Ex Parte Lotspih

Board of Patent Appeals and Interferences

Jan 31, 2006

09805586 (B.P.A.I. Jan. 31, 2006)

The opinion in support of the decision being entered today was not written for publication
and is not binding precedent of the Board.

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
____________

Ex parte JOHN ANTHONY LOTSPIH

____________

Appeal No. 2005-2656
Application No. 09/805,586
____________

ON BRIEF
____________

Before McQUADE, CRAWFORD, and BAHR, Administrative Patent Judges.
APJ McQUADE, Administrative Patent Judge.

DECISION ON APPEAL
John Anthony Lotspih appeals from the final rejection of claims 1-20, all of the
claims pending in the application.

THE INVENTION
The invention relates to “an air bag assembly including portions for the protection
of the head and torso of a vehicle occupant during a side collision event” (specification,
page 1). Representative claim 1 reads as follows:

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l. An air bag assembly in a vehicle for side impact protection of a vehicle
occupant, the air bag assembly comprising:
an inflator for discharging a gaseous inflation medium; and
an air bag cushion including a first inflatable portion proximal to the inflator for
cushioning the torso of the vehicle occupant, a second inflatable portion distal from the
inflator
for cushioning the head of the vehicle occupant, a first expansion restraining element
extending partially but not completely across the width of the air bag cushion in
substantially nonparallel relation to a flow path of said gaseous inflation medium
between the first and second inflatable
portions, and at least a second expansion restraining element extending partially but not
completely across the width of the air bag cushion in opposing staggered relation to the
first
expansion restraining element in substantially nonparallel relation to said flow path of
said gaseous inflation medium, wherein the expansion restraining elements are adapted
to remain
operative so as to provide expansion restraint upon full inflation of the air bag cushion
without failing such that the expansion restraining elements restrict expansion of the air
bag cushion in the region between the first and second inflatable portions.

THE PRIOR ART

The references relied on by the examiner as evidence of obviousness are:

Matsushima et al. 5,618,595 Apr. 08, 1997
(Matsushima)

Yamamoto et al. 6,065,772 May 23, 2000
(Yamamoto)

Okumura et al. 6,129,377 Oct. 10, 2000
(Okumura)

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THE REJECTIONS

Claims 1-20 stand rejected under 35 U.S.C. § 112, first paragraph, as being
based on a specification which fails to comply with the written description requirement.

Claims 1-4, 7-15 and 18-20 stand rejected under 35 U.S.C. § 103(a) as being
unpatentable over Yamamoto in view of Okumura.

Claims 5, 6, 16 and 17 stand rejected under 35 U.S.C. § 103(a) as being
unpatentable over Yamamoto in view of Okumura and Matsushima.

Attention is directed to the main and reply briefs (filed June 8, 2004 and April 22,
2005) and the final rejection and answer (mailed November 13, 2003 and February 24,
2005) for the respective positions of the appellants and examiner regarding the merits of
these rejections.
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DISCUSSION
I. The 35 U.S.C. § 112, first paragraph, rejection of claims 1-20

As indicated above, this rejection rests on an alleged failure of the appellant’s
specification to comply with the written description requirement of § 112, ¶ 1. The test
for determining compliance with this requirement is whether the disclosure of the
application as originally filed reasonably conveys to the artisan that the inventor had
possession at that time of the later claimed subject matter, rather than the presence or
absence of literal support in the specification for the claim language. In re Kaslow, 707
F.2d 1366, 1375, 217 USPQ 1089, 1096 (Fed. Cir. 1983).

According to the examiner, the original disclosure in the instant application would
not reasonably convey to the artisan that the appellant had possession at that time of
the subject matter now claimed because “[c]laims 1, 11, and 12 define [that] the
expansion restraining elements remain operative without failing, however the
specification does not convey to one skilled in the art what parameters determine a
successful and/or failing expansion restraining element” (final rejection, page 2).
Although the specification does not describe such parameters, the failure to do
so, in and of itself, does not justify the examiner’s rejection. The stated criticism of the
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appellant’s specification is not commensurate with the scope of the appealed claims,
none of which actually recites parameters of the sort in question. Independent claims 1,
11 and 12 simply call for the expansion restraining elements to remain operative upon
full inflation of the air bag cushion without failing. Relevant portions of the original
specification indicate that the expansion restraining elements (1) “provide the desired
deployed [air bag] configuration” (page 2), (2) “may be of structurally similar character to
[the air bag] connective perimeter seams” (page 3), (3) “substantially preclud[e]
inflatable expansion at the locations of their occurrence” (page 8), (4) “may be utilized to
obtain desired expanded profile characteristics” (page 8), (5) “are introduced using the
same connective procedures as may be used to apply the connective perimeter seams”
(page 10), and (6) provide “control over the deployment profile of the air bag cushion”
(page 11). These statements would reasonably convey to the artisan that the appellant
had possession at that time of an air bag assembly comprising expansion restraining
elements which remain operative upon full inflation of the air bag cushion without failing
as is now recited in claims 1, 11 and 12.

Hence, we shall not sustain the standing 35 U.S.C. § 112, first paragraph,
rejection of independent claims 1, 11 and 12, and dependent claims 2-10 and 13-20, as
being based on a specification which fails to comply with the written description
requirement.
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II. The 35 U.S.C. § 103(a) rejection of claims 1-4, 7-15 and 18-20 as being unpatentable
over Yamamoto in view of Okumura

Yamamoto, the examiner’s primary reference, pertains to side impact air bag
systems. For purposes of the rejection, the examiner focuses on the air bag
embodiment illustrated in Figures 9-12 which is designed to inflate and deploy without
being obstructed by a seat belt. This air bag 50 comprises an inflator 22, a lower
chamber 51, an upper chamber 52, an upper rear chamber 53, a seam 55 separating,
and defining a communication hole 54 between, the lower and upper chambers, and a
seam 57 separating, and defining a communication hole 56 between, the upper and
upper rear chambers. The seam 55 resists tearing during inflation, while the seam 57
tears to permit full deployment of the upper rear chamber when the inflation pressure
reaches a predetermined value (see column 7, line 56, through column 8, line 15). The
following passage from the reference describes the desired inflation and deployment
sequence:
When a collision force is applied to the side of the vehicle, the
sensor (not shown) detects the collision force and transmits an operation
command to the inflator 22. As shown in FIG. 11(a) and FIG. 12(b), the
inflator 22 blows out gas G1 via the discharge ports formed in its lower
portion into the lower chamber 51. The lower chamber 51 is inflated by
the gas G1 to intervene between the passenger's torso and the inner wall
for the vehicle compartment.
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Even while the lower chamber 51 is being deployed, the gas G1
continues to be blown from the discharge ports. Therefore, the
mainstream of the gas G1 hits the inner surface of the air bag 50 in the
vehicle front side of the lower chamber 28. The gas G1 is reflected by the
inner surface of the air bag 50 and directed to the vehicle rear side of the
lower chamber 51, while substantially completely inflating the lower
chamber 51.
Gas G2 deflected to the vehicle rear side of the lower chamber 51
hits the inner surface of the vehicle rear side of the air bag 50. Since the
lower chamber 51 is completely inflated, however, the gas G2 passes the
communication hole 54. The gas G2, immediately before passing the
communication hole 54, has a momentum to flow to the vehicle rear side
of the air bag 50. Therefore, the gas G2 is reflected by the inner surface
of the vehicle rear side of the air bag 50 while passing the communication
hole 54. After having passed the communication hole 54, gas G3 is
reflected by the inner surface of the vehicle rear side of the air bag 50.
Subsequently, as shown in FIG. 12(c), the gas G3 is then directed toward
the vehicle front side of the upper chamber 52.
As shown in FIG. 11(b), the gas G3 flowing towards the vehicle
front side of the upper chamber 52 is reflected by the inner surface of the
vehicle front side of the upper chamber 52, before gas G4 flows toward
the vehicle rear side of the upper chamber 52. The flow of gas G3, G4
causes the upper chamber 52 to be substantially completely inflated, as
shown in FIG. 12(d).
A part of the gas G4 passes the communication hole 56 via the tear
seam 57 and flows from the vehicle front side of the air bag 50 into the
upper rear chamber 53, inflating and deploying a part of the upper rear
chamber 53 toward the vehicle rear upper side. At this time, the upper
part of the upper chamber 52 is deployed above the seat belt X, and a part
of the upper rear chamber 53 turns above the seat belt X and deploys.
Thereafter, as shown in FIG. 11(c) and FIG. 12(e), the upper
chamber 52 and a part of the upper rear chamber 53 are substantially
completely deployed. When the internal pressure of the chambers 52 and
53 reaches a specified pressure, the tear seam 57 starts tearing from the
side of the communication hole 56 due to the pressure. After the tear
seam is entirely torn, the remaining part of the upper rear chamber 53 is
deployed toward the vehicle rear side. The upper chamber 52 and the
upper rear chamber 53 are combined into one, and the upper rear
chamber 53 is substantially completely deployed. Since the remaining
part of the upper rear chamber 53 is deployed avoiding, or deployed
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above the seat belt X, the seat belt X is prevented from obstructing
deployment of the air bag [column 8, line 36, through column 9, line 27].

In applying Yamamoto against the appealed claims (see page 3 in the final
rejection), the examiner finds correspondence between the expansion restraining
elements recited in independent claims 1, 11 and 12 and the air bag seams 55 and 57
disclosed by Yamamoto. The examiner concedes, however, that Yamamoto’s seams,
considered together, do not respond to the limitations in these claims requiring the
expansion restraining elements to remain operative upon full inflation of the air bag
cushion without failing. In this regard, only one of Yamamoto’s seams (seam 55)
remains operative upon full inflation of the air bag cushion without failing. To overcome
this deficiency, the examiner turns to Okumura.

Okumura discloses a side impact air bag made from a one-piece cloth member 9
(see Figure 9) which is folded upon itself and stitched along its adjacent peripheral
edges. The air bag 11 includes an inner side wall 12, and outer side wall 13, an upper
side 14, an oblique side 15, a lower side 16, a rear side 17 and a cylindrical gas inlet 19.
The bag also includes a linear array of tensing joints 22 formed by stitching the inner
side wall 12 to the outer wall 13 at spaced locations on the bag. When the bag is
inflated, these joints establish a tension line which provides the bag with the restraining
characteristics necessary to protect a passenger’s head. Okumura teaches that the
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tensing joints should be configured and arranged to facilitate the smooth flow of inflation
gas throughout the bag (see column 10, line 59 et seq.).

Likening Okumura’s tensing joints 22 to Yamamoto’s seams 55 and 57, the
examiner submits that

it would have been obvious to one having ordinary skill in the
art at the time the invention was made to modify the air bag
assembly of Yamamoto et al. such that . . . the expansion
restraint elements remain operative upon full inflation, such
as the air bag assembly disclosed in Okumura et al. One
would have been motivated to make such a modification in
view of the suggestion in Okumura et al. that . . . the
expansion restraint elements that remain operative upon
inflation allow for smooth flow of inflating gas [final rejection,
page 3].

Okumura, however, does not actually teach or suggest that expansion restraint
elements that remain operative upon inflation lead to the smooth flow of inflating gas.
Instead, Okumura teaches that tensing joints 22, which are necessary to provide air bag
11 with desirable restraint characteristics, may smooth the flow of inflating gas if they
are suitably configured and arranged. These tensing joints 22 perform an entirely
different function compared to the seams 55 and 57 disclosed by Yamamoto, and would
not have furnished the artisan with any motivation or suggestion to modify Yamamoto’s
tear seam 57 so that it remains operative upon full inflation of the air bag cushion
without failing. Indeed, such a modification would destroy the air bag inflation and
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deployment sequence sought by Yamamoto to avoid obstruction by a seat belt. The
only suggestion to combine Yamamoto and Okumura in the manner advanced by the
examiner stems from hindsight knowledge impermissibly derived from the appellant’s
disclosure.

Accordingly, we shall not sustain the standing 35 U.S.C. § 103(a) rejection of
independent claims 1, 11 and 12, and dependent claims 2-4, 7-10, 13-15 and 18-20, as
being unpatentable over Yamamoto in view of Okumura.

III. The 35 U.S.C. § 103(a) rejection of claims 5, 6, 16 and 17 as being unpatentable
over Yamamoto in view of Okumura and Matsushima

As the examiner’s application of Matsushima does not cure the above discussed
shortcomings of Yamamoto and Okumura relative to parent claims 1 and 12, we shall
not sustain the standing 35 U.S.C. § 103(a) rejection of dependent claims 5, 6, 16 and
17 as being unpatentable over Yamamoto in view of Okumura and Matsushima.
SUMMARY
The decision of the examiner to reject claims 1-20 is reversed.
REVERSED

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Application No. 09/805,586

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JOHN P. McQUADE )
Administrative Patent Judge )
)
)
)
) BOARD OF PATENT
MURRIEL E. CRAWFORD ) APPEALS
Administrative Patent Judge ) AND
) INTERFERENCES
)
)
)
JENNIFER D. BAHR )
Administrative Patent Judge )
Appeal No. 2005-2656
Application No. 09/805,586

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