Ex Parte Stacy et alDownload PDFPatent Trial and Appeal BoardNov 27, 201312701655 (P.T.A.B. Nov. 27, 2013) Copy Citation 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. 12/701,655 02/08/2010 Richard B. Stacy N1-22446 1519 63565 7590 11/27/2013 HILL-ROM SERVICES, INC. Legal Dept., Mail Code K04 1069 State Road 46 East BATESVILLE, IN 47006 EXAMINER WILSON, BRITTANY M ART UNIT PAPER NUMBER 3673 MAIL DATE DELIVERY MODE 11/27/2013 PAPER Please find below and/or attached an Office communication concerning this application or proceeding. The time period for reply, if any, is set in the attached communication. PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE ____________ BEFORE THE PATENT TRIAL AND APPEAL BOARD ____________ Ex parte RICHARD B. STACY, DANIEL STEVENS, KAREN JANOFF, THOMAS UZZLE, JONATHAN H. MUELLER, JOHN ALAN BOBEY, DENNIS FLESSATE, REZA HAKAMIUN, CHARLES A. LACHENBRUCH, SOHRAB SOLTANI, GREGORY BRANSON, KENITH W. CHAMBERS, REBECCA ANNE GINTHER, STEPHEN L. DOUGLAS, ERIC R. MEYER, CHRISTOPHER R. O’KEEFE, BRADLEY T. WILSON, DARRELL BORGMAN, and RACHEL KING ____________ Appeal 2011-011304 Application 12/701,655 Technology Center 3600 ____________ Before LYNNE H. BROWNE, ANNETTE R. REIMERS and CARL M. DeFRANCO, Administrative Patent Judges. REIMERS, Administrative Patent Judge. DECISION ON APPEAL Appeal 2011-011304 Application 12/701,655 2 STATEMENT OF THE CASE Richard B. Stacy et al. (Appellants) appeal under 35 U.S.C. § 134(a) from the Examiner’s decision to reject under 35 U.S.C. § 102(e) claims 8-11 as anticipated by Kramer (US 2006/0085919 A1; pub. Apr. 27, 2006) and under 35 U.S.C. § 103(a): (1) claims 12 and 13 as unpatentable over Kramer; and (2) claims 1-7 as unpatentable over Phillips (US 2005/0229321 A1; pub. Oct. 20, 2005) and Kramer. We have jurisdiction over this appeal under 35 U.S.C. § 6(b). We AFFIRM-IN-PART. CLAIMED SUBJECT MATTER The claimed subject matter “relates to a device for supporting a patient.” Spec. 2, para. [0004]; figs. 23-24. Claims 1 and 8 are independent. Claim 8 is illustrative of the claimed subject matter and recites: 8. A patient support comprising: a cover, an air permeable first support layer located within the cover, an air supply coupled to the first support layer, a second support layer located beneath the first layer, the second layer including a head zone and a seat zone, a first sensing assembly located beneath the head zone, a second sensing assembly located beneath the seat zone, and Appeal 2011-011304 Application 12/701,655 3 a controller to receive signals from the first and second sensing assemblies and determine whether the patient support is occupied by a patient and adjust air flow through the air permeable first layer based on the signals received from the first and second sensing assemblies. ANALYSIS Anticipation by Kramer - Claims 8-11 Claim 8 Independent claim 8 recites a patient support including, inter alia, (1) “an air permeable first support layer . . .”; (2) “a second support layer located beneath the first layer”; (3) “the second layer including a head zone and a seat zone”; (4) “a first sensing assembly located beneath the head zone”; and (5) “a second sensing assembly located beneath the seat zone.” App. Br. Clms. App’x. The Examiner found that Kramer teaches “an air permeable first support layer (48, fig 4, 8)” and “a second support layer (42) located beneath the first layer, the second layer including a head zone and a seat zone (fig 13), a first sensing assembly located beneath the head zone, a second sensing assembly located beneath the seat zone.” Ans. 3-4. Appellants contend that claim 8 [of the subject invention] calls for “an air permeable first support layer.” The only reference feature even remotely analogous to this claim element is the upper surface portion 412 of cell 410 (reference FIG. 8; reference paragraph 68). This upper surface portion 412 is not shown or described as being accompanied by a “second support layer located beneath the first layer” as recited in [Appellants’] claim. On the contrary, the text discloses that other portions of disclosed cell 410 are similar to cell 10 of FIGS. 1 and 2 Appeal 2011-011304 Application 12/701,655 4 (paragraph 68, lines 3-5) which has only a single chamber or “layer”. The [E]xaminer points to feature 42 . . . as the disclosure of the second layer. But note that [FIG. 4] show[s] [an] embodiment[] that [is] distinct from that of FIG. 8 . . . Moreover, although “lower portion” 42 of [FIG. 4] is accompanied by an upper portion [48], upper portion 48 of FIG. 4 is explicitly disclosed as being airtight ([paragraph] 56, lines 6-7)[.] App. Br. 7. Although we agree with Appellants that figures 4 and 8 of Kramer refer to different embodiments, we are not persuaded by Appellants’ arguments for the following reasons. First, as correctly pointed out by the Examiner “feature 412 [of Kramer] is discussed as being air permeable.” Ans. 8 (citing Kramer, para. [0068]). Further, Kramer teaches that [w]hile several embodiments of inflatable cells 10, 110, 210, 310, 410, 510 have been discussed above, it should be readily apparent to one skilled in the art that many combinations of the structures disclosed are possible. Moreover, the discussion above regarding how to control an aspect (e.g., temperature, pressure, movement) of one or more of cells 10, 110, 210, 310, 410, 510 is applicable to all other cells 10, 110, 210, 310, 410, 510 . . . it is within the scope of this disclosure for any of these person support surfaces to have any of cells 10, 110, 210, 310, 410, 510. In addition, person support surfaces having multiple types of cells 10, 110, 210, 310, 410, 510 (for example, a first zone of cells 10, a second zone of cells 110, a third zone of cells 210, and so on, as well has having various types of cells 10, 110, 210, 310, 410, 510 dispersed in an orderly pattern or even randomly) are within the scope of this disclosure. Appeal 2011-011304 Application 12/701,655 5 Kramer, para. [0072] (emphasis added); see also Ans. 8. Based on Kramer’s disclosure, the Examiner properly reasoned that [a]lthough cell 410 of figure 8 is [described as] being of similar structure as cell 10 and upper portion 48 of cell 110(Fig 4) is described as airtight, Kramer et al. further discloses that the structures of the cell embodiments and control aspects may be combined and are applicable to the other cells (para 72). In such a case surface 112 of cell 110 (Fig 4) structurally may be air permeable or cell 410 may have two layers (48, 42). Therefore Kramer et al. anticipates an air permeable first layer (412, 48) and a second support layer (42) located beneath the first layer. Ans. 8-9. Appellants have not provided any persuasive evidence or arguments apprising us of error in the Examiner’s stated reasoning or interpretation of Kramer’s disclosure. Appellants further contend that with only one exception the reference sensors associated with the various embodiments of the cells [of Kramer] are disposed within, not beneath, the chamber of the cells. The single exception is FIG. 4 where the reference discloses a force sensor 21 located such that one might construe it as being beneath lower portion 42 of cell 110. However[,] cell 110, as already noted, has an airtight upper portion 48, not an air permeable upper portion as in [Appellants’] claim 8. Moreover, the [Kramer] reference offers no disclosure of [i.e., is silent as to] how to distribute multiple sensors 21 among the various sections or zones (head, seat, foot). Appeal 2011-011304 Application 12/701,655 6 App. Br. 8. Appellants’ arguments are not persuasive for the following reasons. First, we note that both Appellants and the Examiner acknowledge that Kramer teaches head and seat zones. See App. Br. 7-8, Reply Br. 4, footnote 2; Ans. 4, 9; see also Kramer, fig. 13. Second, as noted above, Appellants acknowledge that “one might construe [force sensor 21 of figure 4 of Kramer] as being beneath lower portion 42 of cell 110.” See App. Br. 8. Further, Kramer teaches that [s]ensor 21 in the illustrative embodiment of FIG. 4 is enlarged with the dotted line showing the location of the sensor between the lower base portion 114 and the substrate 26. In other embodiments, sensor 21 may be situated between upper portion 48 and lower portion 42. In some embodiments, sensor 21 may be placed on upper surface 112. It will be appreciated by a person having skill in the art that there are many locations throughout the structure of cell 110 and the mounting of cell 110 to substrate 26 where sensor 21 could effectively be located to determine the load placed on the cell 110. Kramer, para. [0059] (emphasis added); see also Ans. 9. Based on Kramer’s disclosure, the Examiner properly reasoned that Kramer et al[.] teaches embodiment (110) in Fig 4 that depicts a sensor (21) located beneath each cell (Para 59). Fig 13 depicts cell embodiment 10 located in a head seat and foot section of the patient support. Kramer et al. further discloses that any of the cells 10, 110, 210, 310, 410, 510 can be Appeal 2011-011304 Application 12/701,655 7 located on the support surface (para 72). Therefore Kramer et al. does teach how to distribute the sensors and cells on the patient surface as cell 110 is located in all sections Fig 13. Ans. 9. Appellants have not provided any persuasive evidence or arguments apprising us of error in the Examiner’s stated reasoning or interpretation of Kramer’s disclosure. Accordingly, for the foregoing reasons, the Examiner’s rejection of independent claim 8 as anticipated by Kramer is sustained. Claims 9-11 Dependent claim 9 recites, “the controller signals the air supply to increase air flow through the first support layer . . .” App. Br. Clms. App’x. (emphasis added). Dependent claim 10 recites, “the controller signals the air supply to decrease air flow through the first support layer . . .” Id. (emphasis added). Dependent claim 11 recites, “the average pressure and the average flow rate of air through the first support layer automatically increase[s] . . .” Id. (emphasis added). The Examiner found that Kramer teaches the limitations set forth in dependent claims 9-11. Ans. 4; see also Kramer, paras. [0056]-[0059], figs. 4-8. The Examiner further took the position that (1) “[i]ncreasing airflow or decreasing airflow through the cell layers means that air only needs to move through the area” and (2) “Kramer et al. also discloses the layers (42,48) that are vented to the atmosphere thereby having air flow through them (para 57).” Ans. 10-11. Appellants contend that [the Examiner’s] assertion misinterprets “through” as describing the intake of air from ambient to chambers 42 and/or 48 by way of tubes 30, 54 and Appeal 2011-011304 Application 12/701,655 8 the un-numbered tube extending into chamber 42 from driver 116, and the discharge of air to ambient by the same path or paths. . . . this is not “through” which means “in one side and out the opposite or another side of.” Reply Br. 4; see also Kramer, para. [0057], fig. 4. Claims are to be given their broadest reasonable interpretation consistent with the specification, reading claim language in light of the specification as it would be interpreted by one of ordinary skill in the art. In re Am. Acad. of Sci. Tech. Ctr., 367 F.3d 1359, 1364 (Fed. Cir. 2004). Appellants’ Specification does not expressly define the term “through”; however, the Specification describes that (1) “[a]s shown in Figs. 7-8, when the low air loss device 91’ is activated, air flows toward the head end 606 through the support layer 20” (Spec. 13, para. [0072], figs. 7-8); and (2) “[a]ir flows through the distributing tubes 800 and into the enclosure 602 in a direction 660 from the one end 34 to the other end 32 of the patient support 10” (Spec. 25, para. [0112], figs. 18-19). Based on Appellants’ disclosure and figures, we agree with Appellants that an ordinary and customary meaning of the term “through”1 is “in one side and out the opposite or another side of” (see Reply Br. 3-4), which is consistent with Appellants’ use of this term in the Specification. 1 An ordinary and customary meaning of the term “through” is “1 a (1) — used as a function word to indicate movement into at one side or point and out at another and especially the opposite side of.” MERRIAM WEBSTER’S COLLEGIATE DICTIONARY (11th ed. 2005). Appeal 2011-011304 Application 12/701,655 9 Kramer teaches that [d]river 116 communicates with the upper portion 48 through a tube 54 and communicates pneumatically with the ambient surroundings around cell 110 through a tube 30. Driver 116 also communicates pneumatically with lower portion 42. . . . In the illustrative embodiment, portions 42, 48 are vented to [the] atmosphere through the same tube 30. Kramer, para. [0057], fig. 4 Based on Kramer’s disclosure, we agree with Appellants that portion 48 (first support layer) of Kramer is vented to the atmosphere through tubes 54 and 30 and not via air flow through (i.e., in one side of and out at another side of) the first support layer, as required by dependent claims 9-11. See App. Br. 8-10; Reply Br. 4. Accordingly, for the foregoing reasons, the Examiner’s rejection of dependent claims 9-11 as anticipated by Kramer cannot be sustained. Obviousness over Kramer - Claims 12-13 Claim 12 Claim 12 depends from claim 11. The Examiner’s rejection of claim 12 over Kramer (see Ans. 5) is based on the same unsupported findings discussed above with respect to the claim 11. For the same reasons, we do not sustain the Examiner’s rejection of dependent claim 12 as unpatentable over Kramer. Claim 13 Claim 13 recites, “the first support layer includes a polyester spacer fabric and a polyester spring fabric positioned beneath the polyester spacer fabric.” App. Br., Clms. App’x. The Examiner found that Appeal 2011-011304 Application 12/701,655 10 Kramer et al. disclose the claimed invention except for the first support layer includes a polyester spacer fabric and a polyester spring fabric positioned beneath the polyester spacer fabric. It would have been obvious to one having ordinary skill in the art at the time the invention was made to have the first support layer includes a polyester spacer fabric and a polyester spring fabric positioned beneath the polyester spacer fabric, since it has been held to be within the general skill of a worker in the art to select a known material on the basis of its suitability for the intended use as a matter of obvious design choice. Ans. 5, 12. Appellants contend that [t]he need to select a material on the basis of its suitability for an intended use is predicated on having something to select the material for. In claim 13, the “something” is the type and relative positions of the sub-layers of an air permeable first support layer which rests atop a second support layer. The question of selection does not even arise until one is first confronted with the problem of whether the layer in question should even be comprised of sub-layers and, if so, what [sub- layers] would be satisfactory and what positions should those layers occupy relative to each other and relative to the second support layer. As [previously noted], the Kramer et al. reference does not disclose an air permeable first support layer and a second support layer located beneath the first layer. Because the reference [does not] even establish any need to make a selection, it cannot render obvious the types and relative positions of the sub-layers recited in claim 13. Appeal 2011-011304 Application 12/701,655 11 App. Br. 11-12. Appellants’ arguments are not persuasive for the following reasons. First, as discussed above, based on Kramer’s disclosure, the Examiner properly reasoned that Kramer discloses an air permeable first layer (412, 48) and a second support layer (42) located beneath the first layer. Second, in response to Appellants’ arguments, the Examiner found that Kramer et al. does teach an air permeable layer made of SpaceNet®, [see Kramer, para. [0068]] which according to the current inventions disclosure ([Spec. 26,] para 118[)] is both defined as a three-dimensional polyester spacer fabric and a polyester spring fabric. Therefore it has been held to be within the general skill of a worker in the art to select a known material on the basis of its suitability for the intended use as a matter of obvious design choice as the intended use is for the fabric to be in layers. Ans. 12-13. Appellants have not provided any evidence or arguments apprising us of error in the Examiner’s stated findings or conclusions of obviousness. Accordingly, for the foregoing reasons, the Examiner’s rejection of dependent claim 13 as unpatentable over Kramer is sustained. Obviousness over Phillips and Kramer - Claims 1-7 Appellants do not present separate arguments for claims 1-7. App. Br. 12-15. Accordingly, Appellants have argued claims 1-7 as a group for purposes of the rejection of those claims under § 103(a). Claim 1 is representative of the group and is selected for review, with claims 2-7 standing or falling with claim 1. See 37 C.F.R. § 41.37(c)(1)(vii) (2011). Appeal 2011-011304 Application 12/701,655 12 Independent claim 1 recites a patient support including, inter alia, (1) “an air permeable first support layer . . .”; and (2) “a plurality of air bladders located beneath the air permeable first layer including one or more transverse bladders and one or more upright can-shaped bladders.” App. Br., Clms. App’x. The Examiner found that Phillips discloses a patient support that comprises, inter alia, a cover, first and second angle sensors, and a controller. Ans. 6. The Examiner also found that Phillips further discloses a plurality of air bladders including one or more transverse bladders but does not disclose (1) an air permeable first support layer; and (2) a plurality of air bladders located beneath the air permeable first layer including one or more upright can-shaped bladders. Ans. 6-7. The Examiner found that Kramer discloses (1) an air permeable first support layer; and (2) a plurality of air bladders located beneath the air permeable first layer including one or more upright can-shaped bladders. Ans. 7-8. The Examiner concluded that [i]t would have been obvious to one of ordinary skill [in] the art at the time of invention to [include] an air permeable layer with an air supply and can shaped bladders [as taught by Kramer], since the air permeable layer with an airflow gives ventilation [to] the surface [contacting] the patient thereby increasing comfort by giving ventilation to the underside of the bedridden patient while having can shaped bladders is merely a change in shape and is an obvious adjustment to one of ordinary skill in the art. Ans. 8. Appeal 2011-011304 Application 12/701,655 13 Appellants contend that Kramer fails to teach or suggest an air permeable first layer. App. Br. 13. As discussed above, this argument is not persuasive. Appellants further contend that “the rejection offers no explicit analysis of obviousness including some articulated reasoning with some rational underpinning to support the legal conclusion of unobviousness.” App. Br. 14-15. According to Appellants, “the rejection . . . does nothing more than describe a possible benefit of an air permeable layer (ventilation and patient comfort) and offer[s] a conclusory statement that can-shaped bladders are ‘merely a change in shape.’” App. Br. 13. Appellants also contend that [the rejection] does not explain how [Appellants’] combination of elements and interrelationships, is “rearranging parts”. It does not recognize that “merely a change in shape” is not an explanation of why it would be obvious to combine [] bladders of different types and arrange those bladders in a particular relationship to an air permeable layer. App. Br. 15. In response to Appellants’ arguments, the Examiner found that [i]t would have been obvious to one of ordinary skill in the art at the time of invention to [include] with the teachings of Phillips et al. an air permeable layer with an air supply [as taught by Kramer], since the air permeable layer with an airflow gives ventilation [to] the surface [contacting] the patient thereby increasing comfort by giving ventilation to the underside of the bedridden and reducing the chance of formation of bed sores. Further an air permeable first layer Appeal 2011-011304 Application 12/701,655 14 allows for the cells to keep the desired pressure when a constant air flow is present without the use of exhaust valves and hoses as taught by Phillips et al. Ans. 14. The Examiner further found that [i]t would have been obvious to one of ordinary skill [in] the art at the time of invention to [include] with the [teachings] of Phillips et al. can shaped bladders [as taught by Kramer], since having can shaped bladders is merely a change in shape and is an obvious adjustment to one of ordinary skill in the art and having can shaped bladders allows for independent compression maximizing the ability of the mattress to adapt to the shape and topography of the resting body thereby allowing pressure to be reduced in areas while keeping pressure in others reducing the chance of bed sores in [the] seat area [left buttock and right buttock] of a patient more than a transverse bladder as taught by Phillips would since the transverse bladder extends the width of the bed. Ans. 15. We find the Examiner’s articulated reasoning for combining the reference teachings in the manner claimed to be based upon rational underpinnings. Appellants have not provided any evidence or arguments to the contrary. Accordingly, for the foregoing reasons, the Examiner’s rejection of independent claim 1 and claims 2-7, which fall with claim 1, as unpatentable over Phillips and Kramer is sustained. Appeal 2011-011304 Application 12/701,655 15 DECISION We REVERSE the decision of the Examiner to reject claims 9-12. We AFFIRM the decision of the Examiner to reject claims 1-8 and 13. No time period for taking any subsequent action in connection with this appeal may be extended under 37 C.F.R. § 1.136(a)(1)(iv). AFFIRMED-IN-PART tkl Copy with citationCopy as parenthetical citation