Jessica Kell

Patent Trials and Appeals Board

Jun 21, 2021

2021000210 (P.T.A.B. Jun. 21, 2021)

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.
15/617,141 06/08/2017 Jessica Joy Kell 4298
153927 7590 06/21/2021
John Swingle
Kaleo Legal
4456 Corporation Lane
Suite 135
Virginia Beach, VA 23462
EXAMINER
HICKS, VICTORIA J
ART UNIT PAPER NUMBER
3786
MAIL DATE DELIVERY MODE
06/21/2021 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 JESSICA JOY KELL

Appeal 2021-000210
Application 15/617,141
Technology Center 3700
Before ANNETTE R. REIMERS, JILL D. HILL, and
MICHAEL L. WOODS, Administrative Patent Judges.
WOODS, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Pursuant to 35 U.S.C. § 134(a), Appellant1 appeals from the
Examiner’s decision to reject claim 1. Appeal Br. 3. We have jurisdiction
under 35 U.S.C. § 6(b).
We AFFIRM.

1 We use the word Appellant to refer to “applicant” as defined in 37 C.F.R.
§ 1.42(a). Appellant identifies the inventor, Jessica J. Kell, as the real party
in interest. Appeal Br. 3.
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Application 15/617,141

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CLAIMED SUBJECT MATTER
The application is titled “Dynamic Infant Head Support.” Spec. 1.
We reproduce sole claim 1, below:
1. A dynamic head support system comprising:
a) a pillow with a central opening adapted to receive the
head of a patient with portions of the pillow surrounding the
opening adapted to support the head of the patient;
b) a plurality of barriers disposed at spaced intervals
about an interior of said pillow to divide the pillow into a
plurality of inflatable compartments;
c) a plurality of valves;
d) a pump for introducing pressurized fluid into said
interior of said pillow for distribution into one or more of said
plurality of inflatable compartments; and
e) a controller configured to operate said plurality of
valves in a predetermined sequence to inflate and deflate
selected ones of said plurality of inflatable compartments, so as
to periodically gently lift and turn slightly the head of the
patient to prevent, or alleviate, head deformation.
Appeal Br. 7 (Claims App.) (emphasis added).

REFERENCE
The Examiner relies on US Patent Publication Number 2007/0061976
A1, published on March 22, 2007, to Bazargani (“Bazargani”). Final Act. 4.

REJECTION
Claim 1 stands rejected under 35 U.S.C. § 102(e) as anticipated by
Bazargani.
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OPINION
a. Examiner’s Rejection
In rejecting claim 1 as anticipated by Bazargani, the Examiner cites to
Bazargani’s Figure 4 (see Final Act. 4), which we reproduce, below:

Figure 4 is a cross-sectional view of a therapeutic support system.
Bazargani ¶¶ 19, 21. Specifically, Figure 4 depicts support structure 10 with
five independently inflatable chambers 12, 13, 14, 15, and 16. See id. ¶ 23
(referencing Figure 1). Figure 4 also shows head supporting surfaces 17, 18,
which face each other and diverge from the rear edge of lower chamber 12.
See id. ¶ 27. Between surfaces 17, 18 is gap or region 21, which is
“dimensioned such that when the sleeper’s head rests upon the upper surface
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of chamber 12, lateral head support is provided.” See id. ¶ 27 (bold
emphasis omitted).
The Examiner finds that Bazargani discloses a pillow with a central
opening (gap or region 21) adapted to receive the head of a patient with
portions of the pillow surrounding the opening adapted to support the head
of the patient. Final Act. 4 (citing Bazargani ¶ 27, Fig. 4).
As to the claimed “plurality of valves,” “pump,” and “controller
configured to operate said plurality of valves in a predetermined sequence to
inflate and deflate,” the Examiner cites in part to Bazargani’s Figure 1 (Final
Act. 4), which we reproduce, below:

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Figure 1 is a block schematic diagram illustrating Bazargani’s 5-chambered
therapeutic support system. Bazargani ¶ 18. In particular, Figure 1 depicts
control unit 20 with microprocessor 22 for operating pump relay 23 and air
pressurization pump 24. Id. ¶ 24. Air is delivered into chambers 12–16 by
way of five-valve manifold 28. Id. Valve controller 34, under the control of
microprocessor 22, establishes fluid communication between one or more
chambers 12–16 and pump 24. Id.
The Examiner finds that Bazargani discloses pump 24 for introducing
pressurized fluid into the interior of the pillow with controller 34
configured to operate (by controlling) said plurality of valves
(five-valve manifold 29) in a predetermined (inasmuch as it is
predetermined during the design of the device) sequence to
inflate . . . and deflate . . . selected ones of said plurality of
inflatable compartments . . . so as to periodically gently lift and
turn slightly the head of the patient to prevent, or alleviate, head
deformation (capable of gently lifting and turning slightly the
head of the patient to prevent, or alleviate, head deformation
when the patient’s head is positioned on therapeutic cushion.
Final Act. 4–5 (citing Bazargani ¶ 24). The Examiner further finds that
Bazargani “teaches adjustment of the size and/or firmness of each chamber
to dynamically adjust the position of the user’s head.” Id. at 5 (citing
Bazargani ¶ 15).

b. Analysis
In contesting the rejection, Appellant argues that Bazargani does not
disclose “a controller configured to operate said plurality of valves in a
predetermined sequence to inflate and deflate selected ones of said
plurality of inflatable compartments, so as to periodically gently lift and
turn slightly the head of the patient to prevent, or alleviate, head
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deformation.” See Appeal Br. 4. Appellant explains that “Bazargani
teaches adjusting a therapeutic cushion to change a sleeper’s head position
when snoring sounds are detected via microphone.” Id. (citing Bazargani
¶ 29). Appellant asserts that the “Office Action presented no evidence or
reasoning why one of ordinary skill in the art would interpret the phrase
‘configured to’ as merely denoting an intended use.” Id. at 5.
In response to Appellant’s argument, the Examiner explains that
Bazargani discloses that its microprocessor executes an algorithm to operate
its valve controller, and that “[a]n algorithm is a predetermined program and
therefore, execution of the algorithm of Bazargani functions to operate the
valves (five-valve manifold 29) via valve controller 34 in a predetermined
order of events (or sequence).” Ans. 6. The Examiner further explains that
“one should note that the device of Bazargani at a high level functions to
combat snoring utilizing a predetermined system to detect snoring and
consequently inflate and deflate chambers as necessary to move the user’s
head and alleviate snoring.” Id. (citing Bazargani ¶ 15, Abstr.).
As to the term “predetermined,” the Examiner explains that
“Bazargani can be considered to be ‘predetermined’ inasmuch as the
operation of the therapeutic cushion of Bazargani was established in
advanced, or predetermined, during the design of the invention.” Id. at 7.
As to the claim language, “so as to periodically gently lift and turn
slightly the head of the patient to prevent, or alleviate, head deformation,”
the Examiner explains that “a recitation of intended use of the claimed
invention must result in a structural difference between the claimed
invention and the prior art in order to patentably distinguish the claimed
invention from the prior art.” Id. The Examiner further explains that “the
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device of Bazargani is capable of changing (or, moving) a user’s head
position. Said movement of a user’s head is capable of being performed
gently to lift and turn slightly the head of the patient, which can prevent, or
alleviate, head deformation.” Id. (citing Bazargani ¶ 15, Abstr.).
We agree with the Examiner.
Even if Bazargani discloses that its control algorithm changes the
sleeper’s head position based upon the detection of snoring (see Appeal Br.
4 (citing Bazargani ¶ 29)), Bazargani’s therapeutic support system
nevertheless satisfies the claimed limitations.
Bazargani’s microprocessor 22 and controller 34—when executing its
algorithm—is configured to operate pump relay 23, valve manifold 28, and
pump 24 in a predetermined order of events to inflate and deflate its plurality
of inflatable compartments 12, 13, 14, 15, and 16. See Bazargani ¶ 24. We
find this disclosure as satisfying the claimed “controller configured to
operate said plurality of valves in a predetermined sequence to inflate and
deflate selected ones of said plurality of inflatable components.”
As to the claimed, “so as to periodically gently lift and turn slightly
the head of the patient to prevent, or alleviate, head deformation,” we agree
with the Examiner that this is merely an intended use of the device. See
Ans. 7.
“It is well settled that the recitation of a new intended use for an old
product does not make a claim to that old product patentable.” See In re
Schreiber, 128 F.3d 1473, 1477 (Fed. Cir. 1997); In re Casey, 370 F.2d 576,
580 (CCPA 1967) (the manner in which a device is to be used is not
germane to the issue of patentability of the device itself). As stated in
Schreiber:
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[W]here the Patent Office has reason to believe that a functional
limitation asserted to be critical for establishing novelty in the
claimed subject matter may, in fact, be an inherent characteristic
of the prior art, it possesses the authority to require the applicant
to prove that the subject matter shown to be in the prior art does
not possess the characteristic relied on.
Schreiber, 128 F.3d at 1478; see also Boehringer Ingelheim Vetmedica, Inc.
v. Schering-Plough Corp., 320 F.3d 1339, 1345 (Fed. Cir. 2003) (“An
intended use or purpose usually will not limit the scope of the claim because
such statements usually do no more than define a context in which the
invention operates”).
In the present case, Bazargani’s therapeutic pillow “change[s] a
sleeper’s head position . . . by automatic adjustments in the inflation of one
or more chambers.” Bazargani ¶ 29; see also id. ¶ 15 (“A chamber
adjustment system . . . is operative to independently adjust the size and/or
firmness of each chamber so as to dynamically adjust the position of the
user’s head”). In adjusting the position of a sleeper’s head, we agree with
the Examiner that Bazargani’s system is capable of performing the function
of “periodically gently lift[ing] and turn[ing] slightly the head of the patient
to prevent, or alleviate, head deformation.” See Ans. 7.
For the foregoing reason, Appellant’s arguments do not persuade us of
Examiner error in the rejection of claim 1.

CONCLUSION
We affirm the rejection of claim 1 as anticipated by Bazargani.
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Application 15/617,141

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DECISION SUMMARY
In summary:
Claim(s)
Rejected
35
U.S.C. §
Reference(s)/Basis Affirmed Reversed
1 102(e) Bazargani 1
TIME PERIOD FOR RESPONSE
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).

AFFIRMED