Ex Parte Jaskot et al

Board of Patent Appeals and Interferences

Jul 29, 2009

10308147 (B.P.A.I. Jul. 29, 2009)

UNITED STATES PATENT AND TRADEMARK OFFICE
__________

BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
__________

Ex parte JAN JASKOT and JULIANA HADDAD-JASKOT
__________

Appeal 2009-004907
Application 10/308,147
Technology Center 3600
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Decided:1 July 29, 2009
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Before ERIC GRIMES, RICHARD M. LEBOVITZ, and STEPHEN
WALSH, Administrative Patent Judges.

WALSH, Administrative Patent Judge.

DECISION ON APPEAL
This is an appeal under 35 U.S.C. § 134(a) involving claims to a
lumbar support. The Patent Examiner rejected the claims as obvious. We
have jurisdiction under 35 U.S.C. § 6(b). We reverse.

1 The two-month time period for filing an appeal or commencing a civil
action, as recited in 37 C.F.R. § 1.304, begins to run from the decided date
shown on this page of the decision. The time period does not run from the
Mail Date (paper delivery) or Notification Date (electronic delivery).
Appeal 2009-004907
Application 10/308,147

STATEMENT OF THE CASE
The claimed invention “relates to a support device for correcting
posture when seated and, in particular, to a lumbar support device.” (Spec. ¶
1.) Claims 1-9, 11-19 and 22-30, which are all the pending claims, are on
appeal. Claim 1 is representative and reads as follows:
1. A lumbar support device comprising:

a rigid shell having a back portion between opposing sides, the
sides extending forwardly of the back portion and defining a hollow,
the rigid shell being formed from a rigid inelastic material; and

an inelastic lumbar support surface for engaging a user's lumbar
region having one end attached to one of the sides of the rigid shell
and another end attached to the other side of the rigid shell such that
the surface partially encloses the hollow,
said surface having an adjustable surface contour configured to
be adjusted to conform to a neutral postural position of said
user's lumbar region such that the lumbar support device
adjusted to conform to said neutral postural position, reinforces
said neutral postural position.

The Examiner rejected the claims as follows:
• claims 1-9, 11-13, 18, 19 and 28-30 under 35 U.S.C. § 103(a) as
unpatentable over Rajaratnam2 in view of Reynolds;3
• claims 14, 16, 21 and 23-25 under 35 U.S.C. § 103(a) as
unpatentable over Rajaratnam, Reynolds, and Deegener;4
• claims 15, 22, 26 and 27 under 35 U.S.C. § 103(a) as unpatentable
over Rajaratnam and Zacharkow;5 and

2 U.S. Patent No. 5,403,067, issued to Kumar Rajaratnam, Apr. 4, 1995.
3 U.S. Patent No. 6,840,125 B1, issued to Herbert M. Reynolds et al.,
Jan. 11, 2005.
4 U.S. Patent No. 4,685,739, issued to Elmar Deegener et al., Aug. 11, 1987.
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Appeal 2009-004907
Application 10/308,147

• claim 17 under 35 U.S.C. § 103(a) as unpatentable over Rajaratnam
and Yewer.6

OBVIOUSNESS
The Issue
The Examiner’s position is that Rajaratnam taught a lumbar support
device having all the claimed features except that Rajaratnam “fails to show
the use of the lumbar support device adjusted to conform to the neutral
postural position.” (Ans. 3-4.) The Examiner found that Reynolds taught a
lumbar support surface adjusted to conform to the neutral postural position,
and concluded that “[i]t would have been obvious to one of ordinary skill in
the art at the time of invention to modify the lumbar support surface [of
Rajaratnam] to conform to the neutral position as taught by Reynolds, in
order to better support the user.” (Ans. 4.)
Appellants contend that their claimed shell is rigid, but that the shell
in Rajaratnam’s device is not rigid and “flexes and deforms under pressure.”
(App. Br. 11.) Using passages from Rajaratnam’s disclosure as evidence
(id.), Appellants argue that Rajaratnam’s shell flexes and deforms because it
is semi-rigid, not rigid as the word is defined in the dictionary (id. at 12).
According to Appellants, Rajaratnam’s semi-rigid device “flexes to conform
to a user’s postural position, [and] cannot reinforce the user’s neutral
postural position” as claimed. (Id. at 14.)
5 U.S. Patent No. 4,981,325, issued to Dennis Zacharkow, Jan. 1, 1991.
6 U.S. Patent No. 5,178,163, issued to Edward H. Yewer, Jr., Jan. 12, 1993.
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Appeal 2009-004907
Application 10/308,147

The issues with respect to this rejection are whether Appellants have
established that Rajaratnam’s lumbar support device did not have a rigid
shell and did not reinforce a neutral postural position.

Findings of Fact
Rajaratnam
1. Rajaratnam disclosed a back support “comprising a concave shell
having sides extending forwardly of the shell and strap means
extending between the sides to define a back support surface.” (Col.
1, ll. 16-19.)
2. The arrangement was “such that tension applied to the strap means
causes the shell to deform.” (Col. 1, ll. 20-21.)
3. Rajaratnam described the shell as “semi-rigid.” (Col. 1, ll. 22-25.)
4. Rajaratnam’s shell was “formed of a plastics material, for example
high density polypropylene, ABS (acrylonitrile butadiene styrene) or
the like.” (Col. 2, ll. 14-17.)

Reynolds
5. Reynolds disclosed “a two-dimensional design template used for
designing, evaluating and measuring human occupant accommodation
and seating in a seated environment.” (Col. 1, ll. 13-17.)
6. The design template included a torso section having neutral posture.
(Col. 2, ll. 40-47.)
7. Reynolds described a method for forming load supporting contours of
a seat for a neutral posture torso section. (Col. 2, ll. 48-57.)

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Appeal 2009-004907
Application 10/308,147

Principles of Law
Obviousness is a question of law based on fact findings. The scope
and content of the prior art are determined; differences between the prior art
and the claims at issue are ascertained; the level of skill in the art is resolved;
and objective record evidence of nonobviousness is considered. Graham v.
John Deere Co., 383 U.S. 1, 17-18 (1966).

Analysis
According to the Specification, “[a] significant drawback of the
Rajaratnam device is that it does not correct or modify the user’s poor sitting
posture, but rather the device allows the user to assume his or her sitting
posture and the device then molds to the user.” (Spec. ¶ 4.) Appellants
attribute that problem to their findings that Rajaratnam’s semi-rigid shell
“flexes and deforms under pressure,” citing Rajaratnam’s teachings about
“flexure,” “a yielding surface,” “resilience of the shell,” and that the shell
deforms and “conforms to the specific shape of the person’s back.” (App.
Br. 11.)
Appellants’ device is defined as comprising a rigid shell. (Claim 1.)
According to the claim, after the inelastic lumbar support surface of the
device is adjusted to conform to a “neutral postural position,” the device
“reinforces said neutral postural position.” (Id.) Appellants argue that this
claimed result of using a rigid shell is achieved “by ‘mapping’ a user’s
neutral postural position onto the lumbar support device and then reinforcing
the neutral postural position as the lumbar support device is used.” (App.
Br. 12.) According to Appellants, Rajaratnam’s device “flexes to conform
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Appeal 2009-004907
Application 10/308,147

to the shape of the user’s back” and cannot reinforce the “pre-fitted neutral
position onto the user’s back.” (App. Br. 15.)
We are persuaded by Appellants’ argument. We do not agree with the
Examiner’s explanation that discounts the difference between rigid and
semi-rigid on the ground that rigid is a relative term and “[v]irtually
anything will flex if enough pressure is applied to it.” (Ans. 6.) The
Examiner has not established that Rajaratnam’s device, even if first adjusted
to a neutral postural position as suggested by Reynolds, would “reinforce
said neutral postural position” as recited in claim 1. During fitting, the
device may be adjusted to the neutral posture, but the Examiner does not
argue or offer evidence that fitting accomplishes reinforcement. Instead, the
evidence is that Rajaratnam’s shell would deform from the neutral posture
when the user sits. None of the additional rejections remedy this deficiency
in the combined teachings of Rajaratnam and Reynolds.

CONCLUSIONS OF LAW
Appellants showed by evidence that Rajaratnam’s lumbar support
device did not have a rigid shell, and that Rajaratnam’s device did not
reinforce a neutral postural position.

SUMMARY
We reverse the rejections of
claims 1-9, 11-13, 18, 19 and 28-30 under 35 U.S.C. § 103(a) as
unpatentable over Rajaratnam in view of Reynolds;
claims 14, 16, 21 and 23-25 under 35 U.S.C. § 103(a) as unpatentable
over Rajaratnam, Reynolds and Deegener;
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Appeal 2009-004907
Application 10/308,147

claims 15, 22, 26 and 27 under 35 U.S.C. § 103(a) as unpatentable
over Rajaratnam and Zacharkow; and
claim 17 under 35 U.S.C. § 103(a) as unpatentable over Rajaratnam
and Yewer.

REVERSED

cdc

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