Ex Parte Vrzalik et al

Patent Trial and Appeal Board

Jul 22, 2016

12622260 (P.T.A.B. Jul. 22, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR
12/622,260 11/19/2009
125944 7590 07/26/2016
Getinge Group - w/ Norton Rose Fulbright US LLP
Getinge Group Legal Shared Services
1300 MacArthur Boulevard
Mahwah, NJ 07430
John H. Vrzalik
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
ATTORNEY DOCKET NO. CONFIRMATION NO.
AH:P5006-US 3984
EXAMINER
DA VIS, RICHARD G
ART UNIT PAPER NUMBER
3644
NOTIFICATION DATE DELIVERY MODE
07/26/2016 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):
patents@getinge.com
aoipdocket@nortonrosefulbright.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte JOHN H. VRZALIK, CESAR LINA, and GLENN C. STROH
Appeal2014-006484
Application 12/622,260
Technology Center 3600
Before JENNIFER D. BAHR, LINDA E. HORNER, and
BRANDON J. WARNER, Administrative Patent Judges.
WARNER, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
John H. Vrzalik et al. ("Appellants") 1 appeal under 35 U.S.C. § 134(a)
from the Examiner's decision rejecting claims 1-6, 8-13, 15, and 20. See
Appeal Br. 1.2 Claims 7 and 14 have been canceled, and claims 16-19 and
21 have been withdrawn. See id. at 11-15, Claims App. We have
jurisdiction over the appeal under 35 U.S.C. § 6(b).
We AFFIRM.
According to Appellants, the real party in interest is Huntleigh
Technology Limited. Appeal Br. 2.
2 Reference herein is made to Appellants' Amended Appeal Brief
("Appeal Br."), filed January 14, 2014.
Appeal2014-006484
Application 12/622,260
CLAIMED SUBJECT MATTER
Appellants' disclosed invention "relates generally to support surfaces
for independent use and for use in association with beds and other support
platforms." Spec. i-f 2. Claim 1, reproduced below with emphasis added, is
the sole independent claim and is representative of the subject matter on
appeal.
1. A support system for supporting a person, the support
system comprising:
a first layer comprising a vapor permeable material;
a second layer comprising a spacer material; and
a third layer, wherein:
the second layer is between the first layer and the
third layer;
the spacer material is less than 1.0 inches thick;
the support system is configured to allow moisture
vapor to transfer through the first layer and into the
spacer material in a central portion of the support system;
and
the support system is configured to allow moisture
vapor to transfer out of the spacer material and through
the first layer in a portion of the support system proximal
to the lateral perimeter of the support system without an
air mover,
wherein the first layer comprises a portion
proximal to the perimeter of the support system that is
configured to increase the vapor transfer rate through the
first layer; and
wherein the support system does not comprise an
air mover configured to move air inside or outside of the
support system.
2
Appeal2014-006484
Application 12/622,260
EVIDENCE
The Examiner relied on the following evidence in rejecting the claims
on appeal:
Scales
Chambers
us 5,090,074
US 7,469,432 B2
REJECTION
Feb.25, 1992
Dec. 30, 2008
The following rejection is before us for review: Claims 1---6, 8-13,
15, and 20 stand rejected under 35 U.S.C. § 103(a) as being unpatentable
over Chambers and Scales.
ANALYSIS
Appellants present arguments against the rejection of claims 1---6,
8-13, 15, and 20 as a group. See Appeal Br. 6-9. We select claim 1 as the
representative claim to decide the appeal of the rejection of these claims,
with claims 2---6, 8-13, 15, and 20 standing or falling therewith. See
37 C.F.R. § 41.37(c)(l)(iv).
The Examiner found that Chambers discloses a support system for
supporting a person, substantially as claimed, 3 except that "Chambers does
not explicitly disclose the limitation 'wherein the support system does not
comprise an air mover configured to move air inside or outside of the
support system.'" Ans. 3--4. However, the Examiner found that Scales
3 The Examiner also found that "Chambers does not explicitly disclose
that the spacer material is less than 1. 0 inches thick," but determined that a
thickness within the claimed range would have been obvious. Ans. 3.
Appellants do not challenge either the Examiner's findings or reasoning in
making that determination. See Appeal Br. 6-9.
3
Appeal2014-006484
Application 12/622,260
teaches an apparatus that wicks moisture away from a user without using a
fan. See id. at 4. The Examiner concluded that, given the teachings of the
prior art, it would have been obvious to one of ordinary skill in the art at the
time the invention was made to remove the fan from the support system of
Chambers because "[t]his would allow a moisture wicking apparatus such as
Chambers to be made at a lower cost." Id. According to the Examiner,
"[ o ]ne of ordinary skill in the art would have recognized that any potential
moisture build-up in a fan-less Chambers could be expelled from the
repeated movement of a user." Id.; see Scales, col. 1, 11. 49-53 (disclosing
that, "[i]f part of the support body is not covered, some of the water vapour
may well be driven from the support body in response to repeated
compression and relaxation of the body that occurs in response to movement
of the user.").
Appellants argue that a person of ordinary skill in the art would not
have removed the fan from the support system of Chambers, as proposed by
the Examiner, because doing so "would render the Chambers device
unsuitable for its intended purpose and change its principle of operation."
Appeal Br. 8. In particular, Appellants assert that "the entire intended
purpose of Chambers is to improve air flow under a patient, and the only
method disclosed to improve air flow is a fan (i.e., an air mover)." Id. at 9.
According to Appellants, "[t]o remove the air supply from Chambers would
entirely change the principle of operation of Chambers, and would frustrate
its stated purpose of improving air flow under a patient." Id.; see also Reply
Br. 3--4 (asserting that "such a modified fan-less device would no longer
function as a system for improving air flow under a patient.").
4
Appeal2014-006484
Application 12/622,260
We are not persuaded by Appellants' argument that the Examiner's
proposed modification would render the support system of Chambers
unsuitable for its intended purpose. See Appeal Br. 8 (citing In re Gordon,
733 F.2d 900 (Fed. Cir. 1984)). In Gordon, the Board affirmed an
examiner's rejection of a claim directed to a blood filter with an inlet and
outlet on the bottom over the prior art, French, which taught a gasoline filter
with the inlet and outlet on the top. 733 F.2d at 901. There, the Office
reasoned that "it would have been obvious to tum the French device upside
down to have both the inlet and outlet at the bottom, rather than at the top."
Id. at 902. The Federal Circuit reversed, noting that "French teaches a liquid
strainer which relies, at least in part, upon the assistance of gravity to
separate undesired dirt and water from gasoline and other light oils." Id.
(explaining that "if the French apparatus were turned upside down, it would
be rendered inoperable for its intended purpose").
Here, Chambers's mattress overlay, as modified to remove the fan,
would still be capable of functioning as a mattress overlay that provides air
flow under a patient. Namely, Chambers discloses that 3D layer 19 includes
"[ s ]paces 50 ... between the fibers 46 to allow air to circulate through the
3D layer 19." Chambers, col. 6, 11. 17-18 (boldface omitted). Chambers
explains that air passes through 3D layer 19 and exits through holes 22 or
outlet 17, thereby allowing air to circulate under a patient. See id., col. 5,
11. 62---66. Although removing Chambers's fan 20 may reduce the amount of
air flow passing through 3D layer 19, the principle of operation of the
overlay would be unchanged because the spaces in the 3D layer would still
allow for the movement of air under a patient. Further, Scales provides
evidence that a fan-less mattress cover can still move air as a result of
5
Appeal2014-006484
Application 12/622,260
patient movement (see Scales, col. 1, 11. 49-53), and suggests the desirability
of enclosing a support body in a cover without requiring means to force air
through the support body. See id., col. 1, 11. 58---62. Appellants do not
provide any factual evidence or persuasive technical reasoning to explain
why removing the fan from Chambers's system would change the principle
of operation such that the device would no longer function as a mattress
overlay or provide air flow under a patient.
After careful consideration of all the evidence, Appellants' arguments
do not apprise us of error in the Examiner's findings or reasoning in support
of the conclusion of obviousness. Accordingly, we sustain the rejection of
claim 1, and of claims 2---6, 8-13, 15, and 20 falling therewith, under
35 U.S.C. § 103(a) as being unpatentable over Chambers and Scales.
DECISION
We AFFIRM the Examiner's decision rejecting claims 1---6, 8-13, 15,
and 20 under 35 U.S.C. § 103(a) as being unpatentable over Chambers and
Scales.
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
6