Ex Parte Landvik

Board of Patent Appeals and Interferences

Apr 22, 2010

11187032 (B.P.A.I. Apr. 22, 2010)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
____________

Ex parte DAG LANDVIK
__________

Appeal 2009-013358
Application 11/187,032
to reissue U.S. Patent 6,602,579
Technology Center 1700
____________

Decided: April 22, 2010
____________

Before MICHAEL P. COLAIANNI, Administrative Patent Judge, and
FRED E. MCKELVEY, Senior Administrative Patent Judge, and
JEFFREY B. ROBERTSON, Administrative Patent Judge.

COLAIANNI, Administrative Patent Judge.

DECISION ON APPEAL
Appellant appeals under 35 U.S.C. § 134 the final rejection of claims
1-18 in this reissue application of U.S. Patent 6,602,579 to Dag Landvik.
We have jurisdiction over the appeal pursuant to 35 U.S.C. § 6(b).
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We AFFIRM.
Appellant discloses a support cushion having an underlying layer 2
construed of truncated cones 4 and an overlying layer 6 abutting the
truncated cones of the underlying layer (Landvik, Fig. 1; col. 4, ll. 1-11).
Claim 1 is illustrative:
1. A support cushion comprising an underlying layer consisting of a
flexible foam, at least one side of the underlying layer being configured with
a continuous pattern of a non-plane surface construed of truncated cones,
each of which is separate, discrete, and free from contact with adjacent
truncated cones in an undeflected state of the truncated cones, the cushion
also comprising an overlying layer placed in abutment with the side of the
underlying layer having the non-plane surface, and said overlying layer
being made of a visco-elastic foam.

The Examiner relies on the following prior art references as evidence
of unpatentability:
Sasaki 5,331,750 Jul. 26, 1994
Swanson 5,669,094 Sep. 23, 1997
Kohnle 6,052,851 Apr. 25, 2000
Fogel 6,192,538 B1 Feb. 27, 2001
Ward 6,202,239 B1 Mar. 20, 2001
Romano 6,269,504 B1 Aug. 7, 2001

Appellant appeals the following rejections:
1. Claims 1-18 are rejected under 35 U.S.C. § 103(a) as being
unpatentable over Romano in view of any one of Kohnle, Fogel,
Ward, or Swanson.
2. Claims 1 and 4-18 are rejected under 35 U.S.C. § 103(a) as being
unpatentable over Kohnle, Fogel, or Ward in view of Sasaki.
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3. Claim 2 and 3 are rejected under 35 U.S.C. § 103(a) as being
unpatentable over any of Kohnle, Fogel, or Ward in view of Sasaki as
applied to claims 1 and 4-18 above and further in view of Swanson.1

Rejection (1)
ISSUE
Did the Examiner err in finding that Romano teaches a cushion having
an underlying flexible foam layer with truncated cones and foam layers
overlying the underlying flexible foam as required by claim 1? We decide
this issue in the affirmative.

PRINCIPLE OF LAW
The Examiner bears the initial burden, on review of the prior art or on
any other ground, of presenting a prima facie case of unpatentability. In re
Oetiker, 977 F.2d 1443, 1445 (Fed. Cir. 1992).

FACTUAL FINDINGS (FF)

1. Romano discloses in the Figure 1 embodiment that foam layers 12,
14, 16, and 18 may be adhered together to form a foam base (e.g.,
reference number 50 in Figure 2) (col. 3, ll. 18-58). Romano discloses
that the foam base may also be made from a single piece of foam (col.
3, ll. 53-58). Romano does not disclose that the foam base has
truncated cones.

1 On pages 2-3 of the Answer, the Examiner corrected the inadvertent listing
of claims 1 and 4-18 as part of this rejection in the Final Office Action (Final
Off. Action 5; Ans. 2-3, and 7).
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2. Romano further discloses that the invention includes placing
“indented fiber layers or other such three dimensional engineered
material layers [i.e., 60] having a plurality of resilient members 76
over the [foam] base 10, 50” (col. 3, ll. 59-62; Figure 2).
3. With regard to the Figure 7 embodiment, Romano discloses that
layers 112, 114, 116, and 118 are indented fiber layers made of
SPACENET® material, which is a three-dimensional textile fabric
having projections and depressions (Romano, col. 1, ll. 32-50).
Romano describes the three dimensional engineered material as
having a spring rate in the X and Y axes, which may include materials
such as Model 5875 from Muller Textile or “other suitable material”
(Romano, col. 1, ll. 50-57). Romano defines “three dimensional
engineered material” as “any of these types of materials” (e.g., three
dimensional textile materials) (Romano, col. 1, ll. 58-60). Romano
does not disclose that the layers placed atop the foam base are made
of foam.

ANALYSIS
The Examiner finds that Romano discloses using multiple layers of
foam citing to Figure 1, reference numerals 12, 14, 16, and 18 and Figure 7,
reference numerals 112, 114, 116, and 118 (Ans. 4 and 8). The Examiner
states that “it would have been obvious . . . to form the top layer of a visco-
elastic foam, as taught by all the secondary references, in order to provide a
cushion with the properties of a top layer visco-elastic cushion motivated by
the fact that all the secondary references teach to use visco-elastic foam as a
top layer in multilayered foam cushions.” (Ans. 4-5). In other words, the
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Examiner’s obviousness conclusion appears to be based upon substituting
the viscoelastic foam material of the secondary references for the foam
material of Romano’s top foam layer in the cushion.
Appellant argues that the Examiner erred in finding that Romano
teaches overlying layers made of foam and an underlying foam layer
configured with truncated cones (App. Br. 3-4; Reply Br. 2-3). Appellant
contends that this factual error undermines the Examiner’s basis for
concluding that it would have been obvious to form Romano’s top layer of
foam from viscoelastic foam as taught by the Ward, Fogel, Swanson, or
Kohnle (App. Br. 3-4; Reply Br. 2-3). We agree.
The Examiner erred in finding that Romano’s features 12, 14, 16, and
18 of Figure 1 show foam layers overlying a base layer of foam (e.g., 50).
Romano’s Figure 1 is directed to a separate embodiment for making the
foam base (e.g., 10 or 50) of the cushion. The Figure 1 foam layers are not
placed over the truncated cones of Romano’s three dimensional engineered
material layers 60 depicted in Figure 2. Rather, Romano teaches that the
engineered material layers having the truncated cones are placed over the
foam base (e.g., 10 or 50).
The Examiner further refers to Romano’s Figures 7, 9, and 12 as
showing overlying layers of foam 110, 112, 116, 120, and 124 (Ans. 8). As
correctly argued by Appellant (Reply Br. 2-3), Romano identifies these
layers as made of the SPACENET® textile material, not foam. The
Examiner refers to Romano’s Figure 3 as showing overlying layers of foam
60 (Ans. 8). However, Romano discloses that the layers 60 are indented
fiber layers or three dimensional engineered materials (e.g., SPACENET®),
which is a textile material and not foam.
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Nevertheless, the Examiner relies on these erroneous factual findings
to conclude that it would have been obvious to form the top foam layer of
Romano’s overlying foam layers out of viscoelastic foam as taught by
Kohnle, Fogel, Swanson, or Ward (Ans. 4-5). Accordingly, the Examiner’s
stated case is based on erroneous findings of fact and thus fails to satisfy the
burden of establishing an initial prima facie case. We reverse the § 103
rejection over Romano in view of any one of Swanson, Kohnle, Fogel, or
Ward.

Rejections (2) and (3)
Appellant argues the claims under rejection (2) as a group, of which
we select claim 1 as representative. 37 C.F.R. § 47.31(c)(1)(vii).
Because Appellant advances the same arguments made regarding
rejection (2) with regard to rejection (3), the rejection of claims 2 and 3 will
stand or fall with rejection (2).
ISSUE
Did the Examiner err in concluding that it would have been obvious to
modify the textured surface of Kohnle’s, Fogel’s or Ward’s foam layer to
have Sasaki’s truncated cones? We decide this issue in the negative.

PRINCIPLES OF LAW
A reference may be said to teach away “when a person of ordinary
skill, upon reading the reference, would be discouraged from following the
path set out in the reference, or would be led in a direction divergent from
the path that was taken by the applicant.” In re Gurley, 27 F.3d 551, 553
(Fed. Cir. 1994). “The degree of teaching away will of course depend on
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the particular facts; in general, a reference will teach away if it suggests that
the line of development flowing from the reference's disclosure is unlikely to
be productive of the result sought by the applicant.” Id.
Although a reference that teaches away is a significant factor to be
considered in determining unobviousness, the nature of the teaching is
highly relevant, and must be weighed in substance. Id. A known or obvious
composition does not become patentable simply because it has been
described as somewhat inferior to some other product for the same use. Id.
When assessing the obviousness of claimed subject matter, a court
must ask whether the improvement is more than the predictable use of prior
art elements according to their established function. KSR Int’l Co. v.
Teleflex Inc., 550 U.S. 398, 417 (2007).

ADDITIONAL FACTUAL FINDINGS
4. Sasaki discloses a shock absorbing structure that may be used, inter
alia, in chair cushions, mattresses, or shoes (Sasaki, col. 1, ll. 12-19).
5. Sasaski discloses that in the context of exercising or walking shoes,
conventional materials such as foams have shortcomings because the
materials are not durable and the “change rate” of the foam material is
“not good” (Sasaki, col. 1, ll. 20-66).
6. Sasaki discloses using a rubber-like elastic material to address the
durability and change rate problems with conventional shock
absorbing materials (Sasaki, col. 2, ll. 59-64). Sasaki further discloses
that the shock absorbing structure may include a series of projections
spaced apart and in parallel on the base (col. 2, ll. 62-64). The
projections may be a variety of shapes which include pyramidal
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truncated cones (Sasaki, col. 5, ll. 63-68). Sasaki discloses that the
projections aid in absorbing shock (Sasaki, col. 3, ll. 6-9; col. 5, ll. 65-
67).

ANALYSIS
Appellant argues that Sasaki teaches away from using the truncated cones
in a foam material (App. Br. 5). Appellant contends that Sasaki uses a
rubber-like elastic material, not a foam material having the projections (App.
Br. 5). Appellant does not contest the Examiner’s findings on pages 5-6,
and 7 of the Answer regarding Kohnle, Fogel, Ward, or Swanson (App. Br.
4-6).
The nature of Sasaki’s teaching does not constitute a teaching away.
To the contrary, Sasaki teaches that in the context of exercise footwear, the
durability and change rate of conventional foam may not be adequate for use
in such a context. However, Sasaki does not disclose that the durability and
change rate issues with foam that affect shock absorbing in exercise
footwear would necessarily have the same affect in a chair cushion, for
example.
Accordingly, one of ordinary skill in the art would have recognized
from Sasaki’s disclosure that conventional foams may be used as shock
absorbers in cushions with possibly some attendant durability and change
rate shortcomings. Fogel, Kohnle, or Ward teaches foam with raised areas
for cushioning (i.e., shock absorbing).
Accordingly, the teachings of the references as a whole would have
suggested that raised areas, such as Sasaki’s truncated cones, on foam may
be used for shock absorption. The use of Sasaki’s truncated cones for the
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raised portions in Fogel’s, Kohnle’s, or Ward’s foam cushioning material
would have been nothing more than the predictable use of a prior element
(i.e., foam with a projections) according to its established function (i.e.,
cushioning or shock absorption). KSR, 550 U.S. at 417.
For the above reasons, we affirm the Examiner’s § 103 rejections of
claims 1, and 4-18 over Kohnle, Fogel, or Ward in view of Sasaki, and
claims 2 and 3 over Kohnle, Fogel, or Ward in view of Sasaki and further in
view of Swanson.

DECISION
The Examiner’s decision 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)(2009).

ORDER
AFFIRMED

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