Appeal No. 2006-0790
Reexamination Control No. 90/005,117
See, e.g., In re Geisler, 116 F.3d 1465, 1470, 43 USPQ2d 1362,
1365 (Fed. Cir. 1997).
It is important to emphasize that Teague expressly teaches
that the bed has two stable positions (operating and storage
5 positions). (FF23; column 1, lines 37-39.) Also, Teague’s gas
springs provide lift assist, just like the gas springs claimed
and described in the appellant’s own patent under reexamination
(column 15, lines 3-28). (FF18.) While Teague’s “springs act
against the force of gravity which moves the bed to its fully
10 closed position” (column 4, lines 5-7),3 there is no declaration
evidence to establish that Teague’s gas spring does not stably
retain the bed in the upright or storage position.
The appellant’s reliance (substitute appeal brief at 8-9)
on In re Dembiczak, 175 F.3d 994, 50 USPQ2d 1614 (Fed. Cir.
15 1999) is misplaced. In In re Dembiczak, the claims recited an
orange, premanufactured decorative bag simulating the general
appearance of the outer surface of a pumpkin having facial
indicia thereon. In re Dembiczak, 175 F.3d at 997, 50 USPQ2d at
3 The appellant refers to Teague column 1, lines 50-51 for
the proposition that “gravity tends to hold the bed in its fully
closed position.” (Reply brief at 3.) We note, however, that
the relied upon disclosure does not relate to Teague’s
counterbalancing mechanism but to other prior art. (Column 1,
lines 46-68.)
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