Ex Parte Call et al

Patent Trial and Appeal Board

Nov 25, 2013

11412859 (P.T.A.B. Nov. 25, 2013)

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.
11/412,859 04/27/2006 Evan William Call ROHO 9162U1 8299
1688 7590 11/26/2013
Polster, Lieder, Woodruff & Lucchesi, L.C.
12412 Powerscourt Dr. Suite 200
St. Louis, MO 63131-3615
EXAMINER
VALONE, THOMAS F
ART UNIT PAPER NUMBER
2858
MAIL DATE DELIVERY MODE
11/26/2013 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 PATENT TRIAL
AND APPEAL BOARD
____________

Ex parte EVAN WILLIAM CALL,
and KENT WALKER MABEY
__________

Appeal 2011-008318
Application 11/412,859
Technology Center 2800
____________

Before PETER F. KRATZ, JEFFREY T. SMITH, and
MICHAEL P. COLAIANNI, Administrative Patent Judges.

COLAIANNI, Administrative Patent Judge.

DECISION ON APPEAL
Appellants appeal under 35 U.S.C. § 134 the final rejection of claims
1-45 and 47-49. We have jurisdiction over the appeal pursuant to 35 U.S.C.
§ 6(b).
We AFFIRM-IN-PART.
Appellants’ invention is directed to a sensor for and method of
detecting a relative distance of an object to the sensor by detecting changes
in charge transfer (Spec. 1:11-13; claims 1 and 36). The sensor and method
are said to be used to detect the amount of immersion of a person into a
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Application 11/412,859

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cushion to avoid bottoming out of the individual and the formation of
decubitus ulcers (Spec.3: 1-14; 17-23; 4:1-4).
Claim 1 is illustrative:
1. An immersion sensor assembly comprising:

a cushion or mattress having an adjustable depth of immersion;

a sensor comprising a conductive material;

a ground comprising a second conductive material electrically isolated
from the sensor and surrounding the sensor;

a circuit comprising a reference capacitor, the circuit adapted to send
short bursts of electrical current to the sensor and the reference capacitor, the
circuit adapted to measure the length of time the burst of current takes to
charge the reference capacitor and the circuit adapted to calculate the
proximity of a person based upon the time taken to charge the reference
capacitor; and

wherein the circuit is adapted to provide an indication when the
person is too deeply immersed within the cushion or mattress.

Appellants appeal the following rejections:
1. Claims 48 and 49 are rejected under 35 U.S.C. § 112, first paragraph,
as failing to comply with the written description requirement.
2. Claims 1-4, 6, 8-12, 15-19, 21-27, 29, 31-45, and 47-49 are rejected
under 35 U.S.C. § 103(a) as being unpatentable over Stanley ‘674 (US
7,098,674 B2, issued Aug. 29, 2006) in view of Graebe (US
4,833,457, issued May 23, 1989) and Stanley ‘765 (US 6,825,765 B2,
issued Nov. 30, 2004).
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3. Claims 13 and 14 are rejected under 35 U.S.C. § 103(a) as
unpatentable over Stanley ‘674 in view of Graebe, Stanley ‘765 and
Stanley ‘106 (US 6,517,106 B1, issued Feb. 11, 2003).
4. Claims 5, 7, 20, 28, and 30 are rejected under 35 U.S.C. § 103(a) as
being unpatentable over Stanley ‘674 in view of Graebe, Stanley ‘765
and Wong (US 7,107,642 B2, issued Sep. 19, 2006).

REJECTION (1): § 112, 1st Paragraph, Written Description
The Examiner’s determination that claims 48 and 49 contain subject
matter that lack written descriptive support are located on pages 4-5 of the
Answer.
Appellants do not specifically contest the rejection (App. Br. 12-13).
Rather, Appellants refer to an unentered response that modifies the features
that the Examiner found to be new matter (App. Br. 12).
Because Appellants offer no argument against the rejection and they
merely proffer amendments to the claims to address the rejection, we find
that there is no dispute that the subject matter of claims 48 and 49 contain
new matter. We affirm the Examiner’s § 112, first paragraph, rejection of
these claims.

REJECTION (2) to (4): § 103
ISSUE
Did the Examiner reversibly err in failing to address Appellants’
arguments that one of ordinary skill in the art would not have combined
Graebe’s device that adjusts depth of immersion of an individual into a
cushion with Stanley ‘674’s device to arrive at the claimed invention
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because such a combination would have rendered Stanley ‘674’s device
unsuitable for its intended purpose? We decide this issue in the affirmative.
FINDINGS OF FACT AND ANALYSIS
Appellants argue that combining Graebe’s cushion with Stanley
‘674’s automobile seat sensor arrangement for determining whether to
inflate an airbag would have resulted in rendering Stanley ‘674’s device
unsatisfactory of its intended purpose (App. Br. 26-28). Appellants argue
that such a combination would have frustrated Stanley ‘674’s purpose by
positioning the passenger farther from the sensor which would have “a lower
capacitive effect than the same person in the seat at a greater depth of
immersion (seat lowered)” (App. Br. 28). Appellants contend that such an
effect would cause the sensor to adjudge that the person seated is smaller
than he or she would actually be and thus frustrate the purpose of Stanley
‘674’s sensor. Id.
The Examiner does not respond to Appellants’ arguments regarding
the lack of reason to combine the teachings of Graebe and Stanley ‘674
(Ans. 11-14). The Examiner instead focuses on Appellants’ arguments that
claim features are missing from the prior art disclosures. Id.
Stanley ‘674 teaches that the electric field sensor 12 or capacitive
sensor 12’, which is composed of sensor electrode 40, is responsive to at
least one electric-field influencing property such as distance of an object
proximate the electric field sensor 12 (col. 4, ll. 42-61). In other words,
Stanley ‘674 discloses that the sensor is responsive to and thus, affected by
the distance of an object from the sensor.
Graebe teaches that the cushion is maintained at a desired dimension
“X” which corresponds to a distance slightly greater than the thickness of
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the regulating members (i.e., 14, 16 or 84 in Figs. 3 & 8) (col. 9, ll. 7-23).
When the distance “X” changes due to, for example, an air leak, the upper
and lower conductors (e.g., 88 and 86 in Fig. 8) will contact one another and
trigger an alarm that indicates that the cushion 48 must be inflated (Graebe
col. 9, ll. 24-30). The fluid pressure in the cushion 48 must be increased to a
desired value to obtain the desired distance “X” and silence the alarm by
separating contacts 88 and 86 (col. 9, ll. 30-34).
Graebe requires that a particular distance “X” be maintained so that
the sensor (e.g., conductors 86 and 88) remain open. Stanley ‘674 teaches
that the capacitive sensor 12 is responsive to and thus affected by the
distance of an object being sensed from the sensor. Accordingly, we agree
with Appellants that the distance required to be maintained by Graebe’s
cushion would have had an affect on Stanley ‘674’s sensor. The Examiner
has not addressed these arguments directed to whether there would have
been a reason to combine the teachings of Graebe and Stanley ‘674 in light
of the affect of distance on the sensors. Because we have no response to
Appellants’ reasonable challenge to the Examiner’s prima facie case, the
preponderance of the evidence favors Appellants’ argument of
nonobviousness. We are constrained to reverse the Examiner’s § 103
rejections.
DECISION
The Examiner’s decision is affirmed-in-part.
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a).
ORDER
AFFIRMED-IN-PART
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