by Dennis Crouch
B/E Aerospace v C&D Zodiac (Fed. Cir. 2020)
Commercial aircraft lavatories are always oddly shaped in order provide some amount of functionality while minimizing space usage. B/E’s patent here covers the shape of the bathroom that includes the carve-out for a seat just forward — notice the “s” shape of the wall in the image below. On appeal here the Federal Circuit has affirmed the PTAB obviousness decision. This outcome was easy to guess once I read the court’s opening discussion line: “The technology involved in this appeal is simple.” U.S. Patent Nos. 9,073,641 and 9,440,742.
The claims includes two “recesses” in the wall — you can see these in Figure 2 above.
- an upper recess to receive the inclined seat-back; and
- a lower recess for the back legs (“seat support”)
PTAB found the claimed invention obvious based upon the two prior art references shown below (and note the lower bottom recess):
Neither of the prior art references include the lower recess to support the back legs. However, the PTAB concluded that a skilled artisan would have found it obvious to modify these to include the claimed second recess. The Board concluded that this modification is was a “predictable” modification for solving a known problem — especially when “coupled with common sense.”
The Board was helped-along with its prior art analysis looking at several other contemporary references showing a lower recess. I’ll note here that these contemporary references were not used as “prior art” but rather as information of the level of skill in the art.
On appeal, the Federal Circuit has affirmed finding the second recess “nothing more than the predictable application of known technology . . . because a person of
skill in the art would have applied a variation of the first recess and would have seen the benefit of doing so.” In addition, the court found that it would have been “common sense” to modify the prior art in order to try to save further space.
Here, the Board’s invocation of common sense was properly accompanied by reasoned analysis and evidentiary support. The Board dedicated more than eight pages of analysis to the “second recess” limitation and relied on
Mr. Anderson’s detailed expert testimony. The Board noted Mr. Anderson’s opinion that a “person of ordinary skill in the art would recognize that as a seat is moved further aft the seat support necessarily is also moved further aft.”
Slip Op. The court particularly noted that the simplicity of the technology aided in the conclusion of obviousness.
Here, just like in Perfect Web, the evidence shows that the technology of the claimed invention is simple. The patents relate to contoured walls that “reduce or eliminate the gaps and volumes of space required between lavatory enclosures and adjacent structures.” The missing claim limitation (the “second recess”) involves repetition of an existing element (the “first recess”) until success is achieved.
With regard to the design drawings submitted to identify the level of skill in the art. The Federal Circuit determined that it need not reach the issue of whether they were improperly handled or prohibited by 35 U.S.C. 311(b). Rather, the court held that the PTAB’s obviousness conclusion stands on its own – based upon the two prior art references coupled with the expert testimony.