11620186 (P.T.A.B. May. 14, 2013)

Ex Parte Valasin et al

Patent Trial and Appeal BoardMay 14, 2013

11620186 (P.T.A.B. May. 14, 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. 11/620,186 01/05/2007 Anthony Valasin 81154871 8830 28395 7590 05/15/2013 BROOKS KUSHMAN P.C./FGTL 1000 TOWN CENTER 22ND FLOOR SOUTHFIELD, MI 48075-1238 EXAMINER DAYOAN, DARRELL G ART UNIT PAPER NUMBER 3612 MAIL DATE DELIVERY MODE 05/15/2013 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 ANTHONY VALASIN, RADESH VANGIPURAM, RICHARD SQUIRES, PHILIP SKINNER, and JOSEPH TALAMONTI ________________ Appeal 2011-000856 Application 11/620,186 Technology Center 3600 ________________ Before MURRIEL E. CRAWFORD, MEREDITH C. PETRAVICK, and JAMES A. TARTAL, Administrative Patent Judges. TARTAL, Administrative Patent Judge. DECISION ON APPEAL Appeal 2011-000856 Application 11/620,186 2 STATEMENT OF THE CASE1 Anthony Valasin, et al. (Appellants) seek our review under 35 U.S.C § 134 of the Examiner’s final decision rejecting claims 1, 3-6, 8, 9, 11-17, 19 and 20. We have jurisdiction over the appeal pursuant to 35 U.S.C. § 6(b). Appellants’ claimed invention relates to automotive vehicle seat systems. Spec. 1. Claim 9, reproduced below, is illustrative of the subject matter on appeal. 9. A removable seat for an automotive vehicle including a floor pan and a striker to locate the seat relative to the floor pan, the seat comprising: a structural member to provide support for the seat; and a riser attached with the structural member to space the seat away from the floor pan, wherein the riser includes a hook feature, having a contact surface, to engage the striker, wherein a portion of the contact surface is in contact with the striker if the hook feature is engaged with the striker, wherein a portion of the riser has a layered structure, wherein the layered structure comprises a first metal layer having a hook edge, a second metal layer and a non- metal layer disposed between the first and second metal layers, and wherein the non-metal layer wraps around a portion of the hook edge of the first metal layer to form the contact surface. The Examiner relies upon the following evidence: Berklich US 4,759,580 Jul. 26, 1988 McCullen US 6,886,797 B2 May 3, 2005 1 Our decision will make reference to Appellants’ Appeal Brief (“App. Br.,” filed Jun. 29, 2010) and Reply Brief (“Reply Br.,” filed Sep. 30, 2010), and the Examiner’s Answer (“Ans.,” mailed Jul., 30, 2010). Appeal 2011-000856 Application 11/620,186 3 Claims 1, 3-6, 8, 9, 11-17, 19, and 20 stand rejected under 35 U.S.C. § 103(a) as being unpatentable over Berklich and McCullen. FINDINGS OF FACT We find that the findings of fact which appear in the Analysis below are supported by at least a preponderance of the evidence. Ethicon, Inc. v. Quigg, 849 F.2d 1422, 1427 (Fed. Cir. 1988) (explaining the general evidentiary standard for proceedings before the Office). ANALYSIS Obviousness based on Berklich and McCullen Claims 1, 3-6, 8, 9, 11-17, 19, and 20 Appellants argue claims 1, 3-6, 8, 9, 11-17, 19, and 20 as a group (App. Br. 4-6, Reply Br. 2). We select claim 9 as the representative claim for this group, and the remaining claims 1, 3-6, 8, 11-17, 19, and 20 each stand or fall with claim 9. 37 C.F.R. § 41.37(c)(1)(vii). We find not persuasive Appellants’ assertion that Berklich and McCullen do not disclose “wherein the non-metal layer wraps around a portion of the hook edge of the first metal layer to form the contact surface.” App. Br. 4. Appellants cannot overcome the Examiner’s obviousness determination by merely asserting that Berklich does not disclose a non- metal layer wrapped around the metal layer when the Examiner does not rely on Berklich for disclosing that feature. Likewise, Appellants cannot overcome the Examiner’s obviousness determination by merely asserting that McCullen lacks a hook feature when, again, the Examiner does not rely on McCullen for disclosing that feature. Appellants have not addressed the combination of prior art references as a whole but simply improperly argue Appeal 2011-000856 Application 11/620,186 4 the merits of each reference individually. See In re Keller, 642 F.2d 413, 425 (CCPA 1981) (citation omitted) (“The test for obviousness is not . . . that the claimed invention must be expressly suggested in any one or all of the references. Rather, the test is what the combined teachings of the references would have suggested to those of ordinary skill in the art.”). Additionally, the Examiner articulated reasoning with some rational underpinning to combine known elements from Berklich and McCullen by stating that: it would have been obvious to one of ordinary skill in the art to make the [Berklich] riser of a layered material with two metal layers and a non-metal layer located between the two metal layers since risers made of two metal layers are known equivalents to risers with only a single metal layer and using the structure of McCullen would have provided a predictable simple method of providing a non-metal layer to contact the striker and allow the seat to slide. Ans. 5. We further find not persuasive Appellants’ contention that, because Berklich provides an elastomeric damper, the Examiner’s rationale “lacks technical merit.” See App. Br. 4-5. Again, Appellants have not addressed the combination of prior art references as a whole and cannot overcome the Examiner’s obviousness determination by merely asserting that Berklich contains a feature, an elastomeric damper, the disclosure of which the Examiner does not rely on. Similarly, Appellants’ argument that McCullen’s slide member, “if somehow implemented in Berklich, would have no relation to Berklich’s floor shaft” is not persuasive. “The test for obviousness is not whether the features of a secondary reference may be bodily incorporated into the structure of the primary reference. . . . Rather, the test is what the combined teachings of those references would have Appeal 2011-000856 Application 11/620,186 5 suggested to those of ordinary skill in the art.” In re Keller at 425 (citations omitted). Lastly, Appellants’ contend that if the rigidity of Berklich’s riser is increased by utilizing two metal elements, then there would be an increase in vibration and harshness experienced by occupants. We find Appellants’ contention fails to overcome the Examiner’s determination because it lacks evidentiary support and does not account for the ability of the non-metal layer to reduce vibrations. Appellants have not shown that the proposed modification would render Berklich unsuitable for its intended purpose. CONCLUSIONS OF LAW We conclude that Appellants have not overcome the Examiner’s rejection of claims 1, 3-6, 8, 9, 11-17, 19, and 20 under 35 U.S.C. § 103(a) as unpatentable over Berklich and McCullen. DECISION We AFFIRM the decision of the Examiner to reject claims 1, 3-6, 8, 9, 11-17, 19, and 20. 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) (2011). AFFIRMED rvb