11443874 (B.P.A.I. May. 25, 2011)

Ex Parte Pangilinan

Board of Patent Appeals and InterferencesMay 25, 2011

11443874 (B.P.A.I. May. 25, 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. 11/443,874 05/31/2006 Maria H. Pangilinan 4191 33376 7590 05/26/2011 KENNETH L. TOLAR 2908 Hessmer Avenue Metairie, LA 70002 EXAMINER GARRETT, ERIKA P ART UNIT PAPER NUMBER 3636 MAIL DATE DELIVERY MODE 05/26/2011 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 MARIA H. PANGILINAN ____________ Appeal 2010-001266 Application 11/443,874 Technology Center 3600 ____________ Before WILLIAM F. PATE III, STEVEN D.A. McCARTHY and MICHAEL C. ASTORINO, Administrative Patent Judges. ASTORINO, Administrative Patent Judge. DECISION ON APPEAL Appeal 2010-001266 Application 11/443,874 2 STATEMENT OF THE CASE 1 The Appellant appeals under 35 U.S.C. § 134 from the Examiner’s 2 decision rejecting claims 7-9 and 12-14. Claims 7-9 and 12-14 have been 3 twice rejected. The Examiner rejects claims 7-9 and 12-14 under 35 U.S.C. 4 § 103(a) as being unpatentable over Freeman (US 7,201,353 B1, issued Apr. 5 10, 2007) and Hoshino (US 6,030,045, issued Feb. 29, 2000).1 Claims 7 and 6 12 are independent claims. We have jurisdiction over the appeal under 35 7 U.S.C. § 6(b). 8 We sustain the rejections of claims 7, 9, 12 and 14. We do not sustain 9 the rejections of claims 8 and 13. 10 Claim 7 is illustrative of the claims on appeal: 11 7. An ergonomic footrest comprising: 12 a substantially planar footrest platform having an 13 upper surface, a lower surface and two opposing 14 sides, each of said sides including an opening in 15 communication with a hollow interior; 16 an extension slidably received within each of said 17 openings for varying a width of the platform; 18 a height adjustable support structure connected to 19 said platform for suspending said platform a select 20 distance above an underlying surface, wherein said 21 support structure includes: 22 a hub having a plurality of support legs 23 radially extending therefrom, said hub 24 including a centrally disposed, internally-25 threaded bore; 26 1 Although the Examiner rejected claims 10, 11, 15 and 16 on page 3 of the Examiner’s Answer, the Examiner subsequently withdrew the rejections for claims 10, 11, 15 and 16 on page 8 of the Examiner’s Answer. As such, claims 10, 11, 15 and 16 are not addressed by the Board. Appeal 2010-001266 Application 11/443,874 3 an elongated, externally threaded support 1 rod received within said bore whereby 2 rotation of said rod results in extension and 3 retraction of said rod relative to said bore. 4 (Claim reformatted for emphasis). 5 6 ISSUES 7 This appeal turns on the following issues. 8 First, does “footrest” in the term “footrest platform” connote a 9 separate structural component within a proper construction of the term 10 as used in claims 7 and 12? (Br. 7). 11 Second, do Freeman’s and Hoshino’s teachings render obvious 12 “a hub having a plurality of support legs radially extending therefrom, 13 said hub including a centrally disposed, internally-threaded bore; 14 [and] an elongated, externally-threaded support rod received within 15 said bore whereby rotation of said rod results in extension and 16 retraction of said rod relative to said bore” of claim 7 and similarly 17 claimed features of claim 12? (See Br. 8-9). 18 Third, are Freeman’s height adjustable support structure 30, and 19 Hoshino’s freely adjustable upper post 14 and supporting structures, 20 non-analogous art? (See Br. 13-15). 21 Fourth, do the evidence and technical reasoning underlying the 22 rejections of claims 7 and 12 adequately support the conclusion that 23 the subject matter of those claims would have been obvious? (Br. 9-24 10). 25 Fifth, do the evidence and technical reasoning underlying the 26 rejections of claims 8 and 13 adequately support the conclusion that 27 Appeal 2010-001266 Application 11/443,874 4 the subject matter of those claims would have been obvious? (Br. 10-1 11). 2 Sixth, do the teachings of Freeman and Hoshino render obvious 3 “a means for adjusting the angular orientation of said platform” of 4 claims 9 and 14? (See generally Br. 11). 5 6 FINDINGS OF FACTS 7 The record supports the following findings of fact (“FF”) by a 8 preponderance of the evidence. 9 1. We adopt and incorporate by reference the Examiner’s findings in 10 the Answer starting at page 3, line 13 starting “Freeman discloses” and 11 ending at page 3, line 21 with “said platform, see figures 1 and 3.” 12 2. We adopt the Examiner’s finding that Hoshino’s tightening 13 member 53 and nut 52 correspond to a centrally located hub (Ans. 5 and 6); 14 nut 52 has an internally-threaded bore (Ans. 6); threaded rod 14 is screwed 15 into a hub 53, 52 at nut 52 (Ans. 5); and legs 61 radially extend out of hub 16 53, 52 at tightening member 53. (Id.). 17 3. Hoshino describes an upper post 14 is secured so that its length is 18 freely adjustable in a telescoping manner with respect to the lower post 50. 19 Additionally, as the upper post 14 is rotated, it either enters or exits the inner 20 tubular part 51 while engaging the nut 52 so that the length of the upper post 21 14 may be adjusted. (Hoshino, col. 5, ll. 46-58). 22 4. We adopt the Examiner’s finding that “the structure of Hoshino is 23 reasonably pertinent to the particular problem of the support structure . . . 24 [adjusting a] platform up and down.” (Ans. 7). 25 Appeal 2010-001266 Application 11/443,874 5 5. We adopt and incorporate by reference the Examiner’s findings in 1 the Answer starting at page 4, line 1 beginning “Hoshino teaches the use of a 2 cushioned layer (13)” and ending at page 4, line 4 with “received within the 3 bore.” 4 5 ANALYSIS 6 First, the Appellant contends that Freeman’s device relates to a 7 height-adjustable lectern, not a footrest for supporting feet. (Br. 7). The 8 Examiner correctly construes “footrest” in the term “footrest platform” to be 9 an intended use of the platform. (Ans. 4). In other words, the term 10 “footrest” does not connote a separate structural component of a platform, 11 merely a use of the platform. The Examiner correctly finds that Freeman’s 12 adjustable support assembly 50 is a platform (FF 1), which “may be used as 13 a footrest” (Ans. 4) because a “user can place his or her feet on the 14 platform.” (Ans. 5). 15 Second, the Appellant contends that the Examiner failed to address 16 two limitations of claim 7 and similarly claimed features of claim 12. (See 17 Br. 8-9). The first contested limitation of claim 7 recites “a hub having a 18 plurality of support legs radially extending therefrom, said hub including a 19 centrally disposed, internally-threaded bore.” The Examiner correctly finds 20 Hoshino’s tightening member 53 and nut 52 correspond to a centrally 21 located hub and legs 61 radially extend out of the hub 53, 52 at tightening 22 member 53. (FF 1 and 2). The second contested limitation of claim 7 23 recites “an elongated, externally threaded support rod received within said 24 bore whereby rotation of said rod results in extension and retraction of said 25 rod relative to said bore.” The Examiner correctly finds upper post 14 is 26 Appeal 2010-001266 Application 11/443,874 6 screwed into a hub 53, 52 at nut 52. (FF 2). Additionally Hoshino describes 1 rotating the upper post 14 to adjust its length with respect to hub 53, 52. 2 (See FF 2 and 3). 3 Third, the Appellant contends Freeman and Hoshino are non-4 analogous art because “an inventor looking to create a width and height-5 adjustable footrest would not be expected or motivated to look to a lectern 6 [Freeman’s device] or a drum chair [Hoshino’s device].” (Br. 14). Our 7 reviewing court has provided two criteria useful in finding whether art is 8 non-analogous: “(1) whether the art is from the same field of endeavor, 9 regardless of the problem addressed, and (2) if the reference is not within the 10 field of the inventor’s endeavor, whether the reference still is reasonably 11 pertinent to the particular problem with which the inventor is involved.” 12 Comaper Corp. v. Antec, Inc., 596 F.3d 1343, 1351 (Fed. Cir. 2010) 13 (quoting In re Clay, 966 F.2d 656, 658-59 (Fed. Cir. 1992)). The Examiner 14 finds that Freeman discloses a height adjustable support structure 30. (FF 15 1). The Examiner also finds that Hoshino’s freely adjustable upper post 14 16 and supporting structures are “reasonably pertinent to the particular problem 17 . . . [adjusting a] platform up and down.” (See FF 2-4). Thus Freeman’s 18 height adjustable support structure 30, and Hoshino’s freely adjustable upper 19 post 14 and supporting structures, are reasonably pertinent to the particular 20 problem of adjusting the height of a platform. They are no non-analogous 21 art. 22 Fourth, the Appellant contends the Examiner has not provided 23 “reasoning as to how the references [Freeman and Hoshino] suggest the 24 claimed combination.” (Br. 9). The Examiner reasons “Freeman was 25 merely used to show a platform that was height adjustable . . . [and] was 26 Appeal 2010-001266 Application 11/443,874 7 replaced [substituted] with the support surface of the Hoshion [sic] 1 reference.” (Ans. 7). “[W]hen a patent claims a structure already known in 2 the prior art that is altered by the mere substitution of one element for 3 another known in the field, the combination must do more than yield a 4 predictable result.” KSR Int’l Co. v. Teleflex, Inc., 550 U.S. 398, 416 (2007). 5 The Examiner concludes that “it would have been obvious to simply 6 substitute one known element (in this case, the support of Hoshino) to the 7 stand of Freeman to obtain predictable results.” (Ans. 7). The Examiner’s 8 substitution of Hoshino’s freely adjustable upper post 14 and other 9 supporting structures for Freeman’s height adjustable support structure 30 10 articulates reasoning with rational underpinning to persuasively support the 11 Examiner’s conclusion of obviousness. 12 Fifth, claims 8 and 13 recite “a cushioned layer positioned on the 13 upper surface of the platform for enhanced comfort.” The Examiner finds 14 Freeman does not describe “a cushioned layer positioned on the upper 15 surface.” (Ans. 3). The Examiner also finds “Hoshino teaches the use of a 16 cushioned layer (13) positioned on the upper surface.” (Ans. 4). The 17 Appellant contends the Examiner “fails to show how the claimed 18 combination, a cushioned layer on the upper surface of the platform . . . is 19 suggested by the references.” (Br. 10). The Examiner has not provided a 20 separate rationale for combining Hoshino’s cushion 13 with Freeman’s 21 adjustable support assembly 50. The Examiner’s rationale for combining 22 Freeman’s adjustable support assembly 50 and Hoshino’s cushion 13 can 23 only be attributed to the substitution of Hoshino’s telescoping upper post 14 24 and supporting structures for Freeman’s height adjustable support structure 25 30. However that rationale is not persuasive support for the combination of 26 Appeal 2010-001266 Application 11/443,874 8 Hoshino’s cushion 13 with the upper surface of Freeman’s platform or 1 lectern system 50. 2 Sixth, claims 9 and 14 recite “means for adjusting the angular 3 orientation of said platform.” The Examiner finds Freeman describes “a 4 means (by way of tilting the platform up and down) for adjusting the angular 5 orientation of said platform, see figures 1 and 3.” (FF1). The Appellant 6 does not address this Examiner finding. Instead the Appellant addresses 7 Hoshino by contending “Hoshino neither discloses nor suggests angularly 8 adjusting any element.” (Br. 12). The Appellant’s supporting reasoning is 9 directed to recitations of claims 10, 11, 15 and 16, which are claims 10 dependent on claims 9 and 14. (See generally, Br. 11-13). As such the 11 Appellant has not provided a persuasive reason why the Examiner’s finding 12 specific to Freeman’s Figures 1 and 3 depicting a “means for adjusting the 13 angular orientation of said platform” is incorrect. 14 15 CONCLUSIONS 16 First, “footrest” in the term “footrest platform” does not connote a 17 separate structural component within a proper construction of the term as 18 used in claims 7 and 12. Second, Freeman and Hoshino renders obvious “a 19 hub having a plurality of support legs radially extending therefrom, said hub 20 including a centrally disposed, internally-threaded bore; [and] an elongated, 21 externally-threaded support rod received within said bore whereby rotation 22 of said rod results in extension and retraction of said rod relative to said 23 bore” of claim 7 and similarly claimed features of claim 12. Third, 24 Freeman’s height adjustable support structure 30, and Hoshino’s freely 25 adjustable upper post 14 and supporting structures, are analogous art. 26 Appeal 2010-001266 Application 11/443,874 9 Fourth, the evidence and technical reasoning underlying the rejections of 1 claims 7 and 12 adequately support the conclusion that the subject matter of 2 those claims would have been obvious. We sustain the rejection of claims 7 3 and 12 under § 103(a) as being as being unpatentable over Freeman and 4 Hoshino. 5 Fifth, the evidence and technical reasoning underlying the rejections 6 of claims 8 and 13 do not adequately support the conclusion that the subject 7 matter of those claims would have been obvious. We do not sustain the 8 rejection of claims 8 and 13 under § 103(a) as being as being unpatentable 9 over Freeman and Hoshino. 10 Sixth, Freeman and Hoshino render obvious a means for adjusting the 11 angular orientation of said platform. We sustain the rejection of claims 9 12 and 14 under § 103(a) as being as being unpatentable over Freeman and 13 Hoshino. 14 15 DECISION 16 We AFFIRM the Examiner’s decision rejecting claims 7, 9, 12 and 17 14. 18 We REVERSE the Examiner’s decision rejecting claims 8 and 13. 19 No time period for taking any subsequent action in connection with 20 this appeal may be extended under 37 C.F.R. § 1.136(a). See 37 C.F.R. 21 § 1.136(a)(1)(iv). 22 23 AFFIRMED-IN-PART 24 25 Klh 26