Ex Parte Fink et al

Patent Trial and Appeal Board

Aug 30, 2016

12813910 (P.T.A.B. Aug. 30, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
12/813,910 06/11/2010
23413 7590 09/01/2016
CANTOR COLBURN LLP
20 Church Street
22nd Floor
Hartford, CT 06103
FIRST NAMED INVENTOR
Michael F. Fink
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.
DP-317689 8029
EXAMINER
DICKSON, PAUL N
ART UNIT PAPER NUMBER
3616
NOTIFICATION DATE DELIVERY MODE
09/01/2016 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):
usptopatentmail@cantorcolbum.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte MICHAEL F. FINK, WILLIAM ABNEY III,
DOUGLAS S. WESTON, RYANT. PINSENSCHAUM,
MARKT. WINTERS, DAYNE B. HASSETT, and
JEFFREY J. OKRUTNEY
Appeal2014-001122
Application 12/813,910 1
Technology Center 3600
Before MICHAEL C. ASTORINO, BRUCE T. WIEDER, and
AMEE A. SHAH, Administrative Patent Judges.
ASTORINO, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
The Appellants appeal under 35 U.S.C. § 134 from the Examiner's
decision rejecting claims 1-3, 6-13, and 15-21. We have jurisdiction over
the appeal under 35 U.S.C. § 6(b ).
We AFFIRM-IN-PART.
1 According to the Appellants, "[t]he real party in interest in this appeal is
NXGEN Technologies, LLC." Appeal Br. 2.
Appeal 2014-001122
Application 12/813,910
Claimed Subject Matter
Claims 1 and 19 are the independent claims on appeal. Claims 1 and
19, reproduced below with added emphasis, are representative of the subject
matter on appeal.
1. An inflatable cushion for a side of a vehicle, the inflatable
cushion comprising:
a first layer of material;
a second layer of material, the first layer of material being
secured to the second layer of material to define the inflatable
cushion;
wherein at least a portion of a peripheral edge of the
inflatable cushion is defined by a seam wherein the first layer of
material is secured to the second layer of material only by a
plurality of stitches and the inflatable cushion maintains an
internal pressure greater than 20KPa for at least 1.5 seconds
during inflation of the inflatable cushion.
19. An inflatable cushion for a side of a vehicle, comprising:
a first layer of material;
a second layer of material, the first layer of material being
secured to the second layer of material to define the inflatable
cushion; and
wherein at least a portion of a peripheral edge of the
inflatable cushion is defined by a seam wherein the first layer of
material is secured to the second layer of material only by a
plurality of stitches; and
wherein the inflatable cushion maintains an internal
pressure greater than 25KPa for at least 1.5 seconds after the
cushion is initially inflated to its substantially full volume.
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Application 12/813,910
Rejections
Claims 1-3, 6-13, and 15-18 are rejected under 35 U.S.C. § 103(a) as
unpatentable over Maertens (US 2004/0104561 Al, pub. June 3, 2004) and
Brookman (US 6,037,279, iss. Mar. 14, 2000).
Claims 19-21 are rejected under 35 U.S.C. § 103(a) as unpatentable
over Maertens and Freesmeier (US 6,554,315 B2, iss. Apr. 29, 2003).
ANALYSIS
Obviousness based on Maertens and Brookman
Independent claim 1 is directed to an inflatable cushion for a side of a
vehicle including two layers of material secured only by a plurality of
stitches. Notably, claim 1 recites "the inflatable cushion maintains an
internal pressure greater than 20KPa for at least 1.5 seconds during inflation
of the inflatable cushion," which is a functional limitation concerning the
internal pressure of the inflatable cushion.
The Examiner relies on the combined teachings of Maertens and
Brookman to result in the subject matter of claim 1. Final Act. 2. The
Examiner finds that Maertens discloses substantially all of the subject matter
of claim 1, except for the claimed internal pressure of the inflatable cushion.
Id. As such, the Examiner does not rely on Maertens to disclose the
functional limitation concerning the internal pressure of the inflatable
cushion. To remedy this deficiency that Examiner turns to Brookman. Id.
(citing Brookman, cols. 10-11 and Table II); Ans. 4. The Examiner's
citation to Brookman's columns 10-11 and Table II suggests that the
Examiner is relying on Brookman's description of examples and/or
comparative examples of coated textile fabrics. Notably, Table II
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Application 12/813,910
specifically describes "[r]esidual pressure after 3 seconds" for Examples 3
and 4 to be 30 kPa. The Examiner also explains that Brookman is relied on
to teach the known conventional pressures used in airbags. Ans. 4.
The Appellants assert that the construction of the inflatable cushion of
Maertens is different than the construction of the inflatable cushion of
Brookman. See Reply Br. 2; see also Appeal Br. 12, 14. The Appellants
contend that because the constructions of the inflatable cushions of Maertens
and Brookman are different, the pressure associated with Brookman' s
inflatable cushion cannot be applied to Maertens's inflatable cushion. See
Reply Br. 2. Additionally, the Appellants contend that one cannot simply
say that it would have been obvious to use the pressures of an inflatable
cushion having woven seams with a different inflatable cushion having non-
woven seams. See id. at 3. The Appellants' contentions are persuasive.
First, the disclosure of Brookman that the Examiner cites to does not
disclose a seam for an inflatable cushion having first and second layers of
material secured to each other only by a plurality of stitches, as required by
claim 1. As such, it cannot be found by a preponderance of the evidence that
Brookman teaches the claimed functional limitation concerning the internal
pressure of the claimed inflatable cushion. In other words, although the
pressures disclosed in Brookman's Table II are evidence of pressures that
can be applied for inflatable cushions that are structurally similar to
Brookman's inflatable cushion, there is inadequate support to determine that
those pressures can be applied to an inflatable cushion of a different
construction or that it would have been obvious to one of ordinary skill in
the art to apply those pressures to an inflatable cushion of a different
construction.
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Application 12/813,910
Second, the Examiner does not offer a comparison between the
construction of inflatable cushions of Maertens and Brookman. And, at least
because the constructions of seams of the inflatable cushions of Maertens
and Brookman are not determined to be the same, the internal pressure of
Brookman's inflatable cushion is not persuasive evidence as to the internal
pressure of Maertens's inflatable cushion. See Reply Br. 2, 5-6; see also
Appeal Br. 12-13, 14. In other words, even if we were to agree that the
internal pressure of Brookman's inflatable cushion was conventional for
airbags as proffered by the Examiner (Ans. 4), there is inadequate support in
the Examiner's rejection to suggest that the internal pressure of Brookman's
inflatable cushion was conventional, or would have been obvious to use, for
Maertens' inflatable cushion, i.e., an inflatable cushion not having the same
construction as Brookman's inflatable cushion.
Thus, the Examiner's rejection of independent claim 1 and dependent
claims 2, 3, 6-13, and 15-18 under 35 U.S.C. § 103(a) as unpatentable over
Maertens and Brookman is not sustained.
Obviousness based on Maertens and Freesmeier
Independent claim 19 is directed to an inflatable cushion for the side
of a vehicle including two layers of material. Notably, claim 19 recites
"wherein the first layer of material is secured to the second layer of material
only by a plurality of stitches."
The Examiner relies on the combined teachings of Maertens and
Freesmeier to result in the subject matter of claim 19. Final Act. 6. The
Examiner finds that Maertens discloses substantially all of the subject matter
of claim 1, including a first and second layer of material secured only by a
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plurality of stitches by disclosing first and second panels 52 and 54, and
stitches 86. Id. The Examiner finds that Maertens fails to disclose the
claimed internal pressure of the inflatable cushion, i.e., "wherein the
inflatable cushion maintains an internal pressure greater than 25KPa for at
least 1.5 seconds after the cushion is initially inflated to its substantially full
volume." Id. To remedy this deficiency the Examiner turns to Freesmeier
and finds that it teaches "an airbag desired pressure of 160 kilopascal (KP a)
for at least about the first 5-7 seconds of inflation." Id.; see Freesmeier,
col. 5, 11. 29--34. The Examiner concludes:
it would have been obvious to one having ordinary skill in the art
... to modify the invention of Maertens, such that it comprised
the pressure as taught by Freesmeier, so as to keep the airbag
inflated and help prevent the vehicle occupant ( s) from
penetrating through the curtain during a rollover.
Final Act. 6-7.
The Appellants argue that the Examiner's rejection is in error because
"nowhere in Maertens is there a teaching or a statement that of a 'seam
wherein the first layer of material is secured to the second layer of material
only by a plurality of stitches'." Appeal Br. 20. In support of the argument,
the Appellants provide a dictionary definition of the term "only." Id. The
definition states "without others or anything further; alone; solely;
exclusively." Id. (citing Random House Kernerman Webster's College
Dictionary, 2010). We also note that the Appellants cite to Maertens's
paragraph 16 to support this argument for the rejection of claim 1. Appeal
Br. 11. The Appellants' argument is not persuasive.
In response, we note that the Examiner explains that "Maertens
discloses stitching as the only means of attachment of the layers (52, 54) of
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the airbag (10)." Ans. 3--4. And, the Appellants' argument does not offer a
persuasive explanation as to how Maertens does not disclose the claimed
limitation in dispute. For example, the Appellants do not explain how
Maertens' s paragraph 16 fails to disclose a seam wherein the first layer of
material is secured to the second layer of material only by a plurality of
stitches in view of the proffered dictionary definition of "only."
The Appellants also argue that Freesmeier teaches away from the
claimed invention because Freesmeier's disclosure is contrary to the claimed
invention of having "an internal pressure greater than 25KPa for at least 1.5
seconds after the cushion is initially inflated to its substantially full volume."
Appeal Br. 21-22. To support this argument the Appellants assert that
"Freesmeier teaches the use of additional sealing means and increasing the
size of the inflator to accommodate for leakage and other losses." Id. at 21.
The Appellants' argument is not persuasive.
As pointed out by the Appellants, Freesmeier describes:
Preferably, once the inflatable curtain 14 is inflated, the inflation
pressure should remain at or above a desired pressure, preferably
160 kilopascals (kPa) absolute, for a predetermined period of
time, preferably at least about the first 5-7 seconds of inflation.
[L ]eakage and other losses are taken into account when sizing
the inflator 24, i.e., extra inflation fluid may be included in order
to account for potential inflation fluid losses. Also, additional
sealing means may be applied to the inflatable curtain 14 and any
connections between the curtain and the inflator 24 and/or fill
tube 22 where leakage may occur.
Freesmeier, col. 5, 11. 29-34, col. 6, 11. 5-11 (italics added); see Appeal Br.
21.
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This disclosure does not teach that at a pressure of 160 kPa extra
sealing is mandatory, only that it is an option. See Ans. 7. Additionally, the
Appellants' argument does not include adequate evidence and/or technical
reasoning to suggest that extra sealing is mandatory. See id. at 6-7. Thus,
we determine that Freesmeier does not criticize, discredit, or otherwise
discourage the solution claimed, and as such does not teach away from the
solution claimed.
Thus, the Examiner's rejection of independent claim 19 as
unpatentable over Maertens and Freesmeier is sustained.
For the rejection of claims 20 and 21, the Appellants offer separate
headings, but no additional arguments in the Appeal Brief. Appeal Br. 22-
23; see 37 C.F.R. § 41.37(c)(l)(iv) (stating "[a] statement which merely
points out what a claim recites will not be considered an argument for
separate patentability of the claim."); see also Ans. 7. To the extent that the
Appellants add arguments in the Reply Brief particular to the rejection of
claims 20 and 21 (Reply Br. 14 ), we note that the added argument( s) are not
responsive to an argument raised in the Examiner's Answer and that
Appellants have not shown good cause for not presenting the argument( s) in
the opening brief, and as such, we will not consider the Appellants' added
arguments. See 37 C.F.R. § 41.41(b)(2) ("Any argument raised in the reply
brief which was not raised in the appeal brief, or is not responsive to an
argument raised in the examiner's answer, including any designated new
ground of rejection, will not be considered by the Board for purposes of the
present appeal, unless good cause is shown.").
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Application 12/813,910
DECISION
We REVERSE the Examiner's decision rejecting claims 1-3, 6-13,
and 15-18 under 35 U.S.C. § 103(a) as unpatentable over Maertens and
Brookman.
We AFFIRM the Examiner's decision rejecting claims 19-21 under
35 U.S.C. § 103(a) as unpatentable over Maertens and Freesmeier.
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-IN-PART
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