Ex Parte Kern et al

Board of Patent Appeals and Interferences

Aug 15, 2012

10527740 (B.P.A.I. Aug. 15, 2012)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
____________

Ex parte CHRISTOPH KERN,
OSWALD KRIESSLER, VASILLOS ORIZARIS,
BERND SCHMIDT, JUERGEN SCHRADER, and WERNER SCHWAB
____________

Appeal 2010-000903
Application 10/527,740
Technology Center 3600
____________

Before LINDA E. HORNER, JOHN C. KERINS, and
GAY ANN SPAHN, Administrative Patent Judges.

SPAHN, Administrative Patent Judge.

DECISION ON APPEAL

STATEMENT OF THE CASE
Christoph Kern et al. (Appellants) seek our review under 35 U.S.C.
§ 134 of the Examiner’s rejections of: (1) claims 9, 10, and 14-16 under 35
U.S.C. § 102(b) as anticipated by Kashiwamura (US 4,655,505, issued Apr.
7, 1987); and (2) claims 11, 13, 17, and 20 under 35 U.S.C. § 103(a) as
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unpatentable over Kashiwamura and Thomas (US 6,212,719 B1, issued Apr.
10, 2001).1 Appellants cancelled claims 1-8, 12, 18, and 19. We have
jurisdiction under 35 U.S.C. § 6(b).
We REVERSE.

THE CLAIMED SUBJECT MATTER
The claimed subject matter relates to “a vehicle seat which is
equipped with an arrangement for performing massage functions.” Spec. 1,
para. [0002].2 Claims 9 and 17 are independent and claim 9, reproduced
below, with emphasis added, is illustrative of the subject matter on appeal.
9. A vehicle seat comprising:
a seat cushion;
a seat back;
plurality of individually pressurizable
elements distributed over substantially an entire
surface of at least one of the seat back and the seat
cushion for adjusting a seat contour of said vehicle
seat; and
a controller for pressurizing individual
pressurizable elements; wherein,
the controller is configured to provide
massage effects; and

1 The Examiner also rejected claims 10 and 17 under 35 U.S.C.
§ 112, second paragraph, as being indefinite in the Final Office Action
mailed April 14, 2008. Final Rej. 2. However, Appellants’ Amendment
Under 37 C.F.R. § 1.116, filed September 12, 2008, amended claims 10 and
17, and in an Advisory Action mailed September 23, 2008, the Examiner
acknowledged that the 35 U.S.C. § 112, second paragraph, rejection of
claims 10 and 17 had been overcome.
2 All references to “Spec.” are to the Substitute Specification filed March 14,
2005.

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the pressurizable elements are cushion-like
elements which are small in relation to a surface of
the seat contour to generate punctiform pressures
on the seat back and seat cushion and are
actuatable individually via lines via the controller
in order to provide the massage [e]ffects3 at
punctiform locations and change the seat contour
in a substantially localized manner.

OPINION
Rejection (1) – Anticipation based on Kashiwamura
The Examiner determines that Kashiwamura discloses each and every
limitation in order to anticipate independent claim 9. Ans. 3-4. In
particular, the Examiner finds Kashiwamura discloses that the pressurizable
elements 1-10
are small in relation to a surface of the seat contour
to generate punctiform pressures on the seat back
and seat cushion, as is best depicted in Figure 1,
and are actuatable via individually via lines (25)
via the controller (41) in order to provide massage
[e]ffects at punctiform locations and change the
seat contour in a substantially localized manner.
Id.

Appellants argue that Kashiwamura does not anticipate claim 9
because the support bags 1-10 “cannot reasonably be construed as small in
relation to the seat contour surface so as to generate punctiform pressures,”
and “cannot be seen as providing the massage effects at punctiform locations
and localizing the changing of seat contour.” App. Br. 5. Appellants also

3 Appellants acknowledge that claim 9 contains a typographical error (i.e.,
“affects” should be --effects--) which they intend to correct following the
appeal. See App. Br. 2
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argue that “the large support bags 1-10 in the Kashiwamura . . . seat are
limited to specific locations, namely the shoulders, lumbar region, sides and
thighs of the vehicle occupant so as to support the occupant based upon
changes in lateral and longitudinal accelerations as well as vehicle
inclination” and consequently, any massage performed by Kashiwamura
“will not be performed with punctiform pressures at punctiform locations
distributed over substantially the entire seat surface.” App. Br. 5-6.
As pointed out by the Examiner, Appellants’ Specification defines
that “[f]or the purpose of the present disclosure, the phrases ‘essentially
punctiform’ and ‘localized’ are understood as meaning a region which is
relatively small in relation to the overall surface of the seat or of the
seatback of the vehicle seat (in particular a region in the order of magnitude
of 5 to 10 cm2), which is actuable separately by means of an individual
pressurizable element.” Ans. 6 (citing to Spec. 4, para. [0011], second
sentence.) Where an explicit definition is provided by the applicant for a
term, the definition will control interpretation of the term as it is used in the
claim. Toro Co. v. White Consolidated Industries Inc., 199 F.3d 1295, 1301
(Fed. Cir. 1999). Although the Examiner contends that Kashiwamura’s bags
1-10 as depicted in Figure 1 satisfy the Specification’s general definition of
being “relatively small in relation to the overall surface of the seat or of the
seatback of the vehicle seat S” (Ans. 6), we cannot agree with the Examiner
that it would be reasonable for a person of ordinary skill in the art to broadly
interpret Kashiwamura’s support bags 1-10 as being capable of generating
punctiform pressure and providing massage effects at punctiform locations,
because the Specification’s definition also sets forth a particular order of
magnitude of 5 to 10 cm2 for the “essentially punctiform” regions in non-
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relative, quantifiable terms, which has not been indicated to be merely
exemplary.
Thus, we find the Examiner has failed to adequately establish that the
bladders 1-10 of Kashiwamura provide punctiform pressure, because the
Examiner has made no specific finding that the bladders 1-10 of
Kashiwamura are in the order of magnitude described in the definition
provided in Appellants’ Specification. The Examiner states only that
“[b]ladders 1-10 appear to be approximately equivalent in size to those
disclosed in Figure 1 of Applicant’s figures.” Ans. 6. To the extent the
Examiner relies on the relative dimensions of the bladders 1-10 as shown in
Kashiwamura’s figures as the basis for this finding, such reliance on relative
dimensions in prior art figures is insufficient. “[P]atent drawings do not
define the precise proportions of the elements and may not be relied on to
show particular sizes if the specification is completely silent on the issue.”
Hockerson-Halberstadt, Inc. v. Avia Group Int'l, Inc., 222 F.3d 951, 956
(Fed. Cir. 2000) (patent owner’s argument hinged on an inference drawn
from certain figures about the quantitative relationship between the
respective widths of a groove and fins); see also In re Wright, 569 F.2d
1124, 1127 (CCPA 1977) (“Absent any written description in the
specification of quantitative values, arguments based on measurement of a
drawing are of little value.” (citation omitted)).
Accordingly, we do not sustain the Examiner’s rejection of
independent claim 9, and claims 10 and 14-16 dependent thereon, under 35
U.S.C. § 102(b) as anticipated by Kashiwamura.

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Rejection (2) – Obviousness based on Kashiwamura and Thomas
The Examiner’s rejection of claims 11, 13, 17, and 20 under 35 U.S.C.
§ 103(a) as unpatentable over Kashiwamura and Thomas relies on the same
erroneous interpretation that Kashiwamura teaches punctiform pressures.
See Ans. 5. For the same reasons as discussed supra, we cannot sustain the
Examiner’s rejection of claims 11, 13, 17, and 20 under 35 U.S.C. § 103(a)
as unpatentable over Kashiwamura and Thomas.

DECISION
We reverse the Examiner’s decision to reject claims 9-11, 13-17, and
20.

REVERSED

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