Ex Parte Festag

Patent Trial and Appeal Board

Sep 26, 2016

13942926 (P.T.A.B. Sep. 26, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR
13/942,926 07/16/2013
34007 7590 09/28/2016
BROOKS KUSHMAN P,C, I LEAR CORPORATION
1000 TOWN CENTER
TWENTY-SECOND FLOOR
SOUTHFIELD, MI 48075-1238
Peter Festag
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.
LEAR50701PUSA 2430
EXAMINER
FRISBY, KEITH J
ART UNIT PAPER NUMBER
3616
NOTIFICATION DATE DELIVERY MODE
09/28/2016 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):
docketing@brookskushman.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte PETER FEST AG
Appeal2015-001350
Application 13/942,926
Technology Center 3600
Before LYNNE H. BROWNE, MITCHELL G. WEATHERLY, and
MARK A. GEIER, Administrative Patent Judges.
WEATHERLY, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Appellant appeals under 35 U.S.C. § 134 from the decision of the
Examiner rejecting claims 1, 2, and 6-14 as obvious over Hasegawa,
US 5,860,673 (iss. Jan. 19, 1999). 1 Claims 3-5 are canceled. We have
jurisdiction under 35 U.S.C. § 6(b).
We affirm.
1 The Examiner withdrew a rejection of claims 1, 2, and 6-14 as indefinite
under 35 U.S.C. § 112 in response to amendments to the claims made on
August 18, 2014, that were entered in the Advisory Action mailed
September 19, 2014. Ans. 2. Those amended claims are before us on
appeal.
Appeal2015-001350
Application 13/942,926
The claims are directed to a vehicle seat component having a side air
bag assembly. Claim 1, reproduced below, is illustrative of the claimed
subject matter:
1. A vehicle seat component having a side air bag
assembly comprising:
a frame for mounting on an associated vehicle on
which the vehicle seat component is to be used;
a seat pad mounted by the frame and having a side
extremity;
a trim cover extending over the seat pad and
including a side cover panel, an inner cover panel, and a
tear seam including stitching that secures the side and
inner cover panels adjacent the side extremity of the seat
pad;
an elongate trigger band extending alongside one of
the cover panels and having an inner end secured to the
frame and an outer end secured to the side and inner cover
panels by two to four stitches of the stitching of the tear
seam, the trigger band having a cross-sectional width of
between 5 to 25 mm between its inner and outer ends and
the trigger band being made of a material that is more
resistant to stretching than the one cover panel; and
a side air bag module mounted on the frame within
the trim cover in a spaced relationship from its tear seam,
and the air bag module including an inflator and an air bag
that is inflated by the inflator to project toward the tear
seam of the trim cover whereupon force applied by the
outer end of the trigger band, which is made of the material
that is more resistant to stretching than the one cover
panel, pulls open the tear seam so the air bag can project
outwardly through the trim cover to provide seat occupant
protection.
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Appeal2015-001350
Application 13/942,926
OPil-JION
Appellant argues that independent claims 1, 11, and 12 are limited
such that only two, three, or four of the stitches in the tear seam can secure
the trigger band to the side and inner cover panels. App. Br. 7. For
example, claim 1 recites "an elongate trigger band extending alongside one
of the cover panels and having an inner end secured to the frame and an
outer end secured to the side and inner cover panels by two to four stitches
of the stitching of the tear seam. "2 Claims App 'x 1. Appellant argues that
"a fair reading of the recital of 'two to four' stitches does not mean 'at least
two to four' stiches as the Examiner alleges." App. Br. 7.
The Examiner determined that independent claims 1, 11, and 12 do
not "limit the number of stitches to no less than two or no more than four."
Final Act. 6. Rather, "[a]s long as at least two to four stitches ... are used to
either partially or fully secure the outer end of the trigger band to the side
and inner cover panels, the reference meets the claim limitations." Id.
Based upon this interpretation of "two to four stitches," the Examiner
determined that Hasegawa described three stitches that secure the end of a
trigger band (sheet member 50) to side and inner cover panels ( 46, 44) as
required in claims 1, 6,3 11, and 12. Id. at 4 (citing Hasegawa, Fig. 13B).
The appeal turns on whether independent claims 1, 11, and 12 are
limited to vehicle seats in which the end of the trigger band is secured by at
2 Claims 11 and 12 also recite that the trigger band is "secured to the side
and inner cover panels by two to four stitches of the stitching of the tear
seam." Claims App. 2-3.
3 Claim 6 depends from claim 1 and further recites: "wherein the stitching
includes three stitches that secure the outer end of the trigger band to the
side and inner cover panels at the tear seam." Claims App. 1.
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Appeal2015-001350
Application 13/942,926
least two and no more than four stitches in the tear seam. vV e agree with the
Examiner that independent claims 1, 11, and 12 are not so limited and
instead require at least two stitches to secure the end of the trigger band. For
the same reasons, claim 6 requires at least three such stitches. All four
claims recite the number of stitches within the context of an open-ended
claim that is signaled by the use of "comprising" in the preamble. The
Federal Circuit has held that use of "comprising" to transition from the
preamble to the body results in an open-ended claim that may include
features not affirmatively recited in the claim. Gillette Co. v. Energizer
Holdings, Inc., 405 F.3d 1367, 1371-72 (Fed. Cir. 2005). Gillette involved
a claim to a "safety razor blade unit comprising ... a group of first, second,
and third blades." Id. at 1369. The District Court interpreted the claim to be
limited to safety razors having exactly three blades. Id. at 1370. The
Federal Circuit vacated the District Court's interpretation and held that the
phrase covered razors having three or more blades. Id. at 1374--75.
During examination of a patent application, pending claims are given
their broadest reasonable interpretation consistent with the specification. In
re Prater, 415 F.2d 1393, 1404-05 (CCPA 1969); In re Am. Acad. of Sci.
Tech Ctr., 367 F.3d 1359, 1364 (Fed. Cir. 2004). Although it is possible for
the patent specification to limit a claim precisely to the number of elements
recited despite the use of the transitional phrase "comprising," such a
limiting interpretation must be "manifest" or "explicit" from the
specification. Gillette, 405 F.3d at 1374 (citing Housey Pharms., Inc. v.
Astrazeneca UK Ltd., 366 F.3d 1348, 1352 (Fed.Cir.2004)). Appellant does
not identify how, if at all, the Specification contains any such disavowal and
the claims do not expressly recite the number of stitches as "at least two and
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Appeal2015-001350
Application 13/942,926
no more than four." Accordingly, we determine that the Examiner's
interpretation of "two to four" is consistent with the broadest reasonable
interpretation of that phrase.
We have reviewed the Examiner's rejection of claims 1, 2, and 6-14
in light of our interpretation of those claims and determined that it is
otherwise sustainable for the reasons stated in the Final Action.
DECISION
For the reasons stated above, we affirm the Examiner's rejection of
claims 1, 2, and 6-14.
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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