Ex Parte Stacy et al

Patent Trial and Appeal Board

Nov 27, 2013

12701655 (P.T.A.B. Nov. 27, 2013)

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

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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

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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
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(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.
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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).

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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

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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
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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).

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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
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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.

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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).
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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.

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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

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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.

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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

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