Ex Parte Wells

Board of Patent Appeals and Interferences

Sep 15, 2009

11340165 (B.P.A.I. Sep. 15, 2009)

UNITED STATES PATENT AND TRADEMARK OFFICE
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BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
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Ex parte TIMOTHY R. WELLS

Appellant
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Appeal 2009-008855
Application 11/340,165
Technology Center 3600
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Decided: September 15, 2009
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Before RICHARD E. SCHAFER, RICHARD TORCZON, and SALLY
GARDNER LANE, Administrative Patent Judges.

LANE, Administrative Patent Judge.

DECISION ON APPEAL
Appeal 2009-008855
Application 11/340,165

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I. STATEMENT OF THE CASE
The appeal, under 35 U.S.C. § 134(a), is from a Final Rejection of
Appellant’s claims 1-20. We have jurisdiction under 35 U.S.C. § 6(b). We
affirm.
Appellant’s application is directed to an ambulance cot with a portion
of the frame that can be rotated in a full range of positions, from upright to
fully extended. (Spec. 1).
The Examiner relied on the following references:
Name Number Date
Katenkamp 2,040,942 May 19, 1936
Ferneau 2004/0034935 February 26, 2004

The Examiner rejected claims 1-20 under 35 U.S.C. § 103(a) over
Ferneau and Katenkamp. Although Appellant discussed independent claims
1 and 12 separately, they provided the same arguments for each. We focus
on claim 1 in our review. See 37 C.F.R. § 41.37(c)(vii).
II. PRINCIPLES OF LAW
“When a work is available in one field of endeavor, design incentives
and other market forces can prompt variations of it, either in the same field
or a different one. If a person of ordinary skill can implement a predictable
variation, § 103 likely bars its patentability.” KSR Int’l Co. v. Teleflex, Inc.,
550 US 398, 417 (2007).
“Common sense teaches, however, that familiar items may have
obvious uses beyond their primary purposes, and in many cases a person of
ordinary skill will be able to fit the teachings of multiple patents together
like pieces of a puzzle.” Id. at 420.
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III. FINDINGS OF FACT
1. Appellant’s claim 1 recites:
An elevating cot adapted to be rolled into emergency
vehicles, said cot comprising:
a generally rectangular cot frame having side frame
members and a movable backrest;
and
a drop frame rotatably mounted to said cot frame and
independently moveable from the backrest, said drop frame
being positionable in an extended position and an upright
position, wherein the extended position situates the drop frame
substantially level to a plane defined by the side frame
members, and the upright position situates the drop frame
above the extended position about perpendicular to the plane
defined by the side frame members.

(App. Br. 15, Claims App’x).
2. Figure 2 of Appellant’s specification is reproduced below.

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Figure 2 depicts an ambulance cot with rectangular cot frame and a drop
frame (30) that can be positioned in a number of positions including a lower
position (48), an essentially horizontal position (40) and the upright or
essentially perpendicular position (44). (Spec. [0015] and Figure 2).
3. Ferneau teaches an ambulance cot, which is depicted in Figure
1b, reproduced below.

Figure 1b depicts an ambulance cot with a cot frame and a drop frame (15)
that can be place in a lowered position (solid lines), a middle position
(dashed lines) or a horizontal position. (Ferneau ¶ [0023] and Figure 2b).
4. Figure 2b of Ferneau is reproduced below.
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Application 11/340,165

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Figure 2b shows the drop frame (15) in a horizontal position and depicts the
latch mechanism (19) of the ambulance cot, with a hinge pivot (14) and slots
(99). (Ferneau ¶ [0022]).
5. Ferneau teaches that the hinge pivot (14) “limits the range of
motion of drop frame (15). (Ferneau ¶ [0022]).
6. The drop frame taught in Ferneau cannot be put into an upright
position above the cot frame that is “about perpendicular to the plane
defined by the side frame members,” as recited in Appellant’s claim 1.
7. Katenkamp teaches a collapsible chair with a hinged and
adjustable back rest that can fold into a flat position against the seat of the
chair for easy packing and carrying. (Katenkamp, col. 1, ll. 1-6).
8. Figure 1 of Katenkamp is reproduced below.
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Figure 1 depicts a seat with a back (2) and a circular socket (12), which acts
as a pivot point. (Katenkamp, col. 2, ll. 42-43).
9. Figure 5 of Katenkamp is reproduced below.

Figure 5 depicts the circular socket (12) with multiple openings (17) that
engage pin (18) to achieve multiple positions of the back of the seat.
(Katenkamp col. 2, ll. 54-55).
10. The circular socket taught in Katenkamp allows the seat back to
be put into a range of positions from a reclining position (36), an essentially
perpendicular position (35) and a folded position against the seat of the
chair. (Katenkamp, Figure 5 and p. 2, col. 2, ll. 11-22).
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IV. ISSUE
Would it have been obvious for a skilled artisan to modify the latch
mechanism of Ferneau according to the circular socket of Katenkamp to
achieve an ambulance cot that can be folded more completely and
maneuvered more easily?
V. ANALYSIS
Ferneau teaches an ambulance cot with a cot frame and drop frame
(FF 3), as recited in Appellant’s claim 1 (FFs 1 and 2), but the ambulance
cot of Ferneau cannot be positioned with the drop frame perpendicular to the
plane of the side frame members of the cot frame (FF 6). The latch
mechanism taught in Ferneau prevents this positioning because it has a hinge
which “limits the range of motion of the drop frame . . . .” to be higher than
level with the plane of the side frames (FFs 4 and 5).
In contrast to the hinge pivot of Ferneau, Katenkamp teaches a
circular socket, that is, a hinge pivot, which allows positioning of the seat
back in a wide range of positions including a position perpendicular to the
seat of the chair. (FF 8). Katenkamp teaches that this positioning makes the
chair more convenient allowing for easy packing and carrying. (FF 7).
One skilled in the art would have recognized that using a circular
socket of the type taught by Katenkamp would result in an ambulance cot
that can fold more completely and would be more maneuverable and
convenient to use. Thus, one skilled in the art would have had reason to use
a circular socket such as that taught by Katenkamp, in the cot frame of
Ferneau. Adding a circular socket with the functionality taught by
Katenkamp to Ferneau’s cot would have been obvious.
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Appellant argues that Katenkamp and Ferneau do not relate to
analogous arts because the seat in Katenkamp does not have a drop frame
and is not part of a cot. (App. Br. 9-10). Both Ferneau and Katenkamp
relate to folding and transporting supports for a seated person and thus are
directed to the same problem, even if they are used in different situations
and have different components. Similarly, Appellant’s claimed cot is
designed to improve a folding support for a seated or reclining person. (See
Spec. 1 (“The present invention alleviates or at least ameliorates the above-
mentioned difficulties [in maneuvering a lowered cot] by providing a simple
arrangement that conveniently provides an improved drop frame having a
wider range of motion to a cot construction.”). See In re Oetiker, 977 F.2d
1442, 1447 (Fed. Cir. 1992) (“In order to rely on a reference as a basis for
rejection of the applicant's invention, the reference must either be in the field
of the applicant's endeavor or, if not, then be reasonably pertinent to the
particular problem with which the inventor was concerned.”). Thus, we are
not persuaded by Appellant’s argument.
Appellant also argues that Ferneau teaches away from the claimed cot
by teaching that the hinge pivot (14) “limits the range of motion of the drop
frame 15.” (App. Br. 9; see FF 5). Appellant notes that the hinge pivot (14)
includes a stop mechanism that prevents the drop frame from being upright
and perpendicular to the side frame members. (App. Br. 9). “A reference
may be said to teach away when a person of ordinary skill, upon reading the
reference, would be discouraged from following the path set out in the
reference, or would be led in a direction divergent from the path that was
taken by the applicant.” In re Gurley, 27 F3d 551, 553 (Fed. Cir. 1994).
Ferneau does not teach that it is undesirable to allow the drop frame to be
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positioned perpendicularly to the side frame members when the drop frame
is upright, but merely illustrates a cot that does not achieve this effect. Thus,
Ferneau does not teach away from using the circular socket of Katenkamp or
Appellant’s claimed cot.
Appellant argues further that incorporating the circular socket of
Katenkamp into the cot of Ferneau would render the cot inoperable for its
intended function because the socket in Ferneau includes a stop mechanism
and so is not intended to pivot fully. (App. Br. 10). Appellant’s argument
is not understood. The purpose of Ferneau’s cot is to provide a cot having
“a simple arrangement that conveniently provides additional side
handling/lifting surfaces to a cot construction.” (Ferneau ¶ [0005]). The
inclusion of a pivot having a greater range of motion would not detract from
this purpose.
VI. CONCLUSION
It would have been obvious for a skilled artisan to modify the latch
mechanism of Ferneau according to the circular socket of Katenkamp to
achieve an ambulance cot that can be folded more completely and
maneuvered more easily.
VII. ORDER
Upon consideration of the record and for the reasons given, the
rejection of claims 1-20 under 35 U.S.C. § 103(a) over Ferneau and
Katenkamp is AFFIRMED.
FURTHER ORDERED that no time period for taking any subsequent
action in connection with the appeal may be extended under 37 C.F.R.
§ 1.136(a)(1)(iv).
Appeal 2009-008855
Application 11/340,165

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AFFIRMED

Ack

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