APPLICATION NO. FILING DATE FIRST NAMED INVENTOR ATTORNEY DOCKET NO. CONFIRMATION NO. 95/002,355 09/14/

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1 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 APPLICATION NO. FILING DATE FIRST NAMED INVENTOR ATTORNEY DOCKET NO. CONFIRMATION NO. 95/002,355 09/14/ /25/2014 Baker & Hostetler LLP CIRA CENTRE, 12TH FLOOR 2929 ARCH STREET PHILADELPHIA, PA EXAMINER ENGLISH, PETER C ART UNIT PAPER NUMBER 3993 MAIL DATE DELIVERY MODE 08/25/2014 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)

2 UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD PRIDE MOBILITY PRODUCTS CORPORATION Patent Owner/Appellant v. PERMOBIL, INC. Requester/Respondent Appeal Reexamination Control 95/002,355 US Patent No. 8,181,992 1 Technology Center 3900 Before: JAMES T. MOORE, DANIEL S. SONG, and BRETT C. MARTIN, Administrative Patent Judges. MARTIN, Administrative Patent Judge. DECISION ON APPEAL 1 Issued to Mulhern et al. on May 22, 2012 (hereinafter referred to as the "'992 patent").

3 STATEMENT OF THE CASE Patent Owner/Appellant appeals under 35 U.S.C. 134(b) and 315(a) from the Examiner s rejection of claims We have jurisdiction under 35 U.S.C. 134(b) and 315(a). Oral arguments occurred on July 9, 2014, a written transcript of which will be entered into the electronic record in due course. We are informed that the '992 patent is involved in a litigation styled Pride Mobility Products Corp. v. Permobil, Inc. (E.D. Penn) Civil Action No. 12-cv-03931, which is presently stayed. App. Br. 1. We are further informed that a petition for inter partes review of U.S. Patent No. 8,408,598, which is a continuation of the '992 patent, is also pending. We REVERSE. THE INVENTION Appellant s invention "relates to active anti-tip systems for powered vehicles, such as powered wheelchairs, and, more particularly, to a linkage arrangement for providing improved curb-climbing capability and/or pitch stability." Spec., col. 1, ll Claim 1, reproduced below, is illustrative of the claimed subject matter: 1. A powered vehicle comprising: a frame; a seat mounted on the frame; a pair of drive wheels positioned on opposing sides of the frame; a drive motor assembly operatively coupled to at least one of the drive wheels for powering rotation of the drive wheel about a drive wheel axis and for powering movement of the vehicle across a ground plane; 2

4 at least one anti-tip assembly comprising a suspension arm pivotably mounted to the frame at a suspension arm pivot axis, said suspension arm extending from said suspension arm pivot axis outwardly from the frame, said suspension arm pivot axis vertically spaced above the ground plane, and an anti-tip wheel having a rotational axis about which the anti-tip wheel rotates, said anti-tip wheel disposed on the extended suspension arm, the vertical position of the suspension arm pivot axis with respect to the ground plane in normal operation being spaced from and positioned relatively below a line drawn between the drive wheel axis and the rotational axis of the anti-tip wheel; and a resilient link operatively connecting the drive motor assembly to the suspension arm, wherein, in response to torque created by the motor in rotating the drive wheel, the drive motor assembly pivots and causes, through the operative connection of the resilient link, the suspension arm to pivot about the suspension arm pivot axis, and a responding vertical movement of the anti-tip wheel. appeal is: Dickie Schaffner Clark REFERENCES The prior art relied upon by the Examiner in rejecting the claims on US 6,070,898 US 6,129,165 CA Jun. 6, 2000 Oct. 10, 2000 Nov. 11, 1998 THE REJECTIONS ON APPEAL The Examiner made the following rejections that are under appeal: 1. Claims 17 and 18 stand rejected under 35 U.S.C. 103(a) as being unpatentable over Schaffner. RAN 12. 3

5 2. Claims stand rejected under 35 U.S.C. 103(a) as being unpatentable over Schaffner and Clark. RAN Claim 21 stands rejected under 35 U.S.C. 103(a) as being unpatentable over Schaffner, Clark, and Dickie. RAN 29. ANALYSIS Obviousness over Schaffner Patent Owner argues that the Examiner erred in modifying Schaffner to meet the language of independent claim 17 because the Examiner failed to account for how movement of the tip wheel as suggested would affect other components. App. Br. 6. Patent Owner further argues that even accepting the Examiner's proposed modification, one of skill in the art would not have been motivated to modify Schaffner's suspension arm by moving it upward 15 degrees. App. Br. 9. We agree with the Patent Owner and reverse the Examiner regarding claims 17 and 18 as unpatentable over Schaffner. As Patent Owner points out, in modifying Schaffner to meet claim 17, the Examiner overlooks the linkages that are connected to the pivot arm. App. Br. 6. While the Examiner correctly finds that Schaffner teaches adjustability of the anti-tip wheels (RAN 14, citing Schaffner col. 26, ll ), Patent Owner correctly shows that the Examiner accomplishes this by shortening link 268 in the modified version of Fig. 27. App. Br. 15. Thus, the Examiner has additionally modified Schaffner beyond the teachings provided in Schaffner without explanation as to the proposed shortening of 4

6 link 268 and without acknowledgement of the effect adjustment without shortening would have on the rest of the suspension. 2 In addition, Patent Owner notes that the Examiner's proposed modification results in an anti-tip wheel that is as much as four inches above the ground. App. Br. 10. Patent Owner asserts that an acceptable distance for anti-tip wheels is one half to no more than one and a half inches off the ground and preferably on the lower end of that range. App. Br. 9. We are persuaded that modifying Schaffner's tip wheels to meet the claim language would result in a tip wheel too far off the ground to achieve its desired purpose and also one that would result in a potentially unsafe wheelchair, a point that neither the Examiner nor the Requester adequately addresses. Thus, one would not have been motivated to make the Examiner's proposed modification. Accordingly, we reverse the Examiner's decision to reject claims 17 and 18 as unpatentable over Schaffner. Obviousness over Schaffner and Clark The combination of Schaffner and Clark suffers similar issues relating to Schaffner as discussed supra in that the Examiner's proposed modification would result in a tip-wheel that is too high to properly function as a safety device. Furthermore, we are persuaded that one of ordinary skill in the art would not have looked to Clark to make the specific modifications proposed by the Examiner. The Examiner finds that "Clark et al. teaches that the vertical position of each suspension pivot arm 80 with respect to the ground 2 Requester asserts that Patent Owner relies on an "erroneous" scaled model in the Mulhern Declaration. Resp. Br. 10. Regardless of the distortions of the figures in Mulhern, Requester does not address the fact that, regardless of degree, adjusting the pivot arm as suggested by the Examiner would result in changes to Schaffner impeding functionality that are not addressed. 5

7 plane in normal operation is spaced from and positioned relatively below a line drawn between the drive wheel axis 51 and the rotational axis of the respective anti-tip wheel 62." RAN 26. The Examiner then goes on to conclude that it would have been obvious "to modify Schaffner et al. by adjusting the height of the anti-tip wheels 42 such that the vertical position of each suspension arm pivot 230 is positioned below a line drawn between the drive wheel axis 24 and the rotational axis of the respective anti-tip wheel 42." Id. This proposed modification overlooks an important difference between Schaffner and Clark, one that is not addressed by the Examiner or the Requester. As pointed out by Patent Owner, "no prior art reference directed to a power wheelchair with a dynamic front suspension situates the pivot point of the motor-coupled front arm below the axis-axis line." Reply Br While Schaffner and Clark are both wheelchairs with anti-tip wheels, Schaffner has a dynamic suspension, whereas Clark's suspension operates in a different manner. As discussed supra, the linkages in Schaffner and the Patent Owner's invention transfer the torque of the motor to help raise the anti-tip wheels to allow the wheelchair to climb obstacles such as curbs and stairs. See id. Clark, however, pivots its pivot arm about a motor housing instead of the frame and does not have the same kind of dynamic suspension that transfers torque to help raise the pivot arm so that we see no reason to incorporate features of Clark's suspension into the dynamic suspension of Schaffner. See Reply Br Thus, we are not convinced that, simply because Clark teaches the claimed "axis-axis relation," that one of ordinary 3 Entitled "Patent Owner's Rebuttal Brief Under 37 C.F.R

8 skill would have looked to Clark to modify Schaffner and we disagree with the Examiner that such a modification amounts to "a relatively minor rearrangement of parts." RAN 27. Accordingly, we do not sustain the Examiner's rejection of claims as unpatentable over Schaffner and Clark. Obviousness over Schaffner, Clark, and Dickie Claim 21 depends from claim 20 and relies on the same deficient combination of Schaffner and Clark. Accordingly, for the same reasons stated above, we do not sustain the Examiner's rejection of claim 21. DECISION For the above reasons, we REVERSE the Examiner s decision to reject claims Requests for extensions of time in this inter partes reexamination proceeding are governed by 37 C.F.R and 41.77(g). In the event neither party files a request for rehearing within the time provided in 37 C.F.R , and this decision becomes final and appealable under 37 C.F.R , a party seeking judicial review must timely serve notice on the Director of the United States Patent and Trademark Office. See 37 C.F.R and REVERSED 7

9 Cu Patent Owner: BAKER & HOSTETLER LLP CIRA CENTRE, 12TH FLOOR 2929 ARCH STREET PHILADELPHIA, PA Third Party: WILMERHALE / DC 1875 PENNSYLVANIA AVE., NW WASHINGTON, DC