Cambria County Association for the Blind and Handicapped

Patent Trials and Appeals BoardDec 17, 2021

2021005084 (P.T.A.B. Dec. 17, 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. 16/294,987 03/07/2019 ALLEN GARRETT SMITH 308329-00039 9620 3705 7590 12/17/2021 ECKERT SEAMANS CHERIN & MELLOTT LLC U.S. Steel Tower 600 Grant Street, 44th Floor Pittsburgh, PA 15219 EXAMINER FLANAGAN, BEVERLY MEINDL ART UNIT PAPER NUMBER 3993 NOTIFICATION DATE DELIVERY MODE 12/17/2021 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): ipmail@eckertseamans.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE ____________ BEFORE THE PATENT TRIAL AND APPEAL BOARD ____________ Ex parte ALLEN GARRETT SMITH, FRANK EDWARD HODGE, DAVID JAMES PRASKO, and TIMOTHY JOSEPH WEDDING ____________ Appeal 2021-005084 Application 16/294,987 Patent 9,722,405 B2 Technology Center 3900 ____________ Before MICHELLE R. OSINSKI, JILL D. HILL, and CYNTHIA L. MURPHY, Administrative Patent Judges. OSINSKI, Administrative Patent Judge. DECISION ON APPEAL STATEMENT OF THE CASE The above-identified application seeks reissue of US 9,722,405 B2. Appellant1 appeals under 35 U.S.C. § 134(a) from the Examiner’s decision rejecting claims 1, 3, 5–8, 10, and 12–15 in this reissue application.2 We have jurisdiction over the appeal under 35 U.S.C. § 6(b). 1 We use the term “Appellant” to refer to “applicant” as defined in 37 C.F.R. § 1.42. Appellant identifies Cambria County Association for the Blind and Handicapped as the real party in interest. Appeal Br. 1. 2 Claims 2, 4, 9, 11, and 16 are allowed. Final Act. 1. Appeal 2021-005084 Application 16/294,987 Patent 9,722,405 B2 2 We AFFIRM IN PART. THE CLAIMED SUBJECT MATTER Claims 1, 8, and 15 are independent. Claim 1 is reproduced below with bracketing and underlining omitted. 1. A cable hanger which comprises: a. A high tensile strength wire with two opposing ends and configured intermediate of said ends to form at least one substantially U-shaped configuration, b. Cable carrying surfaces located on said U-shaped configuration; c. Outermost lateral spaced apart opposing sides forming the boundary of said hanger; d. Opposite shoulders extending toward each other from said spaced apart opposite sides; e. One of said shoulders having a spiral gripper formation for engaging a messenger wire formed on its distal end, f. The opposite of said one shoulder formed with a locking hook for engagement with the same messenger wire, g. Said spiral gripper wound so as to surround and have at least two interference abutment surfaces with the messenger wire when installed thereon, and h. Said spiral gripper cooperating with said locking hook when both are engaged with the messenger wire so as to securely hold said hanger on said messenger wire, wherein said cable carrying surfaces comprise horizontally adjacent carriers with carrier dividers between each carrier. Appeal Br. 8 (Claims App.). Appeal 2021-005084 Application 16/294,987 Patent 9,722,405 B2 3 EVIDENCE The Examiner relied on the following evidence in rejecting the claims on appeal: Name Reference Date Carr US 2,384,440 Sept. 11, 1945 Powale US 2011/0079427 A1 Apr. 7, 2011 THE REJECTIONS I. Claims 1, 3, 8, 10, and 15 stand rejected under 35 U.S.C. § 102(a)(1) as anticipated by Carr. Final Act. 5–7. II. Claim 15 stands rejected under 35 U.S.C. § 103 as unpatentable over Carr. Id. at 7–8. III. Claims 5–7 and 12–14 stand rejected under 35 U.S.C. § 103 as unpatentable over Carr and Powale. Id. at 8–9. OPINION Rejection I Claims 1 and 3 The Examiner finds that Carr discloses all of the limitations of independent claim 1, including, among other things, “a spiral gripper formation for engaging a messenger wire . . . , [s]aid spiral gripper wound so as to surround and have at least two interference abutment surfaces with the messenger wire when installed thereon.” Appeal Br. 8 (Claims App.); Final Act. 6. In particular, the Examiner points to Carr’s element h1 as the spiral gripper formation. Final Act. 6 (citing Carr Figs. 1–3). The Examiner points out that “Carr describes the spiral gripper (hook) h1 as ‘a helically- shaped hook portion h1 . . . substantially encircling the circumference of the Appeal 2021-005084 Application 16/294,987 Patent 9,722,405 B2 4 supporting strand ST.” Id. at 10 (citing Carr 1:52–55). Appellant argues that “the hook portion h1 of Carr is not ‘wound so as to surround’ the messenger wire when installed thereon.” Appeal Br. 5–6. We give claim terms “their broadest reasonable interpretation consistent with the specification” and “in light of the specification as it would be interpreted by one of ordinary skill in the art.” In re Am. Acad. Of Sci. Tech Ctr., 367 F.3d 1359, 1364 (Fed. Cir. 2004) (citations omitted). According to the Federal Circuit: The correct inquiry in giving a claim term its broadest reasonable interpretation in light of the specification is not whether the specification proscribes or precludes some broad reading of the claim term adopted by the examiner. And it is not simply an interpretation that is not inconsistent with the specification. It is an interpretation that corresponds with what and how the inventor describes his invention in the specification, i.e., an interpretation that is “consistent with the specification.” In re Morris, 127 F.3d 1048, 1054 (Fed. Cir. 1997) (citation and internal quotation marks omitted); see also In re Suitco Surface, 603 F.3d 1255, 1259-60 (Fed. Cir. 2010). In re Smith Int’l, Inc., 871 F.3d 1375, 1382–83 (Fed. Cir. 2017). Appellant’s Specification does not provide a lexicographical definition for the term “surround,” but Appellant’s Specification does state that “[s]hown in FIG. 11 is the messenger wire 12 having the hanger 10 actually hanging on the messenger wire 12[,] the spiral gripper section 24 is shown surrounding the messenger wire 12.” Spec. 8:7–10 (emphasis added). As illustrated in Figure 11, spiral gripper 24 is shown as a helical- shaped member that coils around messenger wire 12, and, when taking into account the entirety of the axial length of the helical-shaped member, the helical-shaped member extends 360 degrees around the entire circumference Appeal 2021-005084 Application 16/294,987 Patent 9,722,405 B2 5 of messenger wire 12 and, thus, completely encloses or encircles messenger wire 12. Id. Fig. 11. The Specification also states the wire making up spiral gripper 24 “will have a shape memory retention property so as to provide a locking force when both the spiral gripper 24 and the locking hook 26 are engaged with the messenger wire.” Spec. 6:25–28; Fig. 2. The Specification explains that [i]n order to fully engage the hanger 10 with the messenger wire 12[,] lateral sides 30 and 32 must be squeezed so that shoulders 20 and 22 come towards each other and the locking hook 26 comes under the messenger wire 12 so that when the squeezing of the hanger 10 is released[,] the locking hook 26 will engage the messenger wire as is more formally shown in FIG. 2. Id. at 6:28–34. The Specification further explains that “it is the spring force exerted by the wire material that urges shoulders 20 and 22 apart and causes a locking force to be exerted between the abutment surface on 26 and the two abutment surfaces on the spiral gripper 24.” Id. at 6:43–47; see also id. at 6:56–62 (explaining that spiral gripper section 24 “has at least two messenger wire abutment surfaces as is shown at 34 and 36 such that when the locking hook 26 is engaged with the messenger wire 12[,] the abutment surfaces 34 and 36 on the spiral gripper 24 will engage[] the messenger wire 12 in such a way as to prevent sliding movement along the messenger wire 12”). The Specification does not indicate that the term “surround” is used in a manner other than its ordinary and customary meaning. In determining the ordinary and customary meaning of the claim term “surround” as viewed by a person of ordinary skill in the art, we consult a general dictionary Appeal 2021-005084 Application 16/294,987 Patent 9,722,405 B2 6 definition of the word “surround” for guidance. Comaper Corp. v. Antec, Inc., 596 F.3d 1343, 1348 (Fed. Cir. 2010). Extrinsic evidence supports that “surround” means “[t]o enclose, encompass, or beset on all sides.” See Exhibit A (Oxford English Online Dictionary); see also Exhibit B (Merriam- Webster Online Dictionary (defining “surround” as “to enclose on all sides”)) and Exhibit C (The American Heritage Online Dictionary (defining “surround” as “[t]o extend on all sides of simultaneously; encircle”)). We find that the broadest reasonable interpretation for the term “surround,” consistent with Appellant’s Specification, is “to enclose on all sides.” The Examiner finds that “[i]t is plain [from] Figures 2 and 3 of Carr that the spiral gripper h1 is wound so as to surround the messenger strand ST.” Ans. 9. In our view, it is unclear from Figure 2 (side view) and Figure 3 (top view) whether helical-shaped hook portion h1, even when taking into account the entirety of its axial length, extends 360 degrees around the entire circumference of messenger wire 12 so as to enclose messenger wire 12 on all sides or encircle messenger wire 12. Carr Figs. 2, 3. Moreover, Carr describes it helical-shaped hook portion h1 only as “substantially encircling the circumference of the supporting strand ST.” Id. 1:54–56 (emphasis added). Consequently, in our view, a preponderance of the evidence does not support the Examiner’s finding that Carr’s helical- shaped hook portion h1 is “wound so as to surround . . . the messenger wire when installed thereon” when the term “surround” is given its broadest reasonable interpretation (i.e., to enclose on all sides) because it is not sufficiently clear that Carr’s element h1 encloses the messenger wire on all sides based on the figures and supporting text of Carr. Appeal 2021-005084 Application 16/294,987 Patent 9,722,405 B2 7 For the foregoing reasons, Appellant apprises us of error in the Examiner’s determination that Carr anticipates claim 1. We do not sustain the rejection of claim 1, and claim 3 depending therefrom, under 35 U.S.C. § 102(a)(1) as anticipated by Carr. Claims 8 and 10 Independent claim 8 does not recite that the spiral gripper is wound so as to surround the messenger wire. Independent claim 8 recites only that the “spiral gripper [is] wound so as to have at least two interference abutment surfaces with the messenger wire when installed thereon.” Appeal Br. 10 (Claims App.). The Examiner states that “Figures 2 and 3 [of Carr] shows that the spiral gripper h1 is wound so as to have at least two interference abutment surfaces with the messenger strand ST.” Final Act. 6. The Examiner explains that there must be at least two interference abutment surfaces “by virtue of the fact that the spiral gripper h1 is wrapped or wound around the messenger strand ST.” Id. at 10. Appellant argues that Carr’s element h1 is not “spiral” and is instead just a “hook.” Appeal Br. 5. Appellant has not identified a particular construction for the term “spiral.” Appellant also has not pointed to any particular disclosure in the Specification or to any extrinsic evidence in support of any particular construction of the term “spiral.” In our independent review, Appellant’s Specification does not provide a lexicographical definition for the term “spiral” or otherwise indicate that this term is used in a manner other than its ordinary and customary meaning. Extrinsic evidence supports that “spiral” means “[f]orming a succession of curves arranged like the thread of a screw; coiled in a cylindrical or conical Appeal 2021-005084 Application 16/294,987 Patent 9,722,405 B2 8 manner; helical.” See Appendix D (Oxford English Online Dictionary). We find that this definition provides the broadest reasonable construction of the term “spiral,” consistent with Appellant’s Specification. Considering that Carr’s element h1 is identified as “helical-shaped” (Carr 1:52) and is illustrated as being coiled in a cylindrical manner (id. Figs. 2–3), a preponderance of the evidence supports the Examiner’s finding that Carr’s helical-shaped hook portion h1 is spiral, as required by claim 8, in accordance with the broadest reasonable interpretation of this term. Appellant also argues that Carr’s “hook h1 does not function to hold/grip the messenger wire such as described in the present manner, and thus is not a ‘gripper.’” Appeal Br. 5. Although we acknowledge the portions of the Specification identified by Appellant as illustrating and describing how its “spiral gripper functions to ‘captively hold [i.e., grasp/grip] the hanger 10 on the messenger wire 12,’” (Appeal Br. 5 (citing Spec. Figs. 3, 12; 7:64–8:4)), we are not persuaded that these portions of the Specification necessitate a particular construction for the term “gripper” apart from its ordinary and customary meaning. In addition, Appellant has not pointed to any extrinsic evidence in support of a particular construction of the term “gripper.” In our view, Appellant’s Specification does not provide a lexicographical definition for the term “gripper” or otherwise indicate that this term is used in a manner other than its ordinary and customary meaning. Extrinsic evidence supports that “gripper” means “[a]n implement used for gripping or clutching” and “grip” means“[t]o take firm hold.” See Appendices E and F (Oxford English Online Dictionary). We find that the Appeal 2021-005084 Application 16/294,987 Patent 9,722,405 B2 9 broadest reasonable interpretation for the term “gripper,” consistent with Appellant’s Specification is “an implement used for taking firm hold.” We also note that claim 8 merely recites that the “spiral gripper [is] wound so as to have at least two interference abutment surfaces with the messenger wire when installed thereon” (Appeal Br. 11 (Claims App.)), but, significantly, does not require any particular location and/or orientation for these interference abutment surfaces of the spiral gripper relative to the messenger wire. The Examiner explains that “[i]t is . . . plain [from] Figures 2 and 3 of Carr that the spiral gripper h1 . . . functions to grasp or grip the messenger strand ST.” Ans. 9–10. Considering that Carr’s element h1 is identified as “substantially encircling the circumference of the supporting strand ST” (Carr 1:54–56) and “engag[ing] the strand ST as shown in Figs. 1, 2, and 3” (id. 2:32–33) and that Carr’s device is a hanger ultimately used “for supporting a pair of parallel disposed aerial cables from a so-called messenger strand” (id. 1:46–48), a preponderance of the evidence supports the Examiner’s finding that Carr’s helical-shaped hook portion h1 is an implement used for taking firm hold of the messenger strand ST, and thus, a “gripper,” as required by claim 8, in accordance with the broadest reasonable interpretation of this term. For the foregoing reasons, Appellant does not apprise us of error in the Examiner’s determination that Carr anticipates claim 8. Appellant relies on the same arguments in connection with dependent claim 10. Appeal Br. 6. We sustain the rejection of claims 8 and 10 under 35 U.S.C. § 102(a)(1) as anticipated by Carr. Appeal 2021-005084 Application 16/294,987 Patent 9,722,405 B2 10 Claim 15 Independent claim 15 has a similar recitation to independent claim 1, reciting the step of “attaching a spiral wound gripper . . . to a carrier wire . . . so that the spiral wound gripper section surrounds . . . the carrier wire.” Appeal Br. 12 (Claims App.) (emphasis added). For the same reasons as described above in connection with independent claim 1, Appellant apprises us of error in the Examiner’s determination that Carr anticipates claim 15. In particular, a preponderance of the evidence does not support the Examiner’s finding that Carr’s helical-shaped hook portion h1 surrounds the carrier wire, as required by claim 15, when the term “surround” is given its broadest reasonable interpretation (i.e., to enclose on all sides) because it is not sufficiently clear that Carr’s element h1 encloses the messenger wire on all sides based on the figures and supporting text of Carr. We do not sustain the rejection of claim 15 under 35 U.S.C. § 102(a)(1) as anticipated by Carr. Rejection II The Examiner alternatively rejects claim 15 as obvious over Carr. Final Act. 7–8. The Examiner states that “[a]lternatively, it would have been obvious . . . to utilize the structure of Carr to perform the method steps,” including “turning the hanger so that the spiral gripper h1 surrounds . . . the messenger strand ST.” Id. at 7. The Examiner does not provide any reasoning having rational underpinning to explain adequately why one of ordinary skill in the art would have been led to modify Carr so as to have Carr’s helical-shaped hook portion h1 enclose the messenger wire on all sides so as to “surround” messenger strand ST in accordance with the broadest reasonable interpretation of “surround.” Appeal 2021-005084 Application 16/294,987 Patent 9,722,405 B2 11 For the foregoing reasons, Appellant apprises us of error in the Examiner’s determination that Carr renders obvious the subject matter of independent claim 15. We do not sustain the rejection of claim 15 under 35 U.S.C. § 103 as obvious over Carr. Rejection III Claims 5–7 Claims 5–7 stand rejected under 35 U.S.C. § 103 as unpatentable over Carr and Powale. Final Act. 8–9. Claims 5–7 depend from independent claim 1. Appeal Br. 9–10 (Claims App.). The rejection of these claims relies on the Examiner’s erroneous finding as to Carr with respect to claim 1. Final Act. 8–9. The Examiner does not explain how Powale might cure this underlying deficiency. Id. Accordingly, we do not sustain the rejection of claims 5–7 under 35 U.S.C. § 103 as unpatentable over Carr and Powale. Claims 12–14 Claims 12–14 stand rejected under 35 U.S.C. § 103 as unpatentable over Carr and Powale. Final Act. 8–9. Claims 12–14 depend from independent claim 8. Appeal Br. 11–12 (Claims App.). Appellant’s arguments in support of the patentability of dependent claims 12–14 relate to the perceived deficiencies in Carr in connection with independent claim 8. Id. at 7. Because we have found no such deficiencies in Carr with respect to independent claim 8, we are not persuaded of error in the Examiner’s rejection of dependent claims 12–14. Accordingly, we sustain the rejection of claims 12–14 under 35 U.S.C. § 103 as unpatentable over Carr and Powale. Appeal 2021-005084 Application 16/294,987 Patent 9,722,405 B2 12 CONCLUSION In summary: Claims Rejected 35 U.S.C. § Reference(s)/Basis Affirmed Reversed 1, 3, 8, 10, 15 102(a)(1) Carr 8, 10 1, 3, 15 15 103 Carr 15 5–7, 12–14 103 Carr, Powale 12–14 5–7 Overall Outcome 8, 10, 12–14 1, 3, 5–7, 15 No time period for taking any subsequent action in connection with this appeal may be extended under 37 C.F.R. § 1.136(a). See 37 C.F.R. § 1.136(a)(1)(iv). AFFIRMED IN PART