Ex Parte Zerhusen

Patent Trial and Appeal Board

Mar 3, 2016

13228131 (P.T.A.B. Mar. 3, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
13/228,131 09/08/2011
63565 7590 03/03/2016
HILL-ROM SERVICES, INC
Legal Dept., Mail Code K04
1069 State Road 46 East
BATESVILLE, IN 47006
FIRST NAMED INVENTOR
Robert Mark Zerhusen
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
ATTORNEY DOCKET NO. CONFIRMATION NO.
Nl-34177 6888
EXAMINER
DA VIS, RICHARD G
ART UNIT PAPER NUMBER
3644
MAILDATE DELIVERY MODE
03/03/2016 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 ROBERT MARK ZERHUSEN
Appeal2014-001124
Application 13/228, 131 1
Technology Center 3600
Before MICHAEL C. ASTORINO, MATTHEWS. MEYERS, and
ROBERT J. SILVERMAN, Administrative Patent Judges.
ASTORINO, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
The Appellant appeals under 35 U.S.C. § 134 from the Examiner's
decision rejecting claims 1-13 and 18. We have jurisdiction over the appeal
under 35 U.S.C. § 6(b).
We REVERSE.
1 According to the Appellant, the real party in interest is Hill-Rom Services,
Inc. Appeal Br. 1.
Appeal2014-001124
Application 13/228, 131
Claimed Subject Matter
Claim 1, the sole independent claim, is representative of the subject
matter on appeal and is reproduced below.
1. An occupant support comprising:
a frame;
a mattress region; and
a combination perimeter element/boom, the combination
comprising a coupling connected or connectable to the frame and
to a working element, the coupling configured to render the
working element positionable in a perimeter element position in
which the working element borders the mattress region and
functions as a perimeter element and a boom position in which
the working element is at an elevation higher than that of the
mattress and can function as a boom.
Rejections2
Claims 1, 2, 4, 6, 8-13, and 18 are rejected under 35 U.S.C. § 102(b)
as anticipated by Heimbrock (US 2009/0229050 Al, pub. Sept. 17, 2009).
Claims 3; 5; and 7 are rejected under 35 U.S.C. § 103(a) as
unpatentable over Heimbrock.
ANALYSIS
The Appellant points out that independent claim 1 requires a
combination perimeter element/boom including a coupling connectable to a
frame and a working element. See Appeal Br. 8, 14. The Appellant also
points out that claim 1 recites, "the coupling configured to render the
working element positionable in ... a boom position in which the working
element ... can function as a boom" (Appeal Br., Claims App.). See id.
2 The Examiner has withdrawn the rejection of claims 4 and 5 under 35
U.S.C. 112, second paragraph, as indefinite. Ans. 2-3.
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Appeal2014-001124
Application 13/228, 131
The Appellant contends that the Examiner's application of
Heimbrock's disclosure to claim 1 does not anticipate the foregoing
recitation of claim 1 because Heimbrock's coupler 42 is not able to resist a
moment, and as such, barrier panel 40 does not qualify as a boom. See
Appeal Br. 11-12, Reply Br. 3. The Appellant also contends that, "any load
applied to panel 40 that was not directed through axis 66 would tend to
rotate the panel about axis 66 making it (the panel) unsuitable as a boom."
Appeal Br. 12. The Appellant's contentions are persuasive.
The Examiner finds that the claimed combination perimeter
element/boom, coupling, and working element reads on Heimbrock's gap-
filler 16, coupler 42, and barrier panel 40, respectively. Final Act. 3.
Accordingly, for the Examiner's rejection to be adequately supported
coupler 42 must be configured to render barrier panel 40 positionable in a
boom position in which barrier panel 40 can function as a boom. See id.
(citing Heimbrock, Fig. 7). A person of ordinary skill in the art understands
that in order for coupler 42 to have the structure to function as required by
claim 1, coupler 42 must be designed to render barrier panel 40 able to
support a load in a boom position.
Coupler 42 indirectly couples barrier panel 40 of gap filler 16 to frame
14. See Heimbrock, paras. 17, 27-29, Figs. 1, 2, 7. More specifically,
"coupler 42 includes a stem 50, a journal 52 coupled to stem 50 and
rotatable relative to a shaft 54 which is coupled to barrier panel 40" and
"stem 50 is received in accessory socket 18" of frame 14. Id. para. 29.
Moreover, "shaft 54 rotates within journal 52 about first generally horizontal
axis 66 as indicated by arrows 70." Id. Put simply, Heimbrock discloses
that first coupler 42 acts as a mechanism for barrier panel 40 to pivot. The
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Appeal2014-001124
Application 13/228, 131
remaining disclosure of Heimbrock does not significantly add to an
understanding of the design of coupler 42.
The foregoing does not establish that coupler 42 is designed to render
barrier panel 40 with the ability to support a load in a boom position. The
Examiner's contrary finding is based on speculation. See Ans. 6-8. For
example, the Examiner points to Heimbrock's Figure 7, which depicts
barrier panel 40 in a vertical position and disconnected from side panel 36,
to support the contrary finding. See Final Act. 3, Ans. 6-8. The Examiner
adds that Figure 7 depicts siderail coupler 44 supported by barrier panel 40
and coupler 42, and that objects of insignificant weight may be placed in or
hang from siderail coupler 44. See Ans. 7.
For the purposes of this appeal only, even if we were to accept that
Figure 7 depicts barrier panel 40 in a boom position, it is unclear if barrier
panel 40 would support a load due to the functionality of the structure of
coupler 42. Figure 7 merely depicts barrier panel 40 having the ability to
pivot about coupler 42. See also Heimbrock, Fig. 5. And, as discussed
above, the Heimbrock' s disclosure concerning the structure and functionality
of coupler 42 is limited. As such, it is speculative to assume that because
Figure 7 depicts barrier panel 40 in a vertical position that barrier panel 40
would support a load due to the functionality of the structure of coupler 42.
Consequently, the Examiner's finding that coupler 42 corresponds to the
claimed coupling is not supported by a preponderance of the evidence.
Thus, the Examiner's rejection of independent claim 1, and dependent
claims 2, 4, 6, 8-13, and 18, as anticipated by Heimbrock is not sustained.
Further, the Examiner's rejection of claims 3, 5, and 7 as unpatentable over
Heimbrock relies on the same speculative finding as discussed above. As
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Appeal2014-001124
Application 13/228, 131
such, the Examiner's rejection of claims 3, 5, and 7 under 35 U.S.C.
§ 103(a) as unpatentable over Heimbrock is not sustained.
DECISION
We REVERSE the Examiner's decision rejecting claims 1-13 and 18.
REVERSED
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