CABELA'S LLC

Patent Trials and Appeals Board

Mar 10, 2021

2020004906 (P.T.A.B. Mar. 10, 2021)

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 22313-1450
www.uspto.gov
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR ATTORNEY DOCKET NO. CONFIRMATION NO.
14/818,154 08/04/2015 LUCAS HUMPHREYS 18580-000564-US 2417
28997 7590 03/10/2021
Harness Dickey (St. Louis)
7700 Bonhomme, Suite 400
St. Louis, MO 63105
EXAMINER
THEIS, MATTHEW T
ART UNIT PAPER NUMBER
3734
NOTIFICATION DATE DELIVERY MODE
03/10/2021 ELECTRONIC
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.
Notice of the Office communication was sent electronically on above-indicated "Notification Date" to the
following e-mail address(es):
bkamer@hdp.com
stldocket@hdp.com
PTOL-90A (Rev. 04/07)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________

Ex parte LUCAS HUMPHREYS,
RYAN SHUTTS, and
LAURENCE ROBINSON

Appeal 2020-004906
Application 14/818,154
Technology Center 3700
____________

Before CHARLES N. GREENHUT, MICHAEL L. HOELTER, and
JEREMY M. PLENZLER, Administrative Patent Judges.

HOELTER, Administrative Patent Judge.

DECISION ON APPEAL

STATEMENT OF THE CASE
Pursuant to 35 U.S.C. § 134(a), Appellant1 appeals from the
Examiner’s decision to reject claims 1, 3, 4, 6–8, 11, 12, 14, 15, and 21–25,
which constitute all the claims pending in this application. See Appeal Br. 3.
We have jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM the Examiner’s rejections of these claims.

1 We use the word “Appellant” to refer to “applicant” as defined in
37 C.F.R. § 1.42. Appellant identifies the real party in interest as “Cabela’s
LLC.” Appeal Br. 3.
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CLAIMED SUBJECT MATTER
The disclosed subject matter “relates to frames for backpacks, and in
particular to a backpack frame having an improved tubular frame
configuration.” Spec. ¶ 1. Apparatus claims 1, 8, and 25 are independent.
Claim 1 is illustrative of the claims on appeal and is reproduced below.
1. A backpack, comprising:
a shoulder strap assembly including a right shoulder strap
and a left shoulder strap;
a hip belt; and
a frame, the frame comprising:
an upper cross member having a first end and a
second end and wherein the shoulder strap assembly is coupled
to the upper cross member,
a lower cross member offset vertically from the
upper cross member and having a third end and a fourth end,
a first rail set having a first rail and a second rail,
the first rail being fixed to the upper cross member at the first
end and the lower cross member inwards of the third end, the
second rail fixed to the upper cross member inwards from the
first end and the lower cross member at the third end, and the
first rail and the second rail abut and are not fixed to one
another along a portion vertically between the upper cross
member and the lower cross member, and
a second rail set having a third rail and a fourth
rail, the third rail being fixed to the upper cross member at the
second end and the lower cross member inwards of the fourth
end between a point of connection of the first rail to the lower
cross member and the fourth end of the lower cross member,
the fourth rail fixed to the upper cross member inwards from
the second end between a point of connection of the second rail
to the upper cross member and the second end of the upper
cross member and the lower cross member at the fourth end,
and the third rail and the fourth rail abut and are not fixed to
one another along a portion vertically between the upper cross
member and the lower cross member,
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wherein the first rail set, including the first rail and the
second rail, and the second rail set, including the third rail and
the fourth rail, are each disposed on opposite sides of a central
longitudinal axis of the frame bisecting the frame when the
frame is viewed from the front, such that the first rail set and
the second rail set do not overlap with each other,
wherein the frame, including the first rail set and the
second rail set, comprises a frame material that provides
structural support to the backpack, and
wherein at least one of the first rail, the second rail, the
third rail, and the fourth rail is hollow.
EVIDENCE
Name Reference Date
Chu US 4,135,654 Jan. 23, 1979
Wilkes US 4,369,903 Jan. 25, 1983
Gleason US 5,904,282 May 18, 1999
Araujo et al. (“Araujo”) US 2010/0176171 A1 July 15, 2010
Asbjorn FR 812,614 A Oct. 29, 1936
REJECTIONS
Claims 1, 3, 4, 8, 11, 12, and 21–23 are rejected under 35 U.S.C.
§ 103 as unpatentable over Asbjorn, Araujo, and Wilkes.
Claims 6 and 14 are rejected under 35 U.S.C. § 103 as unpatentable
over Asbjorn, Araujo, Wilkes, and Gleason.
Claims 7, 15, and 24 are rejected under 35 U.S.C. § 103 as
unpatentable over Asbjorn, Araujo, Wilkes, and Chu.
Claim 25 is rejected under 35 U.S.C. § 103 as unpatentable over
Asbjorn and Araujo.
Alternatively, claim 25 is rejected under 35 U.S.C. § 103 as
unpatentable over Asbjorn, Araujo, and Gleason.
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ANALYSIS
The rejection of claims 1, 3, 4, 8, 11, 12, and 21–23
as unpatentable over Asbjorn, Araujo, and Wilkes
Appellant presents arguments regarding independent claim 1, and
does not separately argue the rejection of claims 3, 4, 8, 11, 12, and 21–23.
See Appeal Br. 12–18. We select claim 1 for review, with the remaining
claims standing or falling therewith. See 37 C.F.R. § 41.37(c)(1)(iv) (2019).
The Examiner primarily relies upon Asbjorn2 for teaching many of the
limitations of claim 1, including the limitation of “a frame material that
provides structural support to the backpack.” See Final Act. 2–3. However,
the Examiner acknowledges that “Asbjorn does not disclose a hip belt,” or
that at least one rail “is hollow,” as also recited. Final Act. 3. The Examiner
relies on Araujo and Wilkes (respectively) for these missing limitations, and
explains why they are combined with Asbjorn. See Final Act. 4.
The claim limitation in question recites “wherein the frame, including
the first rail set and the second rail set, comprises a frame material that
provides structural support to the backpack.” The Examiner correlates
Asbjorn’s items 2 and 17 as corresponding to the recited rail sets of the
frame that provides the requisite support. See Final Act. 2, 3. Asbjorn
describes item 2 as a “frame” and items 17 as “reinforcing strips.” Asbjorn
2, 3.3 Regarding the use of Asbjorn’s reinforcing strips 17 as a frame
material providing backpack support, the Examiner states, “the stiffening
material . . . will provide some degree of structural support to the backpack.”

2 We rely upon the “machine-generated” translation supplied by the
Examiner along with the Non-Final Office Action dated January 26, 2018.
3 The English language translation of Asbjorn lacks line or paragraph
numbering. We thus cite to Asbjorn via page number only.
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Final Act. 3; see also Ans. 12 (“Reinforcing strips by nature add
reinforcement to a portion of the backpack to which they are applied.”).
This is consistent with Asbjorn’s disclosure that the reinforcing strips 17
“are used for longitudinal strengthening.” Asbjorn 3.
Appellant disputes that Asbjorn’s reinforcing strips 17 comprise the
recited frame material. See Appeal Br. 12–15; see also Reply Br. 2.
Appellant points out that Asbjorn teaches that reinforcing strips 17 “are
‘sewn to the material constituting the bag . . . ,’” and as such “do not
comprise ‘a frame material that provides’” the requisite support. Appeal Br.
13; see also Reply Br. 2 (a skilled person “would not understand the
reinforcing strips 17 in Asbjorn to be a frame”). However, despite these
contentions concerning reinforcing strips 17 being sewn to the bag,
paragraph 24 of Appellant’s Specification states that a skilled person would
appreciate that the recited frame “may instead be incorporated into an
internal frame backpack.” As such, Appellant’s Specification, unlike
Appellant’s contentions above, acknowledges that the frame may actually be
part of the bag. Thus, Appellant’s attempt to distinguish Asbjorn by noting
that Asbjorn’s reinforcing strips are sewn to the bag is not persuasive of
Examiner error when Appellant’s own Specification allows same.
Appellant also contends that the “terms ‘rail’ and ‘frame’ taken
together . . . can only mean to have structural rigidity that provides structural
support and shape to the material mounted on it.” Appeal Br. 13
(referencing Spec. ¶¶ 5, 10, 23, 26, 28–30). However, it is not clear how
Asbjorn’s reinforcing strips 17, which provide “longitudinal strengthening,”
fail to provide “some degree of structural support to the backpack” as
expressed by the Examiner. Asbjorn 3; Final Act. 3; see also Ans. 13.
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Appellant further contends that “[o]ne of ordinary skill in the art
would not consider the reinforcing strips 17 of Asbjorn to be a frame or rails
that support a backpack” and that a skilled person “would never confuse the
claimed frame/rails with the ‘reinforcing strips’ of Asbjorn.” Appeal Br. 13,
14; see also Reply Br. 2. As support, Appellant proffers several ordinary
dictionary definitions of the claim terms “frame” and “rail.” See Appeal Br.
14. Appellant provides emphasis to such definitions of “frame” as a
“structure that gives shape or strength” and a “structure made for admitting,
enclosing, or supporting something.”4 Appeal Br. 14. Regarding “rail,”
Appellant emphasizes the definition as “a structural member or support.”5
Appeal Br. 14. However, even employing the above dictionary definitions,
which are consistent with Appellant’s Specification,6 it is not made clear
how Asbjorn’s reinforcing strips 17, which are specifically described as
“used for longitudinal strengthening,” fail to meet or satisfy the above
criteria.7 Asbjorn 3.
Appellant also contends that “[t]he Examiner has not identified these
features of claim 1 in any of the cited prior art references.” Appeal Br. 15.
This contention is negated by the Examiner specifically referencing
Asbjorn’s items 2 and 17 as corresponding to the rails/rail sets of the recited

4 Referencing “Merriam Webster’s Dictionary.” Appeal Br. 14.
5 Referencing “Merriam Webster’s Dictionary.” Appeal Br. 14.
6 Appellant’s Specification states, “[t]he frame 12 may be made of a
lightweight but strong material, or combination of materials.” Spec. ¶ 25;
see also Spec. ¶¶ 3 (describing a frame “made of a rigid material”), 5
(describing the frame and rail as providing strength).
7 As noted above, the definitions proffered by Appellant are ordinary
dictionary definitions–Appellant does not direct us to any art-specific
definition, should any exist.
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frame. See Final Act. 2–3; see also Ans. 13. Appellant further recites
several limitations from claim 1 stating that “[t]he Examiner has not
identified these features of claim 1” as well. Appeal Br. 15. This listing of
claim limitations, with a naked assertion that these elements are not found in
the prior art, without more, is not persuasive of Examiner error. See In re
Lovin, 652 F.3d 1349, 1357 (Fed. Cir. 2011). In other words, “[a] skeletal
‘argument’, really nothing more than an assertion, does not preserve a claim
. . . . Judges are not like pigs, hunting for truffles buried in briefs.” U.S. v.
Dunkel, 927 F.2d 955, 956 (7th Cir. 1991).
Addressing Wilkes, Appellant contends that the Examiner’s reliance
on Wilkes for teaching the “hollow” limitation is improper because “Wilkes
teaches away from Asbjorn.” Appeal Br. 16. However, rather than dispute
Wilkes’ disclosure of a frame made “from lightweight tubing” (Wilkes
3:17–20), Appellant, instead, addresses how Wilkes distributes the load
upon the user. See Appeal Br. 16 (“Wilkes. . . ‘includes structure for
transferring a substantial portion of the vertical load component to a
position at the hip area of a wearer which is well below the load’s center of
gravity.’”). Even if true, Appellant is not rebutting the Examiner’s rejection,
which relies on Wilkes for disclosing hollow tubing, not for how a load may
be transferred to a user. See Final Act. 4; see also Ans. 14.
Addressing Araujo, Appellant contends, “Araujo teaches away from
Wilkes and teaches away from the present patent application because Araujo
directs one skilled in the art not to use [a] hollow frame member.” Appellant
argues that “Araujo discloses using a frame member with an outer rod 202
shaped to accommodate an inner rod (e.g., 204, 205 and 206) therein.”
Appeal Br. 17. As such, “modifying Araujo in the manner suggested by . . .
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Wilkes would forego the benefits taught by Araujo, thereby teaching away
from the combination.” Appeal Br. 17. However, the Examiner relied on
Araujo for teaching use of a hip belt, not for how Araujo may have
constructed a frame member. See Final Act. 4; see also Ans. 15. Further,
the Examiner is not modifying Araujo’s frame, as surmised by Appellant
above, but Asbjorn’s frame. See Final Act. 4.
Appellant also alleges the Examiner relied on “impermissible
hindsight based on Appellant’s own specification.” Appeal Br. 17.
However, Appellant does not indicate that which the Examiner gleaned
solely from Appellant’s Specification, rather than being based upon cited art
or reasons provided by the Examiner for their combination.
Accordingly, in view of the record presented, we are not apprised of
Examiner error in relying on the combination of Asbjorn, Araujo, and
Wilkes as evincing that the subject matter of claims 1, 3, 4, 8, 11, 12, and
21–23 would have been obvious based upon the reasons provided. We
sustain their rejection.
The rejection of claims 6 and 14
as unpatentable over Asbjorn, Araujo, Wilkes, and Gleason
Appellant argues claims 6 and 14 together. We select claim 6 for
review with claim 14 standing or falling with claim 6.
Claim 6 depends from claim 1 and further recites “an extensible
member . . . configured to extend in a vertical direction.” The Examiner
relies on Gleason, and particularly “extensible member (30),” as disclosing
this limitation. Final Act. 6; see also Ans. 16. Appellant does not dispute
that Gleason identifies item 30 as an “extension tube.” Gleason 4:14.
Instead, Appellant addresses how Gleason’s frame “transfers the load out to
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the sides of the hips” and as such, “combining Gleason with Asbjorn would
clearly frustrate the purpose of Asbjorn.” Appeal Br. 19; see also Reply Br.
3 (“the purposes of . . . Gleason and Asbjorn were different”). Appellant
does not make clear how the manner by which Gleason directs the load to
the user’s hips precludes or frustrates Gleason’s extension tube 30 from
being combined with the teachings of Asbjorn, Araujo, and Wilkes. In other
words, Appellant is not rebutting the Examiner’s rejection, or otherwise
addressing Gleason for the reason this reference was employed. We sustain
the Examiner’s rejection of claims 6 and 14.
The rejection of claims 7, 15, and 24
as unpatentable over Asbjorn, Araujo, Wilkes, and Chu
Appellant does not present a separate argument for this rejection, but
instead, contends that “Chu . . . is not capable of curing the deficiencies
noted above.” Appeal Br. 20. As we are not persuaded of any deficiencies
above, we sustain the Examiner’s rejection of claims 7, 15, and 24.
The rejections of claim 25 as unpatentable over (a) Asbjorn and Araujo;
and, alternatively, (b) Asbjorn, Araujo, and Gleason
Claim 25 is similar to claim 1, but includes the additional limitation of
lower and upper cross members “configured to extend in . . . a lateral
direction, which is a direction toward (forward) and away from (aft) a user
when the backpack is worn.” In the rejection involving only Asbjorn and
Araujo, the Examiner identifies items 8 and 8’ as comprising the recited
“upper cross member.” Final Act. 8; Ans. 16. The Examiner finds that this
upper cross member extends in “a lateral direction (to the degree that a width
dimension of the support portions extends in the direction).” Final Act. 9.
In the Examiner’s Answer, the Examiner alters this basis by now addressing
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the “curvature demonstrated in Fig. 1.” Ans. 16. Both bases expressed by
the Examiner are problematic. Addressing the former, the Examiner is
relying on the width dimensions of items 8 and 8’ as evidence that the upper
cross member satisfies this extending in “a direction toward (forward) and
away from (aft) a user” limitation. However, relying upon an item’s
thickness, and not the direction in which it extends, is not considered a
teaching of the above limitation. Addressing, now, the latter basis which
relies on a curvature shown in Figure 1 of Asbjorn, any curvature toward or
away from the user of members 8 or 8’ in this figure is not readily apparent
since members 8 and 8’ appear, instead, to extend parallel to the user. Thus,
it is not clear that one skilled in the art could reasonably derive this forward-
and-aft limitation from an inspection of this figure. We have been instructed
that drawings may be used as prior art, but only if the prior art features are
clearly disclosed by the drawing. See, e.g., In re Wagner, 63 F.2d 987, 988
(CCPA 1933). That does not appear to be the case here. Accordingly, we
do not sustain the Examiner’s rejection of claim 25 premised upon the
teachings of Asbjorn and Araujo.
However, the alternate rejection of claim 25 involves Asbjorn, Araujo,
and Gleason, and the Examiner references Gleason’s upper and lower cross
members 22 and 26 as disclosing this limitation. See Final Act. 10; see also
Ans. 17. Regarding upper cross member 22, Gleason teaches that it is
“angled downwardly and somewhat rearwardly, away from the head of hiker
12.” Gleason 3:52–55; see also Ans. 17. Regarding lower cross member 26,
Gleason teaches that “lower crossbar 26 bows rearwardly.” Gleason 3:64.
Appellant does not dispute these clear teachings of the orientations of these
cross members. Instead, Appellant contends that “Gleason . . . transfers the
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load out to the sides of the hips.” Appeal Br. 23; see also Reply Br. 3.
Even if true, Appellant does not explain how the manner by which Gleason
transfers the load onto the user undermines Gleason’s ability to teach cross
members that extend laterally toward and away from the user, as recited.
Accordingly, and based on the record presented, we sustain the
Examiner’s rejection of claim 25 as being obvious over Asbjorn, Araujo, and
Gleason.
CONCLUSION
In summary:
Claims
Rejected
35
U.S.C. §
Reference(s)/Basis Affirmed Reversed
1, 3, 4, 8,
11, 12, 21–
23
103 Asbjorn, Araujo,
Wilkes
1, 3, 4, 8, 11,
12, 21–23

6, 14 103 Asbjorn, Araujo,
Wilkes, Gleason
6, 14
7, 15, 24 103 Asbjorn, Araujo,
Wilkes, Chu
7, 15, 24
25 103 Asbjorn, Araujo 25
25 103 Asbjorn, Araujo,
Gleason
25
Overall
Outcome8
1, 3, 4, 6–8,
11, 12, 14,
15, 21–25

8 37 C.F.R. § 41.50(a)(1) states: “The affirmance of the rejection of a claim
on any of the grounds specified constitutes a general affirmance of the
decision of the examiner on that claim.”
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No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a)(1)(iv).
AFFIRMED