Ex Parte Wilkinson

Board of Patent Appeals and Interferences

Aug 8, 2011

10404962 (B.P.A.I. Aug. 8, 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.
10/404,962 03/31/2003 John W. Wilkinson MPL-3247US3 9200
5409 7590 08/09/2011
SCHMEISER, OLSEN & WATTS
22 CENTURY HILL DRIVE
SUITE 302
LATHAM, NY 12110
EXAMINER
CONLEY, FREDRICK C
ART UNIT PAPER NUMBER
3673
MAIL DATE DELIVERY MODE
08/09/2011 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 JOHN W. WILKINSON
____________________

Appeal 2009-010265
Application 10/404,962
Technology Center 3600
____________________

Before STEVEN D.A. McCARTHY, STEFAN STAICOVICI, and
FRED A. SILVERBERG, Administrative Patent Judges.

SILVERBERG, Administrative Patent Judge.

DECISION ON APPEAL

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STATEMENT OF THE CASE
John W. Wilkinson (Appellant) seeks our review under 35 U.S.C.
§ 134 of the final rejection of claims 26-29, 31-34, 40-45, 49-56, 59-62, 66,
68, 69 and 71-78. We have jurisdiction under 35 U.S.C. § 6(b).
We REVERSE.

THE INVENTION
Appellant’s claimed invention is directed to an inflatable cushioning
device for body supports (e.g., mattress, sofa or chair cushion) (Spec. 1:3-7).
Claim 26, reproduced below, is representative of the subject matter on
appeal.
26. A body support comprising:
a plurality of interconnected fluid cells forming a
plurality of groups, each said fluid cell including a reforming
element each said group including at least one manifold system
having at least one intake check valve;
an alternating fluid pressure system adapted to apply
alternating fluid pressure to each manifold system of each said
plurality of groups; and
a pressure relief valve operatively attached to an exhaust
conduit, said exhaust conduit operatively attached to said
plurality of interconnected fluid cells, wherein said pressure
relief valve sets the release pressure of all the fluid cells at an
identical level, wherein said body support is self-inflating and
self-adjusting to maintain a low interface pressure under a
patient if said alternating fluid pressure system fails or is
disconnected from said body support.

THE REJECTIONS
The following rejections by the Examiner are before us for review:
1. Claims 52, 53, 55, 56, 59, 61, 62, 66, 68, 71, 73 and 76 are rejected
under 35 U.S.C. § 103(a) as being unpatentable over Banko (US
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5,584,085, issued Dec. 17, 1996) in view of Liu (US 5,564,142, issued
Oct. 15, 1996).
2. Claims 26-29, 31-34, 40-45, 49-51, 54, 60, 69, 72 and 74-78 are
rejected under 35 U.S.C. § 103(a) as being unpatentable over Banko
in view of Liu, and further in view of Taylor (US 6,014,784, issued
Jan. 18, 2000).
ISSUES
The issues before us are:
(A) whether the Examiner erred in concluding that the combined
teachings of Banko and Liu would have rendered obvious (1) an intake
check valve attached to each of the fluid cells, as called for in independent
claims 52, 73 and 76, and (2) each fluid cell having an intake check valve, as
called for in independent claims 59, 66 and 71 (App. Br. 17, 18, 20, 22, 24,
26);
(B) whether the Examiner erred in concluding that the combined
teachings of Banko, Liu and Taylor would have rendered obvious (1) a body
support that is self-inflating, as called for in independent claims 26, 27, 31
and 49; and (2) a reforming element that creates a partial vacuum, as called
for in independent claim 75 (App. Br. 31, 34, 36, 37, 41);
(C) whether the Examiner erred in concluding that the combined
teachings of Banko, Liu and Taylor would have rendered obvious (1) an
intake check valve attached to each of the fluid cells, as called for in
independent claims 40 and 72, and (2) each fluid cell having an intake check
valve, as called for in independent claim 69 (App. Br. 37, 40, 41); and
(D) whether the Examiner erred in concluding that the combined
teachings of Banko, Liu and Taylor would have rendered obvious that the
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fluid cells maintain a pressure greater than the force exerted by the
reforming element, as called for in independent claim 78 (App. Br. 43).

ANALYSIS
Rejection of claims 52, 53, 55, 56, 59, 61, 62, 66, 68, 71, 73 and 76 over
Banko and Liu
Appellant contends that the combined teachings of Banko and Liu
would not have rendered obvious (1) an intake check valve attached to each
of the fluid cells, as called for in independent claims 52, 73 and 76, and (2)
each fluid cell having an intake check valve, as called for in independent
claims 59, 66 and 71 (App. Br. 17, 18, 20, 22, 24, 26).
The Examiner found that (1) “Banko discloses… a plurality of
interconnected fluid cells 1203 forming a plurality of groups, . . . each said
group including at least one intake control valve 24” (Ans. 10) (emphasis
bolded), (2) “Banko fails to disclose the intake valve comprising a check
valve” (Ans. 4), and (3) Liu discloses “an intake valve comprising a check
valve 5a” (id.) (emphasis bolded). The Examiner concluded that “[i]t would
have been obvious to for one having ordinary skill in the art at the time of
the invention to employ a check valve as taught by Liu” (id.).
While the Examiner concluded that it would be obvious to employ a
check valve in Banko as taught by Liu, the Examiner’s conclusion of
obviousness has not specifically stated how the check valve of Liu would be
incorporated into the teachings of Banko. However, the Examiner did find
that Banko describes a plurality of fluid cells forming a plurality of groups,
wherein each group includes an intake control valve (Ans. 10). Assuming
arguendo that the Examiner’s conclusion of obvious was referring to
providing each of Banko’s intake control valves with a check valve, we find
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that a check valve might have been provided for each group, which includes
a plurality of fluid cells, not for each of the fluid cells, as called for in
independent claims 52, 59, 66, 71, 73 and 76. KSR Int'l Co. v. Teleflex Inc.,
550 U.S. 398, 418 (2007) (“[R]ejections on obviousness grounds cannot be
sustained by mere conclusory statements; instead, there must be some
articulated reasoning with some rational underpinning to support the legal
conclusion of obviousness.”) In re Warner, 379 F.2d 1011, 1017 (CCPA
1967) (“The legal conclusion of obviousness must be supported by facts.
Where the legal conclusion is not supported by facts it cannot stand.”)
We reverse the rejection of independent claims 52, 59, 66, 71, 73 and
76 and dependent claims 53, 55, 56, 61, 62 and 68.

Rejection of claims 26-29, 31-34, 40-45, 49-51, 54, 60, 69, 72 and 74-78
over Banko, Liu and Taylor
Claims 26, 27-29, 31-34, 49-51 and 75
Appellant contends that the combined teachings of Banko, Liu and
Taylor would not have rendered obvious (1) a body support that is self-
inflating, as called for in independent claims 26, 27, 31 and 49; and (2) a
reforming element that creates a partial vacuum, as called for in independent
claim 75 (App. Br. 31, 34, 36, 37, 41).
The Examiner found that Banko describes (1) “a body support
comprising: a plurality of interconnected fluid cells 1203 forming a plurality
of groups, each said fluid cell including a reforming element 2301” (Ans. 5)
(emphasis bolded), and (2) wherein “the plurality of fluid cells inherently are
capable of maintaining a low interface pressure defined by a minimum
pressure by self-adjusting all of the fluid cells to an identical pressure
without power since they are interconnected” (id.).
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Independent claims 26, 27, 31 and 49 call for, inter alia, said body
support to be “self-inflating and self-adjusting to maintain a low interface
pressure under a patient.”
Independent claim 75 calls for “a reforming element to create a partial
vacuum in each said fluid cell when unloaded.”
The Examiner has made no adequate finding that Banko describes a
body support that is self-inflating or that Banko’s foam insert, reforming
element 2301, creates a partial vacuum. Further, the Examiner’s conclusion
of obviousness does not adequately address whether the combined teachings
of Banko, Liu and Taylor would have rendered obvious a body support that
is self-inflating and a reforming element that creates a partial vacuum.
Banko describes that (1) “[i]f the air supply is terminated, then the pad
[10] will deflate by the air escaping through outlet 18” (col.5, ll. 56-57), (2)
“[s]ubstantially full deflation of all chambers [12] is achieved by stopping
the air supply [20] for a long enough period of time” (col. 5, ll. 58-59), and
(3) “[i]n a preferred embodiment of the invention, the inflation-deflation
cycle is accomplished by the control valve 24” (col. 5, ll. 63-65).
Banko describes “[i]n another embodiment a foam insert 2301 is
utilized in the pillows [1203] of the present invention . . . [wherein] “the
pillow 1203 is formed around the foam insert 2301 . . . [and] [t]he foam
inserts 23 [sic, 2301] provide a means for the pillows 1203 to retain their
shape, even without air pressure” (col. 17, l. 62-col. 18, l. 12).
Since Banko describes that the inflation-deflation cycle is
accomplished by the control valve 24, we find that Banko does not describe
(1) a body support that is self-inflating and (2) that the foam insert,
reforming element, 2301 creates a partial vacuum.
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We reverse the rejection of independent claims 26, 27, 31, 49 and 75
and dependent claims 28, 29, 32-34, 50 and 51.
Claims 40-45, 69 and 72
Appellant contends that the combined teachings of Banko, Liu and
Taylor would not have rendered obvious (1) an intake check valve attached
to each of the fluid cells, as called for in independent claims 40 and 72, and
(2) each fluid cell having an intake check valve, as called for in independent
claim 69 (App. Br. 37, 40, 41).
The Examiner has not relied on Taylor for any teaching that would
remedy the deficiency in the combined teachings of Banko and Liu as set
forth supra (Ans. 6).
Thus, for the same reasons set forth supra regarding independent
claim 52, we reverse the rejection of independent claims 40, 69 and 72, and
dependent claims 41-45.
Claim 78
Appellant contends that the combined teachings of Banko, Liu and
Taylor would not have rendered obvious that the fluid cells maintain a
pressure greater than the force exerted by the reforming element, as called
for in independent claim 78 (App. Br. 43).
The Examiner found that Banko
is inherently capable of maintaining a pressure greater than the
force exerted by the reforming elements whether in a powered or
non-powered mode since the pressure includes the remaining air
pressure contained within the cell in combination with the force
exerted by the reforming element thereby preventing the cell from
bottoming out
(Ans. 5).
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Claim 78 calls for, inter alia, “said fluid cells maintain a pressure
greater than the force exerted by the reforming element whether in a
powered or non-powered mode.”
As set forth supra, Banko describes that (1) if the air supply is
terminated, then the pad 10 will deflate by the air escaping through outlet 18,
(2) substantially full deflation of all chambers 12 is achieved by stopping the
air supply 20 for a long enough period of time, (3) in a preferred
embodiment of the invention, the inflation-deflation cycle is accomplished
by the control valve 24, and (4) the foam insert 2301 provide a means for the
pillows 1203 to retain their shape even without air pressure.
We find that in Banko, when air supply is stopped, Banko’s device is
in a non-powered mode. Since the stopping of the air supply 20 in Banko
achieves substantially full deflation of the chambers 12, we find that it is
unreasonable to assume that any air would remain in the cells of the
reforming elements, foam inserts 2301, as the Examiner has found. Thus,
we find that Banko’s fluid cells are not capable of maintaining a pressure
greater than the force exerted by the reforming element in a non-powered
mode, as called for in independent claim 78.
We reverse the rejection of independent claim 78.

CONCLUSIONS
The Examiner has erred in concluding that the combined teachings of
Banko and Liu would have rendered obvious (1) an intake check valve
attached to each of the fluid cells, as called for in independent claims 52, 73
and 76, and (2) each fluid cell having an intake check valve, as called for in
independent claims 59, 66 and 71.
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The Examiner has erred in concluding that the combined teachings of
Banko, Liu and Taylor would have rendered obvious (1) a body support that
is self-inflating, as called for in independent claims 26, 27, 31 and 49; and
(2) a reforming element that creates a partial vacuum, as called for in
independent claim 75.
The Examiner has erred in concluding that the combined teachings of
Banko, Liu and Taylor would have rendered obvious (1) an intake check
valve attached to each of the fluid cells, as called for in independent claims
40 and 72, and (2) each fluid cell having an intake check valve, as called for
in independent claim 69.
The Examiner has erred in concluding that the combined teachings of
Banko, Liu and Taylor would have rendered obvious that the fluid cells
maintain a pressure greater than the force exerted by the reforming element,
as called for in independent claim 78.

DECISION
The decision of the Examiner to reject claims 26-29, 31-34, 40-45, 49-
56, 59-62, 66, 68, 69 and 71-78 is reversed.

REVERSED

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