Ex Parte Thompson et al

Patent Trial and Appeal Board

Mar 29, 2017

13905947 (P.T.A.B. Mar. 29, 2017)

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.
33-1382 3061
EXAMINER
RISIC, ABIGAIL ANNE
ART UNIT PAPER NUMBER
3671
MAIL DATE DELIVERY MODE
13/905,947 05/30/2013
7590757
BGL
P.O. BOX 10395
CHICAGO, IL 60610
03/29/2017
Sean Thompson
03/29/2017 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 PATENT TRIAL AND APPEAL BOARD
Ex parte SEAN THOMPSON, AARON J. COX,
and PATRICK A. LEONHARDT
Appeal 2015-004484
Application 13/905,947
Technology Center 3600
Before CHARLES N. GREENHUT, THOMAS F. SMEGAL, and
ERIC C. JESCHKE, Administrative Patent Judges.
SMEGAL, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Sean Thompson et al. (Appellants)1 seek our review under 35 U.S.C.
§ 134 of the Examiner’s rejection2 under 35 U.S.C. § 103(a) of claims 1—3,
6—12, 14, 15, and 17—21 as unpatentable over Kang (US 6,905,281 B2, iss.
June 14, 2005) and Meinzer (US 4,321,989, iss. Mar. 30, 1982); and of
claims 4, 5, 13, and 16 as unpatentable over Kang, Meinzer, and Oberth (US
5,733,062, iss. Mar. 31, 1998). We have jurisdiction under 35 U.S.C. § 6(b).
1 According to Appellants, the real party in interest is Energy Absorption
Systems, Inc. Appeal Br. 1.
2 Appeal is taken from the adverse decision of the Examiner as set forth in
the Final Office Action, dated January 17, 2014 (“Final Act.”).
Appeal 2015-004484
Application 13/905,947
We REVERSE.
CLAIMED SUBJECT MATTER
Claims 1, 9, and 15 are independent. Claim 1 is reproduced below
and illustrates the claimed subject matter, with disputed limitations
emphasized.
1. An energy absorbing vehicle barrier, comprising:
a frame defining a compartment and comprising a
laterally extending component, wherein said frame is
collapsible in a longitudinal direction from a first configuration
to a second configuration in response to a vehicle impact;
an energy absorbing cartridge disposed within said
compartment, wherein said energy absorbing cartridge is
engageable and deformable in said longitudinal direction by
said laterally extending component of said frame from an
initial configuration to an impact configuration in response to
said frame collapsing in said longitudinal direction from said first
configuration to said second configuration; and
a rigid retaining device coupled to said frame, said
retaining device being disposed above and extending over at least
a portion of an upper surface of said cartridge;
wherein said retaining device is adapted to contact and
engage said upper surface of said cartridge in response to said
vehicle impact, said retaining device adapted to remain rigid
during said vehicle impact and thereby substantially prevent
movement of said cartridge in a vertical direction during said
vehicle impact as said energy absorbing cartridge is deformed by
said frame from said initial configuration to said impact
configuration.
ANALYSIS
Obviousness of Claims 1—3, 6—12, 14, 15, and 17—21 over Kang and
Meinzer
We are persuaded by Appellant’s arguments that the Examiner erred
in rejecting claims 1—3, 6—12, 14, 15, and 17—21 over Kang and Meinzer.
See Appeal Br. 5—8; Reply Br. 2—6.
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Appeal 2015-004484
Application 13/905,947
In rejecting claim 1, the Examiner finds that Kang discloses an energy
absorbing vehicle barrier having, inter alia, a collapsible frame (35, 72, 71)
and an energy absorbing cartridge (30), “wherein said energy absorbing
cartridge is engageable and deformable in the longitudinal direction by said
frame from an initial configuration to an impact configuration in response to
said frame collapsing in the longitudinal direction from said first
configuration to said second configuration,” but “fails to teach the frame has
a laterally extending component which engages the cartridge in the
longitudinal direction.” Final Act. 2—3.
However, the Examiner determines that “Meinzer teaches an energy
absorbing vehicle barrier comprising a frame (12, 23) defining a
compartment and comprising a laterally extending component (23) and
having an energy absorbing cartridge that is engageable and deformable in
the longitudinal direction by the laterally extending component [(23)] of the
frame in response to the frame collapsing in a longitudinal direction.” Id. at
3. Thus, the Examiner’s rejection combines Kang’s teaching of an energy
absorbing vehicle barrier having a frame collapsible in a longitudinal
direction, with Meinzer’s teaching of an energy absorbing vehicle barrier
having a frame with a laterally extending component (23), also collapsible in
a longitudinal direction, reasoning that “it is obvious to use a known
technique to improve similar devices in the same way.”3 Id.
3 While correctly identifying front cover 72 (of outer cover 70) as part of
Kang’s collapsible frame (35, 72, 71), the Examiner does not identify
element 72 as a laterally extending component of Kang’s frame “which
engages the cartridge in the longitudinal direction.” 37 C.F.R. § 41.50(a)(1)
permits us to “affirm or reverse the decision of the examiner in whole or in
part on the grounds and on the claims specified by the examiner.” We note,
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Appeal 2015-004484
Application 13/905,947
In taking issue with the analysis and conclusions presented in the
Final Office Action, Appellants first contend that “header 19/23 of Meinzer
. . . would render Kang inoperable,” because “[djuring an impact event, the
headers 19/23 sequentially move rearwardly to a next rearward header and
. . . impact crushable cells, which must be replaced after use.” Appeal Br.
5—6 (citing Meinzer, col. 7,1. 55 to col. 8,1. 64). Furthermore, Appellants
point out that “[tjhese are precisely the type of cushions that Kang
distinguished by incorporating elastically deformed cushions, which may be
reused, thereby reducing maintenance and repair costs.” Id. at 6 (citing
Kang, col. 2,11. 7-20; col. 3,11. 45^19).
Appellants also advance several other arguments: there is direct
contact between the cushion elements of Kang (Appeal Br. 7); “the headers
of Meinzer would be completely extraneous and would interfere with the
operation of Kang”; “the stated rationale of ‘us[ing] a known technique to
improve similar devices in the same way’ is not supported”; and “combining
the headers of Meinzer with the cushion of Kang would not yield predictable
results: the combination does not constitute a simple substitution of one
however, that at column 7, lines 47—59, Kang discloses that front cover 72 is
fixed to front middle cover 71, which is fixed to bracket 3. At column 7,
lines 47—59, Kang discloses that front cover 72 is fixed to front middle cover
71, which is fixed to bracket 38a by screw 74. Furthermore, at column 6,
lines 33—43, Kang discloses that bracket 38a, which supports front middle
cover 71, is fixed to side portion 35a of unit cover 35 by welding. Thus, it
appears that Kane discloses energy absorbing cartridge [30], supported by
unit cover 35, that “is engageable and deformable in [a] longitudinal
direction by said laterally extending component [72] of said frame,” as
recited by claim 1. See also Kane, Figs. 9A-C; compare with Specification,
Fig. 16.
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Appeal 2015-004484
Application 13/905,947
known element for another to obtain predictable results (Kang has no
header)” (Appeal Br. 8).
In response, the Examiner contends that “Meinzer provides
compartments for each of the cushion members between which are laterally
extending headers while Kang teaches one large compartment area,” so that
“[o]ne of ordinary skill in the art would look to Meinzer to modify Kang to
provide separate compartments for the cushions to allow for proper
positioning of the cushions and to absorb energy.” Ans. 3.
However, Appellants reason that “covers 34 of Kang are constructed
to hold the cushion units without impeding direct contact therebetween,
which is directly opposite to the teaching of Meinzer,” concluding that
“[s]imply put, Kang does not need, and would not be improved by, inserting
‘headers’ as asserted by the Examiner.” Reply Br. 3. Appellants also point
out that Meinzer’s headers 19/23 are the type of construction “that was
expressly repudiated by Kang due to the excessive axial length of such
systems, together with the increased cost of repairing and rebuilding the
energy absorbing elements following a collision.” Id. (citing, Kang col. 2,11.
7—20, distinguishing U.S. Patent No. 5,868,521). Thus Appellants reason
that “Kang not only does not need headers to ‘absorb energy’ as asserted by
the Examiner, but expressly teaches against any such construction.” Id. at
3^4.
We agree with Appellants that the Examiner fails to articulate a
reason or motivation supported by rational underpinnings for finding that
adding Meinzer’s headers 19/23 to Kane, would use a known technique to
improve similar devices in the same way. Absent some articulated rationale
for doing so, the Examiner’s conclusory assertion is inadequate to support a
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Appeal 2015-004484
Application 13/905,947
conclusion of obviousness. See KSR Int’l Co. v. Teleflex Inc., 550 U.S. 398,
418 (2007); see also In re Warner, 379 F.2d 1011,1017 (CCPA 1967) (“The
legal conclusion of obviousness must be supported by facts. Where the legal
conclusion is not supported by facts it cannot stand.”).
For the foregoing reasons, we do not sustain the Examiner’s rejection
of claims 1—3, 6—12, 14, 15, and 17—21 over Kang and Meinzer.
Obviousness of Claims 4, 5, 13, and 16 over Kang, Meinzer, and
Oberth
Regarding dependent claims 4, 5, 13, and 16, the Examiner’s rejection
is based on the same unsupported findings discussed above with respect to
the disclosure of Kang. See Final Act. 9-10; Reply Br. 4—5. Accordingly,
for similar reasons as discussed above for claim 1, we do not sustain the
Examiner’s decisions rejecting claims 4, 5, 13, and 16 over Kang, Meinzer,
and Oberth.
DECISION
We REVERSE the Examiner’s rejections.
REVERSED
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