Ex Parte Vrzalik et alDownload PDFPatent Trial and Appeal BoardJul 22, 201612622260 (P.T.A.B. Jul. 22, 2016) Copy Citation 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 See Appeal Br. 1.2 Claims 7 and 14 have been canceled, and claims 16-19 and 21 have been withdrawn.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 Copy with citationCopy as parenthetical citation