Ex Parte Dublan et al

Patent Trial and Appeal Board

Jul 13, 2018

13737685 (P.T.A.B. Jul. 13, 2018)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
13/737,685 01/09/2013
28415 7590 07/17/2018
PRICE HENEVELD LLP
FORD GLOBAL TECHNOLOGIES, LLC
695 KENMOOR S.E.
P. 0. BOX 2567
GRAND RAPIDS, MI 49501-2567
FIRST NAMED INVENTOR
AldoDublan
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.
83255800 1082
EXAMINER
ING,MATTHEWW
ART UNIT PAPER NUMBER
3637
NOTIFICATION DATE DELIVERY MODE
07/17/2018 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):
ptomail@priceheneveld.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte ALDO DUBLAN and ROBERT SOMESCHAN
Appeal2017-009130 1
Application 13/737 ,685 2
Technology Center 3600
Before HUBERT C. LORIN, NINA L. MEDLOCK, and
BRADLEY B. BAY AT, Administrative Patent Judges.
MEDLOCK, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Appellants appeal under 35 U.S.C. § 134(a) from the Examiner's final
rejection of claims 1-3, 5-11, and 13-20. We have jurisdiction under
35 U.S.C. § 6(b).
We AFFIRM.
1 Our decision references Appellants' Appeal Brief ("App. Br.," filed
December 21, 2016) and Reply Brief ("Reply Br.," filed June 12, 2017), and
the Examiner's Answer ("Ans.," mailed April 14, 2017), Advisory Action
("Adv. Act.," mailed October 27, 2016), and Final Office Action ("Final
Act.," mailed April 21, 2016).
2 Appellants identify Ford Global Technologies, LLC, as the real party in
interest. App. Br. 1.
Appeal2017-009130
Application 13/737,685
CLAIMED INVENTION
Appellants' claimed invention "relates to a vehicle headrest, and more
particularly to a pour in place headrest" (Spec. ,r 1 ).
Claims 1, 8, and 15 are the independent claims on appeal. Claim 1,
reproduced below, is illustrative of the claimed subject matter: 3
1. A vehicle headrest comprising:
a closed cover stock shell enclosing an injection cavity;
the closed cover stock shell having a pair of spaced apart holes
therein;
a hollow support including a first portion which extends
through the spaced apart holes of the closed cover stock shell into
and within the injection cavity; the first portion of the hollow
support providing support of the closed cover stock shell and
having a dispensing feature within the closed cover stock shell;
the hollow support further includes a second portion; wherein the
second portion extends outwardly from the spaced apart holes of
the closed cover stock shell; the second support having a securing
feature which is configured to engage an attachment structure of
a vehicle upper seatback structure to fully support the headrest;
a tubular channel extending within both the first and
second portions of the hollow support from a distal end of the
second portion of the hollow support to the dispensing feature of
the first portion, wherein the foam substrate is delivered to the
injection cavity via the tubular channel; and
a foam substrate delivered to the injection cavity through
the distal end of the second portion of the hollow tube; wherein
the foam substrate is injected through the second portion past the
securing feature and past the spaced apart holes in the closed
cover stock shell and through the first portion and out through
the dispensing feature of the first portion into the injection cavity,
filling the injection cavity with the foam substrate, and wherein
3 Claim 1 contains no antecedent basis for the term "hollow tube";
therefore, the claim is facially indefinite. In the event of further prosecution,
appropriate correction is required.
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an injection nozzle surrounds the distal end of the second portion
of the hollow support to inject the foam substrate therein.
App. Br. 14; Claims Appendix.
REJECTI0NS 4
Claims 1-3 and 5-7 are rejected under 35 U.S.C. § I03(a) as
unpatentable over Kasuya (US 2008/0265645 Al, pub. Oct. 30, 2008),
Mori et al. (US 5,069,838, iss. Dec. 3, 1991) ("Mori"), and Ashtiani et al.
(US 6,475,576 Bl, iss. Nov. 5, 2002) ("Ashtiani").
Claims 8-11, 13, and 14 are rejected under 35 U.S.C. § I03(a) as
unpatentable over Kasuya, Klink (US 6,796,613 B2, iss. Sept. 28, 2004), and
Mori.
Claims 8-11, 13, and 14 are rejected under 35 U.S.C. § I03(a) as
unpatentable over Kasuya, Klink, Mori, and Ashtiani.
Claims 15-20 are rejected under 35 U.S.C. § I03(a) as unpatentable
over Hibino et al. (US 7,028,973 B 1, iss. Apr. 18, 2006) ("Hibino") and
Mori.
ANALYSIS
Obviousness - Kasuya, Mori, and Ashtiani
Independent Claim 1 and Dependent Claims 2, 3, and 5-7
Appellants argue claims 1-3 and 5-7 as a group (App. Br. 4--8). We
select independent claim 1 as representative. The remaining claims stand or
fall with claim 1. See 37 C.F.R. § 4I.37(c)(l)(iv).
4 The Examiner has withdrawn the rejection of claims 8-11, 13, 14, 19, and
20 under 35 U.S.C. § 112, second paragraph (Ans. 3).
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Application 13/737,685
By way of background, Kasuya is directed to a headrest for use with
an automotive seat (Kasuya, ,r 2). As shown in Figure 2, the headrest H
has a trim cover assembly 10 filled with a foam padding 3, and a headrest
frame 41, including a pair of stay members 42. Stay members 42 are
"adapted for connection with a top of the front-seat seat back (SB)"
(id. ,r 31 ), as shown in Figure 4. Kasuya discloses that foam padding 3 is
created by injecting a liquid foaming agent 3', via a nozzle N, into the
interior of trim cover assembly 10 and curing the liquid foaming agent
(id. ,I 40).
Mori is directed to a method of producing a frame-installed seat
cushion pad (Mori col. 1, 11. 12-13), and discloses a mold 1, with reference
to Figure 1, for use in the method; the mold has a cavity 1 a shaped to match
the contour of a seat cushion pad to be produced and a lid 2 having an
opening 2a to which a foamable material pouring tube 3 is mated (id.
at col. 2, 11. 22-26). In accordance with the method, a bag-shaped outer skin
member 15 is first placed into cavity la of mold 1; then, a frame 4 is
prepared (id. at col. 2, 11. 38--40). Frame 4, as shown in Figure 2, comprises
a rectangularly extending pipe having a plurality of openings 8 and an inlet
pipe 6, sized to mate with pouring tube 3 (id. at col. 2, 11. 41--45). Once
prepared, frame 4 is detachably connected to lid 2 such that inlet pipe 6
mates with material pouring tube 3; lid 2 is then placed on mold 1, such that
frame 4 is received in cavity la, and tightly fastened to the mold (id.
at col. 2, 11. 47--49). Next, a foamable plastic material is poured into tube 3;
the material flows from tube 3 into input pipe 6 of frame 4 and out through
openings 8, thereby filling cavity la (id. at col. 2, 11. 55-59). The material in
the cavity is then cured such that the foam inside frame 4 and the foam
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outside the frame become integrally connected thereby assuring a connection
of frame 4 to the foamed pad. (id. at col. 2, 11. 60-66; see also id. at col. 3,
11. 20-25). Mori discloses that its method is intended to avoid the formation
of undesired air-pockets in the foamed product and undesired underfill at the
peripheral portion of the product- problems associated with prior
techniques in which material is poured into the mold through a single inlet
opening in the lid (id. at col. 1, 11. 33--46). Mori also discloses, "[ s ]ince an
element (viz., the frame 4 or 10) of the seat cushion pad structure is used as
a part of material feeding device, this production method can be easily
carried out without increasing the number of parts of the material feeding
device" (id. at col. 3, 11. 25-30).
Ashtiani discloses a method for reinforcing a vehicle interior trim
panel assembly made by molding with thermoplastic beads (Ashtiani col. 1,
11. 46--4 7). As shown in Figure 8 of Ashtiani, cavity 44 of mold 34 is filled
with polypropylene beads via fill inlets 46.
In rejecting independent claim 1 under 35 U.S.C. § 103(a), the
Examiner finds that Kasuya discloses a vehicle headrest having a closed
cover stock shell and a hollow support, as recited in the claim (Final Act. 3-
4 ). The Examiner acknowledges that Kasuya does not disclose a "securing
means; a dispensing feature; and an injection nozzle that surrounds the
hollow support during foam injection" (id. at 4). And the Examiner cites
Mori and Ashtiani to cure the deficiencies of Kasuya (id. at 5-6).
In particular, the Examiner finds that Mori discloses a dispensing
feature in a frame, a tubular channel, and a foam substrate delivered via the
tubular channel (id. at 5). The Examiner concludes that it would have been
obvious to a person of ordinary skill in the art at the time of Appellants'
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invention "to substitute delivery means, as taught by Mori, for the delivery
means of Kasuya as modified, in order to deliver foam to the injection
cavity ... because such an outcome would have been a predictable result of
substituting one known delivery means for another" (id.).
Appellants argue that the rejection cannot be sustained because
"Kasuya represents the problem in the art that was overcome by Appellant's
[sic] invention" and "[a]s seen in Figure 5 of Kasuya, foam is injected
through nozzle 'N' and not through members 41 and 42" (App. Br. 6).
Appellants argue that Mori "also suffers from the problem of the injection
hole in the seat having to be sealed" and "there is no description of using
frame 4 to attach the seat to another structure" (id.).
Appellants' arguments are not persuasive at least because Appellants
argue the references individually when the rejection is based on a
combination of references. See In re Merck & Co., 800 F .2d 1091, 1097
(Fed. Cir. 1986) ("Non-obviousness cannot be established by attacking
references individually where the rejection is based upon the teachings of a
combination of references.").
Appellants next argue that if the hollow supports of Kasuya were
modified to act as a delivery means based on the use of an internal support in
Mori, i.e., "if [Kasuya's] supports were merely substituted, the resulting
headrest would lack the second portion of the support and would need to
otherwise be attached to the associated seatback" (App. Br. 7). That
argument is not persuasive of Examiner error at least because it is based on
the bodily incorporation of the features of Mori into the Kasuya apparatus,
which is not the test for obviousness. See In re Keller, 642 F.2d 413, 425
(CCP A 1981) (holding that the test for obviousness is what the combined
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teaching of the cited references would have suggested to a person of
ordinary skill in the art); see also In re Sneed, 710 F.2d 1544, 1550 (Fed.
Cir. 1983) ("[I]t is not necessary that the inventions of the references be
physically combinable to render obvious the invention under review."); In re
Nievelt, 482 F .2d 965, 968 (CCP A 1973) ("Combining the teachings of
references does not involve an ability to combine their specific structures.").
The Examiner determined that it would have been obvious to
substitute the delivery means of Mori (i.e., using the headrest frame itself as
the delivery means) for the delivery means of Kasuya (i.e., injecting foam
via a nozzle N as shown in Figure 5 of Kasuya) (see Final Act. 5). The
Examiner did not propose any bodily incorporation of the features of Mori
into the Kasuya apparatus (see Ans. 6 ("[T]he proposed modification does
not contemplate substituting the entirety of Mori' s support ( 4, 6) for the
support (41, 42) ofKasuya.")).
Appellants further argue that all of the cited references "teach
providing a separate nozzle externally to a point internal to or flush with the
exterior of the structure to be filled" and that "[t]his would not suggest to a
person of ordinary skill in the art that a support that extends externally can
also be used as a tube through which foam can be dispensed" (App. Br. 7).
Appellants maintain that this is especially true because in each of the cited
references "the nozzle, or at least a support therefor, is incorporated directly
into the mold" (id.; see also, Reply Br. 3).
The Supreme Court made clear in KSR that when considering
obviousness, "the analysis need not seek out precise teachings directed to the
specific subject matter of the challenged claim, for a court can take account
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of the inferences and creative steps that a person of ordinary skill in the art
would employ." KSR Int'! Co. v. Teleflex, Inc., 550 U.S. 398,418 (2007).
Here, Mori discloses using frame 4 of a seat pad structure as a tube
through which foam is dispensed via apertures 8 disposed in the frame
(see, e.g., Mori Figure 2). Kasuya discloses a headrest with hollow
frame 41, including hollow stay members 42 that extend from the headrest
(see, e.g., Kasuya Figure 2). We agree with the Examiner that modifying
Kasuya's frame 41 to include apertures as in Mori, and injecting foam into
frame 41 via stay members 42 yields a predictable result, and would have
been an obvious variation well within the level of skill in the art at the time
of the invention. See KSR, 550 U.S. at 417. As the Examiner observes, "the
teachings of Kasuya and Mori provide no reason to doubt that 'an externally
extending support could act as a dispensing tube"' (Ans. 7).
Appellants have presented no persuasive argument or technical
reasoning to explain why combining the teachings of Kasuya and Mori, as
the Examiner proposes, is unreasonable or otherwise more than the
predictable use of prior art elements according to their established functions.
See KSR, 550 U.S. at 416 ("The combination of familiar elements according
to known methods is likely to be obvious when it does no more than yield
predictable results."). Although Appellants charge the Examiner with
improper reliance on hindsight (App. Br. 7), Appellants do not provide
persuasive arguments to support that charge. As the Examiner points out
(Ans. 7), the rejection only relies on the cited prior art teachings, and not
solely on Appellants' disclosure.
Appellants quote the following language from paragraph 33 of the
Specification, with reference to Figure 11, "after injection, the foam
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substrate 28 substantially occupies the tubular channel 90 of the support
posts 64 to provide added structural support to the support posts 70, 72"
(App. Br. 7). And Appellants argue that "[b ]ased on this structural benefit in
light of the foregoing, the combined teachings of Kasuya, Mori, and
Ashtiani fail to render claim 1, as amended, obvious" (id.).
Yet, as the Examiner points out (Ans. 4), this argument is not
commensurate with the scope of the claims, which do not recite that the
foam substrate substantially occupies the tubular channel. Moreover, the
Examiner's proposed modification would, in fact, provide the same
structural benefit because, as the Examiner explains, "the foam substrate
would flow along, and hence fill, [hollow support 41/42 of Kasuya]" (id.
at 5).
In view of the foregoing, we sustain the Examiner's rejection of
claim 1 under 35 U.S.C. § 103(a). We also sustain the rejection of claims 2,
3, and 5-7, which fall with claim 1.
Obviousness - Kasuya, Klink, Mori, and Ashtiani
Independent Claim 8 and Dependent Claims 9-11, 13, and 14
The Examiner rejected claims 8-11, 13, and 14 as obvious over the
combination of Kasuya, Klink, Mori, and Ashtiani (Final Act. 11-12).
Appellants argue that the proposed combination of Kasuya and Mori "would
not have been obvious to a person of ordinary skill in the art based on the
combined teachings of the cited references for the same reasons discussed
above with respect to claim 1" (App. Br. 9).
We found Appellants' arguments unpersuasive, with respect to
claim 1, for the reasons set forth above. And we find them equally
unpersuasive with respect to claim 8.
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Therefore, we sustain the Examiner's rejection of independent claim 8
under 35 U.S.C. § 103(a). We also sustain the rejection of dependent
claims 9-11, 13, and 14, which are not argued separately. 5
Obviousness - Hibino and Mori
Independent Claim 15 and Dependent Claims 16--20
The Examiner rejected method claims 15-20 as obvious over the
combination of Hibino and Mori (Final Act. 12-15). The Examiner's
findings in Mori with respect to claim 15 are substantially similar to the
Examiner's findings with respect to claim 1. And the Examiner's findings in
Hibino with respect to claim 15 are substantially similar to the Examiner's
findings in Kasuya for claim 1, i.e., a vehicle headrest with a cover and
hollow support posts (see Final Act. 13 (Examiner's annotated version of
Figure 1 ofHibino)). Similar to the analysis with respect to claim 1, the
Examiner concluded that it would have been obvious to a person of ordinary
skill in the art at the time of Appellants' invention to "substitute [the]
delivery means, as taught by Mori, for the delivery means of Hibino as
modified, in order to deliver foam to the injection cavity ... because such an
outcome would have been a predictable result of substituting one known
delivery means for another" (id. at 14).
Appellants argue that "the mere substitution of the delivery means of
Mori for those of Hibino ... would not result in a method including injecting
a foam mass through at least one of the support portions to fill the hollow
5 Because we affirm the rejection of claims 8-11, 13, and 14 under
35 U.S.C. § 103(a) as obvious over Kasuya, Klink, Mori, and Ashtiani, we
need not, and do not reach, the Examiner's cumulative rejection of these
claims under 35 U.S.C. § 103(a) as obvious over Kasuya, Klink, and Mori.
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support, the dispensing portion, and the cavity" (App. Br. 11 ). According to
Appellants, "the molds discussed in Hibino and Mori are such that the
nozzle, or at least a support therefor ( collectively referred to as the 'injection
interface'), is incorporated directly into the mold" (id.) Appellants also
provide as "Exhibit A" annotated versions of Figure 3 of Hibino, Figure 1 of
Mori, and Figure 10 of Appellants' application. Appellants argue:
a person of ordinary skill in the art would have had no reason to
think that a distal end of externally extending support could act
as an injecting interface of a dispensing tube to arrive at the
claimed method including injecting a foam mass through at least
one of the support portions to fill the hollow support, the
dispensing portion, and the cavity.
(App. Br. 11 ).
Appellants' arguments are not persuasive. In our view, modifying
Hibino, as the Examiner proposes, such that the frame includes an opening
("a dispensing aperture") for injecting foam as disclosed in Mori, is nothing
more than a combination of prior art elements according to their established
functions, and yields a predictable result. For a designer starting with
Hibino, the question would be how to inject the foam. Mori discloses using
the frame itself as the mechanism for delivering foam. A person of ordinary
skill in the art would, thus, have reasonably been led to look to the externally
extending supports (S) of the Hibino headrest as the site for injecting foam,
and would have recognized the benefits of doing so.
In view of the foregoing, we sustain the Examiner's rejection of
independent claim 15 under 35 U.S.C. § 103(a). We also sustain the
rejection of dependent claims 16-20, which are not argued separately.
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DECISION
The Examiner's rejections of claims 1-3, 5-11, and 13-20 under
35 U.S.C. § 103(a) are 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)(l )(iv).
AFFIRMED
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