Ex Parte 7398571 et al

Board of Patent Appeals and Interferences

Jan 19, 2012

95001316 (B.P.A.I. Jan. 19, 2012)

UNITED STATES PATENT AND TRADEMARKOFFICE
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.
95/001,316 02/19/2010 7398571 MONME-31355 5478
30497 7590 01/19/2012
FLYNN, THIEL, BOUTELL & TANIS, P.C.
2026 RAMBLING ROAD
KALAMAZOO, MI 49008-1631
EXAMINER
ENGLISH, PETER C
ART UNIT PAPER NUMBER
3993
MAIL DATE DELIVERY MODE
01/19/2012 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 BOARD OF PATENT APPEALS
AND INTERFERENCES
____________

Monster Medic, Inc.
Requester and Cross-Appellant

v.

Stryker Corporation
Patent Owner and Appellant
____________

Appeal 2011-012124
Reexamination Control 95/001,316
Patent 7,398,571 B2
Technology Center 3900
____________

Before FRED E. McKELVEY, JEFFREY B. ROBERTSON, and
JOSIAH C. COCKS, Administrative Patent Judges.

ROBERTSON, Administrative Patent Judge.

DECISION ON APPEAL
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Patent Owner Stryker Corporation (hereinafter “Patent Owner” or “Stryker”)
appeals under 35 U.S.C. §§ 134(b) and 315(a) the Examiner’s decision to
reject claims 1, 5-9, and 11-15.1 Third-Party Requester Monster Medic, Inc.
(hereinafter “Requester” or “Monster Medic”)2 urges that the Examiner’s
decision must be affirmed.3 Requestor also cross-appeals under 35 U.S.C.
§§ 134(c) and 315(b) from the Examiner’s refusal to reject claims 1-15 on
additional grounds.4 We have jurisdiction under 35 U.S.C. §§ 134(b)-(c)
and 315(a)-(b). We reverse the Examiner’s decision to reject claims 1, 5-9,
and 11-15 over certain prior art and we affirm the Examiner’s decision not to
reject claims 1-15 over certain other prior art.

STATEMENT OF THE CASE
United States Patent 7,398,571 B2 (hereinafter the “‘571 Patent”),
which is the subject of the current inter partes reexamination, issued to Chad
Souke et al. on July 15, 2008. We are also informed that the ‘571 Patent was
the subject of litigation styled Stryker Corporation v. Monster Medic, Inc.

1 See Patent Owner’s Appeal Brief 5-8 (filed February 1, 2011) (hereinafter
“PO App. Br.”).
2 We are informed that the Requester’ Appeal Brief was filed by SWAS
Corporation, the collateral agent in possession of the assets of Monster
Medic. Requester’s Appeal Brief 1 (filed April 29, 2011) (hereinafter “Req.
App. Br.).
3 See Requester’s Respondent Brief (filed May 13, 2011) (hereinafter “Req.
Resp. Br.”).
4 See Req. App. Br. 9-10; Examiner’s Answer (mailed June 10, 2011)
(hereinafter “Ans.”); Right of Appeal Notice (mailed November 1, 2010)
(hereinafter “RAN.”); Action Closing Prosecution (mailed August 14, 2010)
(hereinafter “ACP”); Non Final Rejection (mailed April 16, 2010)
(hereinafter “Non-Final”).
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(Case No. 1:09-cv-1142), filed in United States District Court for the
Western District of Michigan, Southern Division, the proceedings of which
have been terminated based on a Stipulated Consent Judgment. (PO App.
Br. 41; Req. App. Br. 2, Ex. 18.)
The ‘571 Patent relates to an ambulance cot 10 having a base frame
11, a litter frame 17, and an elevating mechanism 18. (Col. 4, ll. 12-22.)
Figure 1 of the ‘571 Patent is reproduced below:

Figure 1 depicts an isometric view of an ambulance cot 10 in the fully
raised position. (Col. 2, ll. 1-3.) The cot includes two switch housings 82
and 92. Figure 10, reproduced below, depicts an isometric view of switch
housing 82. (Col. 2, ll. 23-24.)
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Figure 10 above depicts switch housing 82 containing buttons 84 and
86 (Fig. 10) for lowering and raising the litter frame, respectively, relative to
the base frame. (Col. 6, l. 46 – col. 7, l. 16; col. 20, ll. 14-46.) Figure 15,
reproduced below, depicts an isometric view of a mounting assembly on the
ambulance cot. (Col. 2, ll. 34-35.)

Figure 15 depicts manifold plate 123, which contains a hydraulic
circuit 132 housed therein. (Col. 8, ll. 36-37; Fig. 15.) Figure 24,
reproduced below, depicts a schematic representation of a control for the
hydraulic circuit. (Col. 2, ll. 44-45.)
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Figure 24 above shows that the hydraulic circuit 132 is controlled by
control mechanism 158, which receives signals from position sensors
provided on the ambulance cot. (Col. 9, ll. 11-13, 42-43; Figs. 24, 25.) A
hydraulic pressure monitoring system 159 is connected to outlet 126 and
provides a signal indicative of the magnitude of fluid pressure to control
mechanism 158. (Col. 9, ll. 13-16; Fig. 19.)
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Figure 19, reproduced below, depicts a hydraulic circuit. (Col. 2, ll.
40-43.)

Figure 19 depicts that to lower the cot, switch 84 is actuated, closing
contacts 228 and 229 (Fig. 11), which in turn is processed by control 158,
causing valve 146 to open. (Col. 20, ll. 19-25, 43-46.) Fluid flows out of
the closed end linear actuator 53 (Fig. 4) through pressure compensated flow
control valve 143, through check valve 144 and opened Valve B to tank 141
without the operation of motor 122. (Col. 20, ll. 43-52.)
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Figures 4 and 11 are reproduced below:

Fig. 11
Figure 4 above depicts and isometric view of a fragment of the
hydraulic elevating mechanism and Figure 11 depicts an electrical schematic
of a switch mounted on a switch housing. (Figure 2, ll. 10-11, 24-25.) If the
litter of the ambulance cot is lifted such that there is no weight on the base of
the ambulance cot, the pressure switch 159 will detect the lifting by the
reduced pressure and with switch 84 actuated, the motor will be activated to
affect a rapid driving of the fluid into the rod end of linear actuator 53 to
rapidly collapse the cot. (Col. 20, ll. 53-60.)

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Claims 1, 2, and 5, which are representative of the appealed subject
matter, read as follows:
1. An ambulance cot, comprising:
a base frame;
a litter frame; and
an elevating mechanism interconnecting said base frame
and said litter frame and being configured to effect changes in
elevation of said litter frame relative to said base frame, said
elevating mechanism being configured to detect a presence and
an absence of a force urging a change in elevation of said litter
frame relative to said base frame to thereby cause said base
frame and said litter frame to become oriented closer together.

2. An ambulance cot comprising:
a base frame and a litter frame;
a deployment mechanism interconnecting said base
frame and said litter frame and being configured to effect
changes in distance between said litter frame and said base
frame, said deployment mechanism having a detection device
configured to detect a presence and an absence of a force urging
a change in distance between said litter frame and said base
frame to cause said base frame and said litter frame to become
oriented closer together; and
a control mechanism on said ambulance cot, said control
mechanism including a manually operable device for
controlling said deployment mechanism, said control
mechanism being configured to effect a rapid movement of said
deployment mechanism in response to said detection device
detecting an absence of said force and in response to an
operation of said manually operable device, whereby when said
ambulance cot is lifted away from a support surface, causing
said detection device to detect an absence of said force, and said
manually operable device, is operated, said base frame will be
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rapidly drawn toward said litter frame by said deployment
mechanism.

5. An ambulance cot, comprising:
a base frame configured for support on a surface;
a litter frame configured for supporting thereon a patient;
an elevating mechanism interconnecting said base frame
and said litter frame and being configured to interconnect said
litter frame and said base frame in order to facilitate movement
of said base frame and said litter frame toward and away from
each other; and
a control mechanism on said cot configured to facilitate
said movement of said base frame and said litter frame toward
each other and at differing speeds predicated on at least one of
whether said base frame is supported on said surface and said
litter frame is supported by an external support separate from
said elevating mechanism.
(PO App. Br. 37-38, Claims App’x.)

CLAIM INTERPRETATION
Central to the issues on appeal discussed infra, is the interpretation of
the limitations in claims 1 and 2, that the elevating mechanism (claim 1) and
the detection device (claim 2) are “configured to detect a presence and an
absence of a force urging a change in [elevation (claim 1) or distance (claim
2)] of said litter frame relative to said base frame to thereby cause said base
frame and said litter frame to become oriented closer together.” Similarly,
the limitation in claim 5 that the control mechanism is “configured to
facilitate said movement of said base frame and said litter frame toward each
other and at differing speeds predicated on at least one of whether said base
frame is supported on said surface and said litter frame is supported by an
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external support separate from said elevating mechanism” is also central to
the issues on appeal.
Requester contends that the claims are directed to apparatuses, and as
such, must be distinguished from the prior art in terms of structure rather
than function. (Req. Resp. Br. 3-4.) Requester argues that by using the
language “configured to,” the claims merely recite functional characteristics,
and therefore, all that is required of the prior art structures is that they be
capable of performing the claimed functions. (Req. Resp. Br. 4.) The
Examiner agrees with Requester’s interpretation. (See RAN 4.)
Patent Owner contends that the disputed claim limitations impart
structural requirements to the elevating mechanism (claim 1) and the control
mechanism (claim 5), which the Examiner ignores in rejecting the claims
over the prior art.5 (PO App. Br. 12-14, 25-27.)
We essentially agree with Requester’s position that in order to meet
the claimed limitations, the prior art structures need only be capable of
performing the recited functions. In re Schreiber, 128 F.3d 1473, 1478-79
(Fed. Cir. 1997). In that sense, we also agree with Patent Owner’s position
that the disputed claim limitations, while functional, implicate some
structure in the prior art that would be capable of performing the recited
functions. However, the claims do not require the particular structure
disclosed in the Specification, such as the pressure sensor 159, to perform

5 The Patent Owner did not file a brief responding to Requester’s Brief.
Therefore, Patent Owner’s arguments do not address claim 2, which was
confirmed by the Examiner. However, we note that the language recited in
claim 2 is similar to that used in claim 1.
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the recited functions. Thus, having interpreted the disputed terms in the
claims, we now turn to the rejections on appeal.

The Prior Art relevant to the issues in the instant Appeal is as follows:

Stryker US 3,304,116 Feb. 14, 1967
Williams US 3,393,004 July 16, 1968
Limpach US 3,820,838 June 29, 1974
Campbell US 3,917,076 Nov. 4, 1975
Merkel US 4,097,941 July 4, 1978
Pioth US 4,175,783 Nov. 27, 1979
Failer US 4,489,449 Dec. 25, 1984
Bailey US 4,751,754 June 21, 1988
Bradcovich US 4,912,787 Apr. 3, 1990
Smith US 5,063,624 Nov. 12, 1991
Bleicher US 5,083,625 Jan. 28, 1992
Schirmer US 5,365,622 Nov. 22, 1994
Way US 5,575,026 Nov. 19, 1996
Rixon GB 2,302,672 A Jan. 29, 1997
Dietz US 5,666,806 Sep. 16, 1997
Heimbrock US 5,806,111 Sep. 15, 1998
Pierrou US 2001/0036397 A1 Nov. 1, 2001
Menna US 6,332,638 B1 Dec. 25, 2001
Van Den Heuval US 6,654,973 B2 Dec. 2, 2003
Walkingshaw US 2004/0133981 A1 July 15, 2004
Lenkman US 2005/0006155 A1 Jan. 13, 2005

Reilly WO 98/04228 Feb. 5, 1998
Saleem GB 2,390,062 A Dec. 31, 2003
Benedict WO 2005/122989 A1 Dec. 29, 2005

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PATENT OWNER’S APPEAL
Patent Owner contests the Examiner’s decision to reject claims 1, 5-9,
and 11-15 as follows:
I. Claim 1 under 35 U.S.C. § 102(b) or (e) as being anticipated by
Bailey, Benedict, Schirmer, Limpach, Rixon, Smith, Stryker,
Williams, Failer, Pioth, Bleicher, Heimbrock, Bradcovich, or
Merkel;
II. Claim 5 under 35 U.S.C. § 102(b) or (e) as being anticipated by
Bailey, Benedict, Schirmer, Smith, Stryker, Williams, or
Failer; 6
III. Claim 15 under 35 U.S.C. § 103(a) as being obvious over
Benedict or Schirmer in view of Reilly or Menna; and
IV. Claims 11-14 under 35 U.S.C. § 103(a) as being obvious over
Benedict in view of Schirmer.

ISSUE
As pointed out by Patent Owner, the Examiner’s position regarding
the application of the prior art to the rejected claims relies on similar features
disclosed in each of the prior art references. (PO App. Br. 14, 27-28.)
Specifically, the Examiner refers to switches, buttons, and tubes, disclosed
in the prior art, that are manually activated or moved by an operator to bring
the litter frame and the base frame of an ambulance cot closer together in

6 We, like Patent Owner, omit the listing of claims 6-9, which all depend
directly or indirectly from claim 5, for these grounds of rejection. Indeed,
Patent Owner relies on the arguments made for claim 5 as the basis for the
reversal of the rejections of claims 6-9. (PO App. Br. 33.)
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order to meet the “configured to” limitations recited in the claims. (See
Table A, PO App. Br. 14-25 and Table B, PO App. Br. 28-33.) Because our
analysis of the prior art references in light of the claim interpretation above
is similar, we limit our detailed discussion to Bailey, Benedict, and
Schirmer, which are relied upon by the Examiner in rejecting the claims
appealed by Patent Owner under 35 U.S.C. § 102, and are also the main
references relied upon for the rejections of claims 11-15 under 35 U.S.C.
§ 103. We provide an abbreviated discussion of the remaining references.
The dispositive issue on appeal is: whether the Examiner has
provided a sufficient basis that the prior art structures are capable of
performing the functions of the elevating mechanism and control mechanism
recited in claims 1 and 5 to justify requiring the Patent Owner to prove that
the prior art does not possess the required characteristics?

PRINCIPLES OF LAW
Where the Patent Office has reason to believe that a functional
limitation asserted to be critical for establishing novelty in the claimed
subject matter may, in fact, be an inherent characteristic of the prior art, it
possesses the authority to require the applicant to prove that the subject
matter shown to be in the prior art does not possess the characteristic relied
on. In re Schreiber, 128 F.3d 1473, 1478 (Fed. Cir. 1997).

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35 U.S.C. § 102 Rejections
Bailey
Bailey discloses an improved hydraulic system for a hospital bed.
(Col. 1, ll. 40-41.) Figure 1, reproduced below, is a perspective view of a
hospital bed. (Col. 1, ll. 67-68.)

As shown in Figure 1 above, the hospital bed 10 has a base frame 12,
and frame member 32 and 34, which in conjunction with transverse
members 36 and 38 form a rigid platform corresponding to the recited litter
frame. (Col. 1, ll. 66-67, col. 2, ll. 19-47.) The hospital bed also includes a
hydraulic cylinder 42 including an extendable rod 44, which may be
extended and retracted and in conjunction with cantilever arm 26, raises and
lowers the bed. (Col. 2, ll. 51-66.) Figure 7 depicts is a plan view of a bed
functional control panel. (Col. 2, ll. 14-15.)
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Figure 7 shows that in order to lower the bed, a down switch 170 on
the control panel is activated, which causes solenoid valve 110 (Figure 5) to
open and hydraulic fluid to flow to reservoir 70 (Figure 5). (Col. 2, ll. 14-
15, col. 8, ll. 11-13.) Foot pedal 78 (Figure 1) may also be depressed to
lower the cot. Figure 5 is a schematic circuit diagram for the hydraulic
system. (Col. 2, ll. 10-11.)

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Figure 5 depicts, inter alia, a solenoid valve 110, such that when the
solenoid valve opens, the rod 44 will slowly retract as a result of the weight
on it. (Col. 5, ll. 37-40.) Alternatively, manual selector valve 76 (Figure 5)
can be rotated to allow the bed to be lowered by operation of pedal 78
(Figure 1), which opens check valve 108 (Figure 5) to allow hydraulic fluid
to flow to reservoir 70. (Col. 5, ll. 16-22.)

Claim 1
According to the Examiner and Requester, down switch 170 in Bailey
detects the force applied by the operator to urge a change in elevation
between the litter frame and the base frame. (RAN 6; Req. Resp. Br. 5-6.)
In this regard, the Examiner’s position is that when the operator does not
actuate the switch, the switch is not energized, and the hydraulic elevating
mechanism does not carry out a change in elevation of the litter frame, thus
meeting the functions of the elevating mechanism recited in the claims.
(RAN 6.)
However, claim 1 additionally requires that the elevating mechanism
be configured to detect an absence of force urging a change in elevation of
the litter frame relative to the base frame, to thereby cause the base frame
and the litter frame to become oriented together. In other words, when there
is no force detected, the elevating mechanism must still be capable of
causing the base frame and the litter frame to become closer together. The
Examiner’s express position is that there is no such movement when an
absence of force is detected, i.e., when the switch 170 is not actuated. Thus,
in contrast to the functions recited in claim 1, the elevating mechanism
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disclosed in Bailey does not cause the base frame and the litter frame to
become closer to together in the absence of force.
Indeed, as discussed above, Bailey discloses that the hospital bed may
be lowered either by pressing the down switch 170 and or operating the
pedal 78. These actions are akin to the depressing button 84 in the
ambulance cot of the ‘571 patent, which does not provide the detecting
function recited in the claims. Therefore, it would be unreasonable to read
the structures 170 or 78 of Bailey as structures capable of providing the
functions recited in claim 1. Accordingly, there is insufficient evidence on
the record that the ambulance cot in Bailey is structurally capable of
providing the functions recited in claim 1.
Requester’s alternative position is that hydraulic cylinder 42 “detects”
the presence or absence of a force in the form of weight or gravity to urge a
change in direction. (Req. Resp. Br. 5.) We cannot agree with Requester’s
position. Specifically, as discussed by Requester, Bailey discloses that
actuation of the solenoid valve 110 retracts rod 44, which is a part of
cylinder 42, to bring the frame downwardly from the weight on it. (Req.
Resp. Br. 5.) Thus, regardless of whether there is a patient on the litter
frame, or the litter frame is empty and the frame moves downwardly due to
gravity, there is a force, either weight or gravity, acting on the elevating
mechanism to bring the litter frame and base frame closer together.
Moreover, hydraulic cylinder 42 disclosed in Bailey corresponds to the
actuator 53 in the ambulance cot of the ‘571 Patent, which again, does not
provide the detecting function. Therefore, it would be unreasonable to read
hydraulic cylinder 42 of Bailey as a structure capable of providing the
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functions recited in claim 1. Accordingly, in Requester’s alternative
position, there is also no absence of force detected by the elevating
mechanism causing the base frame and the litter frame to be oriented closer
together.

Claim 5
Both the Examiner and Requester rely on valves 76, 108, and 110 and
their associated hydraulic circuitry to meet the limitation in claim 5 that the
control mechanism is “configured to facilitate said movement of said base
frame and said litter frame toward each other and at differing speeds
predicated on at least one of whether said base frame is supported on said
surface and said litter frame is supported by an external support separate
from said elevating mechanism.” (RAN 7, Req. Resp. Br. 13.) However,
Bailey discloses that valves 76, 108, and 110 respond to the action of the
operator, valve 108 being operated by foot pump 78, and solenoid valve 110
being actuated by the operator in activating down switch 170. Thus, the
control mechanism is configured to facilitate movement based on the actions
of the operator and weight applied to cylinder 42 as discussed above, and not
based on whether the base frame and litter frame is supported. We have not
been directed to sufficient evidence of record that the valves disclosed in
Bailey are capable of performing the above-noted function recited in
claim 5.

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Benedict
Benedict discloses an ambulance cot having an electro-hydraulically
operated collapsible frame structure to facilitate loading of the ambulance
cot from the ground into an ambulance by a single operator. (Page 1, ll. 1-
3.) Figure 1 depicts a side view of an ambulance cot. (Page. 3, ll. 16-17.)

The ambulance cot as shown in Figure 1 includes an upper frame 12, a
lower frame 14, and a hydraulic lift system 10, which raises and lowers the
cot, where the hydraulic lift system may also be manually released to lower
the cot. (Page 5, line 13 – page 6, l. 2.)
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Figure 6 of Benedict is reproduced below and shows a connection
diagram of the hydraulic system. (Page 4, ll. 4-5.)

The electo-hydraulic system 76 as depicted in Figure 6 includes
hydraulic cylinders 72 and 72’, which are powered by motor 80 and pump
82, to supply fluid under pressure to branch 94 in order to retract cylinders
72, 72’ and lower the upper frame 12 relative to the lower frame 14. (Page
10, ll. 11-17, page 12, ll. 2-6.) Benedict discloses a pair of hand operated
spring-return valves 106, 106’ that may be used to manually lower or raise
the cot by dumping fluid into reservoir 84. (P. 12, ll. 7-9.) Figure 7,
reproduced below, is a trailing (operator) end view of a cot. (Page 4, ll. 6-7.)

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As shown in Figure 7, thumb control switches 216, 216’ are located
on the operator end 7 of cot 2 and are used to control the up and down
operation of the cot. (P. 13, l. 15 – p. 14, l. 10.)

Claim 1
Both the Examiner and Requester rely on the absence of force applied
by the operator to the control member activating motor 80 in order to satisfy
detecting the absence of a force recited in claim 1. (RAN 6; Req. Resp. Br.
6.) Thus, the structure disclosed by Benedict suffers from the same
deficiency as the structure disclosed by Bailey, namely, when the control
switch 216’ is not activated, or for that matter, when the spring control
switch 106’ is not engaged, the base frame and the litter frame are not
capable of being oriented closer together. Thus, we have not been directed
to sufficient structure in Benedict that is configured to orient the base frame
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and litter frame closer together as a result of an absence of a force urging a
change in the litter frame relative to the base frame as required in claim 1.

Claim 5
We do not find support in Benedict for the Examiner’s and the
Requester’s position that the litter frame will lower at different speeds
depending on whether the base frame or the litter frame is supported because
the amount of weight supported on the litter frame or the amount of force
applied by the operator varies. (Req. Resp. Br. 13; RAN 10.) We do not
discern a necessary correlation between the two conditions identified and the
manner in which the ambulance cot is supported. In addition, Benedict does
not disclose that the control system influences the speed of the powered
retraction of cylinders 72, 72’ via pump 82 depending on the location of the
base frame 14 on the ground or supported on an elevated surface. Rather, it
is the direct act of the force on the elevating mechanism that influences the
speed. In addition, while Benedict may disclose a rapid powered collapse of
the cot as well as retracting the cot due to gravitational force controlled by a
control mechanism, there is no indication that the difference in retraction
mechanism is predicated on the support of the base frame or litter frame as
required in the claims. Requester cites to page 12, lines 2-6 in Benedict to
support the statement that such is based on whether the cot is on a surface or
lifted away from a surface. (Req. Resp. Br. 13-14.) However, this section
only describes operation of the motor 80, and does not disclose any
difference in the rate in which hydraulic fluid is supplied. Thus, Requester’s
argument that Benedict discloses that cylinders may be retracted at a rate
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which is capable of being predicated on the support of the base frame or
litter frame is not supported by a preponderance of the evidence.

Schirmer
Schirmer discloses ambulance cots with hydraulically operated
collapsible frame structures. (Col. 1, ll. 5-10.) Figures 14 and 15,
reproduced below, depict a schematic top view of the upper structural
portion of the cot and an elevational view of the cot, respectively. (Col. 4, ll.
35-40.)

In the embodiment disclosed in Figures 14 and 15, Schirmer discloses
an ambulance cot including an upper frame 12, a lower frame 14 (Figure
15), and an intermediate frame 16 (Figure 15) including an elevating
mechanism with pneumatic cylinders 126 and 128 (Figure 15.) (Col. 4, ll.
35-40, col. 5, ll. 10-20, col. 8, ll. 54-58.) To raise and lower the cot, valve
systems 86 and 88 are used, or manual override valve 90 may be engaged,
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followed by valves 154, 154’, 156, 156’, or 158 (Figure 22). (Col. 8, ll. 8-
12; col. 11, ll. 7-9.)
To contract the cot, either valve 156 or 156’, located as part of valve
systems 86 and 88, may be pushed to permit pressurized flow from pressure
vessels 80, 130 (Figures 14 and 15) through valves 164, 160, 166 into the
upper end of cylinders 126 and 128. (Col. 10, ll. 28-39.) Fluid or air is
metered out through flow control valves 174 and 174’, which define the rate
that the upper frame 12 is lowered or the undercarriage 16 is raised. (Col.
10, ll. 39-48.)
Figure 22, reproduced below, is a schematic representation of a
pneumatic system of use in the cot. (Col. 4, ll. 59-61.)

Schirmer discloses that when the cot is under load it may be lowered
through operation of exhaust valve 158 (Figure 22), which only exhausts air
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from the bottom portion of the cylinders without re-pressurizing the opposite
ends of the cylinders. (Col. 10, ll. 55-60.)

Claim 1
As previously described, Schirmer discloses that an ambulance cot is
contracted by pushing valves 156 or 156’, or via exhaust valve 158. The
Examiner’s position is that force applied to the valves by the operator is
detected by the valves, which meets the function recited in claim 1. (RAN
10-12.) The position of the Requester is that the pneumatic cylinders in
Schirmer detect the presence or absence of a force in the form of the weight
of the occupant or the operator’s manual adjustment. (Req. Resp. Br. 6-7.)
We find neither position to be persuasive.
The Examiner’s argument has been previously addressed above,
namely that in the absence of force applied by the operator to the valves, we
have been directed no corresponding structure in Schirmer capable of
causing the base frame and the litter frame to become oriented together. In
addition, Schirmer does not describe movement of the frames based on the
detected absence of force. Regarding Requester’s argument, as discussed
above with respect to Bailey, regardless of whether there is a patient on the
litter frame, or whether the operator applies a manual force, there is a force,
either weight or gravity, acting on the elevating mechanism to bring the litter
frame and base frame closer together. Thus, there is no detection of an
absence of force, but rather the elevating mechanism is simply acting in
response to a force applied thereto.

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Claim 5
The Examiner relies on the structure of the pilot valve 160, the valves
54, 154’, 156, 156’, 158, and their associated circuitry to assert that the
structure in Schirmer is capable of performing the functions recited in claim
5. (RAN 13.) However, in view of the deficiencies in Schirmer discussed
above, we do not agree with the Examiner.
Requester’s contentions that the litter frame will lower at different
speeds based upon the influence of gravity and the force applied by the
operator, which are controlled by valve 74, and that Schirmer discloses both
a rapid powered collapse and a slower exhaust retract of the cot due to
gravitational force controlled by a control mechanism (Req. Resp. Br. 14),
are insufficient to provide a reasonable basis to believe that the structures
disclosed in Schirmer are capable of performing the function of varying the
speed based on whether the base frame or litter frame is supported. In
Column 5, lines 3-9 of Schirmer, pointed to by Requester, Schirmer only
discloses operating the valve system to pneumatically raise the cot into the
ambulance, and is silent as to any difference in speed. Therefore, we cannot
agree with the Examiner’s and Requester’s positions.

Other Applied Prior Art
Claim 1
The other Prior Art references applied to claim 1 all suffer from the
same deficiencies as discussed above. Specifically, Limpach (control knob
62 pulled to lower cot, col. 2, ll. 33-42; Figure 2); Rixon (lead button 5
actuated to lower cot, page 3; Figure 2); Smith (down switch 100 pressed to
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lower cot, col. 7, ll. 23-35; Figure 3); Stryker (control tubes 103, 109 rotated
to lower frame, col. 5, ll. 20-30; Figure 5); Williams (lever 158 manipulated
to lower cot, col. 4, ll. 25-37, Figure 5), Failer (pushbuttons 55, 56 used to
lower cot, col. 4, l. 64 – col. 5, l. 8, Figure 1); Pioth (relief valve 75 and
control valve 76 actuated to control height of bed portion, col. 24-45, Figure
8); Bleicher (down switches 94 and 98 actuated to lower head end and foot
end of stretcher portion, col. 6, ll. 29-43, Figure 9); Heimbrook (foot pedal
228 depressed to lower head end and foot end of patient support surface, col.
19, ll. 19-27, Figure 1); Bradcovich (hydraulic controls 21 used to lower
stretcher, col. 5, ll. 1-11, Figure 1); and Merkel (retraction handles 70, 71
used to lower wheel carriage, col. 5, ll. 15-56, Figures 2, 3) are similarly
deficient. Each of these references disclose manually actuated means to
lower the litter frame without a mechanism that is capable, in the absence of
force detected by the elevating mechanism, of causing the base frame and
the litter frame to be oriented closer together.

Claim 5
We do not agree with Requester that the valve system disclosed in
Smith is capable of predicating the speed in which the litter frame and base
frame are moved toward one another based on the support of the base frame
or litter frame. (Req. Resp. Br. 15; RAN 17-18.) Requester’s position that
the influence of gravity or the weight of the patient affects the speed does
not necessarily translate to the support of the litter or base frame. In
addition, we are unable to find support in Smith for Requester’s contention
that the structure of the valves and their associated circuitry is in any way
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related to the speed of retraction and dependent on whether the litter frame
or base frame is supported. Indeed, Smith discloses the presence of throttles
73 and 74, which are adjusted such that the fluid flow rates are substantially
identical, dropping the frame 22 at the same rate. (Col. 6, ll. 28-33.) The
valves 66-69 are set to a predetermined value, but there is no indication that
the valves may be varied based on the support of the frames. (Col. 3, l. 57 -
4, l. 30.)
Regarding Stryker, Requester’s reliance on the operator’s ability to
manually adjust cylinders 82 and 83 does not correspond to a control
mechanism that is predicated on the support provided to the frames on the
cot, but rather relates to the manual control within the discretion of the
operator. (Req. Resp. Br. 15; RAN 19.) Requester sets forth a similar
position regarding the degree of opening the levers 158 in Williams and the
movement of the levers 55, 56, 55’, or 56’ in Failer by the operator. (Req.
Resp. Br. 16; RAN 21, 23.)
Accordingly, we reverse the Examiner’s rejections of claims 1 and 5
as being anticipated by these prior art references for the reasons expressly
discussed and for similar reasons as discussed above with respect to Bailey,
Benedict, and Schirmer.

Rejections III and IV
Regarding the rejections of claims 11-15 as being obvious over
Benedict, Schirmer, Reilly, and Menna, because we have found that
Benedict and Schirmer fail to anticipate claim 5, where Benedict and/or
Schirmer are the main reference relied on for the obvious rejections, we also
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reverse the Examiner’s rejections of claims 11-15. The Examiner does not
present sufficient rationale in the obviousness rejections that would make up
for the deficiencies discussed above. In addition, Reilly and Menna fail to
remedy the deficiencies identified above. Accordingly, we reverse the
Examiner’s rejections of claims 11-15 for the reasons discussed above.

REQUESTER’S APPEAL
Requester contests the Examiner’s refusal to reject claims 1-15 as
follows:
V. Claims 2 and 3 under 35 U.S.C. § 102(b) or (e) as being
anticipated by Bailey, Benedict, Schirmer, Limpach, or Smith;
VI. Claims 1-3, 5, 6, and 11-14 under 35 U.S.C. § 103(a) as being
obvious over Benedict in view of Saleem, Pierrou, Lenkman, or
Dietz;
VII. Claims 1-3 and 5-7 under 35 U.S.C. § 103(a) as being obvious
over Schirmer or Bailey in view of Saleem, Pierrou, Lenkman,
or Dietz;
VIII. Claim 4 under 35 U.S.C. § 103(a) as being obvious over
Benedict or Schirmer in view of Reilly or Menna;
IX. Claims 1-15 under 35 U.S.C. § 103(a) as being obvious over
Way in view of Benedict, Dietz, and Reilly;
X. Claims 1 and 5 under 35 U.S.C. § 102(a), (b), or (e) as being
anticipated by Campbell or Walkingshaw; and
XI. Claims 1, 5, and 6 under 35 U.S.C. § 102(b) as being
anticipated by Vandenheuval.
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35 U.S.C. § 102 Rejections

Rejections V, X, and XI
The Examiner found that Bailey, Benedict, Schirmer, Limpach, or
Smith fail to disclose a detection device, which detects the absence of a
force and a control mechanism that in response to an absence of a force
effects a rapid movement of deployment mechanism such that the base
frame is rapidly drawn toward the litter frame, as recited in claim 2. (Non-
Final 18-20.)
In challenging the Examiner’s findings, Requester sets forth similar
arguments for the prior art as discussed above with respect to claims 1 and 5.
(Req. App. Br. 11-18.)
Thus, the issue is:
Did the Examiner err in finding that Bailey, Benedict, Schirmer,
Limpach, or Smith fail to anticipate claims 2 and 3?

We are not persuaded by Requester’s contentions that Bailey,
Benedict, Schirmer, Limpach, and Smith anticipate claims 2 and 3. (Req.
App. Br. 11-18.) Claim 2 requires a deployment mechanism having a
detection device that is configured to detect the absence of a force urging a
change in distance between the litter frame and base frame. As discussed
above in conjunction with claims 1 and 5, none of the above cited prior art
discloses such a feature. Thus, we affirm the Examiner’s decision not to
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reject claims 2 and 3 (which is dependent from claim 2) as anticipated by the
cited prior art.

Rejections X and XI –Rejections under 35 U.S.C. § 102 of claims 1
and 5 as being anticipated by Campbell, Walkingshaw, or Van Den Heuval
Although Requester has indicated that the Examiner’s non-adoption of
these rejections is being appealed (Requester App. Br. 9-10, Issues 12-14),
Requester does not provide any substantive arguments regarding these
rejections. Accordingly, we affirm the Examiner’s decision not to reject
claims 1 and 5 and any claims dependent therefrom based on this prior art.
We additionally note that Campbell (stretcher support lowered by
hydraulic, mechanical, or electrical means that is foot or hand operated (Col.
2, ll. 59)), Walkingshaw (cot lowered by controls releasing pressure in
cyclinder 34 in combination with gravity (para. [0029])), and Van Den
Heuval (lift assisted device lowered via control means releasing air in
pneumatic cylinder or bag (Col. 5, ll. 23-47)) suffer from the same
deficiencies as noted for the above prior art.

35 U.S.C. § 103 Rejections

Rejections VI, VII, and IX
Requester contends that it would have been obvious to use the
pressure switches disclosed in Saleem, Pierrou, Lenkman, or Dietz, well
known in the art in the ambulance cots of Bailey, Benedict, Schirmer, or
Way in view of Benedict, to detect the presence or absence of force urging a
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change in elevation of the litter frame relative to the base frame to cause the
litter frame to become oriented closer to the base frame, because such would
be a predictable use of a known element disclosed in the prior art to solve
the identified problem of patients that are too heavy for ambulance cots.
(Req. App. Br. 20-22, 25, 27, 33-34.) However, the Examiner did not adopt
the rejections because the Examiner found that the weight sensor in Saleem
does not function to cause a change on elevation of the litter frame relative
to the base frame, and the pressure switches or sensors in Pierrou, Lenkman,
or Dietz also do not function in this manner. (Non-Final 22-24, 26.)
Thus, the issue is:
whether the Examiner erred in concluding that it would not have been
obvious to add the pressure sensors in Saleem, Pierrou, Lenkman, or Dietz to
the apparatuses of Bailey, Benedict, Schirmer, or Way in view of Benedict,
to construct the ambulance cot recited in the claims?

We agree with the Examiner, that it would not have been obvious to
have made the combinations suggested by Requester without the knowledge
gained from the Specification of the ‘571 Patent. Specifically, Saleem
merely discloses a pressure sensor for sensing weight of a patient on the
trolly. (P. 9, ll. 7-16.) Requester fails to direct our attention to persuasive
evidence that one of ordinary skill in the art would have recognized from
Saleem’s disclosure that configuring a pressure sensor to perform the
functions recited in the claims would have been obvious. We note that
Saleem contains a disclosure that the hydraulic circuit disclosed therein will
need to be powered when the lower frame has to be raised, as opposed to
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when the weight of the upper frame assists in the collapsing movement, and
that suitable valves may be provided to manually or automatically control
such movement. (Page 15, l. 28 – page 16, l. 7.) However, there is no
indication in Saleem that the information from the pressure sensor is used to
change the elevation of the litter frame relative to the base frame or the rate
in which the litter frame and the base frame are drawn toward one another.
Regarding Pierrou, the fluid pressure sensing switch in Pierrou, which
is in fluid communication with a hydraulic fluid outlet of a hydraulic pump
driving a platform lift, prevents a loaded platform from being folded into a
stow position by disabling the hydraulic pump. (Para. [0010].) Thus,
Pierrou does not explicitly disclose the pressure sensing switch being
operated in the manner recited in the instant claims. Requester has failed to
provide an adequate explanation of how Pierrou’s pressure sensing switch
would have been incorporated into the ambulance cots of Bailey, Benedict,
or Schirmer, and configured to provide the functions recited in the claims,
that is sufficient to support the position that such a modification would have
been a predictable use of a known element.
Similarly, the main compressor pressure switch disclosed in Lenkman
is disclosed to energize a main air compressor when the pressure drops
below a preset value. (Para. [0015].) Again, we have not been directed to
sufficient evidence to support Requester’s position that it would have been
obvious to incorporate Lenkman’s main compressor pressure switch into
Bailey, Benedict, or Schirmer in a manner that provides the functions recited
in the claims.
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Last, Dietz discloses a pump pressure sensor that is connected to a
supply line in order to sense pump pressure and generate a system control
signal. (Col. 2, l. 65 – col. 3, l. 2.) Once again, we have not been directed to
sufficient evidence to support the position that it would have been obvious to
incorporate a pump pressure sensor into Bailey, Benedict, Schirmer, or Way
in view of Benedict in a manner that provides the functions recited in the
claims. Requester's contention that it would have been well known in view
of Dietz to detect the presence or absence of pressure within the hydraulic
systems does not provide a sufficient rationale underpinning for the
modifications required in order to render the present claims obvious. (Req.
App. Br. 34.) “‘[R]ejections on obviousness grounds cannot be sustained by
mere conclusory statements; instead, there must be some articulated
reasoning with some rational underpinning to support the legal conclusion of
obviousness.’” KSR Int’l. Co. v. Teleflex Inc., 550 U.S. 398, 418 (2007),
quoting In re Kahn, 441 F.3d 977, 988 (Fed. Cir. 2006).
Requester’s additional arguments that Benedict discloses manually
operated systems, for which the hydraulic circuit of Dietz could be
substituted in order to arrive at the present claims are also unpersuasive.
(Req. App. Br. 35-36.) As discussed above, the hydraulic systems of
Benedict fail to detect the absence of hydraulic fluid pressure as part of the
control mechanism in causing the base frame and litter frame to move closer
together. Accordingly, Requester’s rationale is deficient.
Moreover, Requester’s contention that moving the cot at different
speeds is a matter of common sense based on whether the cot is being rested
on the elevated surface of an ambulance or whether a patient is on the cot
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(Req. App. Br. 36-37, 39-40) does not adequately explain how the instant
claims, for example claim 5, would have been obvious. Requester’s
contention does not account for the use of a control system as disclosed in
Dietz to achieve the function recited in claim 5.

Rejection VIII
The Examiner did not adopt the rejections of claim 4 as obvious over
Benedict or Schirmer in view of Reilly or Menna, because claim 4 depends
from claim 2, and the Examiner found that neither Benedict nor Schirmer
discloses a detection device as recited in claim 2. (Non-Final 24-25.)
Requester does not set provide any further persuasive arguments as to how
Benedict or Schirmer would render obvious such a detection device, beyond
those arguments previously discussed. (Req. App. Br. 27-32.) Accordingly,
we discern no error on the part of the Examiner and affirm the Examiner’s
decision not to adopt the rejections of claim 4.

CONCLUSION
On this record:
the Examiner has not provided a sufficient basis that the prior art
structures are capable of performing the functions of the elevating
mechanism and control mechanism recited in claims 1 and 5 to justify
requiring the Patent Owner to prove that the prior art does not possess the
required characteristics;
the Examiner did not err in finding that each of Bailey, Benedict,
Schirmer, Limpach, and Smith do not anticipate claims 2 and 3; and
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the Examiner did not err in concluding that it would not have been
obvious to add the pressure sensors in Saleem, Pierrou, Lenkman, or Dietz to
the apparatuses of Bailey, Benedict, Schirmer, or Way in view of Benedict,
to construct the ambulance cot recited in the claims.

DECISION
The Examiner’s decision to reject claims 1, 5-9, and 11-15 over
certain prior art is reversed. The Examiner’s decision not to reject claims 1-
15 over certain other prior art is affirmed.

In accordance with 37 C.F.R. § 41.79(a)(1), the “[p]arties to the
appeal may file a request for rehearing of the decision within one month of
the date of: . . . [t]he original decision of the Board under § 41.77(a).” A
request for rehearing must be in compliance with 37 C.F.R. § 41.79(b).
Comments in opposition to the request and additional requests for rehearing
must be in accordance with 37 C.F.R. § 41.79(c) & (d), respectively. Under
37 C.F.R. § 41.79(e), the times for requesting rehearing under paragraph (a)
of this section, for requesting further rehearing under paragraph (d) of this
section, and for submitting comments under paragraph (c) of this section
may not be extended.
An appeal to the United States Court of Appeals for the Federal
Circuit under 35 U.S.C. §§ 141-144 and 315 and 37 C.F.R. § 1.983 for an
inter partes reexamination proceeding “commenced” on or after November
2, 2002 may not be taken “until all parties' rights to request rehearing have
been exhausted, at which time the decision of the Board is final and
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appealable by any party to the appeal to the Board.” 37 C.F.R. § 41.81. See
also MPEP § 2682 (8th ed., Rev. 7, July 2008).

AFFIRMED-IN-PART

rvb

PATENT OWNER:

FLYNN, THIEL, BOUTELL & TANIS, P.C.
2026 RAMBLING ROAD
KALAMAZOO, MI 49008-1631

THIRD-PARTY REQUESTER:

ANDRUS SCEALES STARKE & SAWALL, LLP
100 E. WISCONSIN AVENUE
SUITE 1100
MILWAUKEE, WI 53202