Ex Parte LaFreniere

Board of Patent Appeals and Interferences

Jun 3, 2009

10963938 (B.P.A.I. Jun. 3, 2009)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
____________

Ex parte SANDI LAFRENIERE
____________

Appeal 2009-1830
Application 10/963,938
Technology Center 3600
____________

Decided: 1June 3, 2009
____________

Before LORA M. GREEN, RICHARD M. LEBOVITZ, and
FRANCISCO C. PRATS, Administrative Patent Judges.

LEBOVITZ, Administrative Patent Judge.

DECISION ON APPEAL

1 The two-month time period for filing an appeal or commencing a civil
action, as provided for in 37 C.F.R. § 1.304, begins to run from the decided
date shown on this page of the decision. The time period does not run from
the Mail Date (paper delivery) or Notification Date (electronic delivery).

Appeal 2009-1830
Application 10/963,938

This is a decision on appeal from the Examiner’s final rejection of
claims 1, 2, 5-14, and 17-22. Jurisdiction for this appeal is under 35 U.S.C.
§ 6(b). We affirm-in-part.

STATEMENT OF THE CASE
The claims are directed to a chair with first and second sets of
armrests, where the second armrest set is attached in closer proximity to the
top of the chair than the first right armrest set. According to the
Specification, two sets of armrests are provided for the increased
convenience of persons who use the chair, particularly sunbathers concerned
with obtaining a uniform exposure to the sun’s rays (Spec. 3-4). “The first
set of arms is primarily used when the person’s dorsal side is in contact with
the lounge chair. The second set of arms is primarily used when the person’s
ventral side is in contact with the lounge chair” (id. at 4).
Claims 1, 2, 5-14, and 17-22 are pending and stand rejected by the
Examiner as follows:
• Claims 14 and 17 under 35 U.S.C. § 102(b) as anticipated by Moore
(U.S. Pat. No. 3,063,752, Nov. 13, 1962) (Ans. 3);
• Claims 1, 2, 5-14, 17, and 19-22 under 35 U.S.C. § 103(a) as
obvious in view of Zegeer (U.S. Pat. No. 5,364,166, Nov. 15, 1994) and
Rutty (U.S. 6,793,288 B2, Sep. 21, 2004) (Ans. 4); and
• Claim 18 under 35 U.S.C. § 103(a) as obvious in view of Zegeer,
Rutty, and Mason (U.S. Pat. No. 5,865,412, Feb. 2, 1999) (Ans. 6).
Claims 1, 7, 10, and 14 are representative and read as follow:

2
Appeal 2009-1830
Application 10/963,938

1. A chair having a left side and a right side, the chair comprising:
a seat support;
a back support that includes a right structural member, a left
structural member, and a top structural member, the right, left, and top
structural members structured to maintain a fixed position relative to
each other;
a linkage that attaches the seat support to the back support, the
linkage capable of varying an angle between the seat support and the
back support, the linkage permitting the angle to be set to
approximately 180 degrees or at least one obtuse angle;
a first armrest attached to the right side of the chair by a first
device, the first armrest capable of supporting an arm belonging to a
person who is sitting in the chair; and
a second armrest attached to the right structural member by a
second device, the second armrest capable of supporting an arm
belonging to a person who is lying prone in the chair when the angle
is set to approximately 180 degrees, the second armrest in closer
proximity to the top structural member than the first armrest;
where the second device is structured to provide angular
movement of the second armrest around a first axis and a second axis,
the first axis perpendicular to the second axis.

7. A folding lounge chair comprising:
a seat support;
a back support that includes a right structural member, a left
structural member, and a top structural member;
a first armrest structured to support an arm, the arm belonging
to a person that is sitting or reclining in the folding lounge chair, the
first armrest attached to the right side of the chair;
a second armrest structured to support the arm, the second
armrest attached to a corner formed by an intersection of the right
structural member and the top structural member by a second
mounting bracket, the second armrest in closer proximity to the top
structural member than the first armrest;
a third armrest structured to support the arm; and
a fourth armrest structured to support the arm;

3
Appeal 2009-1830
Application 10/963,938

where the second armrest includes a free end and an attached
end, the free end free to move and the attached end attached to the
right structural member; and
where the attached end is always in closer proximity to the top
structural member than the free end and the free end is capable of
rotating at least 180 degrees around the attached end.

10. The folding lounge chair of claim 8, wherein the first mounting
bracket is configured to linearly displace the first armrest along a first
axis and the second mounting bracket is configured to linearly
displace the second armrest along a second axis.

14. A chair comprising:
a first armrest attached to the right side of the chair;
a second armrest attached to the right side of the chair, the
second armrest attached to the right side in closer proximity to a top
of the chair than the first armrest is attached; and
a mounting bracket structured to attached the second armrest to
the chair and provide movement of the second armrest around two
rotational axes,
the first and the second armrest structured to support an arm of
a person that is reclining in the chair.

ANTICIPATION BY MOORE
Claims 14 and 17 stand rejected under 35 U.S.C. § 102(b) as
anticipated by Moore (Ans. 3).
Issue
Did Appellant establish that the Examiner erred in finding that Moore
describes a chair with a second armrest which is “attached to the right side in
closer proximity to a top of the chair than the first armrest is attached” as
recited in claim 14?
4
Appeal 2009-1830
Application 10/963,938

Principles of Law
“Because the hallmark of anticipation is prior invention, the prior art
reference – in order to anticipate under 35 U.S.C. § 102 – must not only
disclose all elements of the claim within the four corners of the document,
but must also disclose those elements ‘arranged as in the claim.’ Connell v.
Sears, Roebuck & Co., 722 F.2d 1542, 1548 (Fed. Cir. 1983).” Net
MoneyIN, Inc. v. VeriSign, Inc., 545 F.3d 1359, 1369 (Fed. Cir. 2008).
During patent examination proceedings, claim terms are given “the
broadest reasonable meaning . . . in their ordinary usage as they would be
understood by one of ordinary skill in the art, taking into account whatever
enlightenment by way of definitions or otherwise that may be afforded by
the written description contained in the applicant's specification.” In re
Morris, 127 F.3d 1048, 1054 (Fed. Cir. 1997).

Findings of Fact
The Moore patent
1. Moore describes a body supporting chair to support a user in an erect
position to “support the body and arms . . . to relieve debilitating pressures,
strain and tension, and to bring about . . . comforting rest and relaxation to
the entire body” (col. 1, ll. 8-15).
2. The chair comprises L-shaped sidearms 16 (col. 2, ll. 50-54).
3. The chair further comprises armrests, shown in Figure 1 as elements 50
and 18, which can be placed beneath the arms to provide body support (col.
3, ll. 19-23 & 50-60).
5
Appeal 2009-1830
Application 10/963,938

4. The armrests are attached to the chair seat by a two-way hinge and
bracket assembly that enables it to have angular movement in a first and
second axis (col. 3, ll. 5-20; Ans. 3).
5. The armrest 50 is extensible (col. 3, ll. 25-28).
6. As shown in Figure 1, reproduced below, armrest 50 is above side arm
16, but is attached to the chair side beneath side arm 16 (col. 3, ll. 43-47).

Figure 1 shows a body supporting chair of Moore comprising sidearms 16
and armrests 50.

Claim 14
7. Claim 14 is directed to a chair comprising a first and second armrest.
8. The second armrest is “attached to the right side of the chair” and is
“attached to the right side in closer proximity to a top of the chair than the
first armrest is attached.”
9. The chair further comprises “a mounting bracket structured to attach the
second armrest to the chair and provide movement . . . around two rotational
axes.”
6
Appeal 2009-1830
Application 10/963,938

10. We interpret the claim to require that the attachment location of the
second armrest by the mounting bracket is “in closer proximity to a top of
the chair than” where the first armrest is attached.

Comparison between claim 14 and Moore
11. Moore shows a chair with first (16) and second (50) armrests as in claim
14 (FF1-3, 6 & 7).
12. The second armrest in Moore’s chair moves in two rotational axes as
required by claim 14 (FF4 & 9).
13. Moore’s second armrest 50 is attached by a two-way hinge to the chair
seat (FF4 & 6) and therefore is located below the first armrest (sidearm 16)
(FF6).
Analysis
Anticipation requires that a prior art reference describe all the claimed
elements as arranged in the claim. Net MoneyIN, 545 F.3d at 1369. In this
case, claim 14 is drawn to a chair with a second armrest which moves in two
rotational axes and which is “attached to the right side in closer proximity to
a top of the chair than the first armrest is attached” (FF8). The Examiner
found that Moore’s armrest 50 met the limitation of the claimed second
armrest because it is able to move in two rotational axes as recited in claim
14 (FF4 & 12; Ans. 3). The Examiner interpreted the claim to require that
the second armrest be in closer proximity to the top of the chair than the first
armrest (Ans. 7). Based on this interpretation, the Examiner found that
Figure 1, depicting the armrest 50 above armrest 16, met the claimed
limitation (id.).
7
Appeal 2009-1830
Application 10/963,938

The Examiner erred in interpreting claim 14. The claim specifies that
the second armrest is “attached to the right in closer proximity to a top of the
chair than the first armrest is attached.” A “mounting bracket” is structured
“to attach the second armrest to the chair.” Based on this express language,
we interpret the claim to require the attachment location via the mounting
bracket be “in closer proximity to a top of the chair than” where the first
armrest is attached (FF10). This configuration is not described in Moore.
Moore shows the second armrest 50 attached to the chair seat below the first
armrest (FF13). The second armrest 50 attachment is therefore further from
the top of the chair than the first armrest 16 and does not meet the “closer
proximity” limitation of the claim.
During patent examination, claims are given their broadest reasonable
interpretation as they would be understood by persons of skill in the art in
the light of the Specification. In re Morris, 127 F.3d at 1054. Claim 14
explicitly requires the second armrest to be attached closer to the top of the
chair than the first armrest. The Examiner’s interpretation is neither
reasonable nor the interpretation dictated by the plain language of the claim.
The rejection of claims 14 and 17 as anticipated by Moore is reversed.

OBVIOUSNESS
Claims 1, 2, 5-14, 17, and 19-22 stand rejected under 35 U.S.C. §
103(a) as obvious in view of Zegeer and Rutty (Ans. 4).
Claim 18 stands rejected under 35 U.S.C. § 103(a) as obvious in view
of Zegeer, Rutty, and Mason (Ans. 6).

8
Appeal 2009-1830
Application 10/963,938

Issues on Appeal
Appellant contends that the Examiner erred in concluding:
• That the combination of Zegeer and Rutty suggested a second
armrest which is in closer proximity to the chair top and has movement
along two axes as in claims 1, 5, and 14;
• That the combination of Zegeer and Rutty suggested a second
armrest “attached to a corner formed by an intersection of the right structural
member and the top structural member by a second mounting bracket” as in
claim 7; and
• That the combination of Zegeer and Rutty suggested the limitation
of claim 10 of a “first mounting bracket is configured to linearly displace the
first armrest along a first axis and the second mounting bracket is configured
to linearly displace the second armrest along a second axis.”

Principles of Law
“During [patent] examination, the examiner bears the initial burden of
establishing a prima facie case of obviousness.” In re Kumar, 418 F.3d
1361, 1366 (Fed. Cir. 2005).
In making an obviousness determination,
[o]ften, it will be necessary for a court to look to interrelated
teachings of multiple patents; the effects of demands known to
the design community or present in the marketplace; and the
background knowledge possessed by a person having ordinary
skill in the art, all in order to determine whether there was an
apparent reason to combine the known elements in the fashion
claimed by the patent at issue. To facilitate review, this analysis
should be made explicit. See In re Kahn, 441 F. 3d 977, 988
(CA Fed. 2006) (“[R]ejections on obviousness grounds cannot
be sustained by mere conclusory statements; instead, there must
9
Appeal 2009-1830
Application 10/963,938

be some articulated reasoning with some rational underpinning
to support the legal conclusion of obviousness”). As our
precedents make clear, however, the analysis need not seek out
precise teachings directed to the specific subject matter of the
challenged claim, for a court can take account of the inferences
and creative steps that a person of ordinary skill in the art
would employ.
. . .
Although common sense directs one to look with care at a
patent application that claims as innovation the combination of
two known devices according to their established functions, it
can be important to identify a reason that would have prompted
a person of ordinary skill in the relevant field to combine the
elements in the way the claimed new invention does.
KSR Int’l Co. v. Teleflex Inc., 550 U.S. 398, 418 (2007).

Findings of Fact
The Zegeer patent
14. Zegeer describes a lounge chair with two armrests which Appellant
admits may be adjusted in two angular directions (Spec. 2: 13).
15. Zegeer does not disclose a lounge chair with a second set of armrests.

10
Appeal 2009-1830
Application 10/963,938

The Rutty patent
16. Rutty describes a “back support for displacing a person’s weight from
the lower area of the spine by providing support for the upper torso”
(Abstract).
17. The support comprises two adjustable axillary rests which, when
“positioned in the axilla or armpit of a user lifts the upper body with variable
force to unload the lower back from torso pressure” (col. 2, ll. 30-34).
18. Rutty describes an embodiment of a back support for a chair (col. 3, ll.
57-62) having L-shape axillary rests (20, 21), each which is preferably a
single element and which are attached to side members (4, 5) (Fig. 1; col. 4,
ll. 17-22; see also Figs. 2-3 with same structure, but different numbering;
Ans. 5).
19. The side members swivel from side to side (col. 4, ll. 23-31).
20. Figure 2 of Rutty shows the axillary rest located at a corner of the
support and attached by a strap 37 by a clasping mechanism 39 (Fig. 2; col.
5, ll. 63-65).
21. Rutty describes the back support as telescopingly joined between
joining members 4, 5 and telescopically accept ends 16, 17, and that the
support size is adjusted by changing the spacing in a vertical direction using
the telescoping components (col. 5, ll. 1-52).

Analysis
Claim 1
Claim 1 is directed to a chair with first and second armrests. The
second armrest is “attached to” a “right structural member” by a “second
device.” The second device is “structured to provide angular movement . . .
11
Appeal 2009-1830
Application 10/963,938

around a first axis and second axis, the first axis perpendicular to the second
axis.” The second armrest is also “in closer proximity to the top structural
member than the first armrest.”
The Examiner finds that Zegeer “fails to show the use of a second
armrest” (Ans. 5). However, the Examiner finds that it would have been
obvious to have added the second armrest described by Rutty “in order to
provide support to the user’s arms when the user change[s] positions on the
chair” (Ans. 5).
Appellant contends Rutty’s axillary support does not meet the
limitation of claim 1 because “Rutty does not teach that either the arm rest
33 or the axillary rest 20 is capable of providing angular movement . . .
around a first axis and a second axis, as recited in claim 1” (App. Br. 10).
Appellant has the better argument. Rutty states that its axillary
support (attached by side member 4 or 5) swivels side to side around one
axis (FF18 & 19) and thus does not meet the requirement of claim 1 of a
second armrest which provides angular movement along a first and second
axis. The Examiner acknowledges this deficiency (Ans. 8), but fails to
identify a reason as to why persons of ordinary skill in the art would have
had reason to have modified Rutty with Zegeer’s teaching (FF14) of a single
armrest with the ability to move in two angular directions. While precise
teachings are not required to establish prima facie obviousness, it is still
necessary to supply a reason which would have “prompted a person of
ordinary skill in the relevant field to combine the elements in the way the
claimed new invention does.” KSR, 550 U.S. at 418 (2007). In this case,
because the Examiner has not provided an explanation as to why the
ordinary skill worker would have utilized Zegeer’s biaxial angular
12
Appeal 2009-1830
Application 10/963,938

attachment for Rutty’s axillary support, we are compelled to reverse the
rejection of claim 1 and dependent claims 2, 6, and 21, each of which
incorporate all the limitations of claim 1.

Claim 5
Claim 5, like claim 1, is drawn to a chair with a second armrest in
closer proximity to a top structural member than a first armrest. The second
armrest also has “angular movement . . . around a first and second axis.” As
these limitations are the same as those found deficient for claim 1, the
rejection of this claim is also reversed.

Claim 7
Claim 7 is drawn to a folding lounge chair with a second armrest
“attached to a corner formed by an intersection of the right structural
member and the top structural member by a second mounting bracket.” The
second armrest is “in closer proximity to the top structural member than the
first armrest.” The free end of the second armrest “is capable of rotating at
least 180 degrees around the attached end.”
The Examiner found that Figures 1-3 of Rutty show an armrest in the
corner position attached by element 37 (Ans. 9).
Appellant argues “strap 37 of Rutty is not attached to a corner of a
chair; it is a strap that wraps around the back of a chair and connects to the
other side of the frame. See Rutty col. 5, line 63 through col. 6, line 10”
(Reply Br. 4).
It is correct that strap 37 is wrapped around the back of the chair, but
this fact does not bear upon the Examiner’s finding that the axillary rest is
13
Appeal 2009-1830
Application 10/963,938

depicted at the chair corner, i.e., at the intersection of the horizontal strap 37
and the longitudinal component upon which the axillary rest is mounted.
As to Appellant’s arguments that Zegeer lacks a second armrest and
does not show a corner mounted armrest (Reply Br. 4-5), this difference has
been acknowledged by the Examiner and stated to have been met by Rutty’s
teachings. Therefore, Appellant’s arguments are not persuasive.
As claims 8, 9, 12, 13, and 20 have been grouped with claim 7 (App.
Br. 12), Appellant’s arguments are not persuasive to these claims either.

Claim 10
Claim 10 further recites: “the first mounting bracket is configured to
linearly displace the first armrest along a first axis and the second mounting
bracket is configured to linearly displace the second armrest along a second
axis.” Appellant acknowledges that the Examiner has “demonstrated . . .
that Zegeer teaches a first mounting bracket configured” as in claim 10
(Reply Br. 5). However, Appellant states the configuration of the second
mounting bracket is not taught (id.).
Rutty describes the back support as telescopingly joined between
joining members 4, 5 and telescopingly accept ends 16, 17, and that the
support size is adjusted by changing the spacing in a vertical direction using
the telescoping components (FF21). The requirement that the second
mounting bracket – components 4 or 5 of Rutty – is “configured to linearly
displace the second armrest” is therefore met by the vertical, telescoping
movement of components 4 or 5. It is not evident from Appellant’s
discussion (see, e.g., App. Br. 13; Reply Br. 5) why this limitation is not met
by the combination of cited references.
14
Appeal 2009-1830
Application 10/963,938

The rejection of claim 10 is affirmed. Claim 11 falls with claim 10
because separate reasons for its patentability were not provided. 37 C.F.R.
§ 41.37(c)(1)(vii).

Claim 14
Claim 14 is drawn to a chair with a second armrest in closer proximity
to a top structural member than a first armrest. The second armrest also has
“movement . . . around two rotational axes.” As discussed for claim 1, the
Examiner has not provided a reason as to why the second arm rest, which is
taught as swiveling in one axis by Rutty, would be modified to move in two
rotational axes. Thus, the rejection of claim 14 is reversed. Claims 17, 19,
and 22, which depend on claim 14 and incorporate all its limitations, are also
reversed.

Claim 18
Claim 18 is directed to the chair of claim 14, “where the armrest
comprises a beverage holder.” The Examiner rejected claim 14 over Zeeger
and Rutty, and further in view of Mason (Ans. 6). As we have reversed the
rejection of claim 14, and Mason does not make up for the deficiency, we
reverse this rejection, as well.

CONCLUSIONS OF LAW
Appellant established that the Examiner erred in finding that Moore
describes a chair with a second armrest which is “attached to the right side in
closer proximity to a top of the chair than the first armrest is attached” as
recited in claim 14.
15
Appeal 2009-1830
Application 10/963,938

The Examiner erred in concluding that the combination of Zegeer and
Rutty suggested a second armrest which is in closer proximity to the chair
top and has movement along two axes as in claims 1, 5, and 14.
The Examiner did not err in concluding that the combination of
Zegeer and Rutty suggested a second armrest “attached to a corner formed
by an intersection of the right structural member and the top structural
member by a second mounting bracket” as in claim 7.
The Examiner did not err in concluding that the combination of
Zegeer and Rutty suggested the limitation of claim 10 of a “first mounting
bracket is configured to linearly displace the first armrest along a first axis
and the second mounting bracket is configured to linearly displace the
second armrest along a second axis.”

SUMMARY
The rejection of claim 14 and 17 as anticipated by Moore is reversed.
The obviousness rejections of claims 1, 2, 5, 6, 14, 17-19, 21, and 22
are reversed.
The obviousness rejection of claims 7-12, 13, and 20 is affirmed.

16
Appeal 2009-1830
Application 10/963,938

TIME PERIOD FOR RESPONSE
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a).

AFFIRMED-IN-PART

Ssc:

MARGER JOHNSON & MCCOLLOM, P.C.
210 SW MORRISON STREET, SUITE 400
PORTLAND, OR 97204
17