UNITED STA (cid:9)I ES PA (cid:9)PENT 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. (cid:9)
`
`FILING DATE
`
`FIRST NAMED INVENTOR
`
`ATTORNEY DOCKET NO. (cid:9)
`
`CONFIRMATION NO.
`
`10/035,334
`
`01/04/2002
`
`Michael Wiedeman
`
`011715
`
`2251
`
`38834 (cid:9)
`7590 (cid:9)
`01/27/2009
`WESTERMAN, HATTORI, DANIELS & ADRIAN, LLP
`1250 CONNECTICUT AVENUE, NW
`SUI IL 700
`WASHINGTON, DC 20036
`
`EXAMINER
`
`BARFIELD, ANTHONY DERRELL
`
`ART UNIT
`
`PAPER NUMBER
`
`3636
`
`MAIL DATE
`
`DELIVERY MODE
`
`01/27/2009
`
`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)
`
`TPK 2005
`Wintek v. TPK Touch Solutions
`IPR2014-00541
`
`(cid:9)
`(cid:9)
`(cid:9)
`(cid:9)
`(cid:9)
`(cid:9)
`(cid:9)
`(cid:9)
`(cid:9)
`
`
`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. (cid:9)
`
`FILING DATE
`
`FIRST NAMED INVENTOR
`
`ATTORNEY DOCKET NO. (cid:9)
`
`CONFIRMATION NO.
`
`10/035,334
`
`01/04/2002
`
`Michael Wiedeman
`
`011715
`
`2251
`
`38834 (cid:9)
`7590 (cid:9)
`01/27/2009
`WESTERMAN, HATTORI, DANIELS & ADRIAN, LLP
`1250 CONNECTICUT AVENUE, NW
`SUI IL 700
`WASHINGTON, DC 20036
`
`EXAMINER
`
`BARFIELD, ANTHONY DERRELL
`
`ART UNIT
`
`PAPER NUMBER
`
`3636
`
`MAIL DATE
`
`DELIVERY MODE
`
`01/27/2009
`
`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)
`
`TPK 2005
`Wintek v. TPK Touch Solutions
`IPR2014-00541
`
`(cid:9)
`(cid:9)
`(cid:9)
`(cid:9)
`(cid:9)
`(cid:9)
`(cid:9)
`(cid:9)
`(cid:9)
`
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`
`BEFORE THE BOARD OF PATENT APPEALS
`AND INTERFERENCES
`
`Ex parte MICHAEL WIEDEMAN, JOHN A. FRYE,
`FRANK D. MOBURG, and MICHAEL TSAY
`
`Appeal 2008-3454
`Application 10/035,334
`Technology Center 3600
`
`Decided: January 27, 2009
`
`Before WILLIAM F. PATE, III, JOHN C. KERINS, and
`STEVEN D.A. McCARTHY, Administrative Patent Judges.
`
`KERINS, Administrative Patent Judge.
`
`DECISION ON APPEAL
`
`STATEMENT OF THE CASE
`
`Michael Wiedeman et al. (Appellants) seek our review under
`
`35 U.S.C. § 134 of the Examiner's final rejection of claims 1, 6-8, 10,
`
`12, 25 and 28.1 We have jurisdiction under 35 U.S.C. § 6(b) (2002).
`
`1 The Examiner indicates that claims 14-24 are allowable, and has objected
`
`
`
`Appeal 2008-3454
`Application 10/035,334
`
`An oral hearing was held on January 13, 2009, with William F.
`
`Westerman, Esq., appearing on behalf of Appellants.
`
`SUMMARY OF DECISION
`
`We AFFIRM-IN-PART.
`
`THE INVENTION
`
`Appellants' claimed invention is to a seat adapted for use in a vehicle
`
`having a floor and a roof, the seat having a central pillar extending from the
`
`floor to the roof, a center support extending forwardly from the central
`
`pillar, a lower rib extending laterally from the center support, a seat bottom
`
`directly fixed to the lower rib, a primary intermediate rib extending laterally
`
`from the central pillar, and a seat back fixed to the intermediate rib. (Appeal
`
`Br., Claims Appendix, claim 1).
`
`Claims 1 and 25, reproduced below, are representative of the subject
`
`matter on appeal.
`
`1. A seat adapted for use in a vehicle having a
`floor and a roof, comprising:
`
`a central pillar extending from the floor to the roof
`of the vehicle;
`
`a center support extending forwardly from said
`central pillar;
`
`a lower rib extend [sic.] laterally from said center
`support;
`
`to claims 2-5, 9, 11, 13, 26, 27, 29 and 30 on the basis that they contain
`allowable subject matter, but depend from a rejected base claim. (Answer
`2).
`
`2
`
`
`
`Appeal 2008-3454
`Application 10/035,334
`
`a seat bottom directly fixed to and supported by
`said lower rib;
`
`a primary intermediate rib extending laterally from
`said central pillar; and
`
`a seat back fixed to and supported by said
`intermediate rib.
`
`25. A seat adapted for use in a vehicle having a
`floor and a roof, comprising:
`
`a central pillar extending from the floor to the roof
`of the vehicle;
`
`a lower rib extend [sic.] laterally from said central
`pillar;
`
`a seat bottom fixed to and supported by said lower
`rib;
`
`a primary intermediate rib extending laterally from
`said central pillar; and
`
`a seat back fixed to and supported by said
`intermediate rib.
`
`THE REJECTION
`
`The Examiner relies upon the following as evidence of
`
`unpatentability:
`
`Lohr (cid:9)
`
`US 6,568,735 B1
`
`May 27, 2003
`
`The Examiner has rejected claims 1, 6-8, 10, 12, 25, and 28 under
`
`35 U.S.C. § 102(e) as being anticipated by the Lohr patent.
`
`3
`
`(cid:9)
`
`
`Appeal 2008-3454
`Application 10/035,334
`
`ISSUE
`
`The Examiner found that the Lohr patent identically discloses all
`
`elements set forth in the rejected claims.
`
`Appellants urge that the Lohr patent does not disclose (1) a central
`
`pillar extending from the floor to the roof of a vehicle; (2) a seat bottom
`
`directly fixed to a lower rib; and (3) a seat back fixed to an intermediate rib.
`
`The issue joined in this appeal is: have Appellants shown that the
`
`Examiner erred in finding that the Lohr patent discloses the contested claim
`
`elements?
`
`FINDINGS OF FACT
`
`The following enumerated findings of fact (FF) are supported by at
`
`least a preponderance of the evidence. Ethicon, Inc. v. Quigg, 849 F.2d
`
`1422, 1427 (Fed. Cir. 1988) (explaining the general evidentiary standard for
`
`proceedings before the Office).
`
`FF 1. Appellants' Specification and drawings disclose a pillar 11 that
`
`is positioned at the center of two seats, and is preferable positioned along the
`
`centerline of a vehicle. (Specification, 9[9[[0015], [0016]; Figs. 1-3, 6, 7).
`
`FF 2. The Lohr patent discloses a vertical structural support or pillar
`
`11 that is central to two opposing seats that are secured to and supported by
`
`the pillar. (Lohr, Figs. 2 and 8).
`
`FF 3. The central pillar 11 in Lohr is adapted to extend from a floor
`
`to a roof of a vehicle. (Lohr, Figs. 1-6, note that full height of pillar not
`
`illustrated).
`
`4
`
`
`
`Appeal 2008-3454
`Application 10/035,334
`
`PRINCIPLES OF LAW
`
`During examination of a patent application, pending claims are given
`
`their broadest reasonable construction consistent with the specification. In
`
`re Prater, 415 F.2d 1393, 1404-05 (CCPA 1969); In re Am. Acad. of Sci.
`
`Tech Ctr., 367 F.3d 1359, 1364 (Fed. Cir. 2004).
`
`Anticipation under 35 U.S.C. Section 102(e) requires that "each and
`
`every element as set forth in the claim is found, either expressly or
`
`inherently described, in a single prior art reference." Verdegaal Bros., Inc.
`
`v. Union Oil Co., 814 F.2d 628, 631 (Fed. Cir. 1987).
`
`ANALYSIS
`
`Appellants argue for the separate patentability of each of claims 1, 6,
`
`7, 8, 10, and 12. (Appeal Br. 8-15). Claims 25 and 28 are presented under
`
`separate headings as well, and Appellants expressly rely solely on the
`
`arguments presented for claim 1 for the patentability of these claims.
`
`(Appeal Br. 15).
`
`Claim 1
`
`The Examiner cites to the Lohr patent as disclosing a central pillar
`
`(11), a center support (7) extending forwardly therefrom, a lower rib (5)
`
`extending laterally from the center support, an intermediate rib (5) extending
`
`laterally from the central pillar, and a seat bottom (9) and seat back (8)
`
`supported by the ribs. (Answer 3). The Examiner further finds that the seat
`
`bottom includes frame members (3, 4) and that the seat back includes frame
`
`members (4, 6). (Answer 5). Appellants counter that the Lohr patent does
`
`not disclose a central pillar, a seat bottom directly fixed to a lower rib, or a
`
`seat back fixed to an intermediate rib. (Appeal Br. 8).
`
`5
`
`
`
`Appeal 2008-3454
`Application 10/035,334
`
`Claim 1 does not positively recite a vehicle as a claim element, giving
`
`rise to a question as to what the claimed "central pillar" is central to. The
`
`written record in this case has mainly treated the term "central" as being
`
`directed to the intended position of the pillar relative to a vehicle in which it
`
`is to be installed. (See, e.g., Appeal Br. 9-10; Answer 4). Appellants
`
`additionally contend that the term "central pillar" is to be interpreted as a
`
`pillar being at the center of a pair of seats that are to be supported by the
`
`pillar. (Record of Oral Hearing, p. 3, 1. 25-p. 4, 1. 8). The Specification and
`
`associated drawings support both interpretations. (FF 1). Since claim 1
`
`does not include the presence of a vehicle, it is reasonable and consistent
`
`with the Specification to interpret the central pillar element as requiring the
`
`pillar to be positioned at the center of a pair of seats.
`
`The Lohr patent discloses a vertical support or pillar 11 that is central
`
`to two opposing seats that are supported by the pillar. (FF 2). The pillar is
`
`adapted to extend between the floor and the roof of a vehicle. (FF 3).
`
`Accordingly, Appellants have not persuaded us that the Lohr patent fails to
`
`disclose the claim element directed to the provision of a central pillar.
`
`The Examiner takes the position that the seat back in Lohr is made up
`
`of the seating element 8, together with the vertically extending portions of
`
`frame members 3, 4 (identified in Answer as 4, 6), and that this seat back is
`
`fixed to and supported by an intermediate rib 5. (Answer 5). This is a
`
`reasonable interpretation of the teachings of Lohr, and, given the relative
`
`lack of structural limitations imposed on the claimed seat back in claim 1,
`
`we are not persuaded that the Examiner erred in finding that the Lohr patent
`
`contains structure that reads on the claimed seat back.
`
`6
`
`
`
`Appeal 2008-3454
`Application 10/035,334
`
`The Examiner employs similar reasoning in finding that the seat
`
`bottom of Lohr is made up of seating element 9 and the horizontally
`
`extending portions of frame members 3, 4, and that the seat bottom is
`
`directly fixed to and supported by lower rib 5. (Answer 5). This again is a
`
`reasonable interpretation of the teachings of Lohr, and we are not persuaded
`
`that the Examiner erred in finding that the Lohr patent discloses the claimed
`
`seat bottom.
`
`Notwithstanding the reasonableness of the Examiner's findings with
`
`respect to the seat back and seat bottom, the rejection of claim 1 as being
`
`anticipated by the Lohr disclosure is flawed. The Examiner finds that the
`
`horizontally extending portions of frame members 3, 4, also identified more
`
`specifically by reference numeral 7, not only constitute part of the seat
`
`bottom, but also constitute the structure in Lohr that reads on the claimed
`
`"center support extending forwardly from [the] central pillar". (Answer 3).
`
`Consistent with the principle that all limitations in a claim must be
`
`considered to be meaningful, it is improper to rely on the same structure in
`
`the Lohr reference as being responsive to two different elements (seat
`
`bottom and center support) in claim 1. See, Lantech, Inc. v. Keip Machine
`
`Co., 32 F.3d 542 (Fed. Cir. 1994)(in infringement context, a single conveyor
`
`held to not meet claim element requiring at least two conveyors); In re
`
`Robertson, 169 F.3d 743 (Fed. Cir. 1999)(claim requiring three separate
`
`means not anticipated by structure containing two means where one of the
`
`two means was argued to meet two of the three claimed means). The
`
`rejection of claim 1 as being anticipated by the Lohr patent thus can not be
`
`sustained.
`
`7
`
`
`
`Appeal 2008-3454
`Application 10/035,334
`
`Claims 6-8, 10, and 12 depend from claim 1, and the rejection of those
`
`claims under 35 U.S.C. § 102(e) will also not be sustained.
`
`Claim 25
`
`Independent claim 25 is identical in most respects to claim 1. Claim
`
`25, however, does not require that the seat bottom be directly fixed to the
`
`lower rib, and, more significantly, does not call for the provision of a center
`
`support extending forwardly from the central pillar. Appellants contend that
`
`the rejection is in error for the same reasons presented with respect to claim
`
`1. (Appeal Br. 15).
`
`As can be seen from the above discussion of claim 1 and the structure
`
`disclosed in the Lohr patent, the sole error that exists in the rejection of that
`
`claim is the designation of elements 7 of Lohr as being both (1) components
`
`of the seat bottom, and (2) the structure alleged to constitute the claimed
`
`center support. Claim 25 does not require such a center support, therefore
`
`this source of potential error is not present in the rejection of this claim. For
`
`the same reasons as expressed in the analysis of claim 1 above, Appellants
`
`have not persuaded us that the Examiner's anticipation rejection is otherwise
`
`in error. The rejection of claim 25 will be sustained.
`
`Claim 28
`
`Independent claim 28 is also identical in most respects to claim 1
`
`This claim calls for a "pillar" instead of the "central pillar" set forth in claim
`
`1, and recites that the seat bottom is "fixed", rather than "directly fixed" to
`
`the lower rib.
`
`8
`
`
`
`Appeal 2008-3454
`Application 10/035,334
`
`The finding of anticipation of this claim relies on the same erroneous
`
`interpretation of the Lohr patent as does the finding with respect to claim 1.
`
`Namely, in order to reach the alleged anticipation of this claim, the
`
`horizontally extending portions of frame members 7 not only must constitute
`
`part of the seat bottom, but also must constitute the structure in Lohr that
`
`reads on the claimed "center support extending forwardly from [the] pillar".
`
`We will not sustain the rejection of claim 28 under 35 U.S.C.
`
`§ 102(e).
`
`CONCLUSION
`
`Appellants have established that reversible error exists in the rejection
`
`of claims 1, 6-8, 10, 12, and 28 under 35 U.S.C. § 102(e). Appellants have
`
`not established that reversible error exists in the rejection of claim 25 under
`
`35 U.S.C. § 102(e).
`
`ORDER
`
`The decision of the Examiner to reject claims 1, 6-8, 10, 12, and 28 is
`
`REVERSED. The decision of the Examiner to reject claim 25 is
`
`AFFIRMED.
`
`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) (2007).
`
`AFFIRMED-IN-PART
`
`vsh
`
`9
`
`
`
`Appeal 2008-3454
`Application 10/035,334
`
`WESTERMAN, HATTORI, DANIELS & ADRIAN, LLP
`1250 CONNECTICUT AVENUE, NW
`SUITE 700
`WASHINGTON, D.C. 20036
`
`
Accessing this document will incur an additional charge of $.
After purchase, you can access this document again without charge.
Accept $ Charge
Still Working On It
This document is taking longer than usual to download. This can happen if we need to contact the court directly to obtain the document and their servers are running slowly.
Give it another minute or two to complete, and then try the refresh button.
A few More Minutes ... Still Working
It can take up to 5 minutes for us to download a document if the court servers are running slowly.
Thank you for your continued patience.
This document could not be displayed.
We could not find this document within its docket. Please go back to the docket page and check the link. If that does not work, go back to the docket and refresh it to pull the newest information.
Your account does not support viewing this document.
You need a Paid Account to view this document. Click here to change your account type.
Your account does not support viewing this document.
Set your membership
status to view this document.
With a Docket Alarm membership, you'll
get a whole lot more, including:
- Up-to-date information for this case.
- Email alerts whenever there is an update.
- Full text search for other cases.
- Get email alerts whenever a new case matches your search.
One Moment Please
The filing “” is large (MB) and is being downloaded.
Please refresh this page in a few minutes to see if the filing has been downloaded. The filing will also be emailed to you when the download completes.
Your document is on its way!
If you do not receive the document in five minutes, contact support at support@docketalarm.com.
Sealed Document
We are unable to display this document, it may be under a court ordered seal.
If you have proper credentials to access the file, you may proceed directly to the court's system using your government issued username and password.
Access Government Site
