LP4, LLC

Patent Trials and Appeals BoardOct 22, 2021

2021002006 (P.T.A.B. Oct. 22, 2021)

UNITED STATES PATENT AND TRADEMARK OFFICE UNITED STATES DEPARTMENT OF COMMERCE United States Patent and Trademark Office Address: COMMISSIONER FOR PATENTS P.O. Box 1450 Alexandria, Virginia 22313-1450 www.uspto.gov APPLICATION NO. FILING DATE FIRST NAMED INVENTOR ATTORNEY DOCKET NO. CONFIRMATION NO. 15/933,528 03/23/2018 Olof Hakan Sjogren 2932560-000010 9686 49840 7590 10/22/2021 Atlanta Baker Donelson Intellectual Property Department Monarch Plaza, Suite 1600 3414 Peachtree Rd. ATLANTA, GA 30326 EXAMINER ROS, NICHOLAS A ART UNIT PAPER NUMBER 3754 NOTIFICATION DATE DELIVERY MODE 10/22/2021 ELECTRONIC Please find below and/or attached an Office communication concerning this application or proceeding. The time period for reply, if any, is set in the attached communication. Notice of the Office communication was sent electronically on above-indicated "Notification Date" to the following e-mail address(es): ipdocketing@bakerdonelson.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE ____________ BEFORE THE PATENT TRIAL AND APPEAL BOARD ____________ Ex parte OLOF HAKAN SJOGREN and JAKOB CARL ERIK SJOGREN Appeal 2021-002006 Application 15/933,528 Technology Center 3700 ____________ Before ANTON W. FETTING, CYNTHIA L. MURPHY, and KENNETH G. SCHOPFER, Administrative Patent Judges. SCHOPFER, Administrative Patent Judge. DECISION ON APPEAL Pursuant to 35 U.S.C. § 134(a), Appellant1 appeals from the Examiner’s decision to reject claims 1–11 and 13–27. We have jurisdiction under 35 U.S.C. § 6(b). We AFFIRM IN PART. 1 We use the word “Appellant” to refer to “applicant” as defined in 37 C.F.R. § 1.42. Appellant identifies the real party in interest as “[t]he Applicant.” Appeal Br. 3. Appeal 2021-002006 Application 15/933,528 2 BACKGROUND The Specification states that “[t]his invention relates generally to a seating device, and more particularly to an assistive seating device.” Spec. 1, ll. 5–6. The Specification describes that the present invention is directed to providing an assistive device “that will aid a person in rising from a seated position to a standing position while allowing them to use their arms during the process.” Id. at. 2, ll. 9–11. CLAIMS Claims 1, 11, and 22 are the independent claims on appeal. Claims 1 and 22 are illustrative of the appealed claims and recite: 1. An assistive seating device comprising, a base having a front having a pair of front legs and a rear having a pair of rear legs, said base including a pair of laterally disposed first couplers positioned adjacent said base rear and a pair of laterally disposed second couplers positioned adjacent said base front, said base also including a pair of laterally disposed stationary armrests extending from said front legs; a seat portion pivotally coupled for reciprocal movement to said base, said seat portion including a pair of laterally disposed pivot mounts; a pair of laterally disposed lifting cylinders, each lifting cylinder having one end pivotally coupled to said seat portion through one said pivot mount and an opposite end releasably coupled to either one said first coupler or one said second coupler, whereby the selective positioning of the lifting cylinders through the selective positioning of the opposite ends determines the lifting force of the lifting cylinders upon the seat portion. 22. An assistive seating device comprising, Appeal 2021-002006 Application 15/933,528 3 a base having a pair of rear lower couplers adjacent a rear of said base and a pair of front lower couplers adjacent a front of said base; a seat portion pivotally coupled for reciprocal movement to said base, said seat portion having a pair of upper pivot mounts, the distance between said upper pivot mounts and said pair of rear lower couplers being generally the same as the distance between said upper pivot mounts and said pair of front lower couplers; a pair of laterally disposed lifting cylinders, each lifting cylinder having a first end coupled to said seat portion through said pivot mounts and a second end selectively coupled to said base at either one said rear lower coupler of said pair of rear lower couplers or one said front lower coupler of said pair of front lower couplers, whereby each lifting cylinder is selectively coupleable to the seat portion and the base at a plurality of different elevational angles which determines the lifting force of the lifting cylinders upon the seat portion, and whereby the distance between the pivots and the rear lower couplers and front lower couplers are the same so that a tilting of the seat portion does not occur should one lifting cylinder be coupled to a rear lower coupler and the other lifting cylinder be coupled to a front lower coupler. Appeal Br. 24, 27–28. REJECTIONS 1. The Examiner rejects claims 8, 10, 19, and 21–27 under 35 U.S.C. § 112(b) as indefinite. 2. The Examiner rejects claims 22, 23, 25, and 27 under 35 U.S.C. § 102(a)(1) as anticipated by Bennett.2 2 Bennett et al., US 6,035,462, iss. Mar. 14, 2000. Appeal 2021-002006 Application 15/933,528 4 3. The Examiner rejects claims 1, 5, 8, 10, 11, 16, 19, and 21 under 35 U.S.C. § 103 as unpatentable over Bennett in view of Gilbert.3 4. The Examiner rejects claims 2 and 13 under 35 U.S.C. § 103 as unpatentable over Bennett in view of Gilbert and Splane.4 5. The Examiner rejects claims 3, 4, 14, and 15 under 35 U.S.C. § 103 as unpatentable over Bennett in view of Gilbert and Sjögren.5 6. The Examiner rejects claims 6 and 17 under 35 U.S.C. § 103 as unpatentable over Bennett in view of Gilbert and Sadler.6 7. The Examiner rejects claims 7 and 18 under 35 U.S.C. § 103 as unpatentable over Bennett in view of Gilbert and Krapu.7 8. The Examiner rejects claims 9 and 20 under 35 U.S.C. § 103 as unpatentable over Bennett in view of Gilbert and Sutou.8 9. The Examiner rejects claim 24 under 35 U.S.C. § 103 as unpatentable over Bennett in view of Splane. 10. The Examiner rejects claim 26 under 35 U.S.C. § 103 as unpatentable over Bennett in view of Sutou. DISCUSSION Indefiniteness The Examiner determines that claims 8, 10, 19, 21, and 22 are indefinite because they recite the term “generally,” which is a relative term that “is not defined by the claim, the specification does not provide a 3 Gilbert, US D594,946 S, iss. June 23, 2009. 4 Splane, Jr., US 6,945,604 B2, iss. Sept. 20, 2005. 5 Sjögren, WO 2013/187819 A1, pub. Dec. 19, 2013. 6 Sadler et al., US 4,833,736, iss. May 30, 1989. 7 Krapu, US 6,189,164 B1, iss. Feb. 20, 2001. 8 Sutou et al., US 2006/0048296 A1, pub. Mar. 9, 2006. Appeal 2021-002006 Application 15/933,528 5 standard for ascertaining the requisite degree, and one of ordinary skill in the art would not be reasonably apprised of the scope of the invention.” Final Act. 4. The Examiner rejects claims 23–27 based on their dependency from claim 22. Id. The Examiner also rejects claims 8 and 19 based on the recitation that requires “the first couplers to be positioned ‘generally directly below said pivot mounts’” because “it is unclear what positioning would be considered ‘generally directly’ beneath the pivot mounts and as the seat rises or lowers the position of the mounts relative to the front and rear of the base changes.” Id. at 5. Finally, the Examiner also rejects claims 10, 21, and 22 to the extent these “claims call for the front and rear couplers to be positioned such that there is an equal distance between each coupler and their respective pivot mounts.” Id. Appellant does not raise any substantive arguments regarding this rejection. See Appeal Br. 8 (stating only that Appellant “stands ready to delete the term ‘generally’ from the claims.”). However, because the rejections based on the prior art depend on an understanding of the claims, we will consider the merits of this rejection. As discussed below, we are not persuaded that any of the issues raised by the Examiner show that the claims are indefinite. To the extent the Examiner takes issue with the use of the term “generally,” we are not persuaded of any ambiguity in the claims. We disagree with the Examiner’s position that the Specification does not provide a standard for determining the requisite degree to which an element or elements may be “generally directly below” or “general equal.” As used in the Specification, one of ordinary skill in the art would understand that the term generally is used interchangeably with substantially, and that the term Appeal 2021-002006 Application 15/933,528 6 allows for some degree of difference that does not significantly affect the functioning of the device. For example, the Specification describes that “the term substantially or generally the same length or distance, as used herein, is intended to denote a length or distance which is close enough so as not to cause a tilting of the seat portion due to the lifting cylinders being set at different lengths.” Spec. 7, ll. 5–8. Further, to the extent that the Examiner takes issue with other language in claims 10, 21, and 22 beyond the use of the term “generally,” we determine that the claim language is not indefinite. With respect to these claims the Examiner determines that “the claims call for the front and rear couplers to be positioned such that there is an equal distance between each coupler and their respective pivot mounts,” but according to the Examiner “as the seat rises or lowers the position of the pivot mounts relative to the front and rear of the base (and the couplers) changes and as such it is unclear as to how/when this limitation would be applied.” Final Act. 5. Claim 10 depends from claim 1 and requires that “the distance between each said pivot mount and a corresponding first coupler is generally equal to the distance between each said pivot mount and a corresponding second coupler.” Appeal Br. 10. We are not persuaded of any ambiguity in this claim language. The plain language of the claim requires only that the distance between a pivot mount and a first coupler is approximately equal to the distance between a pivot mount and a corresponding second coupler on the other side of the seating device at some point. The claim does not require any specific position of the seat and the claim would read on any device that includes a position in which the distances referenced are the same. Appeal 2021-002006 Application 15/933,528 7 We reach a similar conclusion with respect to claim 21. Claim 21 depends from claim 11 and requires that “the distance between each said pivot mount and a corresponding rear coupler is generally equal to the distance between each said pivot mount and corresponding front coupler.” Appeal Br. 27. The plain language of the claim requires only that the distance between the pivot and the front coupler is approximately the same as the distance between the pivot and the rear coupler at some point. The claim does not require any specific position of the seat and would read on any device that includes a position in which the distances referenced are the same. Similar to claim 21, claim 22 requires that “the distance between said upper pivot mounts and said pair of rear lower couplers being generally the same as the distance between said upper pivot mounts and said pair of front lower couplers.” Appeal Br. 28. The claim further requires that “the distance between the pivots and the rear lower couplers and front lower couplers are the same so that a tilting of the seat portion does not occur should one lifting cylinder be coupled to a rear lower coupler and the other lifting cylinder be coupled to a front lower coupler.” Id. We are not persuaded of any ambiguity in either of these limitations of claim 22. As with claim 22, the claim does not require any specific position of the seat and would read on any device that includes a position in which the distances referenced are the same such that the no tilting of the seat from side to side would occur. Based on the foregoing, we do not sustain the rejection under 35 U.S.C. § 112(b). Appeal 2021-002006 Application 15/933,528 8 Anticipation We are persuaded of error in the anticipation rejection of claim 22 because we agree with Appellant that the Examiner has not established that Bennett discloses “the distance between said upper pivot mounts and said pair of rear lower couplers being generally the same as the distance between said upper pivot mounts and said pair of front lower couplers.” See Appeal Br. 22. With respect to claim 22, the Examiner finds that Bennett discloses an assistive seating device including a base, seat portion, pair of lifting cylinders, and pivot mounts and couplers as claimed. Final Act. 6 (citing Bennett Figs. 1, 2; col. 4, ll. 9–13). The Examiner further finds that Bennett discloses “whereby each lifting cylinder is selectively coupleable to the seat portion and the base at a plurality of different elevation angles which determines the lifting force of the lifting cylinders upon the seat portion (C2 L3-15), this selective positioning being achievable with a singular sized lifting cylinder.” Id. at 7. The rejection thus is based on the Examiner’s proposed interpretation of the claim language “the distance between said upper pivot mounts and said pair of lower couplers being generally the same as the distance between said upper pivot mounts and said pair of front lower couplers” to require only that “positioning of the couplers relative to each other and the pivot mounts permit the use of a singular sized lifting cylinder thereby permitting adjustment of the apparatus without requiring any additional parts/devices.” Id. at 5. As discussed above, we have determined that claim 22 is not indefinite based on the claim limitations raised by the Examiner. Further, the Examiner does not adequately explain why the claim has been Appeal 2021-002006 Application 15/933,528 9 interpreted to require only that the couplers and mounts “permit the use of a singular sized lifting cylinder.” Thus, to the extent the Examiner has found only that Bennett discloses the use of a single sized lifting cylinder, the Examiner has failed to establish that Bennett discloses “the distance between said upper pivot mounts and said pair of rear lower couplers being generally the same as the distance between said upper pivot mounts and said pair of front lower couplers” as required by claim 22. Based on the foregoing, the Examiner has not established a prima facie showing of anticipation with respect to the rejection of independent claim 22 or dependent claims 23, 25, and 27. Accordingly, we do not sustain the anticipation rejection. Obviousness over Bennett and Gilbert Claims 1, 5, 8 With respect to claim 1, the Examiner finds that Bennett discloses an assistive seating device as claimed except that Bennett only discloses armrests extending from the rear legs of the device rather than from the front legs as required by the claim. Final Act. 8 (citing Bennett Figs. 1, 2; col. 2, ll. 3–15; col. 4, ll. 9–13). The Examiner further relies on Gilbert as teaching a similar seating device with a pair of armrests extending from the front legs of the device. Id. at 8–9 (citing Gilbert Fig. 1). The Examiner determines that it would have been obvious to modify Bennett to use armrests extending from the front legs of the device “to assist users who are unable (elderly/medical reasons) or find it uncomfortable to reach backwards while supporting themselves as they sit upon/rise from the seat.” Id. at 9. The Examiner also determines that this modification would only be a rearrangement of parts involving only routine skill in the art. Id. Appeal 2021-002006 Application 15/933,528 10 We agree with and adopt the Examiner’s findings and determination with respect to claim 1. See Final Act. 8–9; see also Ans. 16–19. As discussed below, we are not persuaded of error by Appellant’s arguments. Appellant first argues that the combination proposed would not result in the claimed invention. Appeal Br. 9. Specifically, Appellant asserts that Gilbert only shows armrests extending from cross members of the seating device and not extending from the front legs of the device, and thus, the combination of the art would result in armrests that extend from Bennett’s side portions 32 and not from the front legs. Id. at 9–10. In this configuration, Appellant explains that the arm rests would not be stationary because Bennett’s side portions 32 are lifted when the seat is lifted. Id. at 10. Appellant also notes that this combination would defeat the purpose of the claimed invention because one pushing down on the armrests to rise from the seat would prevent the seat from pivoting upward. Id. at 11. We are not persuaded and agree with the Examiner’s response to this argument. See Ans. 16–18. Specifically, as the Examiner explains, the rejection is not premised on a bodily incorporation of Gilbert’s specific armrest into Bennett’s device. Id. at 18. The Examiner explains that Bennett teaches an armrest that is integrally formed with the rear legs of the device such that they are fixed, immovable support members and that the modification would result in fixed, immovable support members attached to Bennett’s front legs and not to any moveable structure of Bennett. Id. We also are not persuaded of reversible error in the Examiner’s finding that Gilbert teaches arm rests attached to the front legs of the device. Gilbert appears to disclose an integral side structure including rear and front supports attached by a side bar. Gilbert’s armrests are depicted as being Appeal 2021-002006 Application 15/933,528 11 attached to both the front end of the side bar and the top of the front legs. The Examiner’s characterization of Gilbert’s armrests as being attached to the front legs is consistent with how the arm rests are depicted in Gilbert. Thus, we disagree with Appellant’s contention that the combination would result in arm rests attached at Bennett’s side portions 32. Next, Appellant argues that “the proposed combination is not suggested or motivated by the prior art references.” Appeal Br. 11. Appellant asserts the importance of arm rest location on the front legs for providing “the strongest and most stable base” to prevent injury and that Bennett requires that the armrests are located on the rear legs. Id. at 12. Appellant further asserts that “the references do not suggest any motivation for, or the desirability of, Applicant’s unique construction of assistive seating device having a stationary armrest and a pivoting seat recited in the claims. As such, it is improper to utilize these references to establish obviousness.” Id. We disagree for the reasons provided by the Examiner. See Ans. 16, 18–19. Specifically, we agree that Appellant does not explain adequately how the placement of the armrests in Bennett are required to be on the rear legs and that Appellant does not address the reasoning relied upon by the Examiner to support the proposed combination. Further, as discussed above, Gilbert at least suggests placing stationary arm rests on the front leg of an assistive seating device. Finally, Appellant argues that the rejection is based on impermissible hindsight. Appellant asserts: the [E]xaminer has claimed the present invention to be obvious utilizing hindsight, speculation and conclusory statements which are not, in fact, supported by the cited references, to come up with a combination that would either destroy the clear intention of the reference by preventing upward movement of Appeal 2021-002006 Application 15/933,528 12 the seat or modify such in a manner that goes against the clear teachings of the references. Furthermore, it is submitted that it is only through such hindsight that the Applicant’s invention can be gleamed from the cited references. Appeal Br. 13. As discussed above, we are not persuaded that the resulting combination would prevent upward movement of the seat or goes against the teachings of the references. Thus, we fail to see how the rejection is premised on any knowledge gleaned only from Appellant’s application. Based on the foregoing, we are not persuaded of error in the rejection of claim 1. Accordingly, we sustain the rejection of claim 1. We also sustain the rejection of claims 5 and 8, which depend from claim 1 and for which Appellant does not provide separate arguments. Claims 10 and 21 With respect to claim 10, the Examiner finds: Bennett discloses that the couplers are evenly spaced and permit the use of a singular sized lifting cylinder to coupler with any of the couplers from a singular pivot point (as per the interpretation of “the distance between each said pivot mount and a corresponding first coupler is generally equal to the distance between each said pivot mount and a corresponding second coupler” as outlined above[]). Final Act. 10. The Examiner relies on substantially the same analysis with respect to the rejection of claim 21. See id. at 12. As discussed above, the Examiner has not established that either claim 10 or claim 21 is indefinite. As also discussed, the Examiner has not adequately explained why the claim language should be interpreted to only require that the couplers and mounts “permit the use of a singular sized lifting cylinder.” Thus, with respect to the rejection of claims 10 and 21, the Examiner has not shown that Bennet teaches the limitations of these claims, Appeal 2021-002006 Application 15/933,528 13 and therefore, we are persuaded of error in the obviousness rejection of the claims. Accordingly, we do not sustain the obviousness rejection of claims 10 and 21. Claims 11, 16, and 19 With respect to claim 11, the Examiner relies on substantially the same combination of Bennett and Gilbert as relied upon in the rejection of claim 1. Final Act. 10–11. Appellant’s arguments regarding the rejection of claim 11 are similar to those regarding claim 1 to the extent the subject matter of the claims overlaps. See Appeal Br. 15–20. For the reasons discussed above, we are not persuaded of error by Appellant’s arguments with respect to the rejection of claim 11. Accordingly, we sustain the rejection of claim 11 for the reasons discussed. We also sustain the rejection of claims 16 and 19, which depend from claim 11 and for which Appellant does not provide separate arguments. Obviousness over Bennett, Gilbert, and Sjögren Claims 3 and 14 depend from claims 1 and 11, respectively, and both require first couplers that are tubular and configured to receive ends of lifting cylinders. Appeal Br. 24, 26. The Examiner relies on Sjögren as teaching an assistive seating device with tubular couplers 7 that are configured to receive ends of a lifting cylinder 8. Final Act. 13 (citing Sjögren Figs. 1, 2). Appellant argues that Sjögren only discloses “a series or ladder of notches” that are not tubular. Appeal Br. 14, 20. However, we agree with the Examiner that when Sjögren’s Figures are viewed in combination, Sjögren suggest the use of tubular couplers. See Ans. 20–21. The depiction of holes 7 in Sjögren’s Figure 1 are a cross-sectional side view of the holes 7 Appeal 2021-002006 Application 15/933,528 14 depicted in Figure 2, and we agree with the Examiner’s finding that they form cylindrical bores for holding element 8. Thus, we are not persuaded of error in the Examiner’s rejection of claims 3 and 14. We are also not persuaded of error in the rejection of claims 4 and 15, for which Appellant relies on the same arguments. Accordingly, we sustain the rejection of claims 3, 4, 14, and 15. Remaining Obviousness Rejections With respect to the rejections of claims 2, 6, 7, 9, 13, 17, 18, and 20, Appellant does not raise separate arguments. Accordingly, we sustain the rejections of these claims for the reasons discussed with respect to the rejections of independent claims 1 and 11. With respect to the rejections of claims 24 and 26, the Examiner does not rely on any further analysis or evidence that would cure the deficiency in the rejection of independent claim 22, as discussed above. Accordingly, we do not sustain the rejections of claims 24 and 26. CONCLUSION We REVERSE the rejections under 35 U.S.C. §§ 112(b) and 102(a)(1). WE REVERSE the rejection of claims 10, 21, 24, and 26 under 35 U.S.C. § 103. We AFFIRM the rejection of claims 1–9, 11, and 13–20 under 35 U.S.C. § 103. In summary: Claims Rejected 35 U.S.C. § Basis Affirmed Reversed 8, 10, 19, 21– 27 112(b) Indefiniteness 8, 10, 19, 21–27 22, 23, 25, 27 102(a)(1) Bennett 22, 23, 25, 27 Appeal 2021-002006 Application 15/933,528 15 Claims Rejected 35 U.S.C. § Basis Affirmed Reversed 1, 5, 8, 10, 11, 16, 19, 21 103 Bennett, Gilbert 1, 5, 8, 11, 16, 19 10, 21 2, 13 103 Bennett, Gilbert, Splane 2, 13 3, 4, 14, 15 103 Bennett, Gilbert, Sjögren 3, 4, 14, 15 6, 17 103 Bennett, Gilbert, Sadler 6, 17 7, 18 103 Bennett, Gilbert, Krapu 7, 18 9, 20 103 Bennett, Gilbert, Sutou 9, 20 24 103 Bennett, Splane 24 26 103 Bennett, Sutou 26 Overall Outcome 1–9, 11, 13–20 10, 21– 27 No time period for taking any subsequent action in connection with this appeal may be extended under 37 C.F.R. § 1.136 (a). See 37 C.F.R. § 1.136 (a)(l)(iv). AFFIRMED IN PART