LP4, LLC

Patent Trials and Appeals Board

Oct 22, 2021

2021002006 (P.T.A.B. Oct. 22, 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.
15/933,528 03/23/2018 Olof Hakan Sjogren 2932560-000010 9686
49840 7590 10/22/2021
Atlanta Baker Donelson
Intellectual Property Department
Monarch Plaza, Suite 1600
3414 Peachtree Rd.
ATLANTA, GA 30326
EXAMINER
ROS, NICHOLAS A
ART UNIT PAPER NUMBER
3754
NOTIFICATION DATE DELIVERY MODE
10/22/2021 ELECTRONIC
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.
Notice of the Office communication was sent electronically on above-indicated "Notification Date" to the
following e-mail address(es):
ipdocketing@bakerdonelson.com
PTOL-90A (Rev. 04/07)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________

Ex parte OLOF HAKAN SJOGREN and JAKOB CARL ERIK SJOGREN

Appeal 2021-002006
Application 15/933,528
Technology Center 3700
____________

Before ANTON W. FETTING, CYNTHIA L. MURPHY, and
KENNETH G. SCHOPFER, Administrative Patent Judges.

SCHOPFER, Administrative Patent Judge.

DECISION ON APPEAL
Pursuant to 35 U.S.C. § 134(a), Appellant1 appeals from the
Examiner’s decision to reject claims 1–11 and 13–27. We have jurisdiction
under 35 U.S.C. § 6(b).
We AFFIRM IN PART.

1 We use the word “Appellant” to refer to “applicant” as defined in 37
C.F.R. § 1.42. Appellant identifies the real party in interest as “[t]he
Applicant.” Appeal Br. 3.
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BACKGROUND
The Specification states that “[t]his invention relates generally to a
seating device, and more particularly to an assistive seating device.”
Spec. 1, ll. 5–6. The Specification describes that the present invention is
directed to providing an assistive device “that will aid a person in rising
from a seated position to a standing position while allowing them to use their
arms during the process.” Id. at. 2, ll. 9–11.
CLAIMS
Claims 1, 11, and 22 are the independent claims on appeal. Claims 1
and 22 are illustrative of the appealed claims and recite:
1. An assistive seating device comprising,
a base having a front having a pair of front legs and a rear
having a pair of rear legs, said base including a pair of laterally
disposed first couplers positioned adjacent said base rear and a
pair of laterally disposed second couplers positioned adjacent
said base front, said base also including a pair of laterally
disposed stationary armrests extending from said front legs;
a seat portion pivotally coupled for reciprocal movement
to said base, said seat portion including a pair of laterally
disposed pivot mounts;
a pair of laterally disposed lifting cylinders, each lifting
cylinder having one end pivotally coupled to said seat portion
through one said pivot mount and an opposite end releasably
coupled to either one said first coupler or one said second
coupler,
whereby the selective positioning of the lifting cylinders
through the selective positioning of the opposite ends
determines the lifting force of the lifting cylinders upon the seat
portion.
22. An assistive seating device comprising,
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a base having a pair of rear lower couplers adjacent a rear
of said base and a pair of front lower couplers adjacent a front
of said base;
a seat portion pivotally coupled for reciprocal movement
to said base, said seat portion having a pair of upper pivot
mounts, the distance between said upper pivot mounts and said
pair of rear lower couplers being generally the same as the
distance between said upper pivot mounts and said pair of front
lower couplers;
a pair of laterally disposed lifting cylinders, each lifting
cylinder having a first end coupled to said seat portion through
said pivot mounts and a second end selectively coupled to said
base at either one said rear lower coupler of said pair of rear
lower couplers or one said front lower coupler of said pair of
front lower couplers,
whereby each lifting cylinder is selectively coupleable to
the seat portion and the base at a plurality of different
elevational angles which determines the lifting force of the
lifting cylinders upon the seat portion, and whereby the distance
between the pivots and the rear lower couplers and front lower
couplers are the same so that a tilting of the seat portion does
not occur should one lifting cylinder be coupled to a rear lower
coupler and the other lifting cylinder be coupled to a front
lower coupler.
Appeal Br. 24, 27–28.
REJECTIONS
1. The Examiner rejects claims 8, 10, 19, and 21–27 under 35 U.S.C.
§ 112(b) as indefinite.
2. The Examiner rejects claims 22, 23, 25, and 27 under 35 U.S.C.
§ 102(a)(1) as anticipated by Bennett.2

2 Bennett et al., US 6,035,462, iss. Mar. 14, 2000.
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3. The Examiner rejects claims 1, 5, 8, 10, 11, 16, 19, and 21 under
35 U.S.C. § 103 as unpatentable over Bennett in view of Gilbert.3
4. The Examiner rejects claims 2 and 13 under 35 U.S.C. § 103 as
unpatentable over Bennett in view of Gilbert and Splane.4
5. The Examiner rejects claims 3, 4, 14, and 15 under 35 U.S.C. § 103 as
unpatentable over Bennett in view of Gilbert and Sjögren.5
6. The Examiner rejects claims 6 and 17 under 35 U.S.C. § 103 as
unpatentable over Bennett in view of Gilbert and Sadler.6
7. The Examiner rejects claims 7 and 18 under 35 U.S.C. § 103 as
unpatentable over Bennett in view of Gilbert and Krapu.7
8. The Examiner rejects claims 9 and 20 under 35 U.S.C. § 103 as
unpatentable over Bennett in view of Gilbert and Sutou.8
9. The Examiner rejects claim 24 under 35 U.S.C. § 103 as unpatentable
over Bennett in view of Splane.
10. The Examiner rejects claim 26 under 35 U.S.C. § 103 as unpatentable
over Bennett in view of Sutou.
DISCUSSION
Indefiniteness
The Examiner determines that claims 8, 10, 19, 21, and 22 are
indefinite because they recite the term “generally,” which is a relative term
that “is not defined by the claim, the specification does not provide a

3 Gilbert, US D594,946 S, iss. June 23, 2009.
4 Splane, Jr., US 6,945,604 B2, iss. Sept. 20, 2005.
5 Sjögren, WO 2013/187819 A1, pub. Dec. 19, 2013.
6 Sadler et al., US 4,833,736, iss. May 30, 1989.
7 Krapu, US 6,189,164 B1, iss. Feb. 20, 2001.
8 Sutou et al., US 2006/0048296 A1, pub. Mar. 9, 2006.
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standard for ascertaining the requisite degree, and one of ordinary skill in the
art would not be reasonably apprised of the scope of the invention.” Final
Act. 4. The Examiner rejects claims 23–27 based on their dependency from
claim 22. Id. The Examiner also rejects claims 8 and 19 based on the
recitation that requires “the first couplers to be positioned ‘generally directly
below said pivot mounts’” because “it is unclear what positioning would be
considered ‘generally directly’ beneath the pivot mounts and as the seat rises
or lowers the position of the mounts relative to the front and rear of the base
changes.” Id. at 5. Finally, the Examiner also rejects claims 10, 21, and 22
to the extent these “claims call for the front and rear couplers to be
positioned such that there is an equal distance between each coupler and
their respective pivot mounts.” Id.
Appellant does not raise any substantive arguments regarding this
rejection. See Appeal Br. 8 (stating only that Appellant “stands ready to
delete the term ‘generally’ from the claims.”). However, because the
rejections based on the prior art depend on an understanding of the claims,
we will consider the merits of this rejection. As discussed below, we are not
persuaded that any of the issues raised by the Examiner show that the claims
are indefinite.
To the extent the Examiner takes issue with the use of the term
“generally,” we are not persuaded of any ambiguity in the claims. We
disagree with the Examiner’s position that the Specification does not provide
a standard for determining the requisite degree to which an element or
elements may be “generally directly below” or “general equal.” As used in
the Specification, one of ordinary skill in the art would understand that the
term generally is used interchangeably with substantially, and that the term
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allows for some degree of difference that does not significantly affect the
functioning of the device. For example, the Specification describes that “the
term substantially or generally the same length or distance, as used herein, is
intended to denote a length or distance which is close enough so as not to
cause a tilting of the seat portion due to the lifting cylinders being set at
different lengths.” Spec. 7, ll. 5–8.
Further, to the extent that the Examiner takes issue with other
language in claims 10, 21, and 22 beyond the use of the term “generally,” we
determine that the claim language is not indefinite. With respect to these
claims the Examiner determines that “the claims call for the front and rear
couplers to be positioned such that there is an equal distance between each
coupler and their respective pivot mounts,” but according to the Examiner
“as the seat rises or lowers the position of the pivot mounts relative to the
front and rear of the base (and the couplers) changes and as such it is unclear
as to how/when this limitation would be applied.” Final Act. 5.
Claim 10 depends from claim 1 and requires that “the distance
between each said pivot mount and a corresponding first coupler is generally
equal to the distance between each said pivot mount and a corresponding
second coupler.” Appeal Br. 10. We are not persuaded of any ambiguity in
this claim language. The plain language of the claim requires only that the
distance between a pivot mount and a first coupler is approximately equal to
the distance between a pivot mount and a corresponding second coupler on
the other side of the seating device at some point. The claim does not
require any specific position of the seat and the claim would read on any
device that includes a position in which the distances referenced are the
same.
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We reach a similar conclusion with respect to claim 21. Claim 21
depends from claim 11 and requires that “the distance between each said
pivot mount and a corresponding rear coupler is generally equal to the
distance between each said pivot mount and corresponding front coupler.”
Appeal Br. 27. The plain language of the claim requires only that the
distance between the pivot and the front coupler is approximately the same
as the distance between the pivot and the rear coupler at some point. The
claim does not require any specific position of the seat and would read on
any device that includes a position in which the distances referenced are the
same.
Similar to claim 21, claim 22 requires that “the distance between said
upper pivot mounts and said pair of rear lower couplers being generally the
same as the distance between said upper pivot mounts and said pair of front
lower couplers.” Appeal Br. 28. The claim further requires that “the
distance between the pivots and the rear lower couplers and front lower
couplers are the same so that a tilting of the seat portion does not occur
should one lifting cylinder be coupled to a rear lower coupler and the other
lifting cylinder be coupled to a front lower coupler.” Id. We are not
persuaded of any ambiguity in either of these limitations of claim 22. As
with claim 22, the claim does not require any specific position of the seat
and would read on any device that includes a position in which the distances
referenced are the same such that the no tilting of the seat from side to side
would occur.
Based on the foregoing, we do not sustain the rejection under
35 U.S.C. § 112(b).
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Anticipation
We are persuaded of error in the anticipation rejection of claim 22
because we agree with Appellant that the Examiner has not established that
Bennett discloses “the distance between said upper pivot mounts and said
pair of rear lower couplers being generally the same as the distance between
said upper pivot mounts and said pair of front lower couplers.” See Appeal
Br. 22.
With respect to claim 22, the Examiner finds that Bennett discloses an
assistive seating device including a base, seat portion, pair of lifting
cylinders, and pivot mounts and couplers as claimed. Final Act. 6 (citing
Bennett Figs. 1, 2; col. 4, ll. 9–13). The Examiner further finds that Bennett
discloses “whereby each lifting cylinder is selectively coupleable to the seat
portion and the base at a plurality of different elevation angles which
determines the lifting force of the lifting cylinders upon the seat portion (C2
L3-15), this selective positioning being achievable with a singular sized
lifting cylinder.” Id. at 7. The rejection thus is based on the Examiner’s
proposed interpretation of the claim language “the distance between said
upper pivot mounts and said pair of lower couplers being generally the same
as the distance between said upper pivot mounts and said pair of front lower
couplers” to require only that “positioning of the couplers relative to each
other and the pivot mounts permit the use of a singular sized lifting cylinder
thereby permitting adjustment of the apparatus without requiring any
additional parts/devices.” Id. at 5.
As discussed above, we have determined that claim 22 is not
indefinite based on the claim limitations raised by the Examiner. Further,
the Examiner does not adequately explain why the claim has been
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interpreted to require only that the couplers and mounts “permit the use of a
singular sized lifting cylinder.” Thus, to the extent the Examiner has found
only that Bennett discloses the use of a single sized lifting cylinder, the
Examiner has failed to establish that Bennett discloses “the distance between
said upper pivot mounts and said pair of rear lower couplers being generally
the same as the distance between said upper pivot mounts and said pair of
front lower couplers” as required by claim 22.
Based on the foregoing, the Examiner has not established a prima
facie showing of anticipation with respect to the rejection of independent
claim 22 or dependent claims 23, 25, and 27. Accordingly, we do not
sustain the anticipation rejection.
Obviousness over Bennett and Gilbert
Claims 1, 5, 8
With respect to claim 1, the Examiner finds that Bennett discloses an
assistive seating device as claimed except that Bennett only discloses
armrests extending from the rear legs of the device rather than from the front
legs as required by the claim. Final Act. 8 (citing Bennett Figs. 1, 2; col. 2,
ll. 3–15; col. 4, ll. 9–13). The Examiner further relies on Gilbert as teaching
a similar seating device with a pair of armrests extending from the front legs
of the device. Id. at 8–9 (citing Gilbert Fig. 1). The Examiner determines
that it would have been obvious to modify Bennett to use armrests extending
from the front legs of the device “to assist users who are unable
(elderly/medical reasons) or find it uncomfortable to reach backwards while
supporting themselves as they sit upon/rise from the seat.” Id. at 9. The
Examiner also determines that this modification would only be a
rearrangement of parts involving only routine skill in the art. Id.
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We agree with and adopt the Examiner’s findings and determination
with respect to claim 1. See Final Act. 8–9; see also Ans. 16–19. As
discussed below, we are not persuaded of error by Appellant’s arguments.
Appellant first argues that the combination proposed would not result
in the claimed invention. Appeal Br. 9. Specifically, Appellant asserts that
Gilbert only shows armrests extending from cross members of the seating
device and not extending from the front legs of the device, and thus, the
combination of the art would result in armrests that extend from Bennett’s
side portions 32 and not from the front legs. Id. at 9–10. In this
configuration, Appellant explains that the arm rests would not be stationary
because Bennett’s side portions 32 are lifted when the seat is lifted. Id. at
10. Appellant also notes that this combination would defeat the purpose of
the claimed invention because one pushing down on the armrests to rise
from the seat would prevent the seat from pivoting upward. Id. at 11.
We are not persuaded and agree with the Examiner’s response to this
argument. See Ans. 16–18. Specifically, as the Examiner explains, the
rejection is not premised on a bodily incorporation of Gilbert’s specific
armrest into Bennett’s device. Id. at 18. The Examiner explains that
Bennett teaches an armrest that is integrally formed with the rear legs of the
device such that they are fixed, immovable support members and that the
modification would result in fixed, immovable support members attached to
Bennett’s front legs and not to any moveable structure of Bennett. Id.
We also are not persuaded of reversible error in the Examiner’s
finding that Gilbert teaches arm rests attached to the front legs of the device.
Gilbert appears to disclose an integral side structure including rear and front
supports attached by a side bar. Gilbert’s armrests are depicted as being
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attached to both the front end of the side bar and the top of the front legs.
The Examiner’s characterization of Gilbert’s armrests as being attached to
the front legs is consistent with how the arm rests are depicted in Gilbert.
Thus, we disagree with Appellant’s contention that the combination would
result in arm rests attached at Bennett’s side portions 32.
Next, Appellant argues that “the proposed combination is not
suggested or motivated by the prior art references.” Appeal Br. 11.
Appellant asserts the importance of arm rest location on the front legs for
providing “the strongest and most stable base” to prevent injury and that
Bennett requires that the armrests are located on the rear legs. Id. at 12.
Appellant further asserts that “the references do not suggest any motivation
for, or the desirability of, Applicant’s unique construction of assistive
seating device having a stationary armrest and a pivoting seat recited in the
claims. As such, it is improper to utilize these references to establish
obviousness.” Id. We disagree for the reasons provided by the Examiner.
See Ans. 16, 18–19. Specifically, we agree that Appellant does not explain
adequately how the placement of the armrests in Bennett are required to be
on the rear legs and that Appellant does not address the reasoning relied
upon by the Examiner to support the proposed combination. Further, as
discussed above, Gilbert at least suggests placing stationary arm rests on the
front leg of an assistive seating device.
Finally, Appellant argues that the rejection is based on impermissible
hindsight. Appellant asserts:
the [E]xaminer has claimed the present invention to be obvious
utilizing hindsight, speculation and conclusory statements
which are not, in fact, supported by the cited references, to
come up with a combination that would either destroy the clear
intention of the reference by preventing upward movement of
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the seat or modify such in a manner that goes against the clear
teachings of the references. Furthermore, it is submitted that it
is only through such hindsight that the Applicant’s invention
can be gleamed from the cited references.
Appeal Br. 13. As discussed above, we are not persuaded that the resulting
combination would prevent upward movement of the seat or goes against the
teachings of the references. Thus, we fail to see how the rejection is
premised on any knowledge gleaned only from Appellant’s application.
Based on the foregoing, we are not persuaded of error in the rejection
of claim 1. Accordingly, we sustain the rejection of claim 1. We also
sustain the rejection of claims 5 and 8, which depend from claim 1 and for
which Appellant does not provide separate arguments.
Claims 10 and 21
With respect to claim 10, the Examiner finds:
Bennett discloses that the couplers are evenly spaced and
permit the use of a singular sized lifting cylinder to coupler
with any of the couplers from a singular pivot point (as per the
interpretation of “the distance between each said pivot mount
and a corresponding first coupler is generally equal to the
distance between each said pivot mount and a corresponding
second coupler” as outlined above[]).
Final Act. 10. The Examiner relies on substantially the same analysis with
respect to the rejection of claim 21. See id. at 12.
As discussed above, the Examiner has not established that either claim
10 or claim 21 is indefinite. As also discussed, the Examiner has not
adequately explained why the claim language should be interpreted to only
require that the couplers and mounts “permit the use of a singular sized
lifting cylinder.” Thus, with respect to the rejection of claims 10 and 21, the
Examiner has not shown that Bennet teaches the limitations of these claims,
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and therefore, we are persuaded of error in the obviousness rejection of the
claims. Accordingly, we do not sustain the obviousness rejection of claims
10 and 21.
Claims 11, 16, and 19
With respect to claim 11, the Examiner relies on substantially the
same combination of Bennett and Gilbert as relied upon in the rejection of
claim 1. Final Act. 10–11. Appellant’s arguments regarding the rejection of
claim 11 are similar to those regarding claim 1 to the extent the subject
matter of the claims overlaps. See Appeal Br. 15–20. For the reasons
discussed above, we are not persuaded of error by Appellant’s arguments
with respect to the rejection of claim 11. Accordingly, we sustain the
rejection of claim 11 for the reasons discussed. We also sustain the rejection
of claims 16 and 19, which depend from claim 11 and for which Appellant
does not provide separate arguments.
Obviousness over Bennett, Gilbert, and Sjögren
Claims 3 and 14 depend from claims 1 and 11, respectively, and both
require first couplers that are tubular and configured to receive ends of
lifting cylinders. Appeal Br. 24, 26. The Examiner relies on Sjögren as
teaching an assistive seating device with tubular couplers 7 that are
configured to receive ends of a lifting cylinder 8. Final Act. 13 (citing
Sjögren Figs. 1, 2).
Appellant argues that Sjögren only discloses “a series or ladder of
notches” that are not tubular. Appeal Br. 14, 20. However, we agree with
the Examiner that when Sjögren’s Figures are viewed in combination,
Sjögren suggest the use of tubular couplers. See Ans. 20–21. The depiction
of holes 7 in Sjögren’s Figure 1 are a cross-sectional side view of the holes 7
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depicted in Figure 2, and we agree with the Examiner’s finding that they
form cylindrical bores for holding element 8.
Thus, we are not persuaded of error in the Examiner’s rejection of
claims 3 and 14. We are also not persuaded of error in the rejection of
claims 4 and 15, for which Appellant relies on the same arguments.
Accordingly, we sustain the rejection of claims 3, 4, 14, and 15.
Remaining Obviousness Rejections
With respect to the rejections of claims 2, 6, 7, 9, 13, 17, 18, and 20,
Appellant does not raise separate arguments. Accordingly, we sustain the
rejections of these claims for the reasons discussed with respect to the
rejections of independent claims 1 and 11. With respect to the rejections of
claims 24 and 26, the Examiner does not rely on any further analysis or
evidence that would cure the deficiency in the rejection of independent claim
22, as discussed above. Accordingly, we do not sustain the rejections of
claims 24 and 26.
CONCLUSION
We REVERSE the rejections under 35 U.S.C. §§ 112(b) and
102(a)(1). WE REVERSE the rejection of claims 10, 21, 24, and 26 under
35 U.S.C. § 103. We AFFIRM the rejection of claims 1–9, 11, and 13–20
under 35 U.S.C. § 103.
In summary:
Claims
Rejected
35 U.S.C. § Basis Affirmed Reversed
8, 10, 19, 21–
27
112(b) Indefiniteness 8, 10, 19,
21–27
22, 23, 25, 27 102(a)(1) Bennett 22, 23,
25, 27
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Claims
Rejected
35 U.S.C. § Basis Affirmed Reversed
1, 5, 8, 10,
11, 16, 19, 21
103 Bennett, Gilbert 1, 5, 8, 11,
16, 19
10, 21
2, 13 103 Bennett,
Gilbert, Splane
2, 13
3, 4, 14, 15 103 Bennett,
Gilbert, Sjögren
3, 4, 14, 15
6, 17 103 Bennett,
Gilbert, Sadler
6, 17
7, 18 103 Bennett,
Gilbert, Krapu
7, 18
9, 20 103 Bennett,
Gilbert, Sutou
9, 20
24 103 Bennett, Splane 24
26 103 Bennett, Sutou 26
Overall
Outcome
1–9, 11,
13–20
10, 21–
27

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)(l)(iv).

AFFIRMED IN PART