Ex Parte DURT et al

Patent Trial and Appeal Board

Jan 31, 2017

12253615 (P.T.A.B. Jan. 31, 2017)

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.
12/253,615 10/17/2008 Alexander DURT 080437.60729US 9735
23911 7590
CROWELL & MORING LLP
INTELLECTUAL PROPERTY GROUP
P.O. BOX 14300
WASHINGTON, DC 20044-4300
EXAMINER
STANIS, TIMOTHY A
ART UNIT PAPER NUMBER
3771
NOTIFICATION DATE DELIVERY MODE
02/02/2017 ELECTRONIC
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.
Notice of the Office communication was sent electronically on above-indicated "Notification Date" to the
following e-mail address(es):
edocket @ crowell. com
tche @ crowell. com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte ALEXANDER DURT,
RUDOLF LEIN, and MATTHIAS FRANZ
Appeal 2015-001223
Application 12/253,6151
Technology Center 3700
Before JOHN C. KERINS, BRANDON J. WARNER, and
FREDERICK C. LANEY, Administrative Patent Judges.
LANEY, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Alexander Durt et al. (Appellants) appeal under 35 U.S.C. § 134(a)
from the Examiner’s final decision rejecting claims 1, 4—6, and 9—17.2 We
have jurisdiction over this appeal under 35 U.S.C. § 6(b).
We AFFIRM.
1 According to Appellants, the real party in interest is Bayerische Motoren
Werke Aktiengesellschaft. Appeal Br. 1 (filed June 30, 2014).
2 Claims 2, 3, and 18 have been cancelled. Final Act. 2. Claims 19 and 20
are indicated by the Examiner as being allowed. Ans. 9. The Examiner
objects to claims 7 and 8 as being dependent upon a base claim, but indicates
they would be allowable if rewritten in independent form including all of the
limitations of the base claim and any intervening claims. Final Act. 10.
Appeal 2015-001223
Application 12/253,615
INVENTION
Appellants’ invention “relates to an adjustable seat, and method for
controlling same, having a backrest and a seat cushion.” Spec. 12.
Claims 1 and 17 are independent. Claim 1, reproduced below with
emphasis added, is illustrative of the claimed invention:
1. A seat, comprising:
a backrest;
a seat cushion;
a plurality of adjusting elements operatively arranged in
the backrest in order to carry out a lifting movement directed
approximately perpendicularly to a contact surface of the
backrest adapted to face a user, wherein the backrest comprises
a plurality of regions including a right shoulder region, a left
shoulder region, a right thoracic region, a left thoracic region, a
right lumbar region and a left lumbar region, and wherein each
of the plurality of regions has at least one of the plurality of
adjusting elements arranged therein; and
a control unit operatively coupled with the plurality of
adjusting elements, the control unit controlling activation of the
plurality of adjusting elements in a time-coordinated sequence
whereby simultaneous activation of adjusting elements arranged
in either vertically or horizontally adjacent regions of the
backrest is avoided, and wherein the plurality of adjusting
elements are adapted to apply a rotational movement to a user’s
back that is comparable to a rotational movement that occurs
during walking.
Appeal Br. 14 (Claims App.).
REJECTIONS
I. The Examiner rejected claims 1 and 17 under 35 U.S.C.
§ 103(a) as being unpatentable over Ozaki (US 2006/0217644
Al, pub. Sept. 28, 2006) and Mackay (US 6,361,512 Bl, iss.
Mar. 26, 2002).
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Application 12/253,615
II. The Examiner rejected claims 4—6, 11, 13, 15, and 16 under
35 U.S.C. § 103(a) as being unpatentable over Ozaki, Mackay,
and Harza (US 5,022,385, iss. June 11, 1991).
III. The Examiner rejected claims 9, 11, 13, 15, and 16 under
35 U.S.C. § 103(a) as being unpatentable over Ozaki, Mackay,
and Lang (US 3,835,844, iss. Sept. 17, 1974).
IV. The Examiner rejected claims 10, 12, and 14 under 35 U.S.C.
§ 103(a) as being unpatentable over Ozaki, Mackay, Harza, and
Lang.
ANALYSIS
Addressing Rejection I, Appellants argue the Examiner mistakenly
relies on the combination of Ozaki and Mackay to demonstrate the
unpatentability of a massage apparatus having each of the elements that
independent claims 1 and 17 recite. Appeal Br. 6—11. More specifically,
Appellants contend Ozaki and Mackay do not disclose a plurality of
adjusting elements adapted to apply a rotational movement to a user’s back
that is comparable to a rotational movement that occurs during walking,
which both independent claims require. Id. Appellants do not raise any
additional challenges to the Examiner’s rejections of claims 1 and 17.
Appellants articulate their contention as follows:
Appellant does not dispute that Ozaki and [Mackay] disclose
adjusting elements which apply some forces to a user’s back.
Rather, it is the nature of those forces, and in particular the fact
that they do not correspond to the claimed “rotational
movement” limitation, which is in dispute. . . . That is, neither
reference ever expressly discusses imparting rotational
movement to a user’s back of any kind, least of all movement
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Application 12/253,615
which is comparable to a rotational movement that occurs during
walking. . . . [T]he proper inquiry is whether it would have been
obvious to modify Mackay and/or Ozaki to accomplish the
claimed feature of specifically controlling the adjusting elements
in a time-coordinated sequence which particularly imparts
rotational movement to a user’s back which is comparable to a
rotational movement that occurs during walking. To that inquiry,
Appellant respectfully submits that the Examiner has not
established a prima facie case, and therefore the outstanding
rejection of the claims based on Ozaki and Mackay is deficient
and should be withdrawn.
Reply Br. 2—3. For the following reasons, Appellants have not persuasively
shown the Examiner’s rejection to be deficient.
Before addressing the above contention, we first address another
underlying issue raised by Appellants, which relates to what actuation
sequence of massaging elements would result in rotational movement to the
user’s back that is comparable to a rotational movement that occurs during
walking. Reply Br. 4—7. Appellants point to examples in the Specification,
and Figure 6, in an attempt to demonstrate not all actuation sequences cause
rotational movement comparable to walking. Id. In particular, Appellants
contend “pattern a),” which is described as adjusting elements A and D, as
well as B and C (all of which are in the backrest, see Spec., Figs. 3, 5), in an
alternative manner, does not create the claimed rotational movement. Id. at
5—6 (citing Spec. 139, Fig. 6). Whereas, “pattern d),” which is described as
adjusting elements A, D, E, and G, as well as B, C, F, and H (A—F are in the
backrest and G, H are in the seat cushion, see Spec., Figs. 3, 5), in an
alternative manner, does create the claimed rotational movement. Id. at 6
(citing Spec. Tflf 42-43). According to Appellants, “pattern a)” and “pattern
d)” teach us that not just any actuation sequence of the adjusting elements
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would result in rotational movement to the user’s back that is comparable to
the rotational movement that occurs during walking. Id. at 6.
The flaw with Appellants’ argument is that it contradicts their
Specification. The Specification, at paragraph 45, states, with emphasis
added,
[b]y means of the above-described activation patterns, a
movement is applied to the back, and possibly to the pelvis, of a
seat user, which is predominantly determined by rotation and
which is adapted to the natural movement when walking.
We note the above teaching refers to all of the previous patterns (i.e.,
“patterns a)-e)”) the Specification discusses, and does not distinguish
between them. Contrary to Appellants’ position now, the Specification
clearly indicates that both actuation sequences “pattern a)” and “pattern d)”
cause the claimed rotation comparable to walking. As a result, Appellants
have not demonstrated persuasively that the claim language narrowly covers
“pattern d)” to the exclusion of “pattern a).” Therefore, while we do not
determine all actuation sequences cause the claimed rotational movement,
Appellants’ Specification is viewed properly as teaching “pattern a)” as an
example of an actuation sequence that will apply a rotational movement to a
user’s back that is comparable to the natural movement when walking.
This is significant because Mackay teaches using the actuation
sequence A, D, B, C in which each adjusting element is activated
individually, which is the same actuation sequence as “pattern a)” in
Appellants’ Specification. Reply Br. 10 (citing Mackay, 6:35—38). A
preponderance of the evidence, therefore, supports the Examiner’s
determination that Mackay discloses imparting rotational movement to a
user’s back that is comparable to a rotational movement that occurs during
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walking. Moreover, the Examiner finds Mackay “discloses that such
inflation and deflation sequence[] increase[s] blood circulation within users
who have been seated for a long period of time.” Final Act. 5 (citing
Mackay, 1:14—23). Appellants do not challenge this finding. The Examiner
concludes,
it would have been obvious to one of ordinary skill in the art at
the time the invention was made to modify the inflation sequence
of the massage elements of Ozaki to inflate and deflate one at a
time as taught by Mackay in order to provide an effective
treatment sequence for increasing blood circulation in the body
of a user.
Id. In view of the foregoing, there is a rational underpinning supporting the
Examiner’s rationale. Appellants, thus, have not demonstrated persuasively
that the Examiner’s obviousness determination of claims 1 and 17 is
deficient.
For Rejections II—IV, Appellants argue dependent claims 4—6 and 9—
16 are patentable for the same reasons articulated for claim 1, and assert
neither Harza nor Lang cures the deficiencies of the rejection of base claim
1. Id. at 11—12. We, however, do not agree such deficiencies exist.
Therefore, for the foregoing reasons, we sustain the Examiner’s rejection of
claims 1, 4—6, and 9-17 as being unpatentable over the cited prior art
combinations.
DECISION
The Examiner’s rejections of claims 1, 4—6, and 9—17 are affirmed.
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a)(l)(iv).
AFFIRMED
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