Ex Parte DeFranks et alDownload PDFPatent Trial and Appeal BoardJul 26, 201713008720 (P.T.A.B. Jul. 26, 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. 13/008,720 01/18/2011 Michael S. DeFranks SMCY-136-102 (SSB0049USP) 9311 23413 7590 07/28/2017 TANTOR TOT RTTRN T T P EXAMINER 20 Church Street CONLEY, FREDRICK C 22nd Floor Hartford, CT 06103 ART UNIT PAPER NUMBER 3673 NOTIFICATION DATE DELIVERY MODE 07/28/2017 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 MICHAEL S. DeFRANKS and JEREMY B. LYNN Appeal 2016-006966 Application 13/008,720 Technology Center 3600 Before ALLEN R. MACDONALD, CARL W. WHITEHEAD JR and BRADLEY W. BAUMEISTER, Administrative Patent Judges. WHITEHEAD JR., Administrative Patent Judge. DECISION ON APPEAL STATEMENT OF THE CASE Appellants are appealing the final rejection of claims 1—14 under 35 U.S.C. § 134(a). Appeal Brief 2. We have jurisdiction under 35 U.S.C. § 6(b) (2012). We affirm. Introduction The invention is directed to a “mattress comprising asymmetrical coil springs with spring rates that provide comfort to users with different weights.” Abstract. Appeal 2016-006966 Application 13/008,720 Illustrative Claim (disputed limitations emphasized) 1. A coil spring for cushion support, comprising: an upper conical section having at least four active convolutions; and a lower, substantially cylindrical section disposed below the upper section having at least four active convolutions, wherein the upper conical section and the lower substantially cylindrical section each have a constant pitch; wherein in response to a load of an individual, the upper conical section of the coil spring is configured to compress with a first substantially constant spring rate for a substantial part of compression and the lower substantially cylindrical section of the coil spring is configured to compress with a second substantially constant spring rate, wherein the coil spring is configured to compress with the first substantially constant spring rate for a longer range of amount of applied load relative to compression with the second substantially constant spring rate; wherein the upper conical section has a smaller height than the lower substantially cylindrical section; and wherein the second substantially constant spring rate is higher than the first substantially constant spring rate. Rejection on Appeal Claims 1—14 stand rejected under 35 U.S.C. § 103 (a) as being unpatentable over Barman (US Patent Application Publication 2006/0042016 Al; published March 2, 2006) and Gladney (US Patent 7,168,117 B2; issued January 30, 2007). Final Rejection 2—6. CONTENTIONS Rather than reiterate the arguments of Appellants and the Examiner, we refer to the Appeal Brief (filed February 20, 2015), the Final Rejection 2 Appeal 2016-006966 Application 13/008,720 (mailed October 28, 2014) and the Answer (mailed September 2, 2015) for the respective details. Appellants argue, “[f]irst, there is no common sense reason for one of ordinary skill in the art to modify Barman to provide an asymmetric spring coil with more than 4 convolutions in each of the upper and lower sections of a coil” and “[njowhere is there any disclosure or even suggestion in Barman of an asymmetric coil spring including upper and lower sections having at least four active convolutions in each section, which would mean at least 8 active convolutions for the coil spring in its entirety.” Appeal Brief 6—7. Appellants further argue, “[i]t is not a ‘mere’ duplication of parts[,] but rather a significant change that will definitely change the performance of the coil spring” and “[b]ecause Barman discloses and suggests spring coils having a much smaller number of active convolutions as evidenced by its examples, any modification to Barman would be a substantial modification.” Appeal Brief 8. Appellants contend Gladney fails to address Barman’s deficiencies because “[t]he convolutions in Gladney’s coil may have a constant pitch[,] but the spring coil itself clearly does not have Appellants’ featured upper and lower cylindrical section, wherein each section includes at least 4 active convolutions.” Appeal Brief 9. ANALYSIS We agree with Appellants that modifying Barman’s spring to include four convolutions in each section and changing the pitch of the various sections of the spring would significantly impact the functionality of Barman’s spring. As Appellants contend, “one of skill in the art would 3 Appeal 2016-006966 Application 13/008,720 expect markedly different behavior from a cylindrical symmetrical coil having three active convolutions when compared to an asymmetrical coil having 8 or more active convolutions in total[,] never mind a spring coil that further has a conical upper section and a cylindrical lower section, wherein each section has at least 4 active convolutions.” Appeal Brief 9. The Examiner reasons, though, “Appellants] ha[ve] done nothing more than apply recognized engineering principles to the configuration of a coil spring which is not considered patentably distinct.” Answer 9. We agree that one of ordinary skill in the art would expect different spring behavior once the modifications to Barman has been made, but one of ordinary skill would not have been surprised by the results of the modifications. Appellants’ do not provide evidence of unexpected results based upon the claimed spring configuration. The invention, instead, exhibits behavior that one of ordinary skill art would have expected when manipulating spring parameters according to art recognized principles.1 Consequently, we agree with the Examiner’s findings and do not find 1 Appellants bear the burden of showing unexpected results. In re Geisler, 116 F.3d 1465, 1469-70 (Fed. Cir. 1997); In re Klosak, 455 F.2d 1077, 1080 (CCPA 1972). To establish unexpected results, the claimed subject matter must be compared with the closest prior art. In re Baxter Travenol Labs., 952 F.2d 388, 392 (Fed. Cir. 1991). “It is well settled that unexpected results must be established by factual evidence. Mere argument or conclusory statements in the specification does not suffice.” In re Soni, 54 F.3d 746, 750 (Fed. Cir. 1995) (quoting In re De Blauwe, 736 F.2d 699, 705 (Fed. Cir. 1984)). A showing of “unexpected results” requires that “the claimed invention exhibits some superior property or advantage that a person of ordinary skill in the relevant art would have found surprising or unexpected.” Soni, 54 F.3d at 750. 4 Appeal 2016-006966 Application 13/008,720 Appellants’ arguments persuasive.2 We sustain the Examiner’s obviousness rejection of independent claims 1 and 14, as well as, dependent claims 2—13, not separately argued. DECISION The Examiner’s obviousness rejection of claims 1—14 is affirmed. No time period for taking any subsequent action in connection with this appeal may be extended under 37 C.F.R. § 1.136(a)(1). See 37 C.F.R. § 1.136(a)(l)(v). AFFIRMED 2 “The combination of familiar elements according to known methods is likely to be obvious when it does no more than yield predictable results.” KSRInt’l Co. v. Teleflex Inc., 550 U.S. 398, 416 (2007). 5 Copy with citationCopy as parenthetical citation