Ex Parte Girardin et alDownload PDFPatent Trial and Appeal BoardSep 9, 201611847435 (P.T.A.B. Sep. 9, 2016) Copy Citation UNITED STA TES p A TENT AND TRADEMARK OFFICE APPLICATION NO. FILING DATE 111847,435 08/30/2007 61215 7590 09/12/2016 DAVID I. ROCHE BAKER & MCKENZIE LLP 300 EAST RANDOLPH STREET CHICAGO, IL 60601 FIRST NAMED INVENTOR Jean-Marc Girardin 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. QSTR-116 2129 EXAMINER GUTMAN, HILARY L ART UNIT PAPER NUMBER 3612 MAILDATE DELIVERY MODE 09/12/2016 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 JEAN-MARC GIRARDIN, ERIC GIRARDIN, and JOE ESTEIREIRO Appeal2014-003674 Application 11/847,435 Technology Center 3600 Before MICHAEL C. ASTORINO, MICHELLE R. OSINSKI, and MATTHEWS. MEYERS, Administrative Patent Judges. OSINSKI, Administrative Patent Judge. DECISION ON APPEAL STATEMENT OF THE CASE Jean-Marc Girardin et al. (Appellants) 1 appeal under 35 U.S.C. § 134 from the Examiner's final decision rejecting claims 1-3, 5, 7-12, 15, 17-20, 22, and 26-37. Claims 4, 6, 13, 14, 16, 21, and 23-25 have been withdrawn. Appeal Br. 6; Final Act. 2. An oral hearing was held August 16, 2016.2 We have jurisdiction under 35 U.S.C. § 6(b ). We AFFIRM-IN-PART. 1 Appellants identify the real party in interest as Valeda Company, dba Q'Straint. Appeal Br. 4. 2 The record includes a transcript of the oral hearing (Tr.). Appeal2014-003674 Application 11/847,435 CLAIMED SUBJECT MATTER Claims 1, 15, 22, and 30 are independent. Claim 1, reproduced below, is illustrative of the claimed subject matter on appeal. 1. A wheelchair securement system for a vehicle, the system compnsmg: a barrier having at least one integrated shoulder restraint assembly, at least one integrated wheelchair restraint assembly, and at least one integrated lap restraint assembly; each of the at least one wheelchair restraint assembly including a retractable restraint and a universal fastener that are operable to secure a wheelchair; the at least one lap restraint assembly and shoulder restraint assembly being operable to secure a seated wheelchair occupant; and, the barrier defines a generally planar boundary for the wheelchair whereby the wheelchair and the seated wheelchair occupant are positioned forward of the generally planar boundary when secured. EVIDENCE The Examiner relied on the following evidence in rejecting the claims on appeal: Fretwell Farquhar Craft Ditch GB 2 130 977 A us 5,895,090 US 6,966, 733 B2 US 2006/0193708 Al 2 June 13, 1984 Apr. 20, 1999 Nov. 22, 2005 Aug. 31, 2006 Appeal2014-003674 Application 11/847,435 REJECTIONS3 I. Claims 15, 17, and 20 stand rejected under 35 U.S.C. § 103(a) as unpatentable over Ditch and Farquhar. Final Act. 3. II. Claim 18 stands rejected under 35 U.S.C. § 103(a) as unpatentable over Ditch, Farquhar, and Craft. Id. at 3.4 III. Claims 1-3, 5, 11, 12, 22, 31, 33, and 35 stand rejected under 35 U.S.C. § 103(a) as unpatentable over Ditch and either Fretwell or Farquhar. Id. at 4. IV. Claim 7 stands rejected under 35 U.S.C. § 103(a) as unpatentable over Ditch, either Fretwell or Farquhar, and Craft. Id. at 4--5.5 V. Claims 8-10, 19, 26-30, 32, 34, 36, and 37 stand rejected under 35 U.S.C. § 103(a) as unpatentable over Ditch, either Fretwell or Farquhar, Craft, and Official Notice. Id. at 5. OPINION Rejection I Appellants argue claims 15, 17, and 20 as a group. Appeal Br. 11-14. We select claim 15 as the representative claim, and claims 17 and 20 stand or fall therewith. 37 C.F.R. § 41.37(c)(l)(iv) (2013). 3 The Examiner's alternative rejections of the claims based on Kennedy (US 2005/0275211 Al, pub. Dec. 15, 2005) in place of Farquhar have been withdrawn. Ans. 2. 4 Although the Examiner fails to explicitly list Farquhar in the heading of the rejection of claim 18, we understand the reference to Ditch "as modified above" to refer to Ditch as modified by Farquhar above. 5 Although the Examiner fails to explicitly list Fretwell or Farquhar in the heading of the rejection of claim 7, we understand the reference to Ditch "as modified above" to refer to Ditch as modified by either Fretwell or Farquhar above. 3 Appeal2014-003674 Application 11/847,435 The Examiner finds that Ditch teaches all of the limitations of independent claim 15 except for "the barrier having a shoulder restraint assembly 52 integrated therewith." Final Act. 3. The Examiner finds that Farquhar teaches "the desirability of integrating a shoulder restraint assembly with an upright barrier or seat back" "because unitizing the safety restraint system allows for rapid and easy installation as a modular component in a vehicle." Id. (citing Farquhar, 1:19-25). The Examiner concludes that it would have been obvious to a person of ordinary skill in the art "to have provided ... shoulder restraint assembly 52 of Ditch ... integrally, as taught by Farquhar ... as an integrated part of the barrier in order to allow for unity of manufacture and minimized installation steps." Id. Appellants assert that although Ditch shows the lap belt of the safety restraint integrated into a barrier, Ditch's shoulder restraint 52 is attached to the vehicle wall and pillar. Appeal Br. 11, 14. Appellants further assert that Farquhar's shoulder restraint is integrated into a seat for the restrained passenger. Id. at 13. Because Ditch's barrier is not a seat, Appellants argue that Farquhar would not suggest integrating Ditch's shoulder restraint 52 into the barrier, but would instead suggest moving Ditch's lap belt and shoulder belt to the wheelchair (i.e., the seat for the restrained passenger). Id. at 13-14. As to the failure of Ditch's barrier to serve as a seat or seat back for a wheelchair passenger, we are not persuaded that the Examiner's articulated reasoning relies on Ditch's barrier being considered a seat or seat back. More particularly, we determine that the Examiner is not relying on Farquhar for teaching the desirability of integrating a shoulder restraint into 4 Appeal2014-003674 Application 11/847,435 a seat specifically, but for teaching the desirability of integrating a safety restraint system into a modular component that can be easily installed in a vehicle. See Ans. 3. As to Appellants' assertion that a person of ordinary skill in the art would instead be led to move Ditch's lap belt and shoulder belt to the wheelchair in light of Farquhar' s teachings, this assertion does not persuasively explain why the Examiner's proposed modification is improperly based on reasoning that lacks rational underpinnings. The Examiner's position is premised on the receptacle configured to receive shoulder restraint 52 already being integrated into the barrier at housing 29 in Ditch. Interview Summary (Feb. 1, 2013), 3; see also Appeal Br. 13 (acknowledging the Examiner's summary of the prior art in the Interview Summary to be true). The Examiner asserts that it would have been obvious to also integrate shoulder restraint 52 into the barrier to "allow[] for rapid and easy installation as a modular component." Interview Summary 3. The Examiner reiterates in the Answer that Farquhar "show[s] the desirability to integrate the shoulder restraint assembly because unitizing the safety restraint system allows for rapid and easy installation as a modular component in a vehicle." Ans. 4. We are not persuaded that the reasoning provided by the Examiner lacks a rational evidentiary underpinning. The Examiner has adequately articulated that a person having ordinary skill in the art would have been led to modify Ditch so as to make shoulder restraint 52 integral with the barrier, considering that its receptacle and the lap restraint were already integral with the barrier, in order to form a modular component incorporating the entire safety restraint for rapid and easy installation in a vehicle. See Interview Summary 3; Ans. 3. Appellants maintain that the "problem in Farquhar [is] 5 Appeal2014-003674 Application 11/847,435 that it doesn't suggest incorporating the shoulder restraint into any modular structure in a vehicle. It refers very specifically to the seat and there's technical difficulties that Farquhar overcomes to get there." Tr. 8:7-10. Although we acknowledge Farquhar relates to modular seat assemblies, we maintain that this does not negate Farquhar' s broader teaching of the desirability of modular components that may be rapidly and easily installed in a passenger compartment of a vehicle as identified by the Examiner. As such, we determine that the Examiner's reasoning has a rational underpinning to support the legal conclusion of obviousness. For the foregoing reasons, we are not persuaded that the Examiner erred in concluding that the combination of Ditch and Farquhar renders obvious the subject matter of independent claim 15, and we sustain the rejection of independent claim 15, and claims 17 and 20 which fall therewith, under 35 U.S.C. § 103(a) as unpatentable over Ditch and Farquhar. Rejections IL III, and IV Appellants' arguments in support of the patentability of claims 1-3, 5, 7, 11, 12, 18, 22, 31, 33, and 35 relate to the perceived deficiencies in the combined teachings of Ditch and Farquhar. Appeal Br. 14-18. Because we have found no such deficiencies in the combination of Ditch and Farquhar, we are not persuaded of error in the Examiner's rejection of claims 1-3, 5, 7, 11, 12, 18, 22, 31, 33, and 35. Accordingly, we sustain the rejections, under 35 U.S.C. § 103(a), of: claim 18 as unpatentable over Ditch, Farquhar, and Craft; claims 1-3, 5, 11, 12, 22, 31, 33, and 35 as unpatentable over Ditch and either Fretwell or Farquhar; and claim 7 as unpatentable over Ditch, either Fretwell or Farquhar, and Craft. 6 Appeal2014-003674 Application 11/847,435 Rejection V The Examiner's rejection of claims 8-10, 19, 26-30, 32, 34, 36, and 37 relies on Official Notice that "devices of this type [of specific restraint control assembly claimed] are well known in the prior art. Final Act. 5 (citing Girardin (US 7,452,170 B2, iss. Nov. 18, 2008) as "teach[ing] locking and unlocking the straps" and Cardona (US 7 ,040,84 7 B 1, iss. May 9, 2006) as "teach[ing] integrating the control 60 on the barrier"). The Examiner was not explicit in articulating the particular facts of which Official Notice was taken. Assuming arguendo that the Examiner is asserting only that "locking and unlocking [of] straps" and "integrating the control ... on the barrier" (Final Act. 5) are well known in the art of restraint control assemblies, the Examiner fails to address the particular claimed feature of placing a retractor in a released position for a predetermined period of time. See, e.g., Appeal Br. 19 (arguing that provided documentary evidence "does not teach the specific restraint control assembly claimed .... that places a retractor in a released position for 'a predetermined period of time' to permit operation of the retractor."). On the other hand, assuming arguendo that the Examiner is attempting to assert that any and all claimed features are well known in the art of restraint control assemblies, the Examiner has failed to provide sufficient evidentiary support. See In re Ahlert, 424 F.2d 1088, 1090 (CCPA 1970) (citing Jn re Knapp Monarch Co., 296 F.2d 230 (CCPA 1961) (allegations concerning specific knowledge which might be peculiar to a particular art should be supported by citation to some reference work recognized as standard in the pertinent art and Official Notice is appropriate where the facts in question are "capable of such instant and unquestionable 7 Appeal2014-003674 Application 11/847,435 demonstration as to defy dispute"); see also Jn re A'ynde, 480 F.2d 1364, 13 7 0 ( CCP A 1961) (courts will not take official notice of the state of the art). Accordingly, the Examiner's reliance on Official Notice is not proper. Because the Examiner's conclusion of obviousness is premised on improper Official Notice establishing that restraint control assemblies having the features claimed in claims 8-10, 19, 26-30, 32, 34, 36, and 37 are well known in the art, the Examiner's conclusion of obviousness is based on an erroneous finding as to the scope and content of the prior art. For the foregoing reasons, we are persuaded that the Examiner erred in concluding that the subject matter of claims 8-10, 19, 26-30, 32, 34, 36, and 37 is rendered obvious over Ditch, either Fretwell or Farquhar, Craft, and Official Notice. DECISION The Examiner's decision to reject claims 1-3, 5, 7, 11, 12, 15, 17, 18, 20, 22, 31, 33 and 35 under 35 U.S.C. § 103(a) is affirmed. The Examiner's decision to reject claims 8-10, 19, 26-30, 32, 34, 36, and 37 under 35 U.S.C. § 103(a) is reversed 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-IN-PART 8 Copy with citationCopy as parenthetical citation