rejected under 35 U.S.C. § 103(a) as unpatentable over Meara, Weatherford, and Riffe (US 6,390,287 B2, iss. May 21, 2002). Final Act. 5. IV. Claim 26 stands rejected under 35 U.S.C. § 103(a) as unpatentable over Meara, Weatherford, and Sorensen (US 3,166,354, iss. Jan. 19, 1965). Final Act. 5. V. Claim 27 stands rejected under 35 U.S.C. § 103(a) as unpatentable over Meara, Weatherford, and Whitman (US 4,612,676, iss. Sept. 23, 1986). Final Act. 6. Appeal 2013-007269 Application 11/494,428 3 OPINION Rejection I The Examiner finds, among other things, that “Weatherford teaches stirrups (D at B2)” that are “adjustably mountable in that they are not integrally formed with the seat nor with the leg rests B1, B2.” Final Act. 3. Regarding Weatherford’s stirrups, Appellant argues that they are neither (1) mounted directly on a seat, nor (2) adjustably mountable at different angular orientations with respect to a plane of the seat. Appeal Br. 6. The Examiner responds that Weatherford’s stirrups B1–B2 are indeed mounted directly to its seat, because they are not integrally formed with the seat, and are capable of being replaced with a stirrup of a different size or shape, which makes them adjustably mountable. Ans. 6 (citing Weatherford, Figs. 1 and 3, col. 3, ll. 73–75, and col. 2, ll. 76 and 90). We are persuaded by Appellant’s argument. We discern no teaching or suggestion that Weatherford’s stirrups B1–B2 are adjustably mounted to a seat B of its sanitary chair. Indeed, Weatherford only states that the extreme front of its seat is divided into “two parts or leg supports B1–B2, which are a continuation of the seat B.” Weatherford, p. 1, ll. 65–71 (emphasis added). Weatherford’s seat B and its supports B1–B2 are referred to as a single element, with no discussion of attachment to each other. We decline to read adjustable mounting into Weatherford’s disclosure. Because the Examiner’s finding is in error and pertains to a limitation recited in each of pending independent claims 1, 29, and 38, we do not sustain Rejection I. Appeal 2013-007269 Application 11/494,428 4 Rejections II–V Rejections II–V pertain to claims that depend from one of independent claims 1, 29, and 38. The Examiner does not find that any of Stillinger, Riffe, Sorensen, or Whitman cure the deficiencies of Weatherford, and we, therefore, do not sustain Rejections II–V for the reasons set forth above regarding Rejection I. DECISION We REVERSE the rejection of claims 1, 3, 4, 6–8, 10–15, 17, 20–25, 28–34, and 37–39 under 35 U.S.C. § 103(a) as unpatentable over Meara and Weatherford. We REVERSE the rejection of claim 9 under 35 U.S.C. § 103(a) as unpatentable over Meara, Weatherford, and Stillinger. We REVERSE the rejection of claims 18 and 19 under 35 U.S.C. § 103(a) as unpatentable over Meara, Weatherford, and Riffe. We REVERSE the rejection of claim 26 under 35 U.S.C. § 103(a) as unpatentable over Meara, Weatherford, and Sorensen. We REVERSE the rejection of claim 27 under 35 U.S.C. § 103(a) as unpatentable over Meara, Weatherford, and Whitman. REVERSED mls