Ex Parte Keil

Patent Trial and Appeal Board

Nov 16, 2012

11760432 (P.T.A.B. Nov. 16, 2012)

UNITED STATES PATENT AND TRADEMARK OFFICE
__________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
__________

Ex parte CHARLES C. KEIL
__________

Appeal 2012-002056
Application 11/760,432
Technology Center 3600
__________

Before DONALD E. ADAMS, ERIC GRIMES, and SHERIDAN K.
SNEDDEN, Administrative Patent Judges.

SNEDDEN, Administrative Patent Judge.

DECISION ON APPEAL
This is an appeal under 35 U.S.C. § 134 involving claims to veterinary
procedure tables. The Examiner has rejected the claims as obvious and for
containing new matter. We have jurisdiction under 35 U.S.C. § 6(b). We
affirm-in-part.

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STATEMENT OF THE CASE
Appellant‟s invention relates to a veterinary procedure table having an
animal support structure cantilevered from a support frame that “may be
moved to a position close to the floor surface to facilitate placing an animal
onto the veterinary procedure table.” (Spec. ¶ [0025].)
Claims 1, 9 and 13 are independent and representative. Claim 22 is
rejected on separate grounds. Claims 1, 9, 13 and 22 read as follows
(emphasis added):
1. A veterinary procedure table, comprising:
a vertically extending frame having a front surface; and
an animal support having first and second spaced ends defining
a lengthwise dimension, and having first and second spaced sides
defining a widthwise dimension,
said first end defining a terminal edge along said widthwise
dimension, said lengthwise dimension being greater than said
widthwise dimension; and
said animal support slidably coupled to said frame only at said
first end such that said animal support is cantilevered from said frame,
with said terminal edge of said first end confronting said front surface
of said frame and said second end extending outwardly from said
frame such that a longitudinal centerline of said animal support is
perpendicular to said front surface of said frame, and such that said
animal support is movable from a first position adjacent to and
confronting a floor surface to a plurality of elevations relative to said
frame and spaced from the floor surface.

9. A veterinary procedure table, comprising:
a vertically extending frame having a front surface; and
an animal support having first and second spaced ends defining
a lengthwise dimension, and having first and second spaced sides
defining a widthwise dimension,
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said first end defining a terminal edge along said widthwise
dimension, said lengthwise dimension being greater than said
widthwise dimension;
said animal support slidably coupled to said frame only at said
first end such that said animal support is cantilevered from said frame,
with said terminal edge of said first end confronting said front surface
of said frame and said second end extending outwardly from said
frame such that a longitudinal centerline of said animal support is
perpendicular to said front surface, and such that said animal support
is movable from a first position adjacent a floor surface to a plurality
of elevations relative to said frame and spaced from the floor surface;
a sink associated with said animal support and adapted to
receive fluid material from said animal support;
at least one sensor associated with said animal support and
operative to sense a load disposed on said animal support;
a display communicating with said sensor and operative to
indicate a weight associated with the load sensed by said sensor;
wherein said animal support comprises first and second support
arms extending generally along a direction corresponding to said
lengthwise dimension of said animal support, and wherein said sink is
removably received on said first and second support arms; and
wherein said sensor is disposed between one of said first and
second support arms and said sink.

13. A veterinary procedure table, comprising:
a vertically extending frame having a front surface;
an animal support frame cantilevered from and slidably coupled
to said vertically extending frame for movement between a first
position adjacent a floor surface and a plurality of elevations relative
to said vertically extending frame and spaced from the floor surface;
a sink removably received on said animal support frame, said
sink having first and second spaced ends defining a lengthwise
dimension, and having first and second spaced sides defining a
widthwise dimension, said first end defining a terminal edge along
said widthwise dimension and confronting said front surface of said
vertically extending frame such that a longitudinal centerline of said
sink is perpendicular to said front surface, said lengthwise dimension
being greater than said widthwise dimension;
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said sink including a bottom wall, at least one sidewall
extending upwardly from said bottom wall and cooperating with said
bottom wall to define a reservoir, and an aperture in said bottom wall
for draining fluids received in said reservoir;
first registration structure on said animal support frame;
second registration structure on said sink and shaped
complementary to said first registration structure, said second
registration structure cooperating with said first registration structure
to position said sink in registration on said animal support frame;
a grille disposed directly above said sink for supporting an
animal thereon;
at least one sensor operative to sense a load disposed on said
grille; and a display communicating with said sensor and operative to
indicate a weight associated with the load sensed by said sensor.

22. The veterinary procedure table of claim 1, wherein said animal
support is within about four inches of the floor surface in said first
position.

The claims stand rejected as follows:
I. Claim 22 under 35 U.S.C. §112, first paragraph.
II. Claims 1, 8, 18 and 20 under 35 U.S.C. § 103(a) as being
unpatentable over the combination of Harrawood et al. (US Patent
No. 5,230,112, issued Jul. 27, 1993) and Hand et al. (US Patent
No. 6,691,347 B2, issued Feb. 17, 2004).
III. Claims 3, 4, 6, 9-12 and 21 under 35 U.S.C. § 103(a) as being
unpatentable over the combination of Harrawood, Hand and
Ferrand et al. (US Patent No. 5,802,640, issued Sep. 8, 1998).
IV. Claim 7 under 35 U.S.C. § 103(a) as being unpatentable over the
combination of Harrawood, Hand and Bucher (US Patent No.
3,965,501, issued June 29, 1976).
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V. Claims 13-17 and 19 under 35 U.S.C. § 103(a) as being
unpatentable over the combination of Harrawood, Hand, Ferrand
and Bucher.
VI. Claim 22 under 35 U.S.C. § 103(a) as being unpatentable over the
combination of Harrawood, Hand and Coates (US Patent No.
4,558,847, issued Dec. 17, 1985).

I.
Issue
The Examiner rejected claim 22 under 35 U.S.C. § 112, first
paragraph, for containing new matter. The Examiner finds that “[t]he added
limitation of „within about four inches‟ is not described in the specification
as originally filed” (Ans. 4-5) and that “if Appellant inadvertently omitted
the benefit for priority, Appellant must [fulfill] numeral (1)-(3) under part
(a) [of 37 C.F.R. §1.57], to which Appellant has not” (Ans. 5).
Appellant contends that “support for the language of claim 22 can be
found with reference to Appellant‟s prior-filed U.S. Patent Application
Serial No. 11/671,611 (printed publication US2007/0125314) at paragraphs
0005,0020, and 0025” (App. Br. 9) and that “[t]he application was amended
to include the language of claim 22 on May 19, 2010” (App. Br. 11).
The issue with respect to this rejection is:
Does the evidence of record support the Examiner‟s finding that the
claims incorporate new matter?
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Findings of Fact
FF1. U.S. Patent Application Serial No. 11/671,611 at ¶ [0004]
provides as follows:
In the instance of the fixed exam table, the table may lower to
within four inches of the floor enabling a dog to step upon the table
and be raised to a height of 40 inches from the floor or anywhere in
between, to facilitate examination without lifting the animal.

FF2. The amendment entered May 19, 2010 adds claim 22 but does
not contain any amendment to the Specification. (See Amendment of May
19, 2010, 8-9.)

Principles of Law
37 CFR § 1.57(a) provides that, under certain conditions, a claim for
the benefit of a prior-filed provisional application is considered an
incorporation by reference of the prior-filed provisional application for
certain purposes. 37 CFR § 1.57(a). However, certain conditions and
requirements need to be met for an applicant to add omitted material to an
application pursuant to 37 CFR 1.57(a). In particular, the application must
be amended to insert the omitted subject matter into the specification. 37
CFR § 1.57(a)(1) (“The application must be amended to include the
inadvertently omitted portion of the specification or drawing(s).”)

Analysis
We agree with the Examiner that Appellant failed to fulfill the
requirements of 37 CFR § 1.57(a). The amendment entered May 19, 2010
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adds claim 22 but does not include any amendment to the Specification to
add the omitted subject matter from the priority application that provides
descriptive support for the amendment. (See FF1 and FF2.)

Conclusion of Law
The evidence of record supports the Examiner‟s finding that claim 22
incorporates new matter.
II.
Issue
The Examiner rejected claims 1, 8, 18 and 20 under 35 U.S.C. §
103(a) as being unpatentable over the combination of Harrawood and Hand.
The Examiner finds that the terms “„[a]djacent to‟ and „confronting‟ are
broad and relative terms without a definite boundary, thus, Harrawood‟s
support is adjacent and confronting the floor (especially the bottom area of
the support).” (Ans. 20).
Appellant contends that “the structure of Harrawood „112 prohibits
extending the range of vertical motion of the table closer to the floor
surface” (Reply Br. 5) and that “the Examiner has failed to state a rationale
as to why persons skilled in the art would modify Harrawood „112 in view
of Hand „347” (Reply Br. 4.).
The issue with respect to this rejection is:
Does the evidence of record support the Examiner‟s conclusion that
the combination of Harrawood and Hand render obvious the method of
claim 1?
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Additional Findings of Fact
FF3. The Examiner finds that “[a]djacent can be 1 inch, 2 inches, 2
feet, etc. thus, without some sort of limit, „adjacent‟ is interpreted as
something „nearby.[‟]” (Ans. 20).
FF4. Figure 2 of Harrawood is reproduced below.

Elements of Figure 2 are described in the following excerpts of
Harrawood:

Shaft 150 passes through a vertical slot 101 in the side of
the support tower 10. Vertical slot 101 allows positive and
negative elevation of table top 20 in the directions shown by
arrows 60 and 61. Table 20 may be set to any desired height
within the present table elevation limits of 29" to 46". The
limits set forth in the preferred embodiment are merely [for]
illustration purposes only and in no way limit the scope of the
present invention.…

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Referring to FIG. 2, a positive and negative lateral tilt of
table 20 (roll) is also permitted using the motorized mechanism
of the preferred embodiment. A positive or negative 20 degree
rotation in directions represented by arrows 250 and 251 may
be accomplished, as shown by the side view in FIG. 2. The
elevation … and lateral tilting of table top 20 is performed by
the transmission gear reduction assemblies and motors shown
in the cutaway view of tower 10 in FIG. 2.

(Harrawood, col. 6, ll. 21-42; emphasis added.)

FF5. Figure 1 of Hand is reproduced below.

Elements of Figure 1 are described in the following excerpt from
Hand:

Referring now to the drawings, FIG. 1 illustrates a bed 10
having a base 12 which includes opposite side members 14 and
16 and cross members 18 and 20 extending between side
members 14 and 16. A support assembly 22 is located at a foot
end 24 of bed 10. Support assembly 22 supports a patient
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support assembly 26 in a cantilevered fashion. Therefore, the
head end 25 of bed 10 is open to facilitate access to the patient
56.
(Hand, col. 4, l. 63 to col. 5, l. 3.)

FF6. Figure 1 of the Specification is reproduced below.

Elements of Figure 1 are described in the following excerpts from the
Specification:
FIGS. 1 and 2 depict an exemplary veterinary procedure
table 10 in accordance with the principles of the present
invention. The veterinary procedure table 10 includes a vertical
frame assembly 12 extending generally upwardly from a floor
surface....

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The animal support assembly 30 is coupled to the vertical
frame assembly 12 only at the first end 32. This arrangement
eliminates any support structure directly beneath the animal
support assembly 30 and facilitates movement of the animal
support assembly 30 to a height that is very close to the floor
surface.

In use, the animal support assembly 30 may be moved to
a position close to the floor surface to facilitate placing an
animal onto the veterinary procedure table 10. The animal
support assembly 30 may thereafter be raised vertically upward
to any height desired by the practitioner.

(Spec., ¶¶ [0016], [0018] and [0025].)

Principles of Law
[T]he examiner bears the initial burden, on review of the prior
art or on any other ground, of presenting a prima facie case of
unpatentability. If that burden is met, the burden of coming
forward with evidence or argument shifts to the applicant.

After evidence or argument is submitted by the applicant
in response, patentability is determined on the totality of the
record, by a preponderance of evidence with due consideration
to persuasiveness of argument.

In re Oetiker, 977 F.2d 1443, 1445 (Fed. Cir. 1992).
“[D]uring examination proceedings, claims are given their broadest
reasonable interpretation consistent with the specification.” In re Hyatt, 211
F.3d 1367, 1372 (Fed. Cir. 2000). However, a claim element cannot be
interpreted so broadly so as to read the limitation out of the claim. See Texas
Instr. Inc. v. United States Int’l Trade Comm’n, 988 F.2d 1165, 1171 (Fed.
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Cir. 1993) (Claim language cannot be mere surplusage. An express
limitation cannot be read out of the claim).

Analysis
Appellant argues as follows:
Harrawood „112 also fails to teach or suggest an animal
support that is movable from a first position adjacent to (claims
1 and 9) and confronting (claim 1) a floor surface, to a plurality
of elevations relative to a vertically extending frame and spaced
from the floor surface, as set forth in these claims. Specifically,
the table top 20 of Harrawood „112 is supported from a shaft
150 that passes through a vertical slot 101 in the side of support
tower 10. The slot 101 allows for only limited vertical
movement of the table top 20, and is not configured to position
the table top 20 adjacent to and confronting a floor surface 130,
as set forth in claim 1. (See Harrawood „112 at FIGS. 1 and 2,
for example.)
(App. Br. 12-13.) Appellant further argues that the Examiner failed to state
a rationale as to why a person of ordinary skill in the art would have
modified Harrawood in view of Hand such that the table of Harrawood is
“positionable adjacent to and confronting a floor surface.” (See e.g., Reply
Br. 5.)
The Examiner explains that “Hand was not relied on for a teaching of
the support assembly being slidably lowered to a position adjacent the floor
surface” (Ans. Br. 23), but that “„[a]djacent to‟ and „confronting‟ are broad
and relative terms” where “[a]djacent can be 1 inch, 2 inches, 2 feet, etc.”
(FF3; Ans. 20). The Examiner, however, provides no evidence to support a
conclusion that Harrawood‟s table could be lowered to within 1-2 inches of
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a floor or that a person of ordinary skill in this art would reasonably interpret
a table 2 feet or more above a floor surface as adjacent/confronting the floor.
Here, the Examiner‟s interpretation of the terms “adjacent” or
“confronting” to include distances of 29 to 46 inches, the table elevation
disclosed by Harrawood (FF4), effectively reads these terms out of the
claims based on the Examiner‟s interpretation of “adjacent” as
encompassing elements that are separated by two feet or more. In addition,
although Harrawood states that its height limits are only for illustration
purposes, the Examiner has not provided any persuasive reason for
concluding that it would have been obvious to a person of ordinary skill in
the art to modify Harrawood‟s device to allow its table to be lowered to be
adjacent to the floor, as required by claim 1.
Having determined the scope of Appellant‟s claims, we are
constrained to find that the evidence of record fails to establish a prima facie
case of obviousness.
Conclusion of Law
The evidence of record does not support the Examiner‟s conclusion
that the combination of Harrawood and Hand render obvious apparatus of
claim 1. We thus reverse this rejection with regard to claim 1. As claims 8,
18 and 20 are dependent on claim 1, and thus incorporate all of the
limitations of claim 1, we reverse the rejection as to those claims as well.

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III.
The Examiner rejected claims 3, 4, 6, 9-12 and 21 under 35 U.S.C. §
103(a) as being unpatentable over the combination of Harrawood, Hand and
Ferrand.
Independent claims 1 and 9 both include the limitation where “said
animal support is movable from a first position adjacent a floor surface,”
which, as discussed above, the Examiner has not shown to be suggested by
the combination of Harrawood and Hand. Ferrand is not relied upon by the
Examiner to cure this deficiency in the combination of Harrawood and
Hand. (See e.g., Ans. 8.) Thus, for the reasons explained above, the
rejection is reversed.

IV.
The Examiner rejected claim 7 under 35 U.S.C. § 103(a) as being
unpatentable over the combination of Harrawood, Hand and Bucher.
Independent claim 1 includes the limitation where “said animal
support is movable from a first position adjacent a floor surface,” which, as
discussed above, the Examiner has not shown to be suggested by the
combination of Harrawood and Hand. Bucher is not relied upon by the
Examiner to cure this deficiency in the combination of Harrawood and
Hand. (See e.g., Ans. 12.) Thus, for the reasons explained above, the
rejection is reversed.

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V.
The Examiner rejected claims 13-17 and 19 under 35 U.S.C. § 103(a)
as being unpatentable over the combination of Harrawood, Hand, Ferrand
and Bucher. Similar to claim 1, independent claim 13 includes the limitation
where “said vertically extending frame for movement between a first
position adjacent a floor surface and a plurality of elevations relative to said
vertically extending frame and spaced from the floor surface,” which the
Examiner has not shown to be taught by the combination of Harrawood and
Hand. Ferrand and Bucher are not relied upon by the Examiner to cure the
deficiencies of Harrawood and Hand. (See e.g., Ans. 14-15.) Thus, for the
reasons explained above, the rejection is reversed.

VI.
Issue
The Examiner rejected claim 22 under 35 U.S.C. § 103(a) as being
unpatentable over the combination of Harrawood, Hand and Coates. The
Examiner finds that “Coates teaches that it is well known to have height
adjustment of a patient lifting table to only a few inches above a floor
surface.” (Ans. 18.)
Appellant contends as follows:
Coates „847 is directed to a patient transportation and operating
table that is intended to be used to transfer a patient between a
floor surface and a bed or operating table. In contrast, the table
of Harrawood „112 is bolted to the floor and is not ambulatory.
Harrawood „112, therefore, is not intended to be used to
transport patients and there is no need to modify the apparatus
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of Harrawood „112 so that the table extends to the floor surface
as alleged by the Examiner.
(Reply Br. 7.)
The issue with respect to this rejection is:
Does the evidence of record support a finding that the Examiner erred
in reaching a conclusion of obviousness?

Additional Findings of Fact
FF7. Figure 1 of Coates is reproduced below.

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Elements of Figure 1 are described in the following excerpt of Coates:
The reference numeral 1, FIG. 1 generally indicates a
patient lifting table embodying the present invention. The
lifting table 1 includes an upper supportive platform 2, a lower
platform 3 located below the upper platform 2 for positioning
upon a floor surface, and a scissor linkage mechanism 4
extending between and connected to the upper and lower
platforms 2 and 3. The lever arm 5 is affixed to and extends
from a lower end of one of the scissors mechanism links and a
means 6 extends between the lower platform 3 and the lever
arm 5 and enables raising and lowering of the upper platform 2
relative to the lower platform 3.
(Coates, col. 2, 57-68.)

Principles of Law
In KSR Int’l v. Teleflex Inc., 550 U.S. 398, 415 (2007), the Supreme
Court emphasized that “the [obviousness] analysis need not seek out precise
teachings directed to the specific subject matter of the challenged claim, for
a court can take account of the inferences and creative steps that a person of
ordinary skill in the art would employ.” Id. at 418. The Court also
explained that the obviousness analysis permits an examiner to rely upon
“common sense” or the knowledge of the skilled artisan to bridge gaps in
prior art‟s explicit teachings. See id. at 420-21.
Analysis
Appellant contends that “there is no need to modify the apparatus of
Harrawood „112 so that the table extends to the floor surface as alleged by
the Examiner.” (Reply Br. 7.) The Examiner argues that “[i]t would have
been obvious to one having ordinary skill in the art at the time the invention
was made to have the first position of the animal support of Harrawood et al.
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as modified by Hand et al. be within a few inches from the floor surface as
taught by Coates, in order to facilitate[ ] the placement of the patient onto
the support.” (Ans. 18.)
After reviewing the record before us, we find that Appellant failed to
traverse the Examiner‟s specific findings. The Examiner finds that Coates
supplies a motivation for moving the support table within 4 inches of the
floor. (Id.) The fact that references individually do not expressly suggest a
need to modify the apparatus of Harrawood is not sufficient to establish that
the Examiner erred in reaching a conclusion of obviousness based upon the
combined teachings of the references. See In re Merck & Co. Inc., 800 F.2d
1091, 1097 (Fed. Cir. 1986) (Each reference “must be read, not in isolation,
but for what it fairly teaches in combination with the prior art as a whole.”).

Conclusion of Law
We conclude that the preponderance of the evidence of record does
not support a finding that the Examiner erred in reaching a conclusion of
obviousness. We thus affirm the rejection of claim 22 under 35 U.S.C.
103(a).

SUMMARY
We affirm the rejection of claim 22 under 35 U.S.C. §112, first
paragraph.
We reverse the rejection of claims 1, 8, 18 and 20 under 35 U.S.C. §
103(a) as being unpatentable over the combination of Harrawood and Hand.
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We reverse the rejection of claims 3, 4, 6, 9-12 and 21 under 35
U.S.C. § 103(a) as being unpatentable over the combination of Harrawood,
Hand and Ferrand.
We reverse the rejection of claim 7 under 35 U.S.C. § 103(a) as being
unpatentable over the combination of Harrawood, Hand and Bucher.
We reverse the rejection of claims 13-17 and 19 under 35 U.S.C. §
103(a) as being unpatentable over the combination of Harrawood, Hand,
Ferrand and Bucher.
We affirm the rejection of claim 22 under 35 U.S.C. § 103(a) as being
unpatentable over the combination of Harrawood, Hand and Coates.
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).

AFFIRMED-IN-PART

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