Ex Parte Nascimento et alDownload PDFPatent Trial and Appeal BoardMay 11, 201713895187 (P.T.A.B. May. 11, 2017) 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. 13/895,187 05/15/2013 Aidano C. Nascimento IPL0741US2 7704 23413 7590 05/15/2017 TANTOR TOT RTTRN T T P EXAMINER 20 Church Street BLANKENSHIP, GREGORY A 22nd Floor Hartford, CT 06103 ART UNIT PAPER NUMBER 3612 NOTIFICATION DATE DELIVERY MODE 05/15/2017 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): usptopatentmail@cantorcolbum.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte AIDANO C. NASCIMENTO, DAVID W. WHITEHEAD, and JEFFREY T. RODGERS Appeal 2015-007378 Application 13/895,187 Technology Center 3600 Before MICHAEL L. HOELTER, ERIC C. JESCHKE, and PAUL J. KORNICZKY, Administrative Patent Judges. JESCHKE, Administrative Patent Judge. DECISION ON APPEAL STATEMENT OF THE CASE Aidano C. Nascimento et al. (“Appellants”) seek review under 35 U.S.C. § 134(a) of the Examiner’s decision, as set forth in the Final Office Action dated July, 29, 2014 (“Final Act.”), and as further explained in the Advisory Action dated November 5, 2014 (“Adv. Act.”), rejecting claims 1—5, 10-14, and 18—20 as unpatentable over Shabana (US 2004/0164577 Al, published Aug. 26, 2004) and Grimes (US 5,921,610, issued July 13, 1999).1 We have jurisdiction under 35 U.S.C. § 6(b). 1 Appellants identify Inteva Products, LLC as the real party in interest. Appeal Br. 2. Appeal 2015-007378 Application 13/895,187 We AFFIRM. BACKGROUND The disclosed subject matter relates to “[a] deployable armrest system for a vehicle.” Spec., Abstract. Claims 1,14, and 19 are independent. Claim 1 is reproduced below: 1. A deployable armrest system for a vehicle, comprising: a pair of side walls configured to be located in a facing spaced relationship with respect to each other to define an operator area therebetween; and a pair of deployable armrests movably secured to the pair of side walls and configured for movement between a stowed position and a deployed position, wherein each of the pair of deployable armrests have a support member that is flush with a surface of the pair of side walls when the pair of deployable armrests are in the stowed position and wherein the support member of each of the pair of deployable armrests extends outwardly from the surface of the pair of side walls when the pair of deployable armrests are in the deployed position, wherein each support member is received within a cavity located in each one of the pair of sidewalls when the pair of armrests are in the stowed position and wherein each one of the pair of armrests is located behind an elastic material that covers each support member and the cavity, wherein the elastic material expands from a first configuration when the pair of armrests are in the deployed position and contracts back to the first configuration when the pair of armrests are in the stowed position. 2 Appeal 2015-007378 Application 13/895,187 DISCUSSION2 3 Appellants argue the patentability of the three independent claims based on the same arguments and do not provide separate arguments for any dependent claims. Appeal Br. 6—13. We select independent claim 1 as representative, with the remaining claims standing or falling with claim 1. See 37 C.F.R. § 41.37(c)(l)(iv) (2014). The Examiner found that Shabana discloses various limitations recited in claim 1 (Final Act. 2—3) but stated that Shabana does not disclose “an elastic material covering the armrest and the cavity of the support surface” (id. at 4). The Examiner found, however, that “Grimes teaches providing an elastic material (44) to cover a deployable armrest and the cavity from which it deploys, as shown in Figures 2 and 5” and that “[t]he material is inherently elastic because the convolutions (47) act as springs, as disclosed on lines 55— 58 of column 3.” Id. According to the Examiner, it would have been obvious “to provide an elastic material covering the armrest and cavity of the support surface of Shabana . . ., as taught by Grimes, to improve appearances and prevent dirt from collecting by eliminating seams/gaps between the armrest and the support surface.” Id. First, Appellants argue that “claimed support member 34 is the item the user rests their arm on and this is located behind the elastic material” and 2 We remind Appellants that the “Summary of claimed subject matter” section of an appeal brief must set forth “[a] concise explanation of the subject matter defined in each of the rejected independent claims, which shall refer to the specification in the Record by page and line number or by paragraph number, and to the drawing, if any, by reference characters.” 37 C.F.R. § 41.37(c)(iii) (2014) (emphasis added). For claim 1, for example, Appellants recite the claim language and merely state: “See at least FIGS. 1— 3 and paragraphs 13—20 of the instant application as filed.” Appeal Br. 3. 3 Appeal 2015-007378 Application 13/895,187 that claim 1 recites, among other limitations, “wherein each one of the pair of armrests is located behind an elastic material that covers each support member and the cavity.” Appeal Br. 6. According to Appellants, this limitation “is clearly not shown, disclosed or taught by the above references either alone or in combination thereof.” Id. at 6—7. Appellants contend that, in the Advisory Action, the Examiner “is incorrectly referring to item 46 as the support member as opposed to upper padded surface 42 as that is the surface an operator would place their arm on and the only portion of Grimes that is analogous to the claimed ‘support member.’” Id. at 8 (also arguing that “Grimes simply does not teach or disclose any armrests or support members that allow for placement of an operator’s elbow, forearm etc. onto them that are located behind an elastic material that covers each support member”). According to Appellants, “Grimes at best discloses an upper padded surface 42 with side surfaces 44, which clearly is not ‘an elastic material that covers each support member and the cavity and expands from a first configuration to a second configuration and back again as the armrests move between the stowed and deployed positions.’” Id. (discussing Grimes, col. 3,11. 54—65). Appellants contend that “if one were to follow the logic of the outstanding office action and attach side surface 44 to the support portion 12 of Shabana the claim limitation of ‘wherein each one of the pair of armrests is located behind an elastic material that covers each support member and the cavity’ would not be meet.” Id. at 9; see also id. at 9-10 (providing, according to Appellants, “representative FIGS, of Shabana (FIGS. 3—5 and 8 modified to include side wall 44 of Grimes)”). 4 Appeal 2015-007378 Application 13/895,187 We first address the Examiner identifying element 46 in Grimes as a “support member.” See Adv. Act. 2.3 Although Appellants are correct that a user of the device in Grimes would directly contact padded top surface 42 rather than air spring bladder 46, Appellants have not shown that a “support member” must be directly contacted by a user. Indeed, in the Specification’s disclosed embodiment that includes elastic material, a user would directly contact elastic material 38, not support member 34. See, e.g., Spec. 119 (discussing Fig. 3); see also Vitronics Corp. v. Conceptronic, Inc., 90 F.3d 1576, 1583 (Fed. Cir. 1996) (stating that a construction that excludes a preferred embodiment “is rarely, if ever, correct and would require highly persuasive evidentiary support”). Because bladder 46 in Grimes is a structure that provides support for a user’s arm in the same manner as support member 34 disclosed in the Specification, we see no error in the Examiner’s reference to bladder 46 as a “support member.” We turn now to the Examiner’s findings regarding Grimes. Although element 44 in Grimes is referred to, in one instance, as a “side surface^” (Grimes, col. 3,1. 57),4 we understand the Examiner’s finding that “support member (46) and the cavity from which the support member extends is covered by the elastic material (44) in the vehicle interior to the vehicle lateral outside direction (right to left), as shown in Figure 5” (Adv. Act. 2 3 We note, for clarity, that the Examiner relied on support portion 12 in Shabana as the “support member” in the modified device but identifies bladder 46 in Grimes as a “support member” in relation to the relevant teachings in Grimes. 4 Grimes also provides: “When air is pumped into the air spring bladder 46, the arm rest surface 44 is moved upwardly as shown in phantom in FIG. 5.” Grimes, col. 4,11. 4—6 (italicization added). 5 Appeal 2015-007378 Application 13/895,187 (emphasis added)) as relying on the structure covering not only the right side, but also the top side, of air spring bladder 46 as shown in Figure 5 of Grimes (reproduced below)5: Figure 5 depicts “a cross sectional view taken along lines 5—5 shown in FIG. 2,” which, in turn, depicts an “enlarged perspective view of [a] door panel.” Grimes, col. 2,11. 53—54, 46-47. This view of the Examiner’s position is supported by statements regarding the teachings of Grimes in relation to the modified device: 5 A passage cited by the Examiner and the hatching in Figure 5 demonstrate that the structure covering, inter alia, the right side and the top side of air spring bladder 46 is one integral structure. See Grimes, col. 3,11. 55—58 (“The arm rest 20 is integrally formed as part of interior panel 14. The arm rest 20 includes top padded surface 42 and side surfaces 44 with spring acting convolutions 47.”), cited at Final Act. 2, Ans. 2; see also 37 C.F.R. § 1.84(h)(3) (2014) (“The various parts of a cross section of the same item should be hatched in the same manner and should accurately and graphically indicate the nature of the material(s) that is illustrated in cross section.”). 6 Appeal 2015-007378 Application 13/895,187 Grimes teaches a support member (46) of the armrest that is covered by material (44), as shown in Figure 5. . . . The support member (46) is stowed within a cavity formed by the cover, as shown in Figure 5. When an elastic material is attached to cover the structure of Shabana . . . , the result is an armrest located behind an elastic material that covers the support member and the cavity. Ans. 2 (emphasis added); see also Final Act. 4 (determining that it would have been obvious to “provide an elastic material covering the armrest and cavity of the support surface of Shabana ... as taught by Grimes” (emphasis added)). In light of these statements and those in the Advisory Action noted above, we understand the modified device to include the relied-upon structures from Shabana modified such that the elastic material covers both (1) the “cavity” formed when support portion 12 from Shabana deploys (see, e.g., Shabana Fig. 5) and (2) the top surface of support portion 12. In Appellants’ proffered version of the modified device, in contrast, the elastic material covers only the “cavity” formed when support portion 12 from Shabana deploys. See Appeal Br. 10 (providing a modified version of, for example, Shabana Fig. 5). Because Appellants do not address the modified device as articulated by the Examiner, we are not apprised of error in the Examiner’s finding that the modified device as articulated satisfies the limitation at issue. See Final Act. 4; Ans. 2. Second, Appellants state: claim 1 recites “a support member that is flush with a surface of the pair of side walls when the pair of deployable armrests are in the stowed position and wherein the support member of each of the pair of deployable armrests extends outwardly from the surface of the pair of side walls when the pair of deployable armrests are in the deployed position” which Appellant respectfully submits is clearly not shown, disclosed or taught by the above references either alone or in combination thereof. 7 Appeal 2015-007378 Application 13/895,187 Appeal Br. 7. With this argument, Appellants have not shown error in the Examiner’s finding that Shabana discloses this limitation. See Final Act. 2 (“Each armrest has a support member (12) that is flush with a surface of one of the side walls when in the stowed position, as shown in Figure 5. Each support member extends outwardly from the surface of the side wall when the armrest is in deployed position, as shown in Figure 5.”); Ans. 2 (“The applicant has argued the combination of Shabana . . . and Grimes does [not] teach or disclose a support member that is flush with a surface of the side wall. Shabana . . . clearly shows this feature in Figure 5.”). For the reasons set forth above, we sustain the rejection of claim 1 as unpatentable over the combined teachings relied upon by the Examiner. Claims 2—5, 10-14, and 18—20 fall with claim 1. DECISION We AFFIRM the decision to reject claims 1—5, 10—14, and 18—20. No time period for taking any subsequent action in connection with this appeal may be extended under 37 C.F.R. § 1.136(a)(l)(iv). AFFIRMED 8 Copy with citationCopy as parenthetical citation