Ex Parte Wyatt et al

Patent Trial and Appeal Board

Jun 10, 2013

10415629 (P.T.A.B. Jun. 10, 2013)

UNITED STATES PATENT AND TRADEMARK OFFICE
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BEFORE THE PATENT TRIAL AND APPEAL BOARD
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Ex parte CHARLES C. WYATT and RICKY J. FONTAINE
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Appeal 2011-004379
Application 10/415,629
Technology Center 3600
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Before: JOHN C. KERINS, SCOTT A. DANIELS, and
JEREMY M. PLENZLER, Administrative Patent Judges.

DANIELS, Administrative Patent Judge.

DECISION ON APPEAL

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STATEMENT OF CASE
Charles C. Wyatt and Ricky J. Fontaine (Appellants) appeal under 35
U.S.C. § 134 from a rejection of claims 2-9, 21-24, 26 and 28-30. Claims 1,
10-20, 25, 27 and 31-34 are canceled. We have jurisdiction under 35 U.S.C.
§ 6(b).
The claims are directed to a therapeutic mattress assembly. Claim 2,
reproduced below, is illustrative of the claimed subject matter:
2. A therapeutic mattress assembly for supporting a
patient, the therapeutic mattress assembly comprising:
a low air loss mattress for supporting the patient, the
low air loss mattress having first and second elongated
sides, wherein the low air loss mattress includes a
bottom cover, a top cover detachably connected to the
bottom cover, and a substrate assembly positioned
within a cavity defined by the top and bottom cover, the
substrate assembly including a plurality of cylinders;
a lateral rotation assembly supporting the low air
loss mattress, the lateral rotation assembly being
inflatable to tilt the low air loss mattress and rotate the
patient;
a first elongated bolster supported by the low air loss
mattress adjacent to the first elongated side and
positioned in the cavity;
a second elongated bolster supplied by the low air
loss mattress adjacent to the second elongated side and
positioned in the cavity, the first and second elongated
bolsters being inflatable to secure the patient on the low
air loss mattress when the patient is being rotated by
the lateral rotation assembly; and
a calf lift bladder supported by the low air loss
mattress, the calf lift bladder being adjustably inflatable
to support calves of the patient.

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REFERENCES
The prior art relied upon by the Examiner in rejecting the claims on
appeal is:
Everard
Meyer
James
Wilkinson
Totton
US 5,142,717
US 5,666,681
US 6,085,372
US 6,370,716 B1
US 6,782,574 B2
Sep. 1, 1992
Sep. 16, 1997
Jul. 11, 2000
Apr. 16, 2002
Aug. 31, 2004

REJECTIONS
The Examiner made the following rejections:
Claims 2-9 stand rejected under 35 U.S.C §103(a) as being
unpatentable over Totton, Wilkinson, James, and Meyer. Ans. 4.
Claims 21, 22, 26 and 29-30 stand rejected under 35 U.S.C §103(a) as
being unpatentable over Totton, and Wilkinson . Ans. 7.
Claims 23, 24, and 28 stand rejected under 35 U.S.C §103(a) as being
unpatentable over Totton, Wilkinson, and Everard. Ans. 8.

ANALYSIS
Claim 2-9 as unpatentable over Totton, Wilkinson, James, and Meyer
Claim 2
The Examiner found that Totton discloses a low air loss mattress 100
having a top and bottom cover (coverlet 200) detachably connected by a
zipper 56 defining a cavity containing a substrate assembly including a
plurality of cylinders (air cells 30, 32, 34 and 36). Ans. 4 and see Totton
col. 6, l. 60- col. 7, l. 10 and figs. 4 and 5. The Examiner found that Totton
did not disclose a lateral rotation assembly, and although Totton discloses
first and second elongate side bolsters 26, 29 within the cavity, these bolsters
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were not inflatable bolsters as called for in claim 2. The Examiner turned to
Wilkinson for a pair of selectively inflatable wedges 302A-B which
facilitate lateral rotation of a patient supported on the mattress, and to James
for elongate inflatable side bolsters 46 which keep a patient from falling off
the mattress when being turned in conjunction with one or the other of the
wedges. Ans. 4. The Examiner further found that Meyer discloses a calf lift
bladder supported by the mattress. Id. The Examiner concluded that it
would have been obvious to modify Totton to use the calf lift bladder to
reduce pressure on the heels of a patient for purposes of reducing skin
breakdown on the back of the heels and to “to employ the inflatable wedges
as taught by Wilkinson in order to assist the care giver in helping the patient
rotate,” and from James, to make the bolsters inflatable in order to prevent
the patient from falling out of the bed during lateral rotation. Ans. 4-5.
Appellants argue generally that Totton fails to teach any of the
elements recited in claim 2, and specifically that Totton fails to disclose the
lateral rotation assembly, the first and second elongate bolsters being
inflatable, and a calf lift bladder. App. Br. 11, Reply Br. 5. Appellants
assert that Totton’s bolsters are not supported by a low air loss mattress as
recited in claim 2 in that they “are in no way supported by the air cells.”
App. Br. 11, Reply Br. 6. Appellants argue that Wilkinson fails to cure the
deficiencies of Totton and does not teach or suggest a therapeutic mattress
including elongate bolsters and a calf lift bladder but “merely discloses a
mattress cushioning device 300 including lifting pods 302A and 302B.” Id.
Appellants argue that James also fails to cure the deficiencies of Totton
because “the bolsters 46 are in no way supported by the cells 44.” App. Br.
12. Appellants also dispute that Meyer’s heel bladders are “supported by the
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mattress” and argue that such heel bladders are essentially the same as
Totton’s foot cells 36 located in the mattress and therefore add nothing that
is not already disclosed by Totton. Id. Appellants’ overarching contention
is that the combination of Totton, Wilkinson, James and Meyer, does not
teach or suggest “at least an inflatable bolster supported by a low air loss
mattress or a calf lift bladder supported by a low air loss mattress.” App. Br.
12. (Emphasis added.)
Claim 2 recites that “the low air loss mattress includes a bottom cover,
a top cover detachably connected to the bottom cover, and a substrate
assembly positioned within a cavity defined by the top and bottom cover, the
substrate assembly including a plurality of cylinders.” The low air loss
mattress is thus not merely the air cylinders of the substrate, but also the
cover and cavity in which the substrate is positioned. James discloses
selectively inflatable bolsters 46 supported inside the two-piece cover 49.
James fig. 2 and col. 1, ll. 46-49. Meyer’s heel bladders are similarly
supported by the bottom foam section 24 within the mattress 12. Meyer fig.
1 and col. 2, ll. 18-44. Appellants’ argument that neither the bolsters, nor
the heel bladders are supported by the mattress is not commensurate in scope
with the claims. Appellants’ position that the claim should be limited to the
bolsters and heel bladders being supported by, or on top of the air cells or
cylinders in the mattress does not apprise us of examiner error because claim
2 does not exclude the bolsters and heel bladder from being supported by
other structural components of the mattress besides the substrate air
cylinders.
Appellants additionally argue that there is no teaching or suggestion to
combine the references, and that the Examiner fails to provide a reason to
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combine the four references. App. Br. 11-12, Reply Br. 6. There is no
legal requirement that the Examiner’s reasoning or rationale be predicated
on “a suggestion” in the references. See KSR Int’l Co. v. Teleflex Inc., 550
U.S. 398, 419 (2007). The Examiner has provided an articulated reasoning
with rational underpinnings to support the combination of each of the
applied references with Totton and Appellants’ argument does not apprise us
of error in the Examiner’s stated reasons supporting the combination of
Totton, Wilkinson, James and Meyer.
To the extent Appellants assert that Wilkinson, James and Meyer do
not cure the deficiencies of Totton and the relative preceding combinations
of references (Reply Br. 6.), Wilkinson is relied upon for teaching the lateral
rotation assembly, James is relied upon for teaching inflatable side bolsters,
and Meyer for the calf lift bladders supported by the mattress. Ans. 4-5.
There are no deficiencies for Wilkinson, James and Meyer to cure. Thus,
the rejection of claim 2 over the combined teachings of Totton, Wilkinson,
James and Meyer is sustained.
Claim 4
Claim 4 recites the therapeutic mattress in claim 2 as “further
comprising an overlay assembly positioned on top of the substrate assembly,
the bolsters being located within the overlay assembly.” Appellants argue
that “[t]he bolsters 22 of Totton, even if modified by James, still extend (see
Fig. 3) along the sides of the air cells 30, 32, 34 and 36 and are in no way
supported by or positioned on top of the air cells.” App. Br. 13, Reply Br. 5.
Claim 4 however calls for the overlay assembly to be positioned on top of
the substrate assembly, not for the bolsters to be supported on top of the
substrate assembly. The Examiner noted that Totton discloses an overlay
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assembly, elements 20, 26 and 28 supported by the air cells 30, 32, 34 and
36 with the bolsters 22 located within the overlay assembly. Ans. 5 and see
Totton fig. 1. At least a portion of the overlay assembly (element 20) from
Totten is positioned on top of the substrate (air cells 30, 32, 34, 36). See
Totten fig. 1. Appellants’ argument that claim 4 should be limited to the
bolsters being supported “on top of the air cells” is not commensurate in
scope with the claim language and does not apprise us of examiner error.
We sustain the rejection of claim 4.
Claim 5
Claim 5 depends from claim 4, and additionally calls for the calf lift
bladder to be “positioned between the substrate assembly and the overlay
assembly.” Appellants argue that the Examiner has failed to support the
finding that Totton as modified by Meyer discloses a calf lift bladder
positioned between the substrate and the overlay assembly because Meyer
“discloses foot zone air cells 36 within the mattress 100 and not supported
by or positioned between an overlay assembly…and the other air cells.”
App. Br. 14, Reply Br. 7. The plain meaning of “between” is “in
intermediate relation to” MERRIAM-WEBSTER ONLINE DICTIONARY,
http://www.merriam-webster.com/ dictionary/ between (last visited June 2,
2013). The word “between” does not specify any particular direction or
vector relationship, nor even a linear arrangement of the elements. Thus, we
do not see why the modified Totten would not have the calf lift bladder
located between the substrate assembly and the overlay assembly (e.g., at
least laterally between the footer 28 and the air cells 30, 32) and we are not
apprised of Examiner error.

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Claim 8
Appellants assert that there is nothing in either Wilkinson or James
which suggests that a side bolster inflates with an associated lateral rotation
wedge as recited in claim 8. App. Br. 14. James however discloses that the
elongate side bolsters 46 “are selectively inflatable, and when inflated, form
barriers that prevent the patient 36 from falling off the bed 34 when the
patient 36 is turning.” Col. 3., ll. 28-35. The Examiner noted that as
combined with Wilkinson’s lateral rotation wedges, such selectively
inflatable side bolsters 46 would yield predictable results “to prevent the
patient from falling out of the bed as expressly taught by James.” Ans. 12.
Moreover, the limitations recited by claim 8 “wherein the first bolster
inflates with the second lateral rotation wedge and the second bolster inflates
with the first lateral rotation wedge,” are functional. James discloses a
controller 90 for regulating the air source 80 to different conduits and cells
and is therefore capable of inflating a first bolster with an associated rotation
wedge, and a second bolster with an associated rotation wedge as called for
in claim 8. James col. 4, ll. 33-61 and see, e.g., In re Schreiber, 128 F.3d
1473, 1477-78 (Fed. Cir. 1997).
The Examiner has presented an articulated reasoning with rational
underpinnings based upon evidence in the applied references, and
considering the functional nature of the claim language Appellants’
arguments do not apprise us error in the Examiner’s findings. Accordingly
we affirm the rejection of claim 8.
Claims 3, 6, 7 and 9
Claim 3 depends from claim 2, claims 6 and 7 depend from claim 5
which depends from claim 4, and claim 9 depends from claim 8. App. Br.,
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Clms. App’x. Appellants offer no new arguments for the patentability of
claims 3, 6, 7 and 9 and rely, instead, on their arguments asserted in support
of claims 2, 4, 5 and 8 respectively. App. Br. 13-14.
Inasmuch as we sustain the Examiner’s rejection of claims 2, 4, 5 and
8 and Appellants have failed to identify any facts or articulate any technical
reasoning that would patentably distinguish claims 3, 6, 7 and 9 from the
cited prior art references, we sustain the Examiner’s rejection of claims 3, 6,
7 and 9 for the same reasons as stated herein with respect to claims 2, 4, 5
and 8.

Claims 21, 22, 26, 29 and 30 as unpatentable over Totton, and Wilkinson
The Examiner found with respect to independent claim 21 that Totton
discloses a therapeutic mattress assembly comprising a low air loss mattress
100, a first layer of inflatable cylinders 30, 32, 34, 36 defining a substrate,
and a third layer atop the substrate comprising a foam material and a
selectively inflatable bladder. Ans. 7. The Examiner found that Wilkinson
taught a second layer where the inflatable wedges (pods) 302A-B are
positioned beneath the first layer and are selectively inflatable to facilitate
rotation of a patient on the mattress. Id.
Appellants’ first argument with respect to claim 21 is that Totton fails
to disclose either the first, second or third layers as recited in claim 21. App.
Br. 15. As discussed supra with respect to claim 2, we agree with the
Examiner’s findings that Totton and Wilkinson disclose selectively
inflatable cylinders and inflatable wedges 302A-B as recited in the claimed
first and second layers of claim 21. Appellants emphasize that in Totton the
“third layer atop the substrate comprising a foam material 20 and an
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inflatable layer defined by cover[]let 200 is actually two different layers.”
App. Br. 16, Reply Br. 7. Claim 21 recites “the third layer comprising: foam
material; and at least one selectively inflatable bladder.” Appellants’
argument is not commensurate in scope with the claim. The open ended
nature of “comprising” does not limit Appellants’ claimed “third layer” to a
single layer. Whether or not Totton’s foam material 20 is considered a
separate layer from the airflow passage 48 of the coverlet 200 is immaterial,
there is no claim language which defines what is, or is not, a layer in
Appellants claim. Without such a definition it is reasonable to consider
Totton’s foam and airflow layers together as a third layer atop the first
substrate layer and we are therefore not apprised of error in the Examiner’s
finding. See Totton fig. 5.
Appellants’ second argument regarding claim 21 asserts that where
the coverlet layer 46 (and layers 48 and 52) from Totton disclose the
selectively inflatable bladder in the claimed third layer, no portion of the
coverlet 200 is received within a cover as claimed. App. Br. 16. The
Examiner relies on Wilkinson as disclosing a cover 22 for encasing the
wedges and inflatable mattress. Ans. 7. Appellant disputes that Wilkinson
discloses a cover, but does not address the Examiner’s finding regarding
cover 22, stating only that “Wilkinson merely discloses a mattress
cushioning device 300 including lifting pods 302A and 302B.” App. Br. 16.
Appellants’ second argument here does not point out specific errors in the
Examiner’s findings or reasoning, and amounts to no more than a general
allegation of patentability. Neither of Appellants’ arguments apprise us of
error in the Examiner’s findings here and we sustain the rejection of claim
21 as unpatentable.
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Claim 26
Claim 26 depends directly from claim 21 and recites the limitation
“wherein the layer of foam comprises visco-elastic foam.” The Examiner
found that visco-elastic foam was a known material, and that it would be
obvious “to select a visco-elastic foam in order to provide an alternative
supporting material.” Ans. 8. The Examiner reasoned that where Totton is
directed to reducing pressure which causes soft tissue damage to patients, a
visco-elastic material which has characteristics and properties which reduce
soft tissue damage would be an obvious alternative material to one of skill in
the art. Ans. 14.
Appellants dispute that visco-elastic foam is an obvious alternative
because visco-elastic foam has characteristics and properties “which are
absent in non-viscoelastic foam.” App. Br. 17, Reply Br. 7-8. Appellants
explain that visco-elastic foam has a higher density and dramatically lower
hardness than conventional foam, and that these differences “greatly impact
the viability of certain foams in various products.” Id. These differences do
not explain however why one of skill in the art would not use visco-elastic
foam in a therapeutic mattress as an alternative to conventional foam. The
Examiner has presented a reasonable explanation with rational
underpinnings that the properties and characteristics of visco-elastic foam
reduce pressure points on the patient’s body. This finding is consistent with
Appellants’ Specification which describes “[t]he visco-elastic foam material
possesses specific thermally activated properties which [] conform the
surface to the shape of the patient's body. This feature also distributes the
weight of the patient over a greater area.” Spec., p. 4. Without evidence or a
technical explanation to the contrary, Appellants’ assertion of visco-elastic
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foam properties as different from conventional foam does not explain why
such differences make visco-elastic foam a non-viable alternative for use in
therapeutic mattresses. Accordingly, we are not apprised of error in the
Examiner’s findings and we sustain the rejection of claim 26.
Claims 29 and 30
Claims 29 and 30 depend from claim 28 and recite further limitations
relating to the selectively inflatable wedge, or wedges for raising a desired
portion, or side of the mattress. The Examiner relies on Wilkinson which
discloses the selectively inflatable wedges 302A-B for raising a portion of
the mattress to facilitate lateral rotation of a patient on the mattress. Ans. 7.
Appellants do not offer separate arguments regarding the propriety of
the Examiner’s rejection of claims 29 and 30 but rely upon the arguments
presented for claim 28. App. Br. 18. For the reasons discussed supra with
regards to the combination of Totton and Wilkinson in independent claim 2,
and for the reasons discussed infra with respect to claim 28, we sustain the
rejection of claims 29 and 30 as unpatentable over Totton and Wilkinson.
Claims 23, 24, and 28 as unpatentable over Totton, Wilkinson, and Everard.
Claim 23
Claim 23 depends directly from claim 21 and additionally recites “a
layer of foam within the internal chamber” of each of the inflatable
cylinders. The Examiner found that Everard discloses foam contained in an
internal chamber of an inflatable cylinder and reasoned that it would have
been obvious to one of skill in the art to use foam in the cylinders to provide
additional load support. Ans. 8.
Appellants acknowledge that Everard discloses a foam support
element 20 positioned within an air chamber 10 of an air mattress, but argue
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that Everard does not disclose any of the other elements recited in
independent claim 21, upon which claim 23 depends, and therefore does not
cure the deficiencies in the underlying combination of Totton and
Wilkinson. App. Br. 18-19 citing Everard fig. 2a. As we sustain the
Examiner’s rejection of claim 21 in view of Totton and Wilkinson pursuant
to our discussion supra, there are no deficiencies for Everard to cure. We
sustain the rejection of claim 23.
Claim 24
Claim 24 depends from claim 23, and ultimately upon independent
claim 21, and like claim 26 recites the limitation “wherein the layer of foam
comprises visco-elastic foam.” Inasmuch as we sustain the Examiner’s
rejection of claim 26 and Appellants have failed to identify any further facts
or articulate any technical reasoning that would patentably distinguish claim
24 from the cited prior art references, we sustain the Examiner’s rejection of
claim 24 for the same reasons as stated herein with respect to claim 26.
Claim 28
The Examiner found that Totton as modified by Wilkinson disclosed a
low air loss mattress for supporting a patient, a mattress cover and a plurality
of inflatable cylinders within the mattress cover defining a substrate, and a
layer of foam as well as an inflatable bolster situated within the mattress
cover and positioned atop the inflatable cylinders. Ans. 8. The Examiner
found that Everard disclosed that each of the plurality of inflatable cylinders
further comprised an internal chamber containing a layer of foam and
explained that one of skill in the art would use foam as taught by Everard to
provide load support within the cylinders. Id.
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Appellants make two specific arguments relative to claim 28, first that
Totton does not disclose a cylinder having a layer of foam within the
chamber, and second that Totton does not teach an inflatable bolster within
the mattress cover and positioned “atop” the cylinders, as called for in claim
28. App. Br. 21, Reply Br. 8.
For the first argument, as discussed supra with respect to claim 23, the
Examiner’s rejection relies upon Everard disclosing an air cylinder including
a foam material located therein for supporting a load. Appellants do not
dispute that Everard discloses a foam support element in an air chamber for
an air mattress. App. Br. 21. Appellants only contend that Everard does not
cure the deficiencies of Totton and Wilkinson. App. Br. 21. As we sustain
the Examiner’s rejection of claim 28 in view of Totton and Wilkinson
pursuant to our discussion infra there are no deficiencies for Everard to cure.
We sustain the rejection of claim 23.
For the second argument, as discussed with respect to claim 21, the
rejection relies upon Totton disclosing a third layer atop the substrate
comprising a foam material 20 and an inflatable layer, airflow passage 48,
defined by coverlet 200, and Wilkinson for a mattress cover 22 apart from
the coverlet 200. Ans. 7-8. Appellants additionally argue that Wilkinson
fails to cure the deficiencies of Totton because Wilkinson was cited by the
Examiner for the lateral rotation assembly which is not recited in claim 8.
App. Br. 21. However, Totton as modified here does not rely upon
Wilkinson for a rotation assembly, but for a mattress cover 22 as recited in
claim 28, apart from Totton’s coverlet element 200 defining the inflatable
layer within the mattress cover 22 and atop the substrate. Appellants’
arguments do not apprise us of error in the Examiner’s rejection of claim 28
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in view of Totton and Wilkinson and therefore there are no deficiencies for
Everard to cure. Thus, the rejection of claim 28 over the combined
teachings Totton, Wilkinson and Everard is sustained.
DECISION
For the above reasons, the Examiner’s rejection of claims 2-9 as
unpatentable over Totton, Wilkinson, James, and Meyer is AFFIRMED.
The rejection of claims 21, 22, 26 and 29-30 as being unpatentable
over Totton, and Wilkinson is AFFIRMED.
The rejection of claims 23, 24, and 28 as being unpatentable over
Totton, Wilkinson, and Everard is AFFIRMED.
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a)(1)(iv) (2009).

AFFIRMED

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