Appeal Number: 2006-3291
Application Number: 10/178,845
Datamize, LLC v. Plumtree Software, Inc., 417 F.3d 1342, 75 USPQ2d 1801 (Fed.
Cir. 2005).
The remaining claims under this rejection depend from claim 1 and therefore
incorporate the same indefiniteness. Claims 21 and 23 provide an objective
measurement for the height, and therefore do not share this indefiniteness.
REMARKS
If prosecution continues, the examiner should consider whether the open ended
transition “comprising” in claim 1, admits of a construction in which Davis’s lower
back portion, excluding the sacral counter pressure pad, reads on the claimed
concavity, with the sacral counter pressure pad being an additional feature of Davis
mounted within the concavity. Under such a construction, no part of such a
concavity would touch the user because the sacral counter pressure pad would not
be part of the concavity.
DECISION
To summarize, our decision is as follows:
• The rejection of claims 1, 4 and 24 under 35 U.S.C. § 102(b) as anticipated
by Davis is sustained.
• The rejection of claim 2 under 35 U.S.C. § 103(a) as obvious over Davis and
MacKenzie is sustained.
• The rejection of claims 5-8 and 11-13 under 35 U.S.C. § 103(a) as obvious
over Davis and Vento is sustained.
• The rejection of claim 9 under 35 U.S.C. § 103(a) as obvious over Davis,
Vento and Izumida is sustained.
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