Ex Parte Brendel et al

Board of Patent Appeals and Interferences

Aug 1, 2011

11227208 (B.P.A.I. Aug. 1, 2011)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________________

BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
____________________

Ex parte THOMAS BRENDEL and ANDREAS BIEDERSTAEDT
____________________

Appeal 2009-012196
Application 11/227,208
Technology Center 3600
____________________

Before JOHN C. KERINS, KEN B. BARRETT, and
MICHAEL C. ASTORINO, Administrative Patent Judges.

BARRETT, Administrative Patent Judge.

DECISION ON APPEAL

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Application 11/227,208

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STATEMENT OF THE CASE
Thomas Brendel and Andreas Biederstaedt (Appellants) seek our
review under 35 U.S.C. § 134 of the final rejection of claims 1-19. An oral
hearing was held on July 13, 2011. We have jurisdiction under 35 U.S.C.
§ 6(b). We REVERSE.

THE INVENTION
Claim 1, reproduced below, is representative of the subject matter on
appeal.
1. A vehicle having a chassis and a driver’s seat which can
be set thereon in an inclination with respect to the chassis along
two curved rails, comprising:
an inclination sensor which determines an angular
position (α) of a surface of the driver’s seat with respect to the
horizontal;
an adjusting device which is connected to the chassis and
the driver’s seat; and
a control and regulating device which is operatively
connected to the inclination sensor and the adjusting device and
via which the driver’s seat can be pivoted by the adjusting
device in such a manner that the seat surface is situated
essentially parallel to the horizontal (H),
wherein two guide rails are fastened to the driver’s seat
and are mounted in each case between at least two rollers
connected in a positionally fixed manner to the chassis.

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Application 11/227,208

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THE REJECTIONS
The following Examiner’s rejections are before us for review:
1. Claims 1, 3, 4, 7-11, 18 and 19 are rejected under 35 U.S.C.
§ 103(a) as unpatentable over Torres1 (EP 0 829 247 A2, published Mar. 18,
1998) and Möller (US 4,941,709, issued Jul. 17, 1990);
2. Claims 2 and 6 are rejected under 35 U.S.C. § 103(a) as
unpatentable over Torres, Möller, and Serber (US 5,244,252, issued Sep. 14,
1993);
3. Claim 5 is rejected under 35 U.S.C. § 103(a) as unpatentable
over Torres, Möller, and Ferro (US 4,101,168, issued Jul. 18, 1978); and
4. Claims 12-17 are rejected under 35 U.S.C. § 103(a) as
unpatentable over Torres, Pipon (US 4,842,232, issued Jun. 27, 1989), and
Möller.

OPINION
We have carefully reviewed the rejections on appeal in light of the
arguments of Appellants and the Examiner. As a result of this review we
have determined that the Examiner’s conclusion that it would have been
obvious to modify the wheelchair of Torres to have rails as taught by Möller
or curved slide members as taught by Pipon is not based on a rational
underpinning, but speculation. See App. Br. 6 (Appellants arguing that
“there is no reason to use the rail guide system of MOLLER in TORRES . . .

1 In the Answer, the Examiner identifies Torres as both the European Patent
Application and as US 6,068,280, issued May 30, 2000. Ans. 3. We, like
Appellants, refer to the European Patent Application as that is the reference
specifically identified in the appealed office action. See Final Rej. dated
Oct. 1, 2008, at 4.
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Application 11/227,208

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.”); id. at 23 (“In accordance with KSR Int’l, Appellant submits that there
clearly is no reason to combine TORRES, PIPON and MOLLER together.”).
Without an articulated rationale based on rational underpinning for
modifying the reference as proposed, the Examiner’s rejection appears to be
the result of hindsight analysis. See In re Kahn, 441 F.3d 977, 988 (Fed.
Cir. 2006) (cited with approval in KSR Int’l Co. v. Teleflex Inc., 550 U.S.
398, 418 (2007)) (“rejections on obviousness grounds cannot be sustained by
mere conclusory statements; instead, there must be some articulated
reasoning with some rational underpinning to support the legal conclusion of
obviousness”).
We first turn to rejection of claims 1, 3, 4, 7-11, 18 and 19 as obvious
in light of Torres and Möller. The Examiner found that Torres substantially
discloses the vehicle as recited in the rejected claims with the exception of
the two curved guide rails mounted between rollers. Ans. 3-4. Torres’s
wheelchair has a self-leveling and selectively adjustable seat mounted to the
base via a universal joint 50 and utilizes two actuators 52, 54 to alter the seat
position as needed. This configuration allows seat adjustment about two
axes. Torres, col. 3, ll. 4-6; col. 5, ll. 1-18; figs. 1, 2. The Examiner further
found that Möller discloses a tiltable chair utilizing two curved rails fixed
between four rollers. Ans. 4.
The Examiner proposes the “modification of the wheelchair of Torres
by combining arcuate rails with the adjusting device [of Torres]” and
reasons: “[t]he suggestion/motivation for doing so would have been to
provide a reliable and stable wheelchair tilting system, as is desired in this
vehicle invention.” Ans. 4. However, the Examiner does not find that the
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unmodified Torres vehicle was unreliable or unstable, or that the proposed
modification would improve those characteristics.
Additionally, the Examiner appears to characterize the modification as
retaining the adjustment around a second axis. Ans. 8-9. We cannot agree
with the Examiner’s position that this is merely a simple substitution of one
“adjusting device for another adjusting device [that] is easily performed by
one having ordinary skill in the art at the time of the invention.” Ans. 8.
The Examiner does not adequately describe how rails would be added to
Torres’s vehicle in substitution for the “adjusting device” of Torres while
still allowing the modified device to retain the ability to adjust about two
axes, and does not establish that any such modification would be “simple.”
In light of the above, we cannot sustain the obviousness rejection
based on Torres as modified by Möller. The rejections of claims 2, 5, and 6
are based on this same modification of Torres. Ans. 4-6. As such, we also
cannot sustain the rejection of claims 2 and 6 as unpatentable over Torres,
Möller, and Serber or the rejection of claim 5 as unpatentable over Torres,
Möller, and Ferro.
Lastly, we turn to the rejection of claims 12-17 as unpatentable over
Torres, Pipon, and Möller. Although the Examiner’s states this as a single
ground of rejection, the articulation describes two separate modifications.
Ans. 6-7. First, the Examiner apparently proposes to modify Torres’s
wheelchair to employ Pipon’s holders. Id. at 6. Second, the Examiner
proposes to modify Torres’s wheelchair to employ the arcuate rails of
Möller. Id. at 7. For both combinations, the Examiner’s reasoning again is
that: “[t]he suggestion/motivation for doing so would have been to provide
a reliable and stable wheelchair tilting system, as is desired in this vehicle
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invention.” Id. at 6, 7. For the reasons discussed above, this rationale is
inadequate to support the substitution of the arcuate rails of Möller for the
adjusting device of Torres’ wheelchair. Moreover, the addition of Pipon’s
holders to the combined teachings of Torres and Möller does not remedy the
deficiencies of the Examiner’s rationale for substituting the arcuate rails of
Möller for the adjusting device of Torres’ wheelchair. Thus, the Examiner’s
evidence and technical reasoning is inadequate to support the conclusion of
obviousness.

DECISION
The decision of the Examiner to reject claims 1-19 is reversed.

REVERSED

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