Ex Parte Nelson et al

Patent Trial and Appeal Board

Jan 28, 2015

11288863 (P.T.A.B. Jan. 28, 2015)

UNITED STATES PATENT AND TRADEMARK OFFICE
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BEFORE THE PATENT TRIAL AND APPEAL BOARD
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Ex parte SEAN PATRICK NELSON and THOMAS PAUL SUDDABY
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Appeal 2012-011901
Application 11/288,863
Technology Center 3600
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Before JENNIFER D. BAHR, STEFAN STAICOVICI, and
LEE L. STEPINA, Administrative Patent Judges.

STAICOVICI, Administrative Patent Judge.

DECISION ON APPEAL

STATEMENT OF THE CASE1
Sean Patrick Nelson and Thomas Paul Suddaby (Appellants) appeal
under 35 U.S.C. § 134 from the Examiner’s decision rejecting under 35
U.S.C. § 103(a) claims 1, 3, and 5–11 as unpatentable over Brustmann (EP 1
059 075 A2, published June 5, 2000)2 and Jones (US 3,379,450, issued Apr.
23, 1968). Appeal Br. 2. Claim 4 has been canceled and claim 2 has been

1 According to Appellants, the real party in interest is Specmat Limited.
Appeal Br. 3.
2 We derive our understanding of this reference from the translation
filed by Appellants on Jan. 19, 2010. See Appellants’ Amendment, filed
Jan. 19, 2010, at 5.
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Application 11/288,863
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allowed by the Examiner. Appeal Br. 2; Ans. 3. We have jurisdiction over
this appeal under 35 U.S.C. § 6(b).

SUMMARY OF DECISION
We AFFIRM.

INVENTION
Appellants’ invention relates to “manual and attendant push
wheelchairs.” Spec. 1, ll. 17–18 and Fig. 2.
Claim 1, the sole independent claim, is representative of the claimed
invention and reads as follows:
1. A wheelchair comprising:
a chassis comprising a support beam, a pair of spaced-
apart side elements, each depending from the support beam and
having a first part configured to support a front ground-
engaging wheel and a second part configured to support a rear
ground-engaging wheel, with the first and second parts being
disposed on opposite lateral sides of the support beam; and
a bracing member extending between the second parts of
the side elements and spaced from the support beam;
a seat member coupled to the support beam, the seat
member being rotatable around a pivot axis, the pivot axis
being parallel to a longitudinal axis of the support beam, the
seat member being supported by a variable length strut mounted
on the bracing member, and
a leg rest assembly pivotally coupled to the seat member
and moveable between an operative position and an inoperative
position stowed underneath the seat member, the leg rest
assembly being releasably held in the operative position at a
predetermined inclination relative to the seat member by a
support arm, which is configured such that the leg rest assembly
and the seat member will rotate as one when the seat member is
rotated around the pivot axis.

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ANALYSIS
Appellants have not presented arguments for the patentability of
claims 3 and 5–11 apart from independent claim 1. Therefore, in accordance
with 37 C.F.R. § 41.37(c)(1)(vii) (2011), we select claim 1 as the
representative claim to decide the appeal of the rejection of these claims,
with claims 3 and 5–11 standing or falling with claim 1.
The Examiner finds that although Brustmann discloses a wheelchair
as called for by independent claim 1, Brustmann fails to “include[] a bracing
member between the front parts of the side elements rather than the rear
parts.” Ans. 4–5. Nonetheless, the Examiner further finds that Jones
discloses a wheelchair having a bracing member, indicated by reference
numeral 110 in Figure 7, “that interconnects rear parts of side elements 118,
120.” Id. at 5. Thus, the Examiner concludes that it would have been
obvious for a person of ordinary skill in the art “to provide the Brustmann
wheelchair with a bracing member between the rear parts of the side
elements of the chassis, as taught by Jones, in order to further stiffen and
reinforce the chassis without interfering with the leg rests.” Id.
Appellants argue that Brustmann’s support 26 prevents movement of
leg rests 3, 4 into an inoperative position underneath the seat member.
Appeal Br. 5, 7. According to Appellants, “[t]he lower limit of travel of the
leg rests 3, 4, is illustrated in Figure 4 of Brustmann and does not extend
underneath the seat 1.” Id. Moreover, Appellants argue that, “there is
simply no disclosure in Brustmann that the illustrated non-shock position of
the leg rests 3, 4 is an inoperative position.” Reply Br. 2.
At the outset, we note that an ordinary and customary meaning of the
term “underneath” is “directly beneath.” Merriam Webster’s Collegiate
Dictionary (10th Ed. 1997). In this case, contrary to Appellants’ position,
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Figure 4 of Brustmann clearly shows that at least the lower portion of leg
rests 3, 4, are located directly beneath seat member 1. See also Brustmann,
Fig. 2. Similarly, Appellants’ Figure 8c shows at least a portion of leg rest
116 positioned underneath, that is, directly beneath, seat member 14.
Compare Brustmann, Fig. 4 with Appellants’ Drawings, Fig. 8c.
Furthermore, because the position of Brustmann’s leg rests 3, 4 in Figure 4
is described as a “boarding position,” we agree with the Examiner that “leg
rests 3, 4 . . . [are] in an inoperative or not deployed position underneath the
seat.” See Ans. 7; see also Brustmann, p. 2, ll. 10–11.
Appellants further argue that it would not have been obvious to a
person of ordinary skill in the art to “change the position of the support 26 in
Brustmann from the front legs 13, 14 to the rear legs 15, 16.” Appeal Br. 6.
According to Appellants, the Examiner’s modification “would also
necessitate a change in the position of the adjusting device 7” and further,
“would prevent the wheelchair from providing the aforementioned ‘shock
position.’” Id.
We are not persuaded because Appellants’ arguments are not
commensurate with the Examiner’s rejection. The Examiner’s modification
does not change the position of support 26 from the front legs 13, 14 to the
rear legs 15, 16, but rather adds Jones’s bracing member 110 “in order to
further stiffen and reinforce the chassis without interfering with the leg
rests.” See Ans. 5 (emphasis added). Furthermore, as the Examiner
correctly finds, because Jones’s bracing member 110 is recessed downward
from the ends of side elements 118, 120, extra space is provided such that it
would not interfere with Brustmann’s “shock position.” See id. at 7.
Lastly, Appellants argue that, “Brustmann and Jones are not
combinable” because the Examiner’s modification “would render
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Brustmann’s wheelchair unsatisfactory for its intended purpose.” Appeal
Br. 6–7. According to Appellants, Jones’s hydraulic jack 170 “would block
the back rest from being moved into the shock position required by
Brustmann.”
We are not persuaded by Appellants’ argument because obviousness
does not require that all of the features of the secondary reference be bodily
incorporated into the primary reference. In re Keller, 642 F.2d 413, 425
(CCPA 1981). Here, the Examiner relies on Jones only for “the rear bracing
member, which Jones specifically teaches helps to rigidify the frame.” See
Ans. 8. Although we appreciate Appellants’ position that Jones’s “rear
bracing member is provided in conjunction with the hydraulic jack 170” (see
Reply Br. 2), nonetheless, an artisan is not compelled to blindly follow the
teaching of one prior art reference over the other without the exercise of
independent judgment. Lear Siegler, Inc. v. Aeroquip Corp., 733 F.2d 881,
889, 221 USPQ 1025, 1032 (Fed. Cir. 1984). Naturally, some adaptation of
Brustmann’s wheelchair will be required, but Appellants have not provided
any persuasive evidence or technical reasoning, that the Examiner’s
proposed modification of Brustmann’s wheelchair with Jones’s rear bracing
member would have been either beyond the level of ordinary skill in the art
or unpredictable to a person of ordinary skill in the art.
In conclusion, for the foregoing reasons, we sustain the rejection of
claim 1, and claims 3 and 5–11, falling with claim 1, under 35 U.S.C. §
103(a) as unpatentable over Brustmann and Jones.

SUMMARY
We AFFIRM the Examiner’s decision to reject claims 1, 3, and 5–11.
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Application 11/288,863
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No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a)(1)(iv).

AFFIRMED

Ssc