Ex Parte Hirata et al

Patent Trial and Appeal Board

Mar 29, 2017

13969928 (P.T.A.B. Mar. 29, 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.
13/969,928 08/19/2013 Yutaka HIRATA Q206424 1085
23373 7590 03/31/2017
SUGHRUE MION, PLLC
2100 PENNSYLVANIA AVENUE, N.W.
SUITE 800
WASHINGTON, DC 20037
EXAMINER
ALLRED, DAVID E
ART UNIT PAPER NUMBER
3636
NOTIFICATION DATE DELIVERY MODE
03/31/2017 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):
PPROCESSING@SUGHRUE.COM
sughrue@sughrue.com
USPTO@sughrue.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte YUTAKA HIRATA,
MASANORI OKUMURA,
and TAISUKE YONEZAWA
Appeal 2015-006118
Application 13/969,928
Technology Center 3600
Before JOHN C. KERINS, JAMES P. CALVE, and
ARTHUR M. PESLAK, Administrative Patent Judges.
CALVE, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Appellants appeal under 35 U.S.C. § 134 from the final rejection of
claims 16—18 and 20—22. We have jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM-IN-PART.
Appeal 2015-006118
Application 13/969,928
CLAIMED SUBJECT MATTER
Claims 16 and 18 are independent. Claim 16 is reproduced below.
16. A seat pad formed by a resin foam molding, for use in
a vehicle, comprising:
an occupant-buttocks contact surface area;
a rear surface area opposite to the occupant-buttocks
contact surface area; and
plural recessed holes formed in the rear surface area,
wherein portions between the recessed holes constitute
ridge portions, and the seat pad is formed of polyurethane foam
having density of 46 to 100 kg/m3, 25% ILD hardness of 15 to
45 kgf/200 mmcj).
REJECTIONS1 *
Claims 16 and 22 are rejected under 35 U.S.C. § 103(a) as being
unpatentable over Fenske (US 4,793,574, iss. Dec. 27, 1988), Rose (US
5,294,181, iss. Mar. 15, 1994), and Warren (US 2010/0269262 Al, pub. Oct.
28, 2010).
Claims 16 and 22 are rejected under 35 U.S.C. § 103(a) as being
unpatentable over Fenske and Phillips (US 6,874,185 Bl, iss. Apr. 5, 2005).
Claims 17 and 18 are rejected under 35 U.S.C. § 103(a) as being
unpatentable over Fenske and Kondo (US 4,837,881, iss. June 13, 1989).
Claims 20 and 21 are rejected under 35 U.S.C. § 103(a) as being
unpatentable over Fenske, Phillips (or Rose and Warren), and Flogaus (US
2,552,039, iss. May 8, 1951).
1 Appellants’ amendment of claim 22, which was entered by the Examiner
on July 2, 2014, overcame the rejection of claim 22 under 35 U.S.C. § 112,
second paragraph. See Final Act. 3; Amendment under 37 C.F.R. § 1.116,
filed June 19, 2014, at 3, 4; Adv. Act. mailed July 2, 2014 (Section 5.).
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Appeal 2015-006118
Application 13/969,928
ANALYSIS
Claims 16 and 22 as unpatentable
over Fenske, Rose, and Warren
The Examiner found that Fenske teaches a seat pad, substantially as
claimed, except the claimed ILD hardness and density ranges. Final Act. 4.
The Examiner found that Rose teaches polyurethane foam densities that fall
below the claimed density ranges but IFD hardness of 11 to 41 pounds that
converts to a range of approximately 5 to 18.6 kg that overlaps the claimed
range of 15—45 kg/200mm((). Id. The Examiner found that Warren discloses
a polyurethane body support cushion with densities of 16 to 160 kg/m3 that
encompass the claimed range of 46—100 kg/m3. Id. at 5. The Examiner then
explained that the rejection simply replaces the foam of Fenske with a foam
having a density taught by Warren, and this density falls within the claimed
density range. Ans. 2. The Examiner also explained that Rose is relied on
to teach the indentation load deflection (ILD) within the claimed range. Id.
The Examiner determined it would have been obvious to form the seat
pad of Fenske of polyurethane with any of the variety of densities taught by
Rose and Warren, and in particular having an ILD disclosed by Rose and a
range of densities disclosed by Warren, because Rose and Warren disclose
benefits of a broad range of densities and ILDs of this material, which also
could provide similar benefits in the combination with Fenske. Final Act. 5.
The Examiner explained that ILD is a hardness or stiffness characteristic or
measurement that is not necessarily dependent on the density and it is well-
known to select the ILD and density from a broad range of known values for
particular foams to suit a desired cushioning in the foam pad. Ans. 2—3.
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Appeal 2015-006118
Application 13/969,928
Appellants argue that Fenske teaches the advantages of a low density
polyurethane foam of about 25 kg/m3 so it would not have been obvious to
increase the density to fall within the claimed ranges based on teachings of
the prior art or any other reason. Appeal Br. 4—6. Appellants also argue that
a skilled artisan would not have been motivated to increase the density of
Fenske’s polyurethane foam to 46 to 100 kg/m3, as claimed, because the low
density range is essential in Fenske and the subsequent impregnation of the
foam with fire retardant would increase the foam’s density beyond Fenske’s
preferred range of 60-80 kg/m3. Id. at 5—7; Reply Br. 2—3. Appellants also
assert that Fenske teaches to change the hardness of the polyurethane foam
by making additional cuts or the like therein rather than by changing the
physical or chemical properties of the foam material itself. Appeal Br. 7.
Appellants further assert that Rose discloses a polyurethane density in the
range of 28.8 kg/m3 to 45.7 kg/m3 that lies outside the claimed density range
and Warren relates to mattress foams so that a skilled artisan would not have
considered their teachings when modifying Fenske. Id. at 8.
It is well settled that “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.” In re Kahn, 441 F.3d 977, 988 (Fed. Cir. 2006)
quoted in KSR Inti Co. v. Teleflex Inc., 550 U.S. 398, 418 (2007). Such
reasoning with rational underpinning is absent in the rejection under review.
Final Act. 4—5; Ans. 2—3. The Examiner’s reason for forming Fenske’s
backrest cushion out of a foam of polyurethane having one of the densities
and ILD hardnesses as taught by Rose and Warren is not supported by a
rational underpinning.
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Appeal 2015-006118
Application 13/969,928
The Examiner’s rationale that it would have been obvious to modify
Fenske’s backrest cushion “because Rose and Warren disclose the benefits
of a broad range of densities and ILDs of this material, which could also
provide similar benefits in the combination with Fenske” (Final Act. 5) is
conclusory. It does not identify any benefits that Rose or Warren disclose
for any particular foam density or IFD hardness, nor does it explain how the
teachings of Rose or Warren would improve Fenske’s seat pad so a skilled
artisan would have been motivated to modify Fenske with their teachings.
Rose discloses an improved seat cushion for use as a wheelchair seat
cushion that is comfortable, stable, and able to avoid pressure sores from
prolonged use. Rose, 1:8—25. Rose achieves these benefits with a multi­
layered seat cushion 20 that includes base layer 22, intermediate layer 26,
and top layer 30. Each layer has a different density and IFD hardness for
different firmness and support. Id. at 2:7—19, 3:18—26, 4:34—7:30, Fig. 1.
Warren teaches a multi-layer mattress that supports bariatric patients.
Warren HI—3, Fig. 1. Mattress 10 includes bottom layer 16, core layer 14,
and top layer 12 that has peaks/projections 20 formed in different regions.
Id. H 34—38, Fig. 1. Each layer 12, 14, 16 has a different density to work
with cavities 50 formed in different regions of core layer 14 to redistribute a
patient’s weight across the mattress surface in a way that reduces ischemic
pressure on the patient’s bony protruberances. Id. H 35—50, Figs. 1—5.
The Examiner has not explained how the densities and IFD hardness
ranges of Rose’s multi-layer wheelchair cushion or Warren’s multi-layer
mattress would have motivated a skilled artisan to modify Fenske’s backrest
cushion 1 to include a foam with those densities or IFD hardnesses.
Thus, we do not sustain the rejection of claims 16 and 20.
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Appeal 2015-006118
Application 13/969,928
Claims 16 and 22 as unpatentable
over Fenske and Phillips
The Examiner relied on Fenske to disclose a seat pad with recesses, as
in the previous rejection, and Phillips to teach a polyurethane foam cushion
with a density of 52.8 kg/m3 and ILD hardness of 22 kg that fall within the
ranges of claim 16. Final Act. 7. The Examiner found that the IFD hardness
of 10 lbs converts to 22 kg, which is within the range of 15—45 kg/200mm(().
Id. The Examiner explained that the rejection replaces the foam of Fenske
with foam having a density taught by Phillips and the density falls within the
claimed density range. Ans. 2. The Examiner also determined that it would
have been obvious to form Fenske’s seat pad of the polyurethane taught by
Phillips because Phillips recognizes the benefits of a broad range of material
properties and ILDs of this material in column 5, lines 43—45, which could
provide similar benefits with Fenske. Final Act. 7; Ans. 2—3.
Appellants argue that Fenske requires a low density foam so a skilled
artisan would not have been motivated to replace Fenske’s low density foam
with a higher density foam of Phillips. Appeal Br. 3—7. Appellants argue
that a skilled artisan would not look to the mattress foam of Phillips because
it provides a different function of supporting a sleeping user. Id. at 8.
The Examiner’s reason for forming Fenske’s backrest cushion to have
polyurethane foam with the densities and IFD hardness taught by Phillips is
not supported by a rational underpinning. The Examiner has not explained
how Phillips’s teaching that any material possessing the desired softness and
deformability characteristics may be used in Phillips’s invention (Phillips,
3:43—45) would have motivated a skilled artisan to use Phillips’s foam
density and IFD hardness in Fenske’s backrest cushion. See Final Act. 7.
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Appeal 2015-006118
Application 13/969,928
Phillips discloses an improved mattress that avoids the occurrence of
decubitus ulcers for patients who are restricted to bed for extended periods.
Phillips, 1:13—37. Phillips achieves this objective with a mattress having a
plurality of semi-independent foam pillars, including central pillars 40 and
edge pillars 42 cut into body 34. Id. at 2:19-21, 5:53—67. The Examiner
cites to portions of Phillips related to a foam core density and IFD hardness
for foot insert cushion 16, which is a generally trapezoidal solid having thick
end wall 24, thin end wall 25, top surface 26, and sidewalls 28. Id. at 5:38—
47. The Examiner has not explained how these teachings for a foot cushion
insert of a multi-layer mattress would improve Fenske’s backrest cushion or
have motivated a skilled artisan to modify Fenske with such materials and
foam properties. Thus, we do not sustain the rejection of claims 16 and 20.
Claims 20 and 21 as unpatentable over
Fenske, Phillips (or Rose and Warren), and Flogaus
The Examiner relied on Flogaus to teach features of a seat cushion
pad recited in claims 20 and 21, which depend from claim 16, and not to
overcome the deficiencies of Fenske, Phillips, Rose, or Warren, discussed
above. See Appeal Br. 3—8. Thus, we do not sustain this rejection.
Claims 17 and 18 as unpatentable
over Fenske and Kondo
Independent claim 18 recites a seat pad with plural recessed holes
formed in a rear surface area at least in a bottom surface below an under­
thighs portion such that a portion under a right thigh is softer than other
portions of the under-thighs portion. The Examiner found that Fenske
discloses a seat pad substantially as recited in independent claim 18 except
for recesses being placed under the right thigh to increase the softness under
the right thigh. Final Act. 9.
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Appeal 2015-006118
Application 13/969,928
The Examiner found that Kondo teaches softening a region under the
leg that engages pedals in a motor vehicle by increasing the thickness of a
soft upper layer of foam of the seat cushion. Final Act. 9; Ans. 5. The
Examiner reasoned that Kondo uses this technique to make a region under a
drive’s leg softer as compared to the rest of a cushion for engaging pedals of
a motor vehicle, and Fenske teaches a technique for selectively softening
portions of the surface engaged by a seat occupant by placing recesses in a
back side or underside of a foam body of a seat cushion. Ans. 5; Final Act.
9. The Examiner determined that it would have been obvious to modify
Fenske to soften the portion of the seat cushion under the driver’s right thigh
using the technique of Fenske of selectively placing recesses to achieve the
benefits of a softer upper layer as taught by Kondo. Ans. 5.
Appellants argue that Kondo teaches a prior art seat pad that pastes a
slab onto a pad main body, and this technique is costly compared to the
claimed seat pad. Appeal Br. 9. Appellants also argue that the claimed seat
pad provides superior effects and a sensation of the pad making a stroke
movement felt under the thighs and these results evidence non-obviousness.
Appeal Br. 9-10; Reply Br. 5—6.
Appellants’ arguments amount to individual attacks on the references
and therefore are not persuasive. The Examiner relies on Kondo’s teaching
of forming a softer portion under a right thigh portion to facilitate depression
of a pedal on a motor vehicle and Fenske’s teaching that placing recesses
under a seat cushion can provide that effect. Ans. 5. We agree that it would
have been obvious to place Fenske’s recesses in an under-thigh area to
provide a desired softness sensation, which Kondo teaches is desirable to do
for a driver.
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Appeal 2015-006118
Application 13/969,928
Appellants’ arguments regarding the disclosed softness and sensation
of the claimed seat pad are not persuasive because Fenske as modified by the
teachings of Kondo would provide such an effect. Kondo teaches that the
softness in an under thigh region is beneficial and can be provided by an
extra pad. Fenske teaches that such regional softness can be provided by
selectively placing recesses in a pad. More importantly, the alleged superior
soft sensation of the claimed seat pad is not commensurate with the scope of
claim 18. The Specification discloses that ridge portions formed by recessed
holes 8 provide a soft sensation of touch. Spec. 115, 130. Fenske teaches
this arrangement and therefore would provide similar benefits. Claim 18
does not recite any particular dimensions of the recessed holes to distinguish
them over Fenske’s disclosed arrangement. Appellants disclose that ridges
should constitute a particular percentage of the total area of the recessed
holes and ridge portions to provide these particular benefits. Id. 11—12.
Appellants also disclose that particular recessed hole depths and opening
sizes are desirable. Id. 13—16, 25—26, 29, 33—34. Finally, Appellants
disclose that their seat pad has desirable characteristics due to particular
density and ILD harness ranges and include examples of various densities
and hardness ranges along with recessed and hole dimensions. Id. at || 39-
40, 95, 99, 101-102, 112-115, 134—136, 153-171. However, Claim 18 does
not recite any of these features, which Appellants disclose as the variables
that affect the softness and hardness of the claimed seat pad.
Thus, we sustain the rejection of claim 18. We do not sustain the
rejection of claim 17, however, as Kondo does not overcome the deficiencies
of Fenske as to claim 1 from which claim 17 depends for the reasons
discussed above.
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Appeal 2015-006118
Application 13/969,928
DECISION
We reverse the rejection of claims 16 and 22 as unpatentable over
Fenske, Rose, and Warren.
We reverse the rejection of claims 16 and 22 as unpatentable over
Fenske and Phillips.
We reverse the rejection of claims 20 and 21 as unpatentable over
Fenske, Phillips (or Rose and Warren), and Flogaus.
We reverse the rejection of claim 17 and affirm the rejection of claim
18 as unpatentable over Fenske and Kondo.
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
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