11958631 (B.P.A.I. Jun. 27, 2012)

Ex Parte Thomas

Board of Patent Appeals and InterferencesJun 27, 2012

11958631 (B.P.A.I. Jun. 27, 2012)

UNITED STATES PATENT AND TRADEMARK OFFICE 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 APPLICATION NO. FILING DATE FIRST NAMED INVENTOR ATTORNEY DOCKET NO. CONFIRMATION NO. 11/958,631 12/18/2007 Scott D. Thomas P000916-NAPD-LCH 1442 72823 7590 06/27/2012 Quinn Law Group, PLLC 39555 Orchard Hill Place Suite 520 Novi, MI 48375 EXAMINER FLEMING, FAYE M ART UNIT PAPER NUMBER 3616 MAIL DATE DELIVERY MODE 06/27/2012 PAPER 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. PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE ____________ BEFORE THE BOARD OF PATENT APPEALS AND INTERFERENCES ____________ Ex parte SCOTT D. THOMAS ____________ Appeal 2009-014714 Application 11/958,631 Technology Center 3600 ____________ Before STEFAN STAICOVICI, GAY ANN SPAHN, and LYNNE H. BROWNE, Administrative Patent Judges. BROWNE, Administrative Patent Judge. DECISION ON APPEAL STATEMENT OF THE CASE Scott D. Thomas (Appellant) appeals under 35 U.S.C. § 134 from the Examiner’s decision finally rejecting claims 1-3, 5-8, 14-17 and 20 under 35 U.S.C. § 102(b) as anticipated by Schwark (US 6,854,759 B2, iss. Feb. 15, 2005). The Examiner indicates that claims 4, 9-13, 18 and 19 are allowable. We have jurisdiction under 35 U.S.C. § 6(b). We REVERSE. Appeal 2009-014714 Application 11/958,631 2 THE INVENTION The claims on appeal relate to “supplemental inflatable restraint systems deployable for the knees and lower extremities”. Spec. 1, para. [0001]. Claim 1, reproduced below, with emphasis added, is illustrative of the subject matter on appeal. 1. A supplemental inflatable restraint system for a vehicle having a passenger compartment with an instrument panel at a forward end therein, the instrument panel having an upper, middle, and lower portion, comprising: a panel member operatively attached to the lower portion of the instrument panel in a generally horizontal orientation, said panel member defining a cavity with an opening, said cavity configured to nest the supplemental inflatable restraint system therein; an inflatable cushion operable to transition through said opening from a non-expanded state in which said cushion is substantially inside said cavity to an expanded state in which said cushion is substantially outside said cavity; and a fluid dispensing apparatus in operative fluid communication with said cushion to selectively regulate transition of said cushion from said non-expanded state to said expanded state. Appeal 2009-014714 Application 11/958,631 3 OPINION Independent claim 1 and claims 2, 3, and 5-8 dependent thereon Appellant contends that Schwark fails to disclose a panel member that is operatively attached to the lower portion of a vehicular instrument panel in a generally horizontal orientation, as called for by independent claim 1. App. Br. 9. The Examiner maintains that Schwark meets this limitation because the terminology “horizontal” is defined as being flat or level and “[t]he panel member 120 of Schwark is leveled to the lower portion of a vehicular instrument panel.1 Ans. 4. In response, Appellant argues that the Examiner has used an overly broad interpretation of the claim terminology based on a truncated definition and has incorrectly construed the claim to require that the panel member be horizontal with respect to the instrument panel. Reply. Br. 7. We agree with the Appellant. Claims are to be given their broadest reasonable interpretation consistent with the specification. See In re Am. Acad. of Sci. Tech. Ctr., 367 F.3d 1359, 1364 (Fed. Cir. 2004). Appellant’s specification states that the panel member defines a cavity with an opening facing in a generally downward direction relative to the vehicle. Spec. 7. Although the claim terminology “horizontal” is not used in this description, the panel member 70 is clearly shown in a horizontal position with respect to the vehicle. See Figs. 1A and 1B. Thus, one of ordinary skill in the art reading claim 1 in light of the specification would have understood the claim terminology “horizontal” to be used with respect to the vehicle, not the 1 In support of the claim interpretation, the Examiner refers to the website www.dictionary.com for a definition of the term “horizontal.” Appeal 2009-014714 Application 11/958,631 4 instrument panel, as the Examiner proposes. See Ans. 4. Hence, Schwark’s panel member 120 is not attached to the instrument panel in a generally horizontal orientation with respect to the vehicle. Accordingly, we cannot sustain the Examiner’s rejection of independent claim 1, and claims 2, 3, and 5-8 dependent thereon, under 35 U.S.C. § 102(b) as anticipated by Schwark. Independent claims 14 and 20 and claims 15-19 dependent on claim 14 Appellant contends that Schwark fails to disclose “a hush panel” that is “substantially nonvisible to a vehicle occupant seated upright and adjacent thereto”, as required by claims 14 and 20. The Examiner responds stating that the term “substantially lacks definitiveness and [hence], as broadly recited the hush panel 80 of Sc[h]wark, et al. is substantially nonvisible.” Ans. 4. We disagree with the Examiner. When a word of degree, such as the term “substantially,” is used in a claim, we look to the specification to determine whether the specification provides some standard for measuring that degree. See Seattle Box Company, Inc. v. Industrial Crating & Packing, Inc., 731 F.2d 818, 826 (Fed. Cir. 1984). In this case, Appellant’s Specification states that a normally seated occupant “will not be able to see most, if not all of the hush panel 70.” The Specification further states that “a small portion of the hush panel may be visible to the occupant.” Spec., para. [0027]. Accordingly, we interpret the limitation of a “hush panel [that] is substantially nonvisible to a vehicle occupant” to mean that the majority (more than 50%) of the hush panel is not visible to the vehicle occupant. In contrast, Schwark explicitly describes the rear surface 134 of the panel member 120 as visible to the occupant 12 of the vehicle 14. Schwark, col. 4, ll. 57-60 and fig. 3. See Appeal 2009-014714 Application 11/958,631 5 also, App. Br. 12. Hence, panel member 120 (hush panel) of Schwark is not “substantially nonvisible to a vehicle occupant,” as called for by independent claims 14 and 20. Accordingly, we cannot sustain the Examiner’s rejection of independent claims 14 and 20, and claims 15-19 which depend from claim 14, under 35 U.S.C. § 102(b) as anticipated by Schwark. DECISION We reverse the Examiner’s decision to reject claims 1-3, 5-8, 14-17 and 20. REVERSED Klh