Ex Parte Weedling et al

Board of Patent Appeals and Interferences

Sep 15, 2010

10143139 (B.P.A.I. Sep. 15, 2010)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
____________

Ex parte ROBERT E. WEEDLING and JAMES E. WEEDLING
____________

Appeal 2009-009573
Application 10/143,139
Technology Center 3600
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Before: LINDA E. HORNER, JOHN C. KERINS, and KEN B. BARRETT,
Administrative Patent Judges.

HORNER, Administrative Patent Judge.

DECISION ON APPEAL1

1 The two-month time period for filing an appeal or commencing a civil
action, as recited in 37 C.F.R. § 1.304, or for filing a request for rehearing,
as recited in 37 C.F.R. § 41.52, begins to run from the “MAIL DATE”
(paper delivery mode) or the “NOTIFICATION DATE” (electronic delivery
mode) shown on the PTOL-90A cover letter attached to this decision.
Appeal 2009-009573
Application 10/143,139
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STATEMENT OF THE CASE2
Robert E. Weedling et al. (Appellants) seek our review under
35 U.S.C. § 134 of the Examiner’s decision rejecting claims 2-4, 6, 7, 9,
11-14, 16-21, 48-50, and 55-59, which are all of the pending claims. We
have jurisdiction under 35 U.S.C. § 6(b). We REVERSE.
THE INVENTION
Appellants’ claimed invention is an inflatable air mattress used to
transfer patients from one lateral surface to another. Spec. 1, para. [0002].
Claim 2, reproduced below, is representative of the subject matter on appeal.
2. A patient transfer device comprising:
(a) at least one inflatable transfer mattress including a
plurality of holes in a bottom surface thereof for discharge of
air from the transfer mattress, the inflatable transfer mattress
comprising a generally rectangular array of transverse air
chambers supported at each longitudinal side thereof by a
longitudinally-extending side air chamber, the transition
between the transverse chambers and side chambers defining a
seam at each longitudinal side of the array;
(b) a plurality of fasteners for attaching an accessory
across a top surface of the inflatable transfer mattress, the
fasteners located outboard of the seams defined by the
transition between the transverse chambers and the side
chambers; and
(c) an accessory selected from the group consisting of:
(i) a therapeutic pad

2 Application No. 10/935,946, a divisional of the present application, has a
prior Board decision: Ex parte Weedling No. 2009-006738, (BPAI Feb. 5,
2010) and Application No. 10/935,945, a continuation-in-part of the present
application, has a prior Board decision: Ex parte Weedling, No. 2008-6022
(BPAI Feb. 19, 2009) (each available on-line at http://des.uspto.gov/Foia/
BPAIReadingRoom.jsp). These decisions are not relevant to the issues
before us in the present appeal.
Appeal 2009-009573
Application 10/143,139
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(ii) a flexible body litter with carry handles;
(iii) a non-absorbent sanitary cover;
(iv) a washable absorbent cover;
(v) a disposable cover;
(vi) at least one cushion;
(vii) an inflatable mattress with a pressure control
valve; and
(viii) an inflatable mattress with pulsating pressure
control.
THE REJECTIONS
Appellants seek review of the following decisions by the Examiner:
1. Rejection of claims 2-4, 11-14, 19-21, 48-50, and 55-59 under
35 U.S.C. § 103(a) as unpatentable over Weedling (US 5,561,873, issued
October 8, 1996) and Franco (US 4,301,791, issued November 24, 1981).
2. Rejection of claims 6 and 16 under 35 U.S.C. § 103(a) as unpatentable
over Weedling, Franco, and Foster (US 5,483,709, issued January 16, 1996).
3. Rejection of claims 7, 17, and 18 under 35 U.S.C. § 103(a) as
unpatentable over Weedling, Franco, and Vaccaro (US 4,876,756, issued
Oct. 31, 1989).
4. Rejection of claims 20 and 21 under 35 U.S.C. § 103(a) as
unpatentable over Weedling, Franco, and Davies (US 5,018,226, issued May
28, 1991).
ISSUES
The Examiner found that Weedling discloses all aspects of the
claimed device, except that Weedling fails to disclose fasteners and an
accessory. Ans. 4. The Examiner found that Franco discloses a patient
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transfer device having fasteners (fastener means 863) for attaching the
accessories of a cushion (support member 50) and a flexible litter
(reinforcing member 96) having handles (openings 102). Ans. 4-5. The
Examiner concluded it would have been obvious to a person of ordinary skill
in the art at the time of Appellants’ claimed invention to modify Weedling’s
transfer mattress by adding Franco’s fasteners (fastener means 86) to attach
a cushion (support member 50) and to attach a litter (reinforcing member 96)
having handles (openings 102). Ans. 5.
Appellants argue that a person of ordinary skill in the art would not
modify Weedling’s transfer mattress to include a litter attached to the
bottom, as proposed by the Examiner (Ans. 4-5), because such a
modification would interfere with the transfer function of the mattress. Br.
8, 11, 15-17.
The issues presented by this appeal are:
Would a person of ordinary skill in the art have found it obvious to
modify the first embodiment of the transfer mattress of Weedling to add a
litter under the mattress as taught by Franco?
Does the Examiner’s proposed combination of the second
embodiment of the transfer mattress of Weedling and the litter of Franco
include a bottom surface having holes for the discharge of air from the
transfer mattress?
ANALYSIS
Independent claims 2, 11, 48, 49, 55, 56, and 58 are each directed to a
patient transfer device comprised of a transfer mattress that includes a

3 The Examiner does not explicitly mention fastening means 86, but cites to
the portion of Franco discussing fastening means 86 (col. 6, ll. 35-40). See
Ans. 4.
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bottom surface having holes for the discharge or escape of air4. Appellants’
Specification describes that holes in the bottom sheet of the transfer mattress
permit air supplied to the mattress to escape, forming a film of air that
creates a weight-bearing cushion to facilitate sliding a patient on the mattress
along a surface or from one surface to another. Spec. 1, para. [0002]; id. at
10, para. [0041].
Weedling discloses a first embodiment of a transfer mattress (air
pallet 10) having a top sheet 16 joined to a bottom sheet 18 along a seam 20,
forming chambers 12 and 14 therebetween. Weedling, col. 9, ll. 59-67; figs.
1-4. Bottom sheet 18 includes ports 38 that permit air to escape and produce
an air film 40 that reduces friction between air pallet 10 and the underlying
surface so that the mattress is capable of movement of a patient load over
substantially flat or slightly irregular rigid underlying surfaces. Weedling,
col. 12, ll. 4-30; fig. 2.
Franco discloses a body transfer device 20 that includes a litter
(reinforcing member 96) attached underneath. Franco, col. 3, ll. 5-8; col. 7,
ll. 50-56; figs. 1, 2, 4-6.
In the Examiner’s proposed modification of this first embodiment,
Franco’s litter (reinforcing member 96) would be placed under Weedling’s
air transfer mattress (air pallet 10), preventing the air escaping from
Weedling’s ports 38 from contacting the underlying surface. Absent air film
40 being between the mattress and the underlying surface, the proposed
combination will not function as Weedling’s intended air-assisted transfer
device. As such, we agree with Appellants that one having ordinary skill in

4 Independent claims 2, 56, and 58 recite a plurality of holes for discharging
air or discharge of air, and independent claims 11, 48, 49, and 55 similarly
recite a pattern of holes to allow escape of air, or for discharge of air.
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the art would not have been led to add Franco’s litter underneath Weedling’s
air pallet 10 since such a modification would destroy the intended purpose of
Weedling’s air pallet 10.
Alternatively, the Examiner finds that Franco’s litter (reinforcing
member 96) would not interfere with the discharge of air from the bottom of
the second embodiment of Weedling’s transfer mattress because Weedling’s
mattress can be used as a static mattress pad by collapsing plenum chamber
42. Ans. 8. Indeed, Weedling describes a second embodiment of an air
pallet 610, which adds a plenum chamber 42 below chambers 12 and 14 of
the first embodiment. Weedling, col. 16, ll. 29-32; fig. 11. Weedling
describes that this air pallet 610 can be used as a static mattress pad, with
chambers 12 and 14 inflated and plenum chamber 42 collapsed. Weedling,
col. 16, ll. 39-51; fig. 11.
Because Weedling’s plenum chamber 42 is collapsed when the second
embodiment is being used as a static mattress, the Examiner’s alternate
proposed combination fails to meet every limitation of the independent
claims, because no air would be discharged from the bottom surface of
Weedling’s static mattress. Thus, the resulting mattress would not contain
holes for the discharge or escape of air. As such, we cannot sustain the
Examiner’s rejection under this alternate proposed modification.
The rejections of dependent claims 3, 4, 6, 7, 9, 12-14, 16-21, 50, 57,
and 59 are also in error, in that each of these claims depends from one of
independent claims 2, 11, 48, 49, 55, 56, and 58.5

5 The second, third, and fourth rejections add a tertiary reference; however,
these rejections are based on the same erroneous proposed combination of
Franco’s litter under Weedling’s mattress. See Ans. 5-6.
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CONCLUSIONS
A person of ordinary skill in the art would have not found it obvious
to modify the first embodiment of the transfer mattress of Weedling to add a
litter under the mattress as taught by Franco.
The Examiner’s alternate proposed combination of Weedling’s second
embodiment and Franco’s litter would not include a bottom surface having
holes for the discharge or escape of air.
DECISION
We REVERSE the Examiner’s decision to reject claims 2-4, 6, 7, 9,
11-14, 16-21, 48-50, and 55-59.

REVERSED

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