NHK Seating of America, Inc.v.Lear Corporation

Patent Trial and Appeal Board

Feb 2, 2016

08069317 (P.T.A.B. Feb. 2, 2016)

Trials@uspto.gov Paper 24
Tel: 571-272-7822 Entered: February 2, 2016
UNITED STATES PATENT AND TRADEMARK OFFICE

BEFORE THE PATENT TRIAL AND APPEAL BOARD

NHK SEATING OF AMERICA, INC.,
Petitioner,
v.
LEAR CORPORATION,
Patent Owner.

Case IPR2014-01202
Patent 5,378,043 C2

Before RICHARD E. RICE, MITCHELL G. WEATHERLY, and
CARL M. DeFRANCO, Administrative Patent Judges.
WEATHERLY, Administrative Patent Judge.
FINAL WRITTEN DECISION
35 U.S.C. § 318(a)
I. INTRODUCTION
A. BACKGROUND
NHK Seating of America, Inc. (“NHK”) filed a Petition (Paper 1,
“Pet.”) requesting an inter partes review of claims 2, 4, 6, 8, 9, 13–20, 28–
31, 43–49, 55–60, 62–68, 70, 78, 80, 81, 84–90, 93, and 94 of U.S. Patent
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No. 5,378,043 C1 (Ex. 1001, “the ’043 patent”).1 NHK supported the
Petition with a declaration from Richard W. Kent, PhD (Ex. 1012). Lear
Corporation (“Lear”) timely filed a Preliminary Response. Paper 6 (“Prelim.
Resp.”). On February 3, 2015, based on the record before us at the time, we
instituted an inter partes review of all challenged claims, Paper 7
(“Institution Decision” or “Dec.”), on the following grounds:
References Basis Claims challenged
Japanese Utility Model Registration
Request S55–34468 (“JP ’468”)
(Ex. 1007 with certified translation at
Ex. 1008)
§ 102(b) 2, 4, 6, 8, 9, 28–31,
57, 78, and 80
U.S. Patent No. 3,802,737
(“Mertens”) (Ex. 1009) and U.S.
Patent No. 3,186,763 to R.A. Ferrara
(“Ferrara”) (Ex. 1010)
§ 103 2, 4, 6, 8, 9, 13–20,
31, 43–49, 55–60, 62–
68, 70, 81, 84–90, 93,
and 94
Dec. 15–16.
After we instituted this review, Lear filed a Patent Owner Response in
opposition to the Petition (Paper 11, “Resp.”) that was supported by the
declaration of David C. Viano, PhD (Ex. 2004). NHK filed a Reply in
support of the Petition (Paper 13, “Reply”).

1 When we cite to any portion of Exhibit 1001, we will include a reference to
the original version of the ’043 patent or the reexamination certificate, series
C1, as needed for clarity. Additionally, Exhibit 1001 includes only the first
of two reexamination certificates for U.S. Patent No. 5,378,043. The second
reexamination proceeding resulted in U.S. Patent No. 5,378,043 C2,
reflecting that the patentability of claims 2–9, 13–51, and 54–96 was
confirmed and claims 52 and 53 were not subject to reexamination during
the second reexamination proceeding. Exhibit 1006, 9.
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Lear also filed a Motion to Strike and/or Exclude the Testimony of
NHK’s Expert, Richard W. Kent. Paper 15 (“Motion” or “Motion to
Exclude”). NHK opposed the Motion to Exclude. Paper 17 (“Mot. Opp.”).
Lear filed a Reply in support of the Motion. Paper 19 (“Mot. Reply”). Lear
did not move to amend any claim in the ’043 patent.
We heard oral argument on September 9, 2015. A transcript is entered
as Paper 23 (“Tr.”).
For the reasons expressed below, we conclude that NHK has
demonstrated, by a preponderance of evidence, that claims 2, 4, 6, 8, and
28–31 are unpatentable but has failed to do so for claims 13–20, 31, 43–49,
55–60, 62–68, 70, 81, 84–90, 93, and 94. We also deny Lear’s Motion to
Exclude.
B. RELATED MATTERS
NHK identified as a related proceeding the following co-pending
district court proceedings as potentially being affected by a decision in this
proceeding: Lear Corporation v. NHK Seating of America, Inc., Case No.
2:13-cv-12937-SJM-RSW (E.D. Mich.), filed July 5, 2013, and served July
24, 2013; Lear Corporation v. TS Tech USA Corporation, et al., Case No.
2:11-cv-00245-MHW-NMK (S.D. Ohio), filed March 21, 2011; and Lear
Corporation v. TS Tech USA Corporation, et al., Case No. 2:10-cv-14302,
filed October 26, 2010 (E.D. Mich). Pet. 1. NHK also identified as related
proceedings four completed Ex Parte Reexaminations including:
90/009,250 filed August 14, 2008; 90/011088 filed July 9, 2010; 90/012,770
filed January 23, 2013, and 90/012,999 filed September 16, 2013. Id. Lear
identified six other inter partes review proceedings as being directed to
patents alleged to be infringed in the district court litigation with NHK,
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including: IPR 2014-00925 (U.S. Patent No. 8,434,818); IPR 2014-00957
(U.S. Patent No. 7,455,357); IPR 2014-01079 (U.S. Patent No. 6,631,949);
IPR 2014-01101 (U.S. Patent No. 6,631,955); IPR 2014-01026 (U.S. Patent
No. 6,655,733); and IPR 2014-01200 (U.S. Patent No. 6,955,397). Prelim.
Resp. 1.
C. THE ’043 PATENT
The ’043 patent is directed to “seat headrest arrangements.” Ex. 1001,
1:5–6. Claims 2 and 57 are the only independent claims among the
challenged claims, with claim 2 being illustrative and reciting:
2. A vehicle seat and headrest arrangement comprising:
a seat bun frame having fore and aft ends;
a seatback frame joined to the bun frame means adjacent the aft
end of the bun frame; and
a headrest pivotally attached with the seatback frame along a
pivotal axis generally perpendicular to the fore and aft
direction whereby, upon a rear impact of a vehicle in which
the arrangement is mounted, the pivotal attachment allows the
headrest to move in a forward direction toward the head of an
occupant of the vehicle seat, wherein the headrest has a
cushion portion;
an impact target operatively associated with the cushion portion
and pivotally associated with the seatback frame, wherein a
force upon the impact target causes the headrest to rotate
forwardly; and
a spring operatively associated with the seatback frame biasing
the headrest against pivotal movement.
Ex. 1001, C1, 1:26–45.
The ’043 patent describes two embodiments of the headrest in which
“upon a rear vehicle impact, the headrest moves in a forward direction
toward the head of a vehicle seat occupant.” Ex. 1001, Abstract. The
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colorized versions of Figures 2 and 3 shown below illustrate the first
embodiment.

Figure 2 of the ’043 patent
illustrates the upper portion of a
seatback frame and an embodiment
of the active headrest arrangement.
Figure 3 of the ’043 patent
illustrates a side view of the
headrest of Fig. 2 indicating the way
in which the headrest moves
forward at impact.
Two posts 8 (pink) extend from headrest cushion 6 (pink) and are held
to impact plate 10 (green) via alignment members 12 (green). Id. at 1:43–
50. Impact plate 10 (green) is pivotally connected to cross frame member 4
(yellow) with clips 16 (red) so that impact plate 10 (green) pivots around
cross member 4 (yellow) along axis 13. Id. at 1:45–56. Spring 18 (purple),
which is held to impact plate 10 (green) by clips 20, wraps around frame
sides 22 (yellow) and cross member 4 (yellow) to bias headrest cushion 6
(pink) against rotation. Id. at 1:59–64. Rearward loading of impact plate 10
(green) will cause headrest cushion 6 (pink) to overcome the biasing force of
spring 18 (purple), causing headrest cushion 6 (pink) to pivot about fixed
pivotal axis 13 toward the head of a seat occupant. Id. at 1:64–66.
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The colorized versions of Figures 4 and 5 of the ’043 patent shown
below illustrate the second embodiment of the headrest.

Figure 4 of the ’043 patent
illustrates the upper portion of a
seatback frame and a second
embodiment of the active headrest
arrangement.
Figure 5 of the ’043 patent illustrates
a side view of the headrest of Fig. 4
indicating the way in which the
headrest moves upward and forward
at impact.
Headrest posts 30 (pink) are held to cross member 4 (yellow) by
penetration through bushings 42 (white) that are mounted in clips 32 (red)
fitted onto cross member 4 (yellow). Id. at 2:15–18. Posts 30 (pink) extend
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through bushings 42 (white) and have loop sections 44 (pink) that extend
around angular cam guides 46 (orange). Id. at 2:18–23. Cam guides 46
(orange) have a generally downward slope projecting forward from sides 22
(yellow). Id. An impact plate 34 (green) is attached to the posts 30 (pink)
by clips 38. Id. at 2:22–23. Spring 18 (purple) wraps around frame sides 22
(yellow) and cross member 4 (yellow) to bias headrest cushion 6 (pink)
against rotation. Id. at 2:23–24.
The axis of rotation 51 will be constant with respect to the clips
32 [red]. However, the projection of the axis of rotation on the
post 30 at the initial impact will be translated to point 53 due to
the extending upward motion of the posts 30. Therefore, the axis
of rotation of the post 30 with respect to the cross member 4 is
nonfixed with respect to the post 30.
Id. at 2:38–45. Accordingly, as posts 30 (pink) and headrest 6 (pink) are
simultaneously rotated and translated, the original location of axis of rotation
51 moves to point 53. As a result, posts 30 (pink) and headrest 6 (pink)
pivot about a moving axis of rotation during actuation. Id. at 2:25–45.
II. CLAIM INTERPRETATION
The ’043 patent expired June 1, 2013. For claims of an expired
patent, our claim interpretation analysis is similar to that of a district court.
See In re Rambus Inc., 694 F.3d 42, 46 (Fed. Cir. 2012). Claim terms are
given their ordinary and customary meaning as those terms would be
understood by a person of ordinary skill in the art at the time of the invention
and in the context of the entire patent disclosure. In re Translogic Tech.,
Inc., 504 F.3d 1249, 1257 (Fed. Cir. 2007). We apply this standard to the
claims of the expired ’043 patent.
NHK proposes interpretations for (1) “pivotally attached,” Pet. 17,
(2) “operatively associated” and “operably associated,” id. at 18,
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(3) “bushing,” id. at 18–19, (4) “at least one cam guide member” and “a cam
guide,” id. at 19, and (5) “effectively extends upwardly” and “extend
upwardly,” id. at 19–20.
We determine that of these terms, only “pivotally attached with” and
“pivotally mounted to” require express interpretation to address issues that
the parties present regarding the differences between the prior art and the
challenged claims. We address “pivotally attached with” and “pivotally
mounted to” below and otherwise interpret the remaining terms according to
the standard referenced above.
A. HEADREST PIVOTALLY ATTACHED WITH THE SEATBACK FRAME
The entire disputed phrase at issue recites “a headrest pivotally
attached with the seatback frame.” Ex. 1001, C1 1:32–33 (claim 2), C1
4:12–13 (claim 57). The “headrest” is recited as having “a cushion portion”
and no other affirmatively recited elements in independent claim 2. Id. at C1
1:38. The “headrest” in independent claim 57 is recited without referring to
any particular component of the headrest. Id. at C1 4:8–27. Both claims
require that rearward force applied to an impact target causes the headrest to
rotate or pivot forwardly. Id. at C1 1:41–43 (claim 2), C1 4:23–25 (claim
57).
In the Petition, NHK argued that we should interpret “pivotally
attached” to mean that “an ‘element is attached to and rotates on a point.’”
Pet. 17 (citing Ex. 1013; Ex. 1012 ¶ 40). In its Reply, NHK maintained its
initial interpretation of “pivotally attached” and contended that interpretation
of the term was not necessary to resolve issues in this proceeding. Reply 5.
Lear contends that “‘pivotally attached’ requires interpretation” and provides
a proposed interpretation, discussed below. Resp. 11. NHK contends that
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Lear’s proposed interpretation is improper. Reply 8–11. For the reasons
expressed below, we adopt neither party’s interpretation of “headrest
pivotally attached with the seatback frame.”
Lear argues that we should interpret “pivotally attached” to mean
“pivotally joined or fastened” but excluding “unattached contact.”
Resp. 13–14 (citing Ex. 2004 ¶ 84). Lear relies in substantial part upon
testimony from Dr. Viano, an inventor of the ’043 patent, to support its
argument that a headrest being “pivotally attached” requires “an affirmative
joining or fastening of the headrest to the seatback frame such that if the
seatback frame is detached from the seat bun frame and removed from the
vehicle the headrest would remain attached.” Id. at 27 (citing Ex. 2004
¶¶ 77–82, 91–93). We consider Dr. Viano’s testimony on the meaning of
“pivotally attached” to be extrinsic evidence entitled to little weight
regarding the ultimate conclusion on the meaning of “pivotally attached
with.”2 Lear’s argument is unpersuasive because, as explained below, we
find that it is inconsistent with the Specification and language in certain
claims that depend from claims 2 and 57, and would preclude claims 2 and
57 from covering all embodiments disclosed in the Specification.

2 “[E]xtrinsic evidence consisting of expert reports and testimony is
generated at the time of and for the purpose of litigation and thus can suffer
from bias that is not present in intrinsic evidence.” Phillips v. AWH Corp.,
415 F.3d 1303, 1318 (Fed. Cir. 2005) “[E]xtrinsic evidence may be useful to
the court, but it is unlikely to result in a reliable interpretation of patent
claim scope unless considered in the context of the intrinsic evidence. Id. at
1319; see also Teva Pharm. USA, Inc. v. Sandoz, Inc., 135 S. Ct. 831, 841
(2015) (“Experts may be examined to explain terms of art, and the state of
the art, at any given time, but they cannot be used to prove the proper or
legal construction of any instrument of writing.”) (internal citations omitted).
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The Specification describes two embodiments in which structures are
“joined or fastened” to the seatback frame, namely, a first embodiment in
which plate 10 having clamped ends 14 with clips 16, and springs 18 are
joined to the frame 2, id. at 1:54–64, and a second embodiment in which
spring 18, clips 32, and cam guides 46 are joined to frame 2, id. at 2:15–24.
Headrest cushion 6 never touches frame 2 in either embodiment, but instead
is connected to posts 8 (first embodiment) or 30 (second embodiment).
“[T]he presence of a dependent claim that adds a particular limitation gives
rise to a presumption that the limitation in question is not present in the
independent claim.” Phillips v. AWH Corp., 415 F.3d 1303, 1315 (Fed. Cir.
2005) (citation omitted). Dependent claims 6 and 59 recognize that the posts
are structures different than the headrest by reciting that the headrest “is
separated from the seatback frame by a post.” Ex. 1001, C1 1:52–54 (claim
6), C1 4:31–32 (claim 59). The principle of claim differentiation instructs us
to interpret “headrest” in claims 2 and 57 to refer to the headrest without the
posts. Even if we were to interpret “headrest” to encompass the posts,
however, posts 8 (first embodiment) and posts 30 (second embodiment) also
never touch the seatback frame. Instead, the posts along with other
structures functionally link the headrest to the frame.
For the first embodiment, headrest 6 on “posts 8 are adjustable
vertically with respect to the plate 10 in a manner conventional for that of
vehicle seat headrests.” Ex. 1001, 1:51–53. That is, posts 8 slide up and
down relative to plate 10. Figures 2 and 3 of the Specification illustrate
posts 8 in a manner that implies the ability to remove posts 8 entirely from
alignment members 12 in impact plate 10. See id. Figs. 2, 3. Posts 8 of the
first embodiment are thus in sliding and perhaps easily removable contact
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with impact plate 10, which is in turn pivotally “joined” to cross member 4
with clips 16. Id. at 1:56–59. Nevertheless, posts 8 neither touch nor are
joined to cross member 4.
For the second embodiment, posts 30 are designed to slide within
bushings 42 within clips 32 that are “fitted on the cross member.” Id.
at 2:15–18. Posts 30 are never “in contact” with cross member 4 of frame 2.
The way in which loop sections 44 wrap around cam guides 46 would
prevent posts 30 from being completely removed from bushings 42. Id.
at 2:26–32. Nevertheless, the “unattached” sliding relationship between the
posts and the frame would not be within the scope of Lear’s proposed
interpretation of “pivotally attached” because posts 30 neither touch nor are
joined to frame 2.
Other dependent claims also support a broad reading of “headrest
pivotally attached with the seatback frame.” Dependent claims 15 and 65
further recite that the “seatback frame comprises a cross member” and that
“the headrest is operably connected to the cross member.” These claims
imply that a headrest that is “operably connected to the cross member” is a
narrower type of “a headrest pivotally attached with the seatback frame.”
Dependent claims 18 and 68, which depend directly from claims 2 and 57,
further recite that the “seatback frame comprises a cross member” and that
“the headrest is pivotally connected to the cross member.”
The Specification also instructs the reader that the claims define the
scope of the invention rather than the embodiments illustrated as follows:
“While this invention has been described in terms of preferred embodiments
thereof, it will be appreciated that other forms could readily be adapted by
one skilled in the art. Accordingly, the scope of this invention is to be
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considered limited only by the following claims.” Id. at 3:23–27.
Accordingly, we broadly interpret “a headrest pivotally attached with the
seatback frame” in claims 2 and 57 as referring to headrests that are
“pivotally attached with the seatback frame” via other structures. The
headrest must also be “attached with the seatback frame” in a manner that
meets the functional requirement recited in claims 2 and 57 that a force
applied to the impact target causes the headrest to rotate forwardly.
B. TARGET . . . PIVOTALLY MOUNTED TO THE SEATBACK FRAME
Independent claim 57 recites “a target pivotally mounted to the
seatback.”3 Ex. 1001, C1 at 4:20. NHK does not address this phrase in its
Petition except to characterize claim 57 as being “substantially similar” to
claim 2. Pet. 33; see also id. at 16–20 (interpreting other claim terms). Lear
argues that we should interpret “pivotally mounted” to mean the same thing
as “pivotally attached,” namely “pivotally joined or fastened” and not
encompassing “unattached contact.” Resp. 17–19. In its Reply, NHK
argues that we should interpret “pivotally mounted” more broadly than
“pivotally attached.” Reply 17. Without analyzing any portion of the
Specification or other claims, NHK relies upon a definition of the verb

3 Lear misquotes claim 57 when arguing whether JP ’468 describes the
claimed target as “a target pivotally mounted to the seatback frame.”
Resp. 30. Except for this particular phrase, “seatback” is recited three other
times within claim 57 as “seatback frame.” Additionally, twenty claims that
depend from claim 57 uniformly recite “seatback frame” without once
reciting “seatback” alone. See Ex. 1001, C1 4:31–6:23 (uniformly reciting
“seatback frame” in dependent claims 59, 63–68, 70–76, 78, 82, and 85–88).
Accordingly, we interpret this phrase as if it recited “seatback frame” rather
than “seatback” alone because we determine that a skilled artisan would
interpret the phrase that way.
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“mount” in the American Heritage Collegiate Dictionary, Third Edition, as
meaning “to set in position for use.” Id. (citing Ex. 1020).
We are not persuaded that either party’s interpretation is completely
correct. In describing the first embodiment of the seat arrangement, which is
illustrated in the colorized version of Figure 2 shown below right, the
Specification uses “pivotally mounted” in relation to the target as follows:
An impact target or plate 10
[green] is pivotally mounted to
the cross member 4 [yellow]
along a fixed pivotal axis 13
generally perpendicular to the
fore and aft direction of the
vehicle. . . .
The plate 10 [green]
mentioned previously is
pivotally mounted with respect to
the cross member 4 [yellow] by
virtue of its clamped ends 14
[green]. The clamped ends 14
[green] are joined to the cross member 4 [yellow] by the use of a
metal clip 16 [red] which has flanges 26 [red] that pop into
apertures 15 (only one shown) of the claimped end 14 [green].
Ex. 1001, 1:45–59 (emphasis added). This portion of the Specification
explains and Figure 2 clearly illustrates that the target (plate 10) is in
physical contact with and “joined” to cross member 4 of seatback frame 2
via clips 16 with flanges 26 that “pop into apertures 15” on clamped end 14
of plate 10. Plate 10 is described expressly as capable pivoting along axis
13. Id. at 1:45–49. Additionally, the same lay dictionary proffered by NHK
defines “mount” in the same sense in which it is used in the Specification as
meaning “[t]o fix securely to a support.” Ex. 1020. We do not find Lear’s
reliance on the definition of “mount” at Engineering-Dictionary.org to be of
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significant weight because the proffered definition is for the noun form and
the claim uses the verb form of “mount.” Based on our review of all this
evidence, we interpret “a target pivotally mounted to the seatback” to require
that the target be directly joined to the seatback in a manner that permits the
target to pivot along the axis specified in the claim.
III. THE CHALLENGES TO PATENTABILITY
We instituted a review of the patentability of claims 2, 4, 6, 8, 9, 13–
20, 28–31, 43–49, 55–60, 62–68, 70, 78, 80, 81, 84–90, 93, and 94 of the
’043 patent on the grounds that those claims may be anticipated or obvious
in light of one or more of JP ’468, Mertens, and Ferrara. Dec. 7–13.
“A claim is anticipated only if each and every element as set forth in
the claim is found, either expressly or inherently described, in a single prior
art reference.” Verdegaal Bros. v. Union Oil Co. of Cal., 814 F.2d 628, 631
(Fed. Cir. 1987) (citation omitted). The Supreme Court in KSR
International Co. v. Teleflex Inc., 550 U.S. 398 (2007) reaffirmed the
framework for determining obviousness as set forth in Graham v. John
Deere Co., 383 U.S. 1 (1966). As observed by the Court in KSR, the factual
inquiries set forth in Graham that are applied for establishing a background
for determining obviousness under 35 U.S.C. § 103(a) are summarized as
follows:
1. Determining the scope and content of the prior art.
2. Ascertaining the differences between the prior art and the claims at
issue.
3. Resolving the level of ordinary skill in the pertinent art.
4. Considering objective evidence, if present, indicating obviousness or
nonobviousness.
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KSR, 550 U.S. at 406. With these standards in mind, we address each
challenge below.
A. THE PARTIES’ POST-INSTITUTION ARGUMENTS
In our Institution Decision, we concluded that the argument and
evidence adduced by NHK demonstrated a reasonable likelihood that:
(1) JP ’468 anticipated claims 2, 4, 6, 8, 9, 28–31, 57, 78, and 80, Dec. 7–9,
and (2) the combination of Mertens and Ferrara rendered claims 2, 4, 6, 8, 9,
13–20, 31, 43–49, 55–60, 62–68, 70, 81, 84–90, 93, and 94 obvious, id.
at 11–13. We must now determine whether NHK has established by a
preponderance of the evidence that the specified claims are unpatentable
over the cited prior art. 35 U.S.C. § 316(e). In this connection, we
previously instructed Lear that “any arguments for patentability not raised in
the [Patent Owner Response] will be deemed waived.” Paper 8, 5; see also
37 C.F.R. § 42.23(a) (“Any material fact not specifically denied may be
considered admitted.”). Additionally, the Board’s Trial Practice Guide states
that the Patent Owner Response “should identify all the involved claims that
are believed to be patentable and state the basis for that belief.” Office
Patent Trial Practice Guide, 77 Fed. Reg. 48,756, 48,766 (Aug. 14, 2012).
In response to the first challenge by NHK listed above, Lear argues
that JP ’468 fails to describe a headrest “pivotally attached with the seatback
frame” as recited in claims 2, 4, 6, 8, 9, 28–31, 57, 78, and 80. Resp. 25–29.
Lear also argues that JP ’468 fails to describe “an impact target operatively
associated with the cushion portion and pivotally associated with the
seatback frame” as recited in claims 2, 4, 6, 8, 9, and 28–31. Id. at 29–30.
Lastly, Lear argues that JP ’468 fails to describe “a target pivotally mounted
to the seatback” as recited in claims 57, 78, and 80. Id. at 30. Lear does not
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contest that JP ’468 describes all other elements of claims 2, 4, 6, 8, 9, 28–
31, 57, 78, and 80. In response to the second challenge by NHK listed
above, Lear does not contest that the combination of Mertens and Ferrara
describes all elements of claims 2, 4, 6, 8, 9, 13–20, 31, 43–49, 55–60, 62–
68, 70, 81, 84–90, 93, and 94. See id. at 31–45 (arguing only that a skilled
artisan would not have been motivated to combine Mertens and Ferrara as
NHK suggests). Accordingly, the record now contains unrebutted arguments
and evidence presented by NHK regarding the manner in which the asserted
prior art teaches all other elements of the claims against which that prior art
is asserted. We, therefore, find that the preponderance of the evidence of
record developed at trial supports our conclusion the alleged prior art
describes all limitations of the reviewed claims except for those that Lear
identifies above.
B. ANTICIPATION OF CLAIMS 2, 4, 6, 8, 9, 28–31, 57, 78, AND 80 BY
JP ’468
NHK contends that JP ’468 anticipates claims 2, 4, 6, 8, 9, 28–31, 57,
78, and 80, and sets forth the evidence from JP ’468 to support its
contentions in detailed claim charts. Pet. 23–32. NHK also proffers the
testimony of Dr. Kent to explain the manner in which JP ’468 describes all
the limitations recited in claims 2, 4, 6, 8, 9, 28–31, 57, 78, and 80.
Ex. 1012, ¶¶ 48–57. Based on the record before us at the time, we
preliminarily determined that NHK had established a reasonable likelihood
of showing that JP ’468 anticipates claims 2, 4, 6, 8, 9, 28–31, 57, 78, and
80. Dec. 7–10. For the reasons expressed below, NHK persuades us by a
preponderance of evidence that JP ’468 anticipates claims 2, 4, 6, 8, 9, and
28–31, but fails to do so for claims 57, 78, and 80.
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1. Overview of JP ’468
The operation of JP ’468 may be understood by referring to the
colorized version of Figure 1 of JP ’468 that is shown below.

Figure 1 of JP ’468 illustrates a mechanism for moving a headrest
upward and forward during a rear-end collision.
JP ’468 discloses a rear seat assembly having among other elements,
seat back 7 with frame member 8 (green) that rotates around axis 10.
Ex. 1008, 5. Headrest 15 (pink), which is separated from the seat back 7 by
space S, is secured to a top end of arm 16 (brown) and together they are
pivotally attached to a bracket 18 (blue) at the top part of the floor
member 1′. Id. at 6. Headrest 15 is normally held in the position shown in
the solid lines of Fig. 1 by its own weight or the biasing force of a spring
(not illustrated). Id. The bottom end of arm 16 is thus “brought into contact
with frame member 8 at the back part of seat back 7 in its normal position.”
Id. at 5. Upon a rear impact to the vehicle, seat back 7 tilts rearward and
frame member 8 presses the bottom end of arm 16 toward floor member 1′.
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Id. at 7. This rotation of arm 16 causes headrest 15 to rotate upward and
forward to meet the occupant’s head. Id.
2. Lear’s Arguments
Lear argues that JP ’468 fails to anticipate various groups of claims 2,
4, 6, 8, 9, 28–31, 57, 78, and 80 for three reasons. Namely, JP ’468 does not
describe: (1) a “headrest pivotally attached with the seatback frame along a
pivotal axis” as recited in claims 2, 4, 6, 8, 9, 28–31, 57, 78, and 80, (2) “an
impact target pivotally associated with the seatback frame” as recited in
claims 2, 4, 6, 8, 9, and 28–31, and (3) “a target pivotally mounted to the
seatback” as recited in claims 57, 78, and 80. Resp. 25–30. We address
each in turn below.
a) Claims 2, 4, 6, 8, 9, 28–31, 57, 78, and 80: Whether JP ’468
Describes the Headrest Being Pivotally Attached with the
Seatback Frame
Independent claims 2 and 57, and thus dependent claims 4, 6, 8, 9,
28–31, 78, and 80, recite “a headrest pivotally attached with the seatback
frame along a pivotal axis.” Ex. 1001, C1 1:32–33. Lear argues that JP ’468
fails to describe a headrest that meets this limitation because the headrest is
not “joined or fastened to the seatback frame” and thus is not “attached”
pivotally or otherwise to the seatback frame. Resp. 25–29 (citing Ex. 2004.
Lear contends that JP ’468 itself confirms that “attached” must mean joined
or fastened because JP ’468 states that its headrest 15 is pivotally attached to
bracket 18 by means of a pin 17. Id. at 26 (citing Ex. 1008, 5:5–9; Ex. 2004
¶¶ 91–105; Ex. 1012 ¶ 50). By contrast to arm 16 being pivotally attached at
one end to bracket 18 via pin 17, Lear argues that the other end of arm 16 is
merely in sliding contact with the surface of frame member 8 and thus not
joined or fastened to frame member 8. Id. (citing Ex. 2004 ¶ 98). Lear
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contends that headrest 15 is not attached to frame 8 because if seatback
frame 8 of JP ’468 were removed from the vehicle, headrest 15 would
remain in the vehicle pivotally attached to floor member 1′. Id. (citing
Ex. 2004 ¶ 92, Ex. 2013, 29:11–30:16). We agree that the preponderance of
evidence demonstrates that arm 16 has a free end that is in sliding contact
with frame 8 and that the free end of arm 16 is not directly secured to
frame 8.
NHK contends that, even though the free end of arm 16 is not directly
secured to frame 8, the “headrest is pivotally attached with the seatback
frame” because the claim does not require that the headrest be attached to
the frame but merely that it be attached with the frame. Reply 6–7. NHK
reasons that Lear’s arguments are based on Lear’s erroneous interpretation
of “attached with” as meaning “attached to.” Id. NHK argues that Lear
ignores a commonly understood meaning of “attach” as referring to
“connect.” See Reply 8 (citing dictionary definition of “attach” offered by
Lear in Ex. 2007). NHK further contends that the ’043 patent “places no
restriction on the manner of pivotal attachment beyond there being a pivotal
relationship of the elements.” Id. NHK also argues that JP ’468 never
defines “pivotally attached” as requiring a particular type of connection
between elements but instead merely describes one example of pivotal
attachment, a pin. Id. at 9–10.
NHK persuades us by a preponderance of evidence that JP ’468
describes a headrest that is pivotally attached with the seatback frame. For
the reasons expressed in part II.A above, we interpret “headrest pivotally
attached with the seatback frame” more broadly than proposed by Lear. We
interpret “pivotally attached with” to encompass a relationship between the
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headrest and seatback frame that involves the headrest being functionally
linked via intervening structures to the seatback frame so that the headrest
rotates forward in response to a rearward force applied to an impact target.
Under our interpretation, JP ’468 describes “a headrest pivotally attached
with the seatback frame.” We find that intervening structures physically join
headrest 15 of JP ’468 to its frame member 8. Frame member 8, with its
supporting arm 9 (the alleged seatback frame), is pivotally joined at axis 10
to bracket 5 of seat cushion support member 4 (the alleged bun frame),
which is joined to floor 1 and thus also floor member 1′. Ex. 1008, 3–5,
Figure 1. Headrest 15 is connected to arm 16, which is pivotally joined via
pin 17 to bracket 18 “at the top part of floor member 1′.” Id. at 5. Headrest
15 is attached to frame 8 via the intervening structures described above and
pivots about the recited axis. Accordingly, we find that a preponderance of
evidence demonstrates that headrest 15 is “pivotally attached with the
seatback frame” as recited in claims 2 and 57.
b) Claims 2, 4, 6, 8, 9, and 28–31: Whether JP ’468 Describes
an Impact Target Pivotally Associated with the Seatback
Frame
Independent claim 2, and its dependent claims 4, 6, 8, 9 and 28–31,
recites “an impact target operatively associated with the cushion portion and
pivotally associated with the seatback frame.” Ex. 1001, C1 1:39–41. Lear
argues that JP ’468 fails to meet these recited requirements based on its
interpretation of “pivotally associated with the seatback frame” as meaning
“directly or indirectly pivotally attached to the seatback frame such that it
actuates the active head restraint independent of the seatback frame
position.” Resp. 29. Lear cites testimony from Dr. Viano and his
understanding of the way in which the embodiments of the seat arrangement
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described in the Specification operate as support for its interpretation. Id.
(citing Ex. 2004 ¶¶ 104–05). Dr. Viano’s testimony cites no independent
evidence to corroborate his interpretation of “pivotally associated with the
seatback frame.” See Ex. 2004 ¶¶ 104–05. Lear argues that under its
interpretation, arm 16 of JP ’468 cannot be an impact target because it does
not actuate the headrest independent of movement of the seatback frame.
Resp. 29–30.
We need not consider extrinsic evidence to discern the meaning of the
claim because we find the plain language of the claim to be clear. The claim
expressly recites that the impact target is “pivotally associate with the
seatback frame.” “Pivotally associated” thus merely requires that the impact
target pivot in relation to the seatback frame. Additionally, we find that
Lear’s interpretation improperly attempts to incorporate characteristics of
the specific embodiments described in the Specification that are not
expressly stated in the claim. The Specification merely describes examples
of the claimed invention and explicitly asserts that variations of those
embodiments are within the scope of the claims. Ex. 1001, 3:23–27.
Moreover, Lear’s proposed interpretation of “pivotally associated with the
seatback frame” is based on Dr. Viano’s otherwise unsupported testimony.
We ascribe little weight to that testimony because Dr. Viano, as an inventor,
is subject to bias and he cites no independent evidence in support of his
conclusions.
NHK persuades us by a preponderance of evidence that arm 16 of
JP ’468 both pivots in relation to seatback frame 8 and is associated with
headrest 15. Arm 16 is secured to the top end of arm 16. Ex. 1008, 6.
Headrest 15 is biased rearward either by its own weight or a spring, which
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results in arm 16 being biased upward to contact frame member 8. Pet. 27–
28 (citing Ex. 1008, 5, Fig. 1). When frame member 8 pivots rearward in
response to load imparted by the occupant in a collision, frame member 8
applies rearward force to arm 16 (the alleged impact target) causing arm 16
to rotate relative to frame 8. Id. at 28 (citing Ex. 1008, 6). Claim 2 requires
nothing more to describe “an impact target operatively associated with the
cushion portion and pivotally associated with the seatback frame.”
Accordingly, NHK persuades us by a preponderance of evidence that
JP ’468 describes the impact target of claims 2, 4, 6, 8, 9, and 28–31.
c) Claims 57, 78, and 80: Whether JP ’468 Describes a Target
Pivotally Mounted to the Seatback
Lear argues that JP ’468 fails to describe “a target pivotally mounted
to the seatback” as recited in claim 57 and thus its dependent claims 78 and
80. Resp. 30 (emphasis removed). Lear contends that we should interpret
“target pivotally mounted to the seatback” as requiring that the target be
joined or fastened to the seatback frame. Id. at 17–19. Lear contends that
arm 16 of JP ’468 is not joined or fastened to the seatback frame and thus
fails to meet this requirement of claim 57.
In the Petition, NHK contends that JP ’468 describes all elements of
claim 57 “for similar reasons listed above with respect to claim 2.” Pet. 33.
Claim 2, recites “an impact target . . . pivotally associated with the seatback
frame” rather than “a target pivotally mounted to the seatback.” Compare
Ex. 1001, C1 1:39–41 (claim 2) with C1 4:20 (claim 57). NHK identifies
arm 16 as the “impact target” of claim 2 and thus by incorporation also as
the “target” of claim 57. NHK argues that the target being “mounted to the
seatback” does not require that the target be joined or fastened to the
seatback because we should interpret “mounted” to mean “to set in position
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for use” based on a proffered definition in a lay dictionary. Reply 17 (citing
Ex. 1020).
For the reasons expressed in part II.B above, we interpret “target
pivotally mounted to the seatback” to mean that the target is directly joined
to the seatback frame in a manner that permits the target to pivot around the
axis specified in the claim. Under this interpretation, Lear persuades us that
JP ’468 fails to describe the target recited in claims 57, 78, and 80. Arm 16
of JP ’468 (the alleged target) is directly joined via pin 17 to bracket 18 “at
the top part of floor member 1′,” not frame 8 (the alleged seatback frame).
Ex. 1008, 5. The other end of arm 16 slides along frame 8 while remaining
in contact with frame 8 throughout normal operation of headrest 15.
Ex. 1008, 5–6, Figure 1; Ex. 2004 ¶¶ 97–102; Ex. 2013, 28:6–9. We find
that this type of sliding contact between frame 8 and arm 16 does not
constitute being directly joined to arm 16 as required. We determine that a
preponderance of evidence establishes that arm 16 is not “a target pivotally
mounted to the seatback” as recited in claim 57 and its dependent claims 78
and 80. Accordingly, NHK has not persuaded us that JP ’468 anticipates
claims 57, 78, and 80.
3. Conclusion
For the reasons expressed above, NHK has persuaded us by a
preponderance of evidence that JP ’468 describes “a headrest pivotally
attached with the seatback frame” and “an impact target operatively
associated with the cushion portion and pivotally associated with the
seatback frame.” For the reasons expressed in part III.A above, NHK has
persuaded us by a preponderance of evidence that JP ’468 describes all other
elements of claims 2, 4, 6, 8, 9, and 28–31. NHK has failed to persuade us
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by a preponderance of evidence that JP ’468 describes “a target pivotally
mounted to the seatback” as recited in claims 57, 78, and 80. Accordingly,
we conclude that NHK has demonstrated by a preponderance of evidence
that JP ’468 anticipates claims 2, 4, 6, 8, 9, and 28–31, but has failed to do
so for claims 57, 78, and 80.
C. OBVIOUSNESS OF CLAIMS 2, 4, 6, 8, 9, 13–20, 31, 43–49, 55–60, 62–
68, 70, 81, 84–90, 93, AND 94 IN VIEW OF MERTENS AND FERRARA
We preliminarily determined on the record before us at the time that
NHK had established a reasonable likelihood of showing that the
combination of Mertens and Ferrara renders claims 2, 4, 6, 8, 9, 13–20, 31,
43–49, 55–60, 62–68, 70, 81, 84–90, 93, and 94 unpatentable as obvious.
Dec. 14–16. The dispute at trial focuses upon whether a skilled artisan
would have been motivated to combine the spring biasing the headrest
against rotation that is described by Ferrara with the seat arrangement
described in Mertens “to mitigate whiplash risk” as alleged by NHK. For
the reasons expressed below, NHK does not persuade us that claims 2, 4, 6,
8, 9, 13–20, 31, 43–49, 55–60, 62–68, 70, 81, 84–90, 93, and 94 are
unpatentable as obvious in view of the combination of Mertens and Ferrara.
1. NHK’s Argument and Evidence in the Petition
NHK contends that Mertens describes all elements recited in claims 2,
4, 6, 8, 9, 13–20, 31, 43–49, 55–60, 62–68, 70, 81, 84–90, 93, and 94 except
for the “spring operatively associated with the seatback frame biasing the
headrest against pivotal movement” which is recited in independent claims 2
and 57 and thus required by all claims challenged as obvious. Pet. 57–59.
NHK contends that Ferrara describes such a spring and that a skilled artisan
would have found it obvious “to employ Ferrara’s shaft 22, sleeve 24, and
spring 48 to Mertens’s headrest frame to mitigate whiplash risk in severe
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rear-end collisions by absorbing the impact of the passenger’s head hitting
the headrest.” Id. at 58 (citing Dr. Kent’s testimony at Ex. 1012 ¶¶ 79–81).
Dr. Kent expands upon the obviousness rationale that NHK expresses in the
Petition when he testifies that “[a]s shown in FIG. 2d of Mertens '737, the
headrest moves slightly backwards in a rear end collision. Thus, it would
have been obvious to use the mechanism in Ferrara to cushion the head as it
moves backwards as shown in FIG. 2d of Mertens '737.” Ex. 1012 ¶ 81.
NHK offers nothing more in its Petition to support its obviousness
challenge.
2. Analysis of Lear’s Arguments and NHK’s Reply
Lear does not dispute NHK’s contentions that the combination of
Mertens and Ferrara describes all elements of claims 2, 4, 6, 8, 9, 13–20, 31,
43–49, 55–60, 62–68, 70, 81, 84–90, 93, and 94. See Resp. 1–46 (not
addressing any aspect of claims 2, 4, 6, 8, 9, 13–20, 31, 43–49, 55–60, 62–
68, 70, 81, 84–90, 93, and 94). Instead, Lear argues that a skilled artisan
would not have been motivated to employ Ferrara’s spring in Mertens’s seat
arrangement “to mitigate whiplash risk” as NHK contends. Resp. 31–45.
More specifically, Lear contends that a skilled artisan would have
known that incorporating Ferrara’s spring into Mertens’s headrest would
increase rather than decrease the risk of whiplash injury. Id. at 40–41. Dr.
Viano testifies that “whiplash is associated with neck extension” and is
prevented “by limiting the relative movement between the head and the
upper torso” and minimizing “rearward movement of the headrest . . . as
much as possible.” Ex. 2004 ¶ 132. Dr. Viano further testifies that “adding
the Ferrara spring to Mertens would increase the risk of whiplash” because
Ferrara’s spring allows the headrest to move rearward in a collision. Id. at
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¶ 133. Dr. Viano opines that a skilled artisan would not have even
considered adding the spring of Ferrara to Mertens because it would increase
the risk of whiplash injury. Id. at ¶ 134.
NHK responds that Lear’s contention that using Ferrara’s spring
would increase the risk of whiplash injury rests upon “conclusory opinions”
of Dr. Viano” and is not supported by “actual evidence.” Reply 18. NHK
contends that Dr. Viano, on cross-examination, “conceded . . . that whiplash
can be caused not only by movement of the neck, but also by a severe blow
to the head.” Id. at 20 (citing Ex. 1018, 5:1–52:24). NHK also argues that
Dr. Viano “conceded that Ferrara’s system is directed to preventing injury,
such as a severe blow to the head.” Id. (citing Ex. 1018, 46:10–48:9). NHK
concludes, without citing any evidence, that “Ferrara’s system of allowing
movement of the headrest to prevent such a blow to the head from striking
the rigid headrest would in fact have the effect of reducing whiplash.” Id. at
20–21.
On the factual question of whether using Ferrara’s spring in Mertens’s
headrest would increase or decrease the risk of whiplash injury, we are not
persuaded by either party’s argument. Rather we determine that the
preponderance of evidence demonstrates that the presence of Ferrara’s
spring in the seat arrangement of Ferrara or Mertens would neither increase
nor decrease the risk of whiplash injury.
Ferrara’s spring is intended to improve a headrest that is “provided to
increase passenger comfort, and to lessen or prevent ‘whiplash’ or similar

4 Our review of Dr. Viano’s testimony reveals that NHK likely intended to
cite Ex. 1018, 51:1–52:2. We do not consider the testimony at Ex. 1018,
5:1–50:25 to be probative to NHK’s contention.
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injuries in the event of certain types of collisions.” Ex. 1010, 1:13–16.
Ferrara’s improvement relies upon its spring 48, which permits the headrest
to rotate rearward only when the occupant’s head strikes the headrest with
sufficient force to “flatten the cushion of the headrest to the point that his
head would then impact an essentially rigid structure.” Id. at 1:16–25, 2:55–
3:2. Ferrara says nothing about whether its spring increases or decreases the
risk of whiplash but rather focuses on how its spring adds compliance to the
headrest to avoid impact-based head injury. Dr. Viano recognized that
providing compliance in a headrest has advantages as follows:
Head injury, which is different than whiplash, is associated
with impact between the head and head restraint. The prevention
of head injury depends on cushioning the head, thereby
extending the duration of loading and lowering the forces. It is
desirable to have some cushioning provided by the head restraint,
but too much deformation of the head restraint can increase
whiplash risks.
Ex. 2004 ¶ 137. Dr. Viano also testifies that whiplash injuries are associated
with relatively low-speed collisions and that compliance in the headrest
would prevent impact-based head injuries that occur in high-speed
collisions. Ex. 2004 ¶ 140; Ex. 1018, 55:23–56:12. Ferrara’s spring adds
compliance to the headrest by permitting the headrest to move in severe
impacts when insufficient compliance in the padding of the headrest results
in the headrest being “an essentially rigid structure” that could harm cause
impact-based head injury. Ex. 1010, 1:13–25, 2:55–3:2.
Accordingly, we find no evidentiary justification for Lear’s argument
that Ferrara describes a headrest that increases the risk of whiplash. Rather,
we determine that Ferrara describes improving a whiplash-mitigating
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headrest so that it does not suffer the disadvantage of causing head injury in
severe collisions resulting from the occupant’s head hitting a rigid structure.
Similarly, we are not persuaded by NHK’s argument that using
Ferrara’s spring would decrease the risk of whiplash injury. To the extent
that Ferrara improves a headrest, it does so by providing the compliance that
Dr. Viano recognized to reduce the risk of impact-based head injury in high-
speed collisions. Ferrara never describes its spring, which softens a blow to
the occupant’s head, as reducing the risk of whiplash injury, and the
testimony from Dr. Viano that NHK cites does not support such a
conclusion. Rather, Dr. Viano merely testifies that it is “possible” for “some
blows to the head” to cause whiplash, Ex. 1018, 51:1–52:2, and whether
such a blow causes whiplash “depends on so many factors,” id. at 52:4–53:1.
Dr. Viano never testifies that Ferrara’s spring reduces the risk of whiplash
injury, and NHK cites no evidence to support such a conclusion.
Because NHK fails to establish that using Ferrara’s spring in
Mertens’s headrest would “mitigate whiplash risk,” NHK’s proffered
rationale for using Ferrara’s spring in Mertens’s headrest and, thus, NHK’s
obviousness challenge is unpersuasive. “[A] patent composed of several
elements is not proved obvious merely by demonstrating that each of its
elements was, independently, known in the prior art. KSR Int’l Co. v.
Teleflex Inc., 550 U.S. 398, 418 (2007). A challenge “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.” Id. (quoting In re Kahn, 441
F.3d 977, 988 (C.A.Fed.2006)). The argument and evidence proffered by
NHK does not establish any credible reason to combine Ferrara’s spring with
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Mertens’s headrest. Nor does NHK proffer any evidence to establish
whether a skilled artisan would have considered Ferrara’s spring 48 to have
been an obvious substitute for Mertens’s torsion member 85 to permit
rearward rotation of the headrest in severe collisions. NHK bears the burden
of proving obviousness of the challenged claims by a preponderance of
evidence, and we conclude that it has failed to do so in this case.
Accordingly, we conclude that NHK has failed to establish that the
combination of Mertens and Ferrara renders claims 2, 4, 6, 8, 9, 13–20, 31,
43–49, 55–60, 62–68, 70, 81, 84–90, 93, and 94 unpatentable as obvious
under 35 U.S.C. § 103.
IV. LEAR’S MOTION TO EXCLUDE
We have reviewed Lear’s Motion to Exclude, NHK’s Opposition to
the Motion, and Lear’s Reply in support of the Motion. Based on our
review, we deny the Motion in all respects for one or both of the following
reasons: (1) the Motion is moot because it seeks to exclude evidence not
considered or relied upon in rendering this Decision or (2) the Motion
addresses issues more appropriate to determining the weight ascribed to the
evidence rather than the admissibility of evidence. In rendering this
Decision, we determine and ascribe the appropriate weight to all proffered
evidence and, when appropriate, comment upon the weight ascribed.
V. CONCLUSION
For the reasons expressed above, we conclude that NHK has shown
by a preponderance of the evidence that JP ’468 anticipates claims 2, 4, 6, 8,
9, and 28–31 of the ’043 patent under 35 U.S.C. § 102(b), but has failed to
do so for claims 57, 78, and 80. We also conclude that NHK has failed to
establish by a preponderance of evidence that the combination of Mertens
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and Ferrara renders claims 2, 4, 6, 8, 9, 13–20, 31, 43–49, 55–60, 62–68, 70,
81, 84–90, 93, and 94 unpatentable as obvious under 35 U.S.C. § 103.
VI. ORDER
For the reasons given, it is:
ORDERED that claims 2, 4, 6, 8, 9, and 28–31 of the ’043 patent are
held unpatentable;
FURTHER ORDERED that claims 13–20, 31, 43–49, 55–60, 62–68,
70, 81, 84–90, 93, and 94 are not held unpatentable;
FURTHER ORDERED that Lear’s Motion to Exclude is denied; and
FURTHER ORDERED that because this is a Final Written Decision,
parties to the proceeding seeking judicial review of the Decision must
comply with the notice and service requirements of 37 C.F.R. § 90.2.
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PETITIONER:
William H. Mandir
John F. Rabena
SUGHRUE MION PLLC
wmandir@sughrue.com
jrabena@sughrue.com
PATENT OWNER:
John M. Halan
Frank A. Angileri
BROOKS KUSHMAN P.C.
jhalan@brookskushman.com
fangileri@brookskushman.com