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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.
`
`10/879,945
`
`06/28/2004
`
`L. John Koutsky
`
`3574
`
`7234
`
`49224 (cid:9)
`7590 (cid:9)
`09/23/2008
`NIRO, SCAVONE, HALLER & NIRO
`181 W. MADISON
`SUI (cid:9)IL 4600
`CHICAGO, IL 60602
`
`EXAMINER
`
`EPPS, TODD MICHAEL
`
`ART UNIT
`
`PAPER NUMBER
`
`3632
`
`MAIL DATE
`
`DELIVERY MODE
`
`09/23/2008
`
`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 2006
`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 L. JOHN KOUTSKY and COLE T. BRODERSEN
`
`Appeal 2008-0557
`Application 10/879,945
`Technology Center 3600
`
`Decided: September 23, 2008
`
`Before WILLIAM F. PATE III, DAVID B. WALKER, and
`JOSEPH A. FISCHETTI, Administrative Patent Judges.
`
`WILLIAM F. PATE III, Administrative Patent Judge.
`
`DECISION ON APPEAL
`
`STATEMENT OF CASE
`
`This is an appeal from the final rejection of claims 1-7. These are the
`
`only claims in the application.
`
`We have jurisdiction over this appeal under 35 U.S.C. §§ 6 and 134.
`
`

`
`Appeal 2008-0557
`Application 10/879,945
`
`The claimed invention is directed to a vehicle seat suspension wherein
`
`an elongated guide cooperates with a guide engaging member to stabilize the
`
`seat from horizontal movement perpendicular to the direction of travel of the
`
`vehicle.
`
`Claim 1, reproduced below, is further illustrative of the claimed
`
`subject matter.
`
`1: (cid:9)
`
`A vehicle seat suspension apparatus comprising:
`
`a base;
`
`an isolator plate disposes above the base and adapted to
`support a vehicle seat;
`
`means for allowing reciprocating horizontal movement of
`the isolator plate relative to the base, including at least one pair
`of rollers disposed along a horizontal axis and received within
`cooperating horizontally extending tracks;
`
`an elongated guide mounted to one of either the base or
`the isolator and oriented along the travel path of the isolator;
`and
`
`a guide engaging member mounted to the other of the
`base or the isolator and engaging the guide to stabilize the
`isolator as it moves along its travel path.
`
`' The Response dated 9/26/2005 amended claim 1 to include the language
`"including at least one pair of rollers disposed along a horizontal axis and
`received within cooperating horizontally extending tracks", but Appellants'
`CLAIMS APPENDIX does not show claim 1 to include this language.
`Notwithstanding, we use the version of claim 1 which was made of record in
`the Response dated 9/26/2005.
`
`2
`
`

`
`Appeal 2008-0557
`Application 10/879,945
`
`REFERENCES
`
`The references of record relied upon by the examiner as evidence of
`
`anticipation are:
`
`Koutsky (cid:9)
`
`Gauger (cid:9)
`
`4,183,493 (cid:9)
`
`6,105,920 (cid:9)
`
`Jan. 15, 1980
`
`Aug. 22, 2000
`
`REJECTIONS
`
`Claims 1-5 and 7 stand rejected under 35 U.S.C. § 102 as anticipated
`
`by Koutsky.
`
`Claims 1 and 6 stand rejected under 35 U.S.C. § 102 as anticipated by
`Gauger.
`
`ISSUES
`
`The issues for our consideration on appeal are whether the Appellant
`
`has established that the Examiner erred in rejecting claims 1-5 and 7 as
`
`anticipated by Koutsky, and whether the Appellant has established that the
`
`Examiner erred in rejecting claims 1 and 6 as anticipated by Gauger.
`
`FINDINGS OF FACT
`
`Koutsky discloses a base 29 affixed to the floor of a vehicle. See
`
`column 3, lines 5-10. Koutsky further discloses an isolator plate--lower
`
`member 44--connected to the seat bottom. See column 3, lines 26-33.
`
`Koutsky also discloses guide rails 31 having upper flange portions 32,
`
`wherein a plurality of roller structures 49 equipped with grooves 57 roll on
`
`the upper flange 32. See column 3, lines 12-16 and column 3, lines 54-67.
`
`3
`
`

`
`Appeal 2008-0557
`Application 10/879,945
`
`The Examiner states that elongated guide 31 and guide engaging
`
`member 56 are structures that stabilize the isolator 44 from horizontal
`
`movement perpendicular to the isolator travel path. Answer 4:19-21.
`
`Gauger discloses a seat adjuster for a vehicle seat. The Examiner
`
`states that Gauger teaches several base members, pointing to members 152,
`
`164 and 112. Answer 5:11. The Examiner further states that an isolator is
`
`provided by members 12 and 14 which are connected to the seat cushion
`
`bottom. The inner and outer rails of Gauger provide a means for allowing
`
`reciprocating horizontal movement of the isolator relative to the base. This
`
`means is comprised of the groove 62, 76, 64 and 78 filled with the polymeric
`
`balls 79. The Examiner further states that the guide means is lead screw 160
`
`and the guide engaging member is 170. Answer 5:18-20.
`
`PRINCIPLES OF LAW
`
`The prior art may anticipate a claimed invention, and thereby render it
`
`non-novel, either expressly or inherently. In re Cruciferous Sprout Litig.,
`
`301 F.3d 1343, 1349 (Fed. Cir. 2002). Express anticipation occurs when the
`
`prior art expressly discloses each limitation (i.e., each element) of a claim.
`
`Id. In addition, "[i]t is well settled that a prior art reference may anticipate
`
`when the claim limitations not expressly found in that reference are
`
`nonetheless inherent in it." Id.
`
`When a claim requires two separate elements, one element construed
`
`as having two separate functions will not suffice to meet the terms of the
`
`claim. See Lantech Inc. v. Keip Machine Co., 32 F.3d 542, 547 (Fed. Cir.
`
`1994); all limitations in a claim must be considered meaningful. See Perkin-
`
`4
`
`

`
`Appeal 2008-0557
`Application 10/879,945
`
`Elmer Corp. v. Westinghouse Elec. Corp., 822 F.2d 1528, 1532 (Fed. Cir.
`
`1987). See also In re Robertson, 169 F.3d 743, 745 (Claims requiring three
`
`separate means cannot be anticipated by structure that contains only two
`
`means using one element twice).
`
`ANALYSIS
`
`With respect to the rejection based on the Koutsky reference, we note
`
`that the Examiner uses the flange 32 and rollers 56 as a means for allowing
`
`reciprocating horizontal movement of the isolator relative to the base. We
`
`believe that this is a correct interpretation of the disclosure. However, the
`
`Examiner uses the same means 56 and guide rail 34 as the elongated guide
`
`and guide engaging member. Thus, the Examiner has used the same element
`
`or structure in the Koutsky reference to satisfy two different limitations from
`
`the claimed subject matter. However, when a claim requires two separate
`
`elements using one element construed as performing two separate functions
`
`will not suffice to meet the terms of the claim. Accordingly, it is our finding
`
`that Koutsky does not anticipate the claimed subject matter on appeal.
`
`Turning to Gauger, the Examiner has identified lead screw 160 as the
`
`guide means. However, the function of lead screw 160 as it is rotated by
`
`motor 150 and transmission 154 is to cooperate with the traveling nut 178 in
`
`holder 170 to drive the two outer tracks to vary the horizontal position of the
`
`vehicle seat. In our view, it is unlikely that the lead screw and traveling nut
`
`provides any stabilizing function. In the event the Examiner is of the
`
`opinion that the lead screw and traveling nut inherently provides some
`
`stabilizing function, we note that inherency cannot be established based on
`
`5
`
`

`
`Appeal 2008-0557
`Application 10/879,945
`
`the mere possibility of satisfying the claimed relationship. Inherency can
`
`only be established when the claimed relationship is necessarily present in
`
`the reference. Thus, in our view, Gauger fails to anticipate claims 1 or 6.
`
`Inasmuch as the Examiner has failed to establish the lack of novelty of
`
`the claimed subject matter, we are constrained to reverse the rejections of all
`
`of the claims on appeal.
`
`CONCLUSION
`
`The rejections of all of the claims on appeal are reversed.
`
`REVERSED
`
`vsh
`
`NIRO, SCAVONE, HALLER & NIRO
`181 W. MADISON
`SUITE 4600
`CHICAGO IL 60602
`
`6

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