Ex Parte Fink

Patent Trial and Appeal Board

Aug 30, 2016

12871227 (P.T.A.B. Aug. 30, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
12/871,227 08/30/2010
23413 7590 09/01/2016
CANTOR COLBURN LLP
20 Church Street
22nd Floor
Hartford, CT 06103
FIRST NAMED INVENTOR
Michael F. Fink
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.
NXG0006USD 1376
EXAMINER
DICKSON, PAUL N
ART UNIT PAPER NUMBER
3616
NOTIFICATION DATE DELIVERY MODE
09/01/2016 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):
usptopatentmail@cantorcolbum.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte MICHAEL F. FINK
Appeal2014-000314
Application 12/871,227 1
Technology Center 3600
Before MICHAEL C. ASTORINO, BRUCE T. WIEDER, and
AMEE A. SHAH, Administrative Patent Judges.
ASTORINO, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
The Appellant appeals under 35 U.S.C. § 134 from the Examiner's
decision rejecting claims 1-8 and 19-23. We have jurisdiction over the
appeal under 35 U.S.C. § 6(b).
We REVERSE.
1 According to the Appellant, "[ t ]he real party in interest in this appeal is
NXGEN Technologies, LLC." Appeal Br. 1.
Appeal2014-000314
Application 12/871,227
Claimed Subject Matter
Claims 1 and 21 are the independent claims on appeal. Claim 1,
reproduced below, is illustrative of the subject matter on appeal.
1. An inflatable cushion for an airbag module, comprising:
a first layer of material;
a second layer of material, the first layer of material being
secured to the second layer of material at a non-woven seam to
define the inflatable cushion;
wherein the seam consists only of: a first plurality of
stitches; a peripheral edge portion of the first layer of material;
and a peripheral edge portion of the second layer of material; and
wherein no adhesives or sealants are within the seam after
applying the first plurality of stitches; and
wherein the inflatable cushion has an internal pressure of
at least 10 kpa at at least 5 seconds after being inflated by a gas
inflator.
Rejections
Claims 1, 5-8, and 21-23 are rejected under 35 U.S.C. § 103(a) as
unpatentable over Wipasuramonton (US 7 ,431,332 B2, iss. Oct. 7, 2008) and
Brookman (US 6,037,279, iss. Mar. 14, 2000). 2
Claims 2--4 are rejected under 35 U.S.C. § 103(a) as unpatentable over
Wipasuramonton, Brookman, and Smith (US 5,378,019, iss. Jan. 3, 1995).
Claims 19 and 20 are rejected under 35 U.S.C. § 103(a) as
unpatentable over Wipasuramonton, Brookman, and Nakayasu
(US 2003/0085559 Al, pub. May 8, 2003).
2 Although the Examiner sets forth separate grounds of rejection for claims
1, 6, and 21-23 (Final Act. 4--5) and claims 5, 7, and 8 (id. at 6), we have
consolidated these grounds of rejection because they are both based upon the
combination of Wipasuramonton and Brookman.
2
Appeal2014-000314
Application 12/871,227
ANALYSIS
Independent claim 1 is directed to an inflatable cushion for an airbag
module including two layers of material secured by a non-woven seam,
"wherein the inflatable cushion has an internal pressure of at least 10 kpa at
at least 5 seconds after being inflated by a gas inflator." Notably, the
"whererin" clause is a functional limitation concerning the internal pressure
of the inflatable cushion.
The Examiner relies on the combined teachings of Wipasuramonton
and Brookman to result in the subject matter of claim 1. Final Act. 4. The
Examiner finds that Wipasuramonton discloses substantially all of the
subject matter of claim 1, except for the claimed internal pressure of the
inflatable cushion. Id. As such, the Examiner does not rely on
Wipasuramonton to disclose the functional limitation concerning the internal
pressure of the inflatable cushion.
To remedy this deficiency that Examiner turns to Brookman and finds
that it teaches "an airbag with a residual pressure of at least 10 kpa after 5
seconds." Id. (citing Brookman, cols. 10-11 and Table II). The Examiner's
citation to Brookman's columns 10-11 and Table II suggests that the
Examiner is relying on Brookman's description of examples and/or
comparative examples of coated textile fabrics. Notably, Table II
specifically describes "[ r ]esidual pressure after 5 seconds" for Examples 3
and 4 to be 10 kpa. The Examiner explains that Brookman is relied on to
teach the known conventional pressures used in airbags. Ans. 5, 7.
However, the Examiner finds that "Brookman is actually silent on the
types of seams to be used." Id. at 6. But see, e.g., Reply Br. 2 (The
Appellant "submit[ s] that Brookman discloses pressures related to airbags
3
Appeal2014-000314
Application 12/871,227
with woven seams while Wipasuramonton is directed to airbags with non-
woven seams."). Because Brookman does not disclose a non-woven seam
as recited in claim 1, i.e., "the [non-woven] seam consists only of: a first
plurality of stitches; a peripheral edge portion of the first layer of material;
and a peripheral edge portion of the second layer of material; and wherein no
adhesives or sealants are within the seam after applying the first plurality of
stitches," it cannot be found by a preponderance of the evidence that
Brookman teaches the claimed functional limitation concerning the internal
pressure of the inflatable cushion. In other words, because the seams of the
inflatable cushions of Wipasuramonton and Brookman are not determined to
be the same, the internal pressure of Brookman's inflatable cushion is not
persuasive evidence as to the internal pressure of Wipasuramonton's
inflatable cushion. See Reply Br. 2, 5---6; see also Appeal Br. 14--15. For
similar reasons there is inadequate support to determine that it would have
been obvious to one of ordinary skill in the art to apply the internal pressure
of Brookman's inflatable cushion to the inflatable cushion of
Wipasuramonton. See Reply Br. 3. Moreover, even if we were to agree that
the internal pressure of Brookman's inflatable cushion was conventional for
airbags as proffered by the Examiner (Ans. 5, 7), there is inadequate support
in the Examiner's rejection to suggest that the internal pressure of
Brookman's inflatable cushion was conventional, or would have been
obvious to use, for Maertens' inflatable cushion, i.e., an inflatable cushion
not having the same construction as Brookman's inflatable cushion.
Thus, the Examiner's rejection of independent claim 1 and dependent
claims 5-8 and 23 under 35 U.S.C. § 103(a) as unpatentable over
Wipasuramonton and Brookman is not sustained. Additionally, independent
4
Appeal2014-000314
Application 12/871,227
claim 21 is substantially similar to independent claim 1 and the Examiner
rejects claim 21 on the same basis as provided for the rejection of claim 1.
Ans. 4. Hence, for the reasons discussed above we reverse the Examiner's
rejection of claim 21 and dependent claim 22.
The remaining rejections based on Wipasuramonton and Brookman in
combination with Smith or Nakayasu rely on the same findings discussed
above. As such, we do not sustain the rejections under 35 U.S.C. § 103(a) of
claims 2--4 as unpatentable over Wipasuramonton, Brookman, and Smith
and claims 19 and 20 as unpatentable over Wipasuramonton, Brookman, and
Nakayasu.
DECISION
We REVERSE the Examiner's decision rejecting claims 1-8 and
19-23.
REVERSED
5