Ex Parte Meyer

Board of Patent Appeals and Interferences

Nov 30, 2011

11352464 (B.P.A.I. Nov. 30, 2011)

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.
11/352,464 02/09/2006 Lutz Meyer 2490-002-03 /
32204.ISR.P
2183
996 7590 11/30/2011
GRAYBEAL JACKSON LLP
400 - 108TH AVENUE NE
SUITE 700
BELLEVUE, WA 98004
EXAMINER
BARFIELD, ANTHONY DERRELL
ART UNIT PAPER NUMBER
3636
MAIL DATE DELIVERY MODE
11/30/2011 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 BOARD OF PATENT APPEALS
AND INTERFERENCES
____________________

Ex parte LUTZ MEYER
____________________

Appeal 2009-014930
Application 11/352,464
Technology Center 3600
____________________

Before: JENNIFER D. BAHR, LINDA E. HORNER, and STEFAN
STAICOVICI, Administrative Patent Judges.

BAHR, Administrative Patent Judge.

DECISION ON APPEAL

Appeal 2009-014930
Application 11/352,464
2
STATEMENT OF THE CASE
Appellant appeals under 35 U.S.C. § 134 from the Examiner’s
rejection of claims 1-7 and 9-12 under 35 U.S.C. § 102(b) as anticipated by
Ernst (US 4,431,233, iss. Feb. 14, 1984) and claims 1-5 and 8-12 as
anticipated by Naumann (US 4,600,217, iss. Jul. 15, 1986). We have
jurisdiction under 35 U.S.C. § 6(b).

SUMMARY OF DECISION
We AFFIRM-IN-PART.

THE INVENTION
The claims are directed to an adjustable belt guide for the upper hold
point of a three-point seat belt. Spec., para. 2. Claim 1, reproduced below,
is illustrative of the claimed subject matter.
1. Adjustable belt guide for the upper hold point of a three-
point seat belt comprising
a directing element to guide a belt band of the three-point
seat belt, a connecting element to fix the belt guide to a backrest
of a vehicle seat and an adjustment element arranged between
the connecting element and the directing element,
characterized in that
the directing element can linearly extend from and retract
towards the backrest, and the directing element can be fixed at
various distances from the backrest.

Appeal 2009-014930
Application 11/352,464
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OPINION
The Ernst Rejection
An issue presented in the appeal of this rejection is whether Ernst
discloses a belt guide comprising an adjustment element arranged between a
connecting element and a directing element, wherein “the directing element
can linearly extend from and retract towards the backrest,” as called for in
claim 1. See App. Br. 14.
Apparently addressing this limitation, the Examiner stated that Ernst’s
belt guide is “characterized in that the adjustment element is developed such
that the distance between the backrest the connecting element [flange 10],
and the directing element [hollow profile 11] is variable perpendicular to the
backrest (via the profiled members 25).” Ans. 3. The Examiner further
stated that “Ernst teaches that the profiled members (25) can be selectively
fastened to one another (see col. 6 lines 57-63), which affects the position of
the directing element as well as the length of the belt guide.” Ans. 4-5.
We begin by construing the claim language in question. While claim
1 does not positively require the belt guide to be connected or fixed to a
backrest,1 we construe the limitation “the directing element can linearly
extend from and retract towards the backrest” as requiring capability of
linear extension and retraction relative to a structure (i.e., a backrest) to
which the connecting element of the belt guide is fixed. To construe that
limitation merely as requiring the directing element of a free or unconnected
belt guide to be movable in a line toward and away from a structure to which
it is not fixed would effectively render that limitation superfluous, and thus

1 In this regard, claim 1 merely requires a belt guide comprising a
connecting element “to fix [i.e., capable of fixing] the belt guide to a
backrest.”
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would be improper. See Stumbo v. Eastman Outdoors, Inc., 508 F.3d 1358,
1362 (Fed. Cir. 2007) (denouncing claim constructions which render phrases
in claims superfluous).
We find no disclosure in Ernst that suggests that Ernst’s belt-strap
guide 7 or 9 is constructed so as to permit any other portion thereof to
linearly extend from and retract towards the backrest, or any other structure,
to which it might be fixed. Ernst describes the guide 7 as “elastically
bendable.” Col. 4, l. 56; col. 5, ll. 58-60 (describing “elasticity and
flexibility of the belt-strap guide 7 in the direction of the arrow 21); fig. 3
(depicting an arrow 21 showing torsion or bending). One means of
achieving or adjusting the flexibility/elasticity in the bending direction is
forming the belt-strap guide 7 from profiled sections 25 having trapezoidal
sides fastened by screws to flat springs 26, 27, as depicted in figure 9. See
col. 6, ll. 24-35. Ernst describes these profiled sections as being made of a
“relatively hard synthetic material, since these profiled sections 25
themselves need not be elastic.” Col. 7, ll. 7-10. Ernst’s description gives
no indication that the belt-strap guide 7 is longitudinally compressible, so as
to permit the linear extension and retraction called for in claim 1. Neither
does Ernst suggest that the belt-strap guide 7 is sufficiently flexible as to
permit bending to the degree necessary to permit linear displacement of the
free end of the belt-strap guide 7. To the extent that the Examiner asserts
that the change in length of the belt-strap guide 7 that would result from the
selective addition or removal of profiled segments 25 satisfies the limitation
that “the directing element can linearly extend from and retract towards the
backrest,”2 we find such a position untenable.

2 Ernst does not suggest varying the number of profiled sections used to
adjust the length of the belt-strap guide.
Appeal 2009-014930
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An Examiner's burden of proving unpatentability when rejecting
claims in a patent application is by a preponderance of the evidence. In re
Caveney, 761 F.2d 671, 674 (Fed. Cir. 1985). In order to satisfy this
standard, the evidence must demonstrate that it is more likely than not that
the alleged facts are actually true. See Bosies v. Benedict, 27 F.3d 539, 541-
42 (Fed. Cir. 1994) (the preponderance of the evidence standard requires the
finder of fact to believe that the existence of a fact is more probable than its
nonexistence).
For the above reasons, the Examiner has not met the burden of
establishing by a preponderance of the evidence that Ernst discloses a belt
guide comprising an adjustment element arranged between a connecting
element and a directing element, wherein “the directing element can linearly
extend from and retract towards the backrest,” as called for in the claim 1.
We reverse the rejection of claim 1 and claims 2-7 and 9-12, which depend
from claim 1.
Naumann Rejection
We agree with and adopt the Examiner’s findings in the paragraph
bridging pages 3 and 4 of the Answer. As shown by these findings,
Naumann’s apparatus, including bellows 19 or 27, bolt 13, extension 15, and
gripper member 23 or fork 33, anticipates the adjustable belt guide of
Appellant’s claim 1.
Appellant’s arguments appear to be directed to the intended use of the
device, not to claimed structural distinctions, and thus are not persuasive.
See In re Schreiber, 128 F.3d 1473, 1477 (Fed. Cir. 1997) (stating that “[i]t
is well settled that the recitation of a new intended use for an old product
does not make a claim to that old product patentable”); App. Br. 14 (stating
that Naumann “fails to disclose a use the same as or analogous to applicants’
Appeal 2009-014930
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intended use”). In particular, Appellant’s argument that Naumann “fails to
disclose a belt guide that interfaces with a backrest” is not commensurate
with the scope of claim 1, which is directed solely to a belt guide, not to the
combination of a belt guide and a backrest, and does not positively require a
fixation of the connecting element of the belt guide to a backrest. See App.
Br. 14; Cl. 1 (reciting “a connecting element to fix the belt guide to a
backrest”). Further, the fact that Naumann discloses a belt guide (including
bellows 19 or 27, bolt 13, and gripper member 23 or fork 33) installed in a
system comprising a pump and control circuitry for automatically inflating
the bellows when the operator sits down in the seat and shuts the door and
automatically deflating the bellows as soon as the tongue 5 of the belt has
been latched in the buckle (col. 4, ll. 7-44) does not negate anticipation.
First, claim 1 does not require structure that permits a user to manually
position and retain a belt guide relative to a seat backrest, as Appellant’s
argument suggests. See App. Br. 14 (asserting that Naumann does not
disclose “structure that permits a user to position and retain a belt guide
relative to a seat backrest”). Further, as already noted, claim 1 is directed
only to a belt guide, not to a belt guide fixed to a backrest. Naumann’s belt
guide (including bellows 19 or 27, bolt 13, and gripper member 23 or fork
33) appears reasonably capable of being fixed to a backrest in such a manner
that “the directing element can linearly extend from and retract towards the
backrest, and the directing element can be fixed at various distances from the
backrest,” as called for in claim 1.
For the above reasons, we sustain the rejection of claim 1 as
anticipated by Naumann. Appellant has not presented any separate
arguments for the patentability of dependent claims 2-5 and 8-12 apart from
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claim 1. Thus, in accordance with 37 C.F.R. § 41.37(c)(1)(vii), these claims
stand or fall with claim 1.
DECISION
For the above reasons, the Examiner’s decision is affirmed as to
claims 1-5 and 8-12, and reversed as to claims 6 and 7.
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)(1)(iv).

AFFIRMED-IN-PART

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