Wade Daniel. Palashewski et al.

Patent Trials and Appeals Board

Jan 3, 2020

14146281 - (D) (P.T.A.B. Jan. 3, 2020)

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.
14/146,281 01/02/2014 Wade Daniel Palashewski 39870-0068001 7777
26191 7590 01/03/2020
FISH & RICHARDSON P.C. (TC)
PO BOX 1022
MINNEAPOLIS, MN 55440-1022
EXAMINER
MCCLURE, MORGAN J
ART UNIT PAPER NUMBER
3673
NOTIFICATION DATE DELIVERY MODE
01/03/2020 ELECTRONIC
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.
Notice of the Office communication was sent electronically on above-indicated "Notification Date" to the
following e-mail address(es):
PATDOCTC@fr.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte WADE DANIEL PALASHEWSKI, ERIC ROSE, and ARAN
BROSNAN
Appeal 2018-007061
Application 14/146,281
Technology Center 3600
BEFORE MICHAEL L. HOELTER, ANNETTE R. REIMERS, and
ARTHUR M. PESLAK, Administrative Patent Judges.
PESLAK, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Pursuant to 35 U.S.C. § 134(a), Appellant1 appeals from the
Examiner’s decision to reject claims 1–11, 13, and 15–30. We have
jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM IN PART.

1 We use the word Appellant to refer to “applicant” as defined in 37 C.F.R.
§ 1.42. Appellant identifies the real party in interest as Sleep Number
Corporation. Appeal Br. 1.
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Application 14/146,281

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CLAIMED SUBJECT MATTER
The claims are directed to an adjustable bed system having a split-
head and joined foot configuration. Claim 1, reproduced below, is
illustrative of the claimed subject matter:
1. A sleep system, comprising:
a mattress comprising;
a first sleep area for a first occupant, the first sleep area
comprising a first movable upper section and a first movable
lower section;
a second sleep area for a second occupant, the second
sleep area comprising a second movable upper section adjacent
to the first movable upper section and a second movable lower
section adjacent to the first lower section;
wherein the first movable upper section is separate from
and movable with respect to the second movable upper section;
wherein the first movable lower section and the second
movable lower section are coupled together and move together;
and
an articulation system comprising at least one controller to
provide instructions for articulating the first movable upper section,
the first movable lower section, the second movable upper section,
and the second movable lower section, the articulation system further
comprising a first remote control configured to send movement
control signals to the controller;
wherein the at least one controller is configured to receive the
movement control signals from the first remote control, and send the
one or more motion control signals that comprise instructions for
achieving independent movement of the first upper movable section
and the second upper movable section and for achieving substantially
synchronized movement of the first lower movable section and the
second lower movable section, wherein the first and second lower
moveable sections remain substantially horizontally level as the first
and second lower moveable sections are articulated upward and as the
first and second movable lower sections are articulated downward.
REFERENCES
The prior art relied upon by the Examiner is:
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Name Reference Date
Amarantos US 3,978,530 Sept. 7, 1976
Luff US 6,008,598 Dec. 28, 1999
Howell US 2008/0262657 A1 Oct. 23, 2008
Rawls-Meehan US 2013/0289770 A1 Oct. 31, 2013
Tarplee US 2015/0328070 A1 Nov. 19, 2015

REJECTIONS2
1) The Examiner rejected claims 10, 11, 13, 15, 16, 20, 21, 23–25 and
27–30 are rejected under 35 U.S.C. § 103 over Luff and Howell.
2) The Examiner rejected claims 10, 11, 13, 15, 16, 20, 21, 23–25,
and 27–30 under 35 U.S.C. § 103 over Luff, Tarplee, and Howell.
3) The Examiner rejected claims 1–9, 17–19, and 26 under 35 U.S.C.
§ 103 over Luff, Amarantos, Tarplee, and Howell.
OPINION
Obviousness over Luff and Howell
The Examiner finds that Luff discloses most of the limitations of
independent claim 10 including the “substantially synchronized”
requirement but does not disclose a single actuator controller. Final Act.
17–18. The Examiner finds that Howell teaches “a single actuator controller
which communicates with both the first actuator and the second actuator to
cooperatively articulate the moveable third section.” Id. at 18. The

2 In the Answer, the Examiner withdrew the rejections of claims 1, 4–9, 17–
19 and 26 under 35 U.S.C. § 103 over Luff, Amarantos, and Howell and
claims 2 and 3 under 35 U.S.C. § 103 over Luff, Amarantos, Howell, and
Rawls–Meehan. Final Act. 11–17; Ans. 4.

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Examiner concludes that it would have been obvious to one of ordinary skill
in the art “to modify the two control systems of Lux [sic] to be one control
system as in Howell in order to allow a more succinct system to move the
bed.” Id. The Examiner makes substantially similar findings and
conclusions for independent claim 21. Id. at 19–21.
Appellant contends that “the Examiner’s interpretation of
‘synchronize’ including ‘moving the two motors [of Luff] at the same time
by pressing both buttons at once [for] at least a small period of
synchronization’ is unreasonably broad.” Appeal Br. 10. Appellant further
contends that this argument by the Examiner “ignores the uncontroverted
testimony of Mr. Rose that pushing two buttons at the same time does not
result in the motors moving at the same speed or the platforms stopping at
the same height.” Id. (citing Appeal Br. Exh. A, Declaration of Eric Rose
¶ 4) (“Rose Declaration.”). The Rose Declaration provides, inter alia, “if
the motors were not synchronized, even perfect timing by the user would not
necessarily result in the motors moving at the same speed or the platforms
stopping at the same height” because “the motors could operate at different
speed, causing one side to raise faster than the other.” Rose Declaration ¶¶
4–5. The Examiner does not directly respond to this contention. See Ans. 9.
For the following reasons, we do not sustain this rejection.
Luff discloses that “[m]otors 60, 61 associated with right-side half 57
are operable independently of motors 60, 61 associated with left-side half 59
so that right-side half 57 articulates independently of left-side half 59.”
Luff, 5:59–63; Fig. 1. Luff also discloses that two handheld controllers 50
communicate with first and second control systems 81 and 83. Id. at 6:43–
53. The Examiner apparently bases the rejection on a user simultaneously
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pressing buttons on the two handheld controllers 50 to satisfy the
“substantially synchronized” limitation. However, the claim requires a
controller configured to cause the first and second actuators to operate in a
substantially synchronized manner, not a user. The Examiner has, thus, not
shown by a preponderance of the evidence that Luff alone or in combination
with Howell discloses or suggests a controller configured so that the first
actuator and the second actuator operate in “a substantially synchronized
manner” as required by claim 10 and claim 21. Consequently, we do not
sustain the rejection of claim 10 and claim 21 and claims 13, 15, 16, 20, 23–
25 and 27–30, which depend from either claim 10 or claim 21.

Obviousness over Luff, Tarplee, and Howell
The Examiner finds, inter alia, that Luff discloses “a movable third
section (Figure 1; 68) extending laterally across substantially the entire
width of the mattress.” Final Act. 24. Appellant contends, with respect to
claim 10, that “none of Luff, Tarplee, and Howell, nor any proper
combination of them describe or suggest . . . ‘a movable third section
extending laterally across substantially the entire width of the mattress.”
Appeal Br. 12. According to Appellant, Luff does not disclose this
limitation because the leg section of Luff is split and forms two separate
sections rather than one continuous section. Id. at 11–12. For the following
reasons, we do not sustain the rejection of claim 10.
Element 68 of Luff extends across approximately half of the width of
the mattress as opposed to across substantially the entire width of the
mattress as required by claim 10. See Luff, Fig. 1. The Examiner does not
adequately explain how this element of Luff satisfies the claim limitation
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that the third moveable section extends “laterally across substantially the
entire width of the mattress.” See Final Act. 24. Consequently, we do not
sustain the rejection of claim 10 and claims 11, 13, 15, 16, 20, and 27–30,
which depend from claim 10.
Claim 21 does not require that the moveable leg section extend
substantially across the entire width of the mattress. See Appeal Br. 22–23
(Claims App.). Nonetheless, Appellant contends that claim 21 requires “that
the moveable leg section is one section, with portions for the first and
second occupants, and does not cover two, separate section as described and
shown in Luff.” Appeal Br. 14. The Examiner responds that to the extent
that the claim “does require a continuous foot section, Amarantos is used to
teach those limitations, not Luff.” Ans.10. However, Amarantos is not
relied on in this rejection. See Final Act. 25–27. Consequently, we do not
sustain the rejection of claim 21 and claims 23–25 which depend from claim
21.

Obviousness over Luff, Amarantos, Tarplee, and Howell
Appellant argues claims 1–9, 17–19, 22, and 26 as a group. Appeal
Br. 14–15. Pursuant to 37 C.F.R. § 41.37 (c)(1)(iv), we select claim 1 as
representative and claims 2–9, 17–19, 22, and 26 stand or fall with claim 1.
The Examiner finds that Luff discloses many of the limitations of
claim 1 but relies on Tarplee for a controller configured to create
“substantially synchronized movement of the first lower movable section
and the second lower movable section.” Final Act. 30. The Examiner
reasons that “it would have been obvious to one of ordinary skill in the art to
coordinate the bottom sections of the mattress of Luff as in Tarplee in order
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to allow for simpler use when the two users wanted an even surface.” Id. at
31. The Examiner relies on Amarantos for teaching “the first movable lower
section and the second movable lower section are coupled together and
move together.” Id. (citing Amarantos, Fig. 1, C). The Examiner further
reasons that it “would have been obvious to one of ordinary skill in the art to
modify the bottom sections of Luff to be coupled together and have them
move together as in Amarantos in order to make the foot portion of the bed
easier to operate while allowing for individual preferences for the reclining
of the top portions of the bed.” Id.
Appellant first contends that Tarplee cannot teach the substantially
synchronized limitation “because there are not two actuators connected to
two lower movable sections to be synchronized.” Appeal Br. 15 (quoting
Rose Declaration ¶ 17). The Examiner, however relies on Luff not Tarplee
for the disclosure of two actuators connected to two lower movable sections.
Final Act. 30. This contention is, thus, not persuasive because it is an attack
on Tarplee individually but the rejection is based on the combined teachings
of Luff and Tarplee. See In re Keller, 642 F.2d 413, 425 (CCPA 1981)(One
cannot show nonobviousenss by attacking references individually when the
rejection is based on a combination of references.).
Appellant next contends that the Examiner’s reasons for combining
Luff with Amarantos and Tarplee “are based on conclusory hindsight.”
Appeal Br. 15. We note that Appellant does not dispute the Examiner’s
findings based on Luff, Amarantos, and Tarplee. See id. The Examiner
responds that “[m]odifying the combination of Luff and Tarplee which is a
bed with a joined foot section with two motors, would be because the two
motors will always be moving together in the combination, and therefore, it
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would increase smoothness and functionality to have the motors
programmed to move together.” Ans. 12. After considering Appellant’s
arguments, we determine that the Examiner has the better position.
Appellant’s conclusory hindsight assertions in the Appeal Brief do not
persuasively apprise us of error in the Examiner’s reasons for the
combination of Luff, Amarantos, and Tarplee as stated in the Final Action
and the Answer, which we determine to be reasonable and supported by
rational underpinnings. See KSR Intern. Co. v Teleflex Inc., 550 U.S. 398,
416 (2007) (“[t]he combination of familiar elements according to known
methods is likely to be obvious when it does no more than yield predictable
results.”). Consequently, Appellants’ hindsight argument is not persuasive
where the Examiner has stated a rationale for each modification that is
supported adequately by sufficient facts. See In re Cree, 818 F.3d 694, 702,
n.3 (Fed. Cir. 2016).
For the foregoing reasons, we sustain the rejection of claim 1. Claims
2–9, 17–19, 22, and 26 fall with claim 1.

CONCLUSION
The Examiner’s rejections of claims 10, 11, 13, 15, 16, 20, 21, 23–25
and 27–30 under 35 U.S.C. § 103 is reversed.
The Examiner’s rejection of claims 1–9, 17–19, and 26 under 35
U.S.C. § 103 is affirmed.
More specifically,
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DECISION SUMMARY
In summary:
Claims
Rejected
35 U.S.C. § Basis/Reference(s)  Affirmed Reversed
10, 11,13,
15, 16, 20,
21, 23–25,
27–30
103 Luff, Howell 10, 11,13,
15, 16, 20,
21, 23–25,
27–30
10, 11,13,
15, 16, 20,
21, 23–25,
27–30
103 Luff, Tarplee, Howell  10, 11,13,
15, 16, 20,
21, 23–25,
27–30
1–9, 17–19,
26
103 Luff, Amarantos,
Tarplee, Howell
1–9, 17–
19, 26

Overall
Outcome
1–9, 17–
19, 26
10, 11,13,
15, 16, 20,
21, 23–25,
27–30

TIME PERIOD FOR RESPONSE
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a). See 37 C.F.R.
§ 1.136(a)(1)(iv).
AFFIRMED IN PART