Ex Parte Murphy

Board of Patent Appeals and Interferences

Nov 30, 2011

11322638 (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.
11/322,638 12/30/2005 Marcus L. Murphy 4362-126 4841
20792 7590 11/30/2011
MYERS BIGEL SIBLEY & SAJOVEC
PO BOX 37428
RALEIGH, NC 27627
EXAMINER
KELLEHER, WILLIAM J
ART UNIT PAPER NUMBER
3673
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 MARCUS L. MURPHY
____________

Appeal 2010-000158
Application 11/322,638
Technology Center 3600
____________

Before JENNIFER D. BAHR, LINDA E. HORNER, and
JOHN C. KERINS, Administrative Patent Judges.

HORNER, Administrative Patent Judge.

DECISION ON APPEAL

STATEMENT OF THE CASE
Marcus L. Murphy (Appellant) seeks our review under 35 U.S.C.
§ 134 of the Examiner’s decision rejecting claims 1-9, 11-18, and 21.
Claims 10, 19, and 20 have been canceled. We have jurisdiction under
35 U.S.C. § 6(b). We AFFIRM-IN-PART.
Appeal 2010-000158
Application 11/322,638

2
THE INVENTION
Appellant’s claimed invention “relates generally to a sofa or other
seating unit that is convertible into a bed.” Spec. 1, ll. 5-6. Claim 1,
reproduced below, is representative of the subject matter on appeal.
1. A seating unit convertible into a bed, comprising:
a base configured to rest on an underlying surface;
a rear support pivotally interconnected with the base, the
rear support having a rear support cushion that faces rearwardly
in the folded position;
a backrest having a backrest cushion;
a seat having a seat cushion;
a seat carriage; and
a folding mechanism attached to the rear support,
backrest and seat, the folding mechanism comprising a plurality
of pivotally interconnected links that are configured and
arranged to move the rear support, backrest and seat between a
folded position, in which the rear support is generally upright,
the backrest is generally upright and positioned forwardly of the
rear support, the seat is generally horizontal and positioned
forwardly of the backrest, and the seat carriage is positioned
above the base and below the seat, and an unfolded position, in
which the rear support, the backrest, and the seat are
substantially horizontal and serially aligned with each other, the
rear support is above the base, and the seat carriage is
positioned below the seat and forward of the base;
wherein the folding mechanism includes a folding leg
that resides between the rear support and the backrest in the
folded position and that rests directly on the underlying surface
in the unfolded position.
Appeal 2010-000158
Application 11/322,638

3
THE EVIDENCE
The Examiner relies upon the following evidence:
Jeffcott US 1,180,926 Apr. 25, 1916
Fraser US 1,903,918 Apr. 18, 1933
Atimichuk US 4,628,551 Dec. 16, 1986
Bradley US 5,195,194 Mar. 23, 1993
THE REJECTIONS
Appellant seeks review of the following rejections:
1. Rejection of claims 1-8, 11-13, 15, 16, 18, and 21 under 35 U.S.C.
§ 103(a) as being unpatentable over Jeffcott and Atimichuk.
2. Rejection of claims 9 and 14 under 35 U.S.C. § 103(a) as being
unpatentable over Jeffcott, Atimichuk, and Fraser. 1
3. Rejection of claim 17 under 35 U.S.C. § 103(a) as being unpatentable
over Bradley.
ISSUES
The issues presented by this appeal are:
1. Would it have been obvious to one of ordinary skill in the art to
add the cushions of Atimichuk to the convertible bed of Jeffcott to
arrive at the claimed invention?
2. Would the convertible bed of Jeffcott, as modified by Atimichuk,
result in a bed having a rear support cushion “exposed to the rear

1 The Examiner states this ground of rejection as being “over Jeffcott as
modified as applied to Claim 1 above, and further in view of Fraser (U.S.
Patent 1,903,918).” Ans. 9. We understand Jeffcott “as modified” to refer
to Jeffcott as modified by Atimichuk in the rejection of claim 1.
Appeal 2010-000158
Application 11/322,638

4
when the seating unit is in the folded position” as called for in
claim 21?
3. Does the convertible bed of Jeffcott have a seat lifting mechanism
including a rear swing link that is pivotally interconnected with the
seat and the seat carriage and a front swing link that is pivotally
interconnected with the seat and seat carriage as called for in claim
18?
4. Does Bradley disclose or render obvious a folding mechanism
configured such that a front edge of the rear support and a rear
edge of the backrest are in gapless contact with each other in the
folded position as called for in claim 17?
ANALYSIS
Rejection of claims 1-8, 11-13, 15, 16, 18, and 21 under 35 U.S.C. § 103(a)
based on Jeffcott and Atimichuk
Appellant argues claims 1-8, 11-13, and 15 as a group. Br. 6-9. We
select claim 1 as representative, and claims 2-8, 11-13, and 15 stand or fall
with claim 1. Appellant presents additional arguments for patentability of
claims 16, 18, and 21. Br. 9-11.
Appellant argues that the proposed modification to add cushions to the
convertible bed of Jeffcott “would require a great deal of modification of the
remainder of the mechanism, and may well result in an unacceptable seating
configuration” and thus the proposed combination “is improper because it
would render the Jeffcoat [sic] device inoperable.” Br. 9.
Appeal 2010-000158
Application 11/322,638

5
With respect to representative claim 1, the rejection of which relied on
the embodiment of Figures 1-6 of Jeffcott, this argument is not persuasive.
We agree with the reasoning articulated by the Examiner on pages 4-5 and
11 in the Answer for the proposed modification and adopt it as our own.
Appellant’s argument detailing the modification to the prior art
folding mechanism necessary to accommodate a cushion between the head
support A and the head section B does not allege that such a modification
would be beyond the skill level of one of ordinary skill in the art. Rather,
Appellant asserts that the modification “would likely require either a taller
sofa or a lower seating length, either of which would likely be unacceptable”
and that the modification “may well result in an unacceptable seating
configuration.” Br. 9. Appellant’s argument fails to adequately explain the
basis for the position that the proposed modification would render Jeffcott’s
bed inoperable. In particular, Appellant does not explain the specific import
the modifications would have on the dimensions of the sofa height or seating
length to show that these proposed changes would be “unacceptable” to a
person of ordinary skill in the art. Further, the language used in Appellant’s
argument is couched in uncertainty and fails to unequivocally assert the
inoperability of Jeffcott’s bed in light of the proposed modification. For
these reasons, we sustain the rejection of claims 1-8, 11-13, and 15 under
35 U.S.C. § 103(a) as unpatentable over Jeffcott and Atimichuk.
With respect to independent claim 16, the rejection of which relied on
the embodiment of Figure 10 of Jeffcott, Appellant’s arguments are also not
persuasive. Appellant did not allege that the Examiner’s proposed
Appeal 2010-000158
Application 11/322,638

6
modification to add cushions to Jeffcott would have been beyond the skill
level of a person of ordinary skill in the art. Rather, Appellant argues that
there is no room in the embodiment of Figure 10 to accommodate a cushion.
Br. 10. We agree with the Examiner that one of ordinary skill in the art
would have been able to make slight modifications to the embodiment of
Figure 10 to create room for cushions while the apparatus is in a folded state.
Ans. 12. KSR Int’l Co. v. Teleflex, Inc., 550 U.S. 398, 421 (2007) (“[a]
person of ordinary skill is also a person of ordinary creativity, not an
automaton.”). For these reasons, we sustain the rejection of claim 16 under
35 U.S.C. § 103(a) as unpatentable over Jeffcott and Atimichuk.
With respect to independent claim 18, the Examiner determined that
because Jeffcott’s links L and L1 can pivot and are interconnected (directly
or indirectly) to the entire apparatus, they are “pivotally interconnected to
the seat and seat carriage” as called for in claim 18. Ans. 8. We find that
the Examiner’s reading of pivotally interconnected as encompassing indirect
connection is overly broad in light of Appellant’s Specification. The
Specification describes that rear swing link 124 and front swing link 126 are
each mounted on one end to a mounting bracket 122, which is fixed to the
seat carriage 70, and are each mounted on the other end to a mounting
bracket 128, which is fixed to the seat 60. Spec. 12, ll. 10-19; fig. 4. As
such, the front and rear swing links described in Appellant’s Specification
are each directly pivotally interconnected to the seat and seat carriage and
are not pivotally connected to each other. For these reasons, we do not
Appeal 2010-000158
Application 11/322,638

7
sustain the rejection of claim 18 under 35 U.S.C. § 103(a) as being
unpatentable over Jeffcott and Atimichuk.
With respect to claim 21, which depends from claim 1, the Examiner
determined that Jeffcott, as modified to add cushioning, has a rear support
cushion that is exposed to the rear when the seating unit is in the folded
position. Ans. 5. We understand claim 21 to call for the rear support
cushion to be exposed to the rear of the seating unit when the unit is in the
folded position. The rear of Jeffcott’s seating unit is the frame of the divan
(head support A). When the seating unit is in the folded position, the head
section B and any cushion disposed thereon would be facing the head
support A. Jeffcott, fig. 6. Thus, the rear support cushion would not be
exposed to the rear of the seating unit, as called for in claim 21. For these
reasons, we do not sustain the rejection of claim 21 under 35 U.S.C. § 103(a)
as being unpatentable over Jeffcott and Atimichuk.
Rejection of claims 9 and 14 under 35 U.S.C. § 103(a) based on Jeffcott,
Atimichuk and Fraser
Appellant argues that claims 9 and 14 are patentable over Jeffcott and
Fraser for the same reasons as presented for claim 1. Br. 11. For the reasons
discussed supra, we find Appellant’s arguments unavailing. As such, we
sustain the rejection of claims 9 and 14.
Rejection of claim 17 under 35 U.S.C. § 103(a) based on Bradley
Claim 17 calls for the folding mechanism to be configured such that a
front edge of the rear support and a rear edge of the backrest are in gapless
contact with each other in the folded position. The Examiner determined
Appeal 2010-000158
Application 11/322,638

8
that Figure 1 of Bradley shows a folding mechanism in a folded position
having a gapless arrangement. Ans. 14. Appellant argues, however, that
Figure 3 of Bradley shows a gap between the rear support and the backrest
when the folding mechanism is folded. Br. 11.
Bradley describes Figure 1 as a “front perspective view of the seat-
bed assembly in its seat position and with the extender assembly in its stored
position” and Figure 3 as “a side elevational view of the seat-bed assembly
in its seat position and with the extender assembly in its stored position.”
Col. 1, ll. 49-51 and 55-57. While Figure 1 of Bradley at first appears to
show a gapless arrangement, as a perspective view, any gap between the rear
support and the backrest may be not visible from the perspective from which
the view is taken. However, the side view in Figure 3 clearly shows a gap.
The Examiner characterizes Figure 3 as showing “an intermediate
position.” Ans. 14. We find no basis in Bradley for this characterization of
Figure 3. Bradley clearly describes Figure 3 as showing the extender
assembly in its stored position. Col. 1, ll. 55-57 and col. 3, ll. 26-28. By
contrast, Bradley discloses Figure 4 as a side elevational view of the seat-
bed and extender assemblies in “an intermediate position.” Col. 1, ll. 58-59.
The Examiner alternatively states that “[t]he folding mechanism could
be modified to bring the cushions together to form a gapless arrangement (as
suggested by, or even disclosed by Figure 1 of Bradley).” Ans. 14. For the
reasons provided above, we find that Figure 1 of Bradley does not disclose
or suggest by a preponderance of the evidence a gapless arrangement. Thus,
Appeal 2010-000158
Application 11/322,638

9
we do not sustain the rejection of claim 17 under 35 U.S.C. § 103(a) as
unpatentable over Bradley.
CONCLUSIONS
It would have been obvious to one of ordinary skill in the art to add
the cushions of Atimichuk to the convertible bed of Jeffcott to arrive at the
invention of claims 1 and 16.
The convertible bed of Jeffcott, as modified by Atimichuk, would not
result in a bed having a rear support cushion “exposed to the rear when the
seating unit is in the folded position” as called for in claim 21.
The convertible bed of Jeffcott does not have a seat lifting mechanism
including a rear swing link that is pivotally interconnected with the seat and
the seat carriage and a front swing link that is pivotally interconnected with
the seat and seat carriage as called for in claim 18.
Bradley does not disclose or render obvious a folding mechanism
configured such that a front edge of the rear support and a rear edge of the
backrest are in gapless contact with each other in the folded position as
called for in claim 17.
DECISION
The decision of the Examiner to reject claims 1-9 and 11-16 is
AFFIRMED.
The decision of the Examiner to reject claims 17, 18, and 21 is
REVERSED.
Appeal 2010-000158
Application 11/322,638

10
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

nlk