Ex Parte Schurg et al

Patent Trial and Appeal Board

Jun 20, 2013

10587218 (P.T.A.B. Jun. 20, 2013)

UNITED STATES PATENT AND TRADEMARKOFFICE
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.
10/587,218 07/25/2006 Hartmut Schurg 51468 8184
1609 7590 06/20/2013
ROYLANCE, ABRAMS, BERDO & GOODMAN, L.L.P.
1300 19TH STREET, N.W.
SUITE 600
WASHINGTON,, DC 20036
EXAMINER
GARRETT, ERIKA P
ART UNIT PAPER NUMBER
3636
MAIL DATE DELIVERY MODE
06/20/2013 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 PATENT TRIAL AND APPEAL BOARD
____________________
Ex parte HARTMUT SCHURG, OILIVER FORGATSCH, and
CHRISTIAN PILGRAM
____________________
Appeal 2011-006456
Application 10/587,218
Technology Center 3600
____________________
Before ANNETTE R. REIMERS, RICHARD E. RICE, and
MITCHELL G. WEATHERLY, Administrative Patent Judges.
WEATHERLY, Administrative Patent Judge.
DECISION ON APPEAL

Appeal 2011-006456
Application 10/587,218
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STATEMENT OF THE CASE
Appellants appeal under 35 U.S.C. § 134 from the decision of the
Examiner rejecting claims 9-41. Claims 1-8 have been canceled. We have
jurisdiction under 35 U.S.C. § 6(b).
We reverse.
The claims are directed to an aircraft passenger seat. Claim 9,
reproduced below, is illustrative of the claimed subject matter:
9. An aircraft passenger seat, comprising:
a seat part;
a backrest extending from said seat part and having
a front surface facing said seat part, a support structure
and backrest cushioning bearing on said support
structure;
a tray table coupled to said support structure and
foldable between a stored position on a back of said
support structure and a use position away from said back
of said support structure; and
a pocket receptacle on said back of said support
structure for holding utensils, printed materials and travel
accessories, said receptacle being a cavity overlapping at
least partially said tray table in the stored position in a
direction perpendicular to said front surface of said
backrest and having a main opening for introducing
objects into said cavity, said main opening being open
and exposed when said tray table is in the stored position,
said tray table remaining outside said cavity in the stored
position.
REFERENCES
The Examiner relies upon the following evidence:
Buxton
Rogers
Dixon
US 3,615,118
US 5,375,907
US 5,507,556
Oct. 26, 1971
Dec. 27, 1994
Apr. 16, 1996
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Application 10/587,218
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Meritt
Canni
US 6,092,705
US 6,450,571 B1
Jul. 25, 2000
Sep. 17, 2002
REJECTIONS
Appellants seek our review of the following rejections:
1. Claim 9 stands rejected under 35 U.S.C. § 102(b) as being anticipated
by Meritt. Ans. 3-4.
2. Claim 9 stands rejected under 35 U.S.C. § 102(b) as being anticipated
by Rogers. Ans. 4.
3. Claims 9-12 and 14-41 stand rejected under 35 U.S.C. § 103(a) as
being unpatentable over Canni and Buxton. Ans. 5-10.
4. Claim 13 stands rejected under 35 U.S.C. § 103(a) as being
unpatentable over Canni, Buxton, and Dixon. Ans. 10.
OPINION
Anticipation of claim 9 by Meritt
Appellants contend that Meritt fails to describe the claimed tray table.
App. Br. 6-7; Reply Br. 2-3. The Examiner finds that Meritt’s front cover 8
constitutes the claimed tray table. Ans. 3, 10. The Examiner reasons that
“[w]hen the occupant releases the straps 9 and 10 (see Figure 1), the cover 8
can be placed on the knees of the occupant to use as a table.” Ans. 10. For
Meritt’s cover to function as a table in the proposed configuration, the cover
would need to have sufficient rigidity to support loads on its surface.
Appellants contend that a skilled artisan would conclude that Meritt’s
cover is flexible, unable to support loads applied perpendicular to its surface,
and thus unsuitable as a table. Reply Br. 2-3. Appellants correctly note that
Meritt is virtually silent regarding the material properties of front cover 8.
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Id. However, Appellants contend that because Meritt’s cover is connected
along its periphery to the case via a zipper, a skilled artisan would conclude
that the cover would most likely be flexible. Reply Br. 2-3. We note that
Meritt describes its case as a “soft pack case,” which supports Appellants’
argument that Meritt’s front cover is flexible. Meritt, 5:29-39. Thus,
Appellants persuade us that front cover is more than likely flexible and
unsuitable as a table. Therefore, we reverse the rejection of claim 9 as being
anticipated by Meritt.
Anticipation of claim 9 by Rogers
Appellants contend that Rogers fails to describe the claimed “main
opening being open and exposed when said tray table is in the stored
position.” App. Br. 8-9. The Examiner finds that Rogers describes the
claimed main opening in the form of a gap between Rogers’s face 32 and lid
34 that would exist when lid 34 is closed as shown in Rogers’s Figure 2.
Ans. 12. The Examiner finds that this gap is evident in Rogers’s Figure 3
because “face 32 is slightly lower than the edge walls of the recess.” Id. We
disagree with the Examiner because Rogers’s Figure 3 is a cut away drawing
that illustrates internal components of the frame for lid 34 and fails to show
the coverings and upholstery that are installed on the frame in its final form
(which are shown in Rogers’s Figures 2, 4, and 5).
Even if such a gap were present in Rogers’s finished product, we find
that the gap would not be “open and exposed when said tray table is in the
stored position” as recited in claim 9. Appellants contend, and we agree,
that Rogers’s table 30 (with lid 34) is shown in its deployed (or open)
position in Rogers’s Figure 2. Reply Br. 4-5. Rogers illustrates its table 30
(and lid 34) in the “stored position” in Figure 5. App. Br. 8. When Rogers’s
Appeal 2011-006456
Application 10/587,218
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table is in this stored position, Rogers’s container portion (under lid 34) and
recessed compartment 32 are both completely closed. Id. at 8-9. By
contrast, claim 9 requires that the pocket receptacle have a main opening that
is “exposed” when the tray is stored. Therefore, we reverse the rejection of
claim 9 as being anticipated by Rogers.
Obviousness of claims 9-12 and 14-41 over Canni and Buxton
Appellants contend that neither Canni nor Buxton describe a
“receptacle being a cavity overlapping at least partially said tray table in the
stored position” as recited in independent claims 9 and 37 and a “tray table
in the stored position overlapping said receptacle at least partially” as recited
in independent claim 22. App. Br. 11, 20, and 24. The Examiner concludes
that it would have been obvious for a skilled artisan to modify Canni’s seat
back by adding Buxton’s tray table. Ans. 10. The Examiner finds that “due
to the depth of the pocket of Canni, [Buxton’s] tray table would necessarily
overlap the pocket.” Ans. 14. Thus, we consider the Examiner to have
found that the overlapping spatial relationship between the tray table and
pocket is inherent in the combination of Canni as modified by Buxton.
The express, implicit, and inherent disclosures of a prior art reference
may be relied upon in the rejection of claims under 35 U.S.C. §§ 102 or 103.
“The inherent teaching of a prior art reference, a question of fact, arises both
in the context of anticipation and obviousness.” In re Napier, 55 F.3d 610,
613 (Fed. Cir. 1995). However, the fact that a certain result or characteristic
may occur or be present in the prior art is not sufficient to establish the
inherency of that result or characteristic. In re Rijckaert, 9 F.3d 1531, 1534
(Fed. Cir. 1993) (rejection reversed because alleged inherency was based on
what would result due to optimization of conditions, not what was
Appeal 2011-006456
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necessarily present in the prior art); see also, In re Oelrich, 666 F.2d 578,
581-82 (CCPA 1981). “To establish inherency, the extrinsic evidence must
make clear that the missing descriptive matter is necessarily present in the
thing described in the reference, and that it would be so recognized by
persons of ordinary skill. Inherency, however, may not be established
by probabilities or possibilities. The mere fact that a certain thing may result
from a given set of circumstances is not sufficient.” In re Robertson, 169
F.3d 743, 745 (Fed. Cir. 1999) (citations and internal quotations omitted). In
relying upon the theory of inherency, the examiner must provide a basis in
fact and/or technical reasoning to reasonably support the determination that
the allegedly inherent characteristic necessarily flows from the teachings of
the applied prior art. Ex parte Levy, 17 USPQ2d 1461, 1464 (Bd. Pat. App.
& Inter. 1990).
Our review of Canni and Buxton reveals no such inherent overlap
between the tray and pocket. We also find that the Examiner has provided
no technical reasoning to support the finding of a necessarily overlapping
tray and receptacle in the combination of Canni as modified by Buxton. We
agree with Appellants that Canni discloses no tray at all and that Buxton
describes a tray table that does not overlap its locker 63, which is located in
its entirety above Buxton’s tray table. App. Br. 10-11; Reply Br. 6. The
failure of the cited combination of Canni and Buxton to describe the claimed
overlapping relationship between the receptacle and tray renders the
rejection as articulated by the Examiner unsustainable. Therefore, we
reverse the rejection of claims 9-12 and 14-41.
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Obviousness of claim 13 over Canni, Buxton, and Dixon
Claim 13 depends indirectly upon claim 9 and recites that the “top
edge of said support structure receives a display screen.” The Examiner
solely relies upon Dixon as describing the use of a support structure to
receive a display. Ans. 10. For the reasons expressed above, we reverse the
rejection of claim 9. For the same reasons and because claim 13 depends
upon claim 9, we also reverse the rejection of claim 13.
DECISION
For the reasons stated above, we reverse the rejections of claims 9-41.
REVERSED

rvb