Ex Parte Lewman

Patent Trial and Appeal Board

Sep 8, 2016

13136629 (P.T.A.B. Sep. 8, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
13/136,629 08/04/2011
7590 09/09/2016
Garth Janke
Portland Intellectual Property, LLC
Suite 1820
900 SW Fifth A venue
Portland, OR 97204
FIRST NAMED INVENTOR
Clyde McClain Lewman
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.
p 1232.31001 7277
EXAMINER
POLITO, NICHOLAS F
ART UNIT PAPER NUMBER
3673
MAILDATE DELIVERY MODE
09/09/2016 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)
U-NITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte CLYDE MCCLAIN LEWMAN
Appeal2015-000149
Application 13/136,629
Technology Center 3600
Before ANNETTE R. REIMERS, THOMAS F. SMEGAL, and
JEFFREY A. STEPHENS, Administrative Patent Judges.
STEPHENS, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Appellant1 seeks our review under 35 U.S.C. § 134(a) from the
Examiner's Final Office Action ("Final Act.") rejecting claims 16-28.
Claims 1-15 are withdrawn from consideration. See Final Act. 1. We have
jurisdiction under 35 U.S.C. § 6(b).
We affirm.
1 The real party in interest is assumed to be the named inventor. See 3 7
C.F.R. § 41.37(c)(l)(i).
Appeal2015-000149
Application 13/136,629
Claimed Subject Matter
The claimed invention relates to a method for seating a person. Claim
16, reproduced below, is illustrative:
16. A method for seating a person, comprising:
providing a first cushion portion and a second cushion
portion separate from the first cushion portion;
disposing the first cushion portion under one of the
buttocks of the person;
and
disposing the second cushion portion under the other of
the buttocks of the person.
Rejections
Claims 16-20, 22, 24, and 26 stand rejected under 35 U.S.C. § 102(b)
as anticipated by Hutchison (US 2,156,629, issued May 2, 1939). Final Act.
2-3.
Claims 21, 23, 25, and 27 stand rejected under 35 U.S.C. § 102(b) as
anticipated by Hutchison, or, in the alternative, under§ 103(a) as
unpatentable over Hutchison and Goldman (US 5,286,089, issued Feb. 15,
1994 ). Final Act. 4---6.
Claim 28 stands rejected under 35 U.S.C. § 103(a) as unpatentable
over Hutchison and Summer (US 5,134,740, issued Aug. 4, 1992). Final
Act. 6-7.2
2 Appellant does not present arguments for the rejection of claim 28 under
35 U.S.C. § 103(a) as unpatentable over Hutchison and Summer. See
generally Appeal Br. and Reply Br.
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Application 13/136,629
ANALYSIS
We have reviewed the Examiner's rejections in light of Appellant's
arguments (App. Br. 2---6; Reply Br. 1-9). We are not persuaded by
Appellant's arguments. We adopt as our own the findings and reasons set
forth by the Examiner in the action from which this appeal is taken and set
forth in the Answer (see Ans. 2-5). We highlight and address specific
arguments and findings for emphasis as follows.
Anticipation of Claims 16--20, 22, 24, and 26 by Hutchison
Appellant argues Hutchison does not disclose "disposing" cushion
portions "under" a person, as recited in claim 16. App. Br. 2. In particular,
Appellant argues the word "dispose" means "to put [something] in a
particular position or place," and that Hutchison implies an action of
disposing a person on the cushions rather than disposing the cushions under
the person. App. Br. 2-3 (brackets in original). Appellant agrees with the
Examiner that "Hutchison necessarily requires that the cushions are disposed
under the buttocks," but argues the method of reaching this result is not the
same as that recited in the claim. App. Br. 3. The difference, according to
Appellant, is that
[d]isposing cushion portions under a person's buttocks requires
the person to be present at that time Gust like disposing a book
under a table requires the table to be present at the time), allowing
for the person to perform the act of sitting while positioning the
cushion portions simultaneously, and therefore allowing for the
person to position the cushion portions optimally the first time.
App. Br. 3.
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Application 13/136,629
Appellant's arguments have not apprised us of error in the Examiner's
rejection of claim 16. We agree with the Examiner that "disposing the first
cushion portion under one of the buttocks of the person" can involve
arranging the cushion and the person in the claimed relationship in any
sequence. See Ans. 2-3. Claim 16 does not recite moving the first cushion
or the person with respect to any particular frame of reference, and we are
not persuaded that the phrase "disposing the first cushion portion"
incorporates such a requirement. The act of sitting on the cushion, which
Appellant does not dispute is at least implied in Hutchison (App. Br. 3),
meets the limitation of "disposing the first cushion portion under one of the
buttocks of the person," under the broadest reasonable interpretation of the
phrase.
Even if we accepted Appellant's definition of "dispose" as "to put in a
particular position or place," the Examiner's finding of anticipation would
not be in error. To extend Appellant's example involving a book and table,
the broadest reasonable construction of "disposing the book under the table"
would include "to put the book in a particular place where it will be under
the table, and then to put the table over the book." In the same way, placing
Hutchison's chair with cushions where one intends to sit and then sitting on
them is encompassed by the broadest reasonable construction of "disposing
the first cushion portion" and "disposing the second cushion portion" under
the buttocks of the person.
In addition, we note Hutchison also anticipates claim 16, even under
Appellant's construction under which, in effect, "disposing" would require
movement of the cushions with respect to a surface (e.g., chair or floor)
beneath them directly into the claimed position under the buttocks of the
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Application 13/136,629
person. Appellant contends that it "seems most likely" a person who sits on
the cushions in Hutchison and finds that they need adjustment would stand
up and face the chair to make the adjustment. App. Br. 4 & n.1. We note
that one of skill in the art would understand Hutchison to disclose that the
chair with cushions would be used in additional ways that chairs and
cushions are ordinarily used, including to adjust the chair or cushions while
in a seated position or to pull the chair toward oneself during the act of
sitting, e.g., at a table. In re Preda, 401F.2d825, 827 (CCPA 1968) ("[I]n
considering the disclosure of a reference, it is proper to take into account not
only specific teachings of the reference but also the inferences which one
skilled in the art would reasonably be expected to draw therefrom."). Either
of these actions fairly disclosed by Hutchison would involve movement of
the cushion in addition to or instead of movement of the person.
Accordingly, for the reasons discussed above and by the Examiner,
we are not apprised of error in the Examiner's rejection of claim 16 under
35 U.S.C. § 102(b) as anticipated by Hutchison. Thus, we sustain the
rejection of claim 16, and, for the same reasons, the rejection of claims 17-
20, 22, 24, and 26, which are not argued separately.
Obviousness of Claims 21, 23, 25, and 27 over Hutchison and
Goldman
Appellant argues claims 21, 23, 25, and 27 as a group. See App. Br.
4---6. We select claim 21 as representative. 37 C.F.R. § 41.37(c)(l)(iv).
Appellant's arguments have not apprised us of error in the rejection of
claim 21 as obvious over Hutchison and Goldman. Appellant agrees with
the Examiner that "Goldman clearly does have cushion portions defining
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Appeal2015-000149
Application 13/136,629
straight lines of maximum elevation," but argues that modifying Goldman to
align the lines at an angle would be against the teachings of Goldman, which
has parallel cushions. App. Br. 6. As the Examiner points out, Goldman is
not being modified in the rejection; rather, Hutchison would be modified to
have the convex shape of the cushion top in Goldman. Ans. 4. We agree
with the Examiner that Goldman shows flat top cushions and convex top
cushions would have been recognized as equivalents, and that substituting
Goldman's convex cushions for the flat cushions in Hutchison would thus be
a matter of a simple substitution of known equivalents. Final Act. 4.
"[W]hen a patent claims a structure already known in the prior art that is
altered by the mere substitution of one element for another known in the
field, the combination must do more than yield a predictable result." KSR
Int'! Co. v. Teleflex Inc., 550 U.S. 398, 416 (2007).
Accordingly, for the reasons given above and by the Examiner, we
sustain the rejection of claims 21, 23, 25, and 27 under 35 U.S.C. § 103(a) as
obvious over Hutchison and Goldman.
Anticipation of Claims 21, 23, 25, and 27 by Hutchison
We have affirmed the rejection of claims 21, 23, 25, and 27 under 35
U.S.C. § 103(a) as being obvious over Hutchison and Goldman. This
affirmance disposes of these claims before us on appeal. See 37 C.F.R.
§ 41. 50( a )(1) ("The affirmance of the rejection of a claim on any of the
grounds specified constitutes a general affirmance of the decision of the
examiner on that claim, except as to any ground specifically reversed.").
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Obviousness of Claim 28 over Hutchison and Summer
Appellant does not separately argue the rejection of claim 28. See
generally Appeal Br. and Reply Br. Therefore, for the reasons above, we
sustain the rejection of claim 28.
DECISION
We affirm the Examiner's decision to reject claims 16-28.
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a). See 37 C.F.R.
§ 1.136(a)(l )(iv).
AFFIRMED
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