Eric Resh

Patent Trials and Appeals BoardMay 25, 2021

2021001239 (P.T.A.B. May. 25, 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. 15/708,038 09/18/2017 Eric V. Resh RESH-P3841.4 4142 21259 7590 05/25/2021 J. MARK HOLLAND AND ASSOCIATES J. Mark Holland 19800 MACARTHUR BLVD SUITE 300 IRVINE, CA 92612 EXAMINER SCRUGGS, ROBERT J ART UNIT PAPER NUMBER 3723 NOTIFICATION DATE DELIVERY MODE 05/25/2021 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): OFFICE@JMHLAW.COM mholland@jmhlaw.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE ____________ BEFORE THE PATENT TRIAL AND APPEAL BOARD ____________ Ex parte ERIC V. RESH Appeal 2021-0012391 Application 15/708,038 Technology Center 3700 ____________ Before ANTON W. FETTING, MICHAEL C. ASTORINO, and AMEE A. SHAH, Administrative Patent Judges. ASTORINO, Administrative Patent Judge. DECISION ON APPEAL Pursuant to 35 U.S.C. § 134(a), the Appellant2 appeals from the Examiner’s decision to reject claims 33–57. We have jurisdiction under 35 U.S.C. § 6(b). We AFFIRM IN PART. 1 Co-pending US Application No. 13/844,561 is on appeal (Appeal 2021-002037) and is being decided concurrently with this appeal. See Appeal Br. v. 2 We use the word “Appellant” to refer to “applicant” as defined in 37 C.F.R. § 1.42. The Appellant identifies the real party in interest as “Resh, Inc.” Appeal Br. iv. Appeal 2021-001239 Application 15/708,038 2 STATEMENT OF THE CASE Claimed Subject Matter Claims 33, 34, 52, and 53 are the independent claims on appeal. Claim 53, reproduced below, is illustrative of the claimed subject matter. 53. An improved telepole device, comprising: an outer tube element having first and second ends, said first end of the outer tube element having a collar element associated therewith, said collar element containing a detent means, said second end of the outer tube having attachment means for removably attaching a tool; an inner tube element having first and second ends; said second end of said inner tube element being received in the first end of the outer tube through an opening in said collar element; wherein said inner tube element is configured to readily slide within said outer tube element to a selected position along the length of the outer tube, and wherein said detent means is configured to temporarily lock the inner tube in that selected position within the outer tube. References The prior art relied upon by the Examiner is: Name Reference Date Lanzarone et al. (“Lanzarone”) US 3,407,424 Oct. 29, 1968 Pansini US 4,247,216 Jan. 27, 1981 Balint et al. (“Balint”) US 4,325,157 Apr. 20, 1982 McFarland US 5,173,181 Dec. 22, 1992 DeMoura US 5,317,776 June 7, 1994 Polzin et al. (“Polzin”) US 5,983,455 Nov. 16, 1999 Canale US 6,474,696 B1 Nov. 5, 2002 Griffin, Sr. (“Griffin”) US 7,673,365 B1 Mar. 9, 2010 Lofley, Sr. et al. (“Lofley”) US 2010/0109357 A1 May 6, 2010 Appeal 2021-001239 Application 15/708,038 3 Rejections The following list of the grounds of rejections is ordered as presented in the Examiner’s Answer. See Ans. 3–41. Claims 35, 44, and 57 are rejected under 35 U.S.C. § 112, second paragraph, as indefinite.3 Claim 57 is rejected under 35 U.S.C. § 112, first paragraph, as failing to comply with the written description requirement. Claims 34, 52, and 53 are rejected under 35 U.S.C. § 102(a) as anticipated by Lanzarone. Claims 53 and 55 are rejected under 35 U.S.C. § 102(a) as anticipated by Griffin.4 Claims 53 and 55 are rejected under 35 U.S.C. § 103(a) as unpatentable over Griffin and Polzin or Pansini.5 Claim 33 is rejected under 35 U.S.C. § 103(a) as unpatentable over Griffin, Polzin, and optionally, Balint and Pansini. Claims 34, 43, and 50 are rejected under 35 U.S.C. § 103(a) as unpatentable over Griffin and Polzin, and optionally, Pansini. 3 The Examiner does not include claim 57 in the statement of the rejection, but rejects claim 57 as indefinite. Ans. 3–4. 4 The Examiner provides a single statement for the rejection of claims 53 and 55 under 35 U.S.C. § 102(a) or, in the alternative, under 35 U.S.C. § 103(a). Non-Final Act. 34; Ans. 7. To facilitate our analysis, we separate the single statement into two separate statements. The first statement is particular to the rejection under 35 U.S.C. § 102(a) as anticipated by Griffin and the second statement is particular to the rejection under 35 U.S.C. § 103 as unpatentable over Griffin and Polzin or Pansini. 5 Supra n.4. Appeal 2021-001239 Application 15/708,038 4 Claims 35–40, 44, 45, and 48 are rejected under 35 U.S.C. § 103(a) as unpatentable over Griffin, Polzin, and Pansini. Claim 41 is rejected under 35 U.S.C. § 103(a) as unpatentable over Griffin, Polzin, Pansini, and Canale or Lanzarone. Claims 42 and 52 rejected under 35 U.S.C. § 103(a) as unpatentable over Griffin and Polzin, and optionally Pansini and Lanzarone. Claims 46 and 47 are rejected under 35 U.S.C. § 103(a) as unpatentable over Griffin, Polzin, Pansini, and McFarland. Claims 49 and 51 are rejected under 35 U.S.C. § 103(a) as unpatentable over Griffin, Polzin, Pansini, and Lofley. Claim 54 is rejected under 35 U.S.C. § 103(a) as unpatentable over Griffin and Pansini. Claim 56 is rejected under 35 U.S.C. § 103(a) as unpatentable over Griffin, optionally in view of Polzin or Pansini, and Lofley. Claim 57 is rejected under 35 U.S.C. § 103(a) as unpatentable over Griffin and Polzin, and optionally, Pansini and Lofley. Claim 33 is rejected under 35 U.S.C. § 103(a) as unpatentable over Pansini, Balint, Lanzarone, and optionally, DeMoura. Claims 34–45, 48, 50, and 52 are rejected under 35 U.S.C. § 103(a) as unpatentable over Pansini, Lanzarone and/or Polzin, and optionally, DeMoura. Claim 41 is rejected under 35 U.S.C. § 103(a) as unpatentable over Pansini, Lanzarone and/or Polzin, Canale, and optionally, DeMoura. Claims 46 and 47 are rejected under 35 U.S.C. § 103(a) as unpatentable over Pansini, Lanzarone and/or Polzin, McFarland, and optionally, DeMoura. Appeal 2021-001239 Application 15/708,038 5 Claims 49 and 51 are rejected under 35 U.S.C. § 103(a) unpatentable over Pansini, Lanzarone and/or Polzin, and Lofley, and optionally, DeMoura. Claims 53–55 and 57 are rejected under 35 U.S.C. § 103(a) as unpatentable over Pansini and Polzin or Lanzarone. Claims 56 and 57 are rejected under 35 U.S.C. § 103(a) as unpatentable over Pansini, Polzin or Lanzarone, and Lofley. ANALYSIS Indefinite The Examiner rejects claims 35, 44, and 57 as indefinite under 35 U.S.C. § 112, second paragraph. Non-Final Act. 4; Ans. 4. The Appellant does not advance an argument for this ground of rejection. See Appeal Br. 1–2 n.5. Rather, the Appellant suggests that this rejection under 35 U.S.C. § 112, second paragraph, be held in abeyance following the resolution of the appeal. Reply Br. 2–3. However, “[a]n appeal, when taken, is presumed to be taken from the rejection of all claims under rejection unless cancelled by an amendment filed by the applicant and entered by the Office.” 37 C.F.R. § 41.31(c). Therefore, the Examiner’s rejection of claims 35, 44, and 57 under 35 U.S.C. § 112, second paragraph, as indefinite is before us on appeal. Because the Appellant presents no argument, we summarily sustain the Examiner’s rejection of claims 35, 44, and 57 under this ground of rejection. See In re Berger, 279 F.3d 975 (Fed. Cir. 2002) (holding that Board did not err in sustaining a rejection under 35 U.S.C. § 112, second paragraph, when the Appellant failed to contest the rejection on appeal). Appeal 2021-001239 Application 15/708,038 6 Written Description The Examiner rejects claim 57 as failing to comply with the written description requirement under 35 U.S.C. § 112, first paragraph. Non-Final Act. 4; Ans. 4. Similar to the rejection under 35 U.S.C. § 112, second paragraph, the Appellant does not advance an argument for this ground of rejection and suggests that the rejection be held in abeyance. See Appeal Br. 1–2 n.5; Reply Br. 2–3. For similar reasons as discussed above, we summarily sustain the Examiner’s rejection of claim 57 under this ground of rejection. Anticipation by Lanzarone Independent claims 34 and 52 recite “an outer tube having first and second ends, said first end of the outer tube having a collar associated therewith.” Appeal Br., Claims App. (emphasis added). Independent claim 53 includes a nearly identical recitation. Id. For the rejection of claim 34, the Examiner finds that Lanzarone’s telescopic handle corresponds to the claimed telescoping pole apparatus. Non-Final Act. 39. Lanzarone’s telescopic handle has three sections; namely, top end section 18, bottom end section 20, and intermediate section 22. See Lanzarone col. 1, ll. 54–68, col. 2, ll. 15–27, Fig. 1. The Examiner finds intermediate section 22 corresponds to the claimed “outer tube” and the surface of intermediate section 22 that extends from annular bulge 47 to the upper end of section 22 corresponds to the claimed “collar.” Non-Final Act. 39; Lanzarone col. 1, ll. 54–68, col. 2, ll. 15–27, Fig. 1. For the rejection of claim 52, the Examiner makes a similar finding; namely, bottom end section 20 corresponds to the claimed “outer tube” and the Appeal 2021-001239 Application 15/708,038 7 surface of bottom end section 20 that extends from annular bulge 41 to the upper end of section 20 corresponds to the claimed “collar.” Non-Final Act. 40; Lanzarone col. 1, ll. 54–67, col. 2, ll. 15–27, Fig. 1. For the rejection of claim 53, the Examiner makes a similar finding to that of the rejection of claim 34. Non-Final Act. 41. The Appellant argues that Lanzarone fails to teach a “collar” as required by the claims. Appeal Br. 103; see id. at 98 n.86, 101. The Appellant’s argument is persuasive. The Examiner determines that an interpretation of the aforementioned recitation of claims 34 and 52, and the nearly identical recitation of claim 53, exists such that the claimed “outer tube” reads on a single section of Lanzarone’s handle and the claimed “collar” reads on a surface the single section. See Ans. 51. In this regard, it appears as though the Examiner construes the term “having” between “outer tube” and “a collar” to mean that the “collar” may be a part of the “outer tube.” We disagree with this construction. If the claimed “collar” is construed to be part of the “outer tube,” then the phrase “associated therewith,” which refers to the outer tube, becomes nonsensical. In other words, it is illogical to require the collar to be associated with the outer tube, if the claim already requires the collar to be a part of the outer tube. Accordingly, we determine that the claimed phrase “associated therewith” after “collar” disqualifies the possibility that the “collar” is a part of the “outer tube.” Therefore, we interpret “[the] first end of the outer tube having a collar associated therewith,” as recited in claims 34 and 52, and the nearly identical recitation of claim 53, as requiring the outer tube and collar to be separate structures. Appeal 2021-001239 Application 15/708,038 8 Lanzarone’s intermediate section 22 and annular bulge 47 are not separate structures; rather annular bulge 47 is a part of intermediate section 22. See Lanzarone col. 2, ll. 15–27, Fig. 1. Similarly, Lanzarone’s bottom end section 20 and annular bulge 41 are not separate structures; rather annular bulge 41 is a part of bottom end section 20. See id. at col. 2, ll. 4–14, Fig. 1. Therefore, we determine that the Examiner’s findings that the claimed “outer tube” and “collar” reads on Lanzarone’s sections 20, 22 and a surface thereof, respectively, are not adequately supported. Thus, we do not sustain the Examiner’s rejection of claims 34, 52, and 53 under 35 U.S.C. § 102 as anticipated by Lanzarone. Anticipation by Griffin Independent claim 53 recites “a detent means . . . wherein said detent means is configured to temporarily lock the inner tube in that selected position within the outer tube.” Appeal Br., Claims App. The Examiner determines that “detent means,” as recited in claim 53, invokes 35 U.S.C. § 112, sixth paragraph. Ans. 50. We agree with Examiner. First, the identified limitation of claim 1 uses the term “means.” The use of the term “detent” before “means” does not modify the term “means” to add sufficient structure to preclude the invocation of § 112, sixth paragraph; rather the term “detent,” generally, identifies the claimed unit’s function. See also Manual of Patent Examining Procedure (MPEP) § 2181(I)(A) (9th ed., rev. 10, June 2020)). Second, the term “detent means” is linked to the phrase “configured to.” See id. § 2181(I)(B). Third, the term “detent means” is not modified by sufficient structure for achieving the claimed function. See id. § 2181(I)(C). Appeal 2021-001239 Application 15/708,038 9 Once is it concluded that a claim limitation is a means-plus-function limitation, two steps of claim construction remain: 1) we must first identify the function of the limitation; and 2) then we look to the specification and identify the corresponding structure for that function. Med. Instrumentation & Diagnostics Corp. v. Elekta AB, 344 F.3d 1205, 1210 (Fed. Cir. 2003). A structure disclosed in the specification qualifies as “corresponding” structure only if the specification or prosecution history clearly links or associates that structure to the function recited in the claim. B. Braun Med. v. Abbott Labs., 124 F.3d 1419, 1424 (Fed. Cir. 1997). The claimed function of the “detent means” is “to temporarily lock the inner tube in that selected position within the outer tube.” The Specification provides various possibilities for the structure that performs this function. The Specification describes a detent-locking device/mechanism having a few alternatives, including: (1) detent-locking device 4, having button element 11, spring element 9, and detent pin element 7, which corresponds to holes 6 of inner tube 5 (Spec. 18, 19–20, Figs. 2a–2b); (2) detent mechanism having rocking lever 26 with corresponding teeth 25b, which correspond to row of teeth 25a of inner tube 5a (id. at 25, Figs. 7–8); and (3) rocking lever 26 or end-hinge lever 27 with a detent(s), which correspond to inclusions 5b or ribs of an inner tube (id. at 26, Figs. 10, 11, 11a). The Specification also suggests that ridges are a type of detent means. Id. at 26 (“Teeth, ridges, or other similar detent means 35 are formed into the compression gasket [34] which matingly engage with inclusions, ribs or other similar detent elements 5b along the outer walls of the inner tube.” (emphasis omitted)). Additionally, the Specification teaches that prior art telepole devices with frictional locking devices in the prior art have known Appeal 2021-001239 Application 15/708,038 10 problems. See, e.g., id. at 6 (“prior art external locking devices are subject to wear and tear in prior art telepole devices. Over time, the contacting surfaces can wear and/or become smooth and have less friction, which greatly reduces the ability of the compression ring to hold the inner tube in place.”); see also id. at 4–8. The Examiner finds Griffin’s rotatable turn knob 71 corresponds to the claimed “detent means.” Non-Final Act. 35 (citing Griffin col. 3, ll. 47–49, col. 4, ll. 25–37). The Examiner explains that Griffin’s rotatable turn knob 71 is selectively tightened or loosened by an operator to adjust the length of poles 23 and 24. Ans. 50. Indeed, rotatable turn knob 71 is part of mechanism 70, which is for telescopically adjusting a length of elongated handle 20’s proximal linear section 21A. Griffin col. 3, ll. 41–43, 47–49, col. 4, ll. 25–32. Mechanism 70 and its rotatable turn knob 71 is positioned between proximal linear section 21A’s members (i.e., poles) 23 and 24. See id. at Fig. 1. Telescopically adjusting mechanism 70 provides an operator with the ability to selectively adjust the length of proximal linear section 21A. Id. at col. 4, ll. 27–32. The Appellant argues that the claimed “detent means” does not read on Griffin’s rotatable turn knob 71 because knob 71 is a frictional locking/engagement device. Appeal Br. 83–84, 93; see id. at 81–84. The Appellant’s argument is persuasive. There does not appear to be a dispute that Griffin’s rotatable turn knob 71 functions to “temporarily lock the inner tube in that selected position within the outer tube,” as recited in claim 53. See Appeal Br. 83 (“Griffin at most shows the same concept (twisting to frictionally lock) as prior art swimming pool poles.”). The function of Griffin rotatable turn Appeal 2021-001239 Application 15/708,038 11 knob 71 is explained well in Griffin, i.e., “[t]he telescopically adjusting mechanism 70 includes a rotatable turn knob 71 and a coupling 72 fitted about the male 23 and female 24 members [of proximal liner section 21A] such that the operator can selectively adjust the length of the proximal linear section 21A as needed.” Griffin col. 4, ll. 27–31 (emphasis omitted); see id. at Figs. 1–3. The greater concern is whether rotatable turn knob 71 is equivalent to the claimed “detent means.” As for the structure of Griffin’s rotatable turn knob 71, Griffin does not describe knob 71 as a detent and there is limited disclosure of its structure outside of its designation as a rotatable turn knob. Similarly, rotatable turn knob 71 is not depicted in much detail in Griffin’s drawings. See Griffin Figs. 1–3. In view of the foregoing, we determine that Griffin’s disclosure suggests that rotatable turn knob 71 is a handle or grip that rotates to fix male and female members in a desired adjusted position. Additionally, we determine that one of ordinary skill in the art could understand one of two things: first, Griffin’s rotatable turn knob 71 is not described in adequate detail such that one of ordinary skill in the art would understand it as being an equivalent to the claimed “detent means”; and/or second, Griffin’s rotatable turn knob 71 is a type of frictional locking/engagement device, and therefore, is not equivalent to the claimed “detent means.” In any case, the Examiner’s finding that Griffin’s rotatable turn knob 71 corresponds to the claimed “detent means” is inadequately supported. Thus, we do not sustain the Examiner’s rejection of claim 53 as anticipated by Griffin. For the same reason, we also do not sustain the Examiner’s rejection of dependent claim 55. Appeal 2021-001239 Application 15/708,038 12 Obviousness The Appellant argues that the Examiner’s rejections under 35 U.S.C. § 103 as a group. Appeal Br., passim. For reasons that will become apparent, we will only specifically address the Examiner’s rejections of independent claims 33, 34, 52, and 53 under 35 U.S.C. § 103. The Appellant argues that at least some of the applied prior art is non- analogous. Id. at 92; see id. at 54–92. Two separate tests define the scope of analogous prior art: (1) whether the art is from the same field of endeavor, regardless of the problem addressed and, (2) if the reference is not within the field of the inventor’s endeavor, whether the reference still is reasonably pertinent to the particular problem with which the inventor is involved. In re Deminski, 796 F.2d 436, 442 (Fed. Cir. 1986); see also In re Wood, 599 F.2d 1032, 1036 (CCPA 1979); In re Bigio, 381 F.3d 1320, 1324 (Fed. Cir. 2004) (citing In re GPAC, Inc., 57 F.3d 1573, 1577 (Fed. Cir. 1995)) (explaining “[t]he identification of analogous prior art is a factual question.”). With regard to the first prong of the analogous art test, the Appellant asserts that the inventor’s field of endeavor is specific to swimming pool poles, but suggests the field of endeavor may change with the scope of individual claims. See Appeal Br. 56–57. The Examiner finds that the Appellant’s field of endeavor is “tools and/or telescoping poles.” Ans. 42– 43. The Examiner has the better position. At the outset, we are at a loss as to the Appellant’s suggestion that there is “a range of claims pending for different ‘fields of endeavor.’” Appeal Br. 56. The Appellant does not provide any legal support for the suggestion that the field of the endeavor changes with different claims of a patent application. The “test for analogous art requires the PTO to Appeal 2021-001239 Application 15/708,038 13 determine the appropriate field of endeavor by reference to explanations of the invention’s subject matter in the patent application, including the embodiments, function, and structure of the claimed invention.” Bigio, 381 F.3d at 1325–26 (citations omitted). The subject matter of the Appellant’s patent application is well represented by the title of the patent application is “TELEPOLE APPARATUS AND RELATED METHODS.” The Specification provides a more detailed explanation of the telepole. For example, the Field of the Invention section describes that the “invention relates to devices for cleaning swimming pools and similar things, and more specifically is directed to apparatus and methods involving an improved telescopic pole useful for (among other things) attachment to swimming pool cleaning tools.” Spec. 1 (emphasis added). The Specification discloses that telescopic poles may be used for applications beyond “clean[ing] swimming pools and similar things (e.g., fountains, spas – both above and below ground, fish ponds, etc.),” including “window washing tools, paint rolling tools, and concrete spreading/finishing tools.” Spec. 2; see id. at 29 (“The convenience provided by quick-releasing tools/handles is especially beneficial in applications of working with and finishing concrete wherein tools such as a bull float, trowel, rolling tamper, seamer, and various other tools or adapters are commonly used in conjunction with an extendable handle.”), 31 (original claim 3 (“The telepole of Claim 1, wherein the tool is a concrete finishing tool.”)); Figs. 16a–b, 17, 18a–e. Moreover, the Appellant acknowledges that the dependent claim 55 includes a telepole device with an outer tube end with an attachment means for removably attaching a concrete finishing tool. See Appeal Br. 56. The Appellant also acknowledges that the field of the Appeal 2021-001239 Application 15/708,038 14 invention is broader than “swimming pool poles” by explaining that the efforts of the inventor, Eric Resh, “originated with making an improved telescoping pole for that [the swimming pool] industry but . . . subsequently realized that his inventions might also bring benefits to other industries (such as concrete finishing).” Id. at 55 n.59. In view of the foregoing, we find that the Examiner’s finding that the Appellant’s field of the endeavor is tools and/or telescoping poles is adequately supported. The Appellant’s field of the endeavor also may be described as “devices for cleaning swimming pools and similar things” (Spec. 1), including telescoping poles useful for attaching a tool. For the rejections of independent claims 33, 34, 52, and 53 under 35 U.S.C. § 103, the Examiner relies on a combination of two or more of references from the group of: Pansini, DeMoura, Lanzarone, Polzin, Griffin, and Balint. The Appellant does not argue that Pansini or DeMoura are non- analogous prior art references. Rather, the Appellant acknowledges that Pansini and DeMoura are in the same field of endeavor as the Appellant. Appeal Br. 56. We likewise find that Pansini and DeMoura are in the same field of endeavor as the inventor/Appellant. However, we make this finding on the basis that the inventor’s field of endeavor is tools and/or telescoping poles. This finding is also supported on the basis that the inventor’s field of endeavor is devices for cleaning swimming pools and similar things, including telescoping poles useful for attaching a tool. The Appellant argues that Polzin, Griffin, Lanzarone, and Balint, are not in the same field of endeavor as the Appellant. See Appeal Br. 54–66, 69–85. As discussed above, the Appellant’s argument is based on a faulty notion that the inventor’s/Appellant’s field of endeavor is swimming pool Appeal 2021-001239 Application 15/708,038 15 poles. The Appellant asserts that the field of invention of: Polzin is “types of painter’s poles”; Griffin “is a tool for manipulating a concrete finishing float”; and Lanzarone is “for household cleaning devices.” Id. at 55–56. The Appellant does not identify a field of endeavor for Balint. Id. at 55. The Appellant’s argument is not persuasive. We find that the field of endeavor of each of these references is the same as the inventor’s field of endeavor, i.e., tools and/or telescoping poles. Polzin’s field of invention “relates to poles for supporting tools, such as paint applicators,” where the pole is telescopic (Polzin col. 1, ll. 4–5, 15–17, col. 2, ll. 29–33); Griffin’s technical field “relates to tools and, more particularly, to an adjustable tool for finishing concrete surfaces,” where the length of the tool’s elongated handle section is adjustable telescopically (Griffin col. 1, ll. 21–22, col. 2, ll. 1–2, 42–43); Lanzarone describes the “principal object of the present invention is to provide an adjustable extensible, telescopic and collapsible handle for use on a mop head, broom head” (Lanzarone col. 1, 32–36); and Balint’s field of invention “relates to a new and improved extension handle for a tool such as a paint roller, paint pad or the like,” in which the pole is telescopic (Balint col. 1, ll. 9–11, 58–62). Therefore, we find that Polzin, Balint, Griffin, and Lanzarone are analogous prior art references because each of the references are within the inventor’s/Appellant’s field of endeavor. Further, the Examiner also finds that Balint, Lanzarone, and Polzin are analogous prior art references because they are reasonably pertinent to the particular problem with which the applicant was concerned. Ans. 46. The Appellant does not provide a separate argument explaining why Balint and Lanzarone are not are reasonably pertinent to the particular problem Appeal 2021-001239 Application 15/708,038 16 with which the applicant was concerned. The Appellant argues that objective evidence of skepticism from four pole experts indicates that Polzin is not reasonably pertinent to the particular problem with which the inventor is involved. See Appeal Br. 70. Even if we were to agree with the Appellant’s argument, which we do not, Polzin’s field of endeavor is the same as the inventor’s/Appellant’s field of endeavor. Therefore, Polzin is an analogous prior art reference. The remainder of the Appellant’s arguments relate to the age of the references and copying, long-felt but unsolved needs, and skepticism of others –– i.e., secondary considerations –– and, in varying degrees, rely on objective evidence. Appeal Br. 5–7, passim. The Appellant argues that the Examiner fails to “properly consider and weigh Appellant’s extensive objective evidence of non-obviousness,” including “substantial amounts (hundreds of pages) of objective evidence.” Id. at vi; see id. at 1; see also MPEP 716 (“Affidavits or Declarations Traversing Rejections, 37 CFR 1.132”; “All affidavits or declarations presented which do not fall within or under other specific rules are to be treated or considered as falling under this rule.”). The Appellant’s objective evidence is referred to throughout the Appeal Brief. See, e.g., Appeal Br. 5–9, 51–53. For example, the Appellant argues that four competitors have copied the Appellant’s invention. Id. at 7 (citing Second Declaration of Eric Resh ¶¶ 24–27, 29, 30 (filed Nov. 14, 2019), Appellant’s Third Supplemental Amendment 131–189 (filed Nov. 14, 2019)); see id. at 34–38. The objective evidence supporting the Appellant’s argument includes references to the competitor’s ‘detent locking’ swimming pool pole product. See Appeal Br. 37; see, e.g., Appellant’s Third Supplemental Amendment 135–143. We Appeal 2021-001239 Application 15/708,038 17 note that the Appellant’s claimed invention is not directed solely to a swimming pool pole product. See Appeal Br., Claims App. (Claim 55 calling for an attachment means for removably attaching a concrete finishing tool to a telepole device). “If rebuttal evidence of adequate weight is produced, the holding of prima facie obviousness, being but a legal inference from previously uncontradicted evidence, is dissipated. Regardless of whether the prima facie case could have been characterized as strong or weak, the examiner must consider all of the evidence anew.” See in re Piasecki, 745 F.2d 1468, 1473 (Fed. Cir. 1984) (citing In re Rinehart, 531 F.2d 1048, 1052 (CCPA 1976)); Manual of Patent Examining Procedure (“MPEP”) § 2145, Consideration of Applicant’s Rebuttal Arguments (9th ed., rev. 10.2019, last rev. June 2020).6 Rinehart explains this process: When prima facie obviousness is established and evidence is submitted in rebuttal, the decision-maker must start over. Though the burden of going forward to rebut the prima facie case remains with the applicant, the question of whether that burden has been successfully carried requires that the entire path to decision be retraced. An earlier decision should not, as it was here, be considered as set in concrete, and applicant’s rebuttal evidence then be evaluated only on its knockdown ability. Analytical fixation on an earlier decision can tend to provide that decision with an undeservedly broadened umbrella 6 MPEP § 2145 recites: Office personnel should not evaluate rebuttal evidence for its ‘knockdown’ value against the prima facie case, Piasecki, 745 F.2d at 1473, . . . or summarily dismiss it as not compelling or insufficient. If the evidence is deemed insufficient to rebut the prima facie case of obviousness, Office personnel should specifically set forth the facts and reasoning that justify this conclusion. Appeal 2021-001239 Application 15/708,038 18 effect. Prima facie obviousness is a legal conclusion, not a fact. Facts established by rebuttal evidence must be evaluated along with the facts on which the earlier conclusion was reached, not against the conclusion itself. Though the tribunal must begin anew, final finding of obviousness may of course be reached, but such finding will rest upon evaluation of all facts in evidence, uninfluenced by any earlier conclusion reached by an earlier board upon a different record. Rinehart, 531 F.2d at 1052 (emphasis added). The record strongly suggests that the Examiner evaluates the Appellant’s rebuttal evidence against the Examiner’s conclusion that the claimed subject matter is obvious. The Examiner does not evaluate all of the facts in evidence in a manner that is uninfluenced by the earlier conclusion. Simply put, the Examiner evaluates the Appellant’s rebuttal evidence only for its knockdown ability. For example, the Examiner explains, The examiner notes that the objective evidence of non- obviousness is well understood but notes that evidence of non- obviousness provided by the appellant is NOT sufficient to outweigh the evidence of obviousness because the evidence DOES NOT directly disclose or provide any factual evidence of why the prior art cannot be combined as in the rejections above. Ans. 43 (emphasis added); see id. at 42–45. We are not convinced that the Examiner properly evaluates the objective evidence that the Appellant submitted. Rather, the Examiner appears to dismiss all of the objective evidence because it does not explain why the prior art cannot be combined as proffered in the Examiner’s rejection, in other words, for its knockdown ability. Thus, we do not sustain the Examiner’s rejections under 35 U.S.C. § 103. Appeal 2021-001239 Application 15/708,038 19 As a final note, as discussed above, the Examiner’s rejections rely on the inadequately supported finding that Griffin’s rotatable turn knob 71 corresponds to the claimed “detent means.” Some of these rejections are not cured by additional evidence and/or technical reasoning––namely, the Examiner’s rejections under 35 U.S.C. § 103 of claims 53, 55, and 57 as unpatentable over Griffin and Polzin (Non-Final Act. 34–36, 38–39) and claims 56 and 57 as unpatentable over Griffin, Polzin, and Lofley (id. at 37–39). Other rejections cure the deficiency with additional evidence and/or technical reasoning –– namely rejections under 35 U.S.C. § 103 of claims 53, 55, and 57 as unpatentable over Griffin and Pansini (id. at 34–36, 38–39) and claims 56 and 57 as unpatentable over Griffin, Pansini, and Lofley (id. at 37–39). In these rejections the Examiner relies on Pansini’s teaching of spring member 24 to correspond to the claimed “detent means.” See id. at 35. More specifically, Pansini’s spring member 24 includes a detent pin (thumb buttons) 30, 32 which correspond to apertures 14, 18, which cures the deficiency. Nevertheless, we do not sustain these Examiner’s rejections under 35 U.S.C. § 103 because, as discussed above, the Examiner does not properly evaluate the objective evidence that the Appellant submitted. Rather, the Examiner appears to dismiss all of the objective evidence because it does not explain why the prior art cannot be combined as proffered in the Examiner’s rejection. Appeal 2021-001239 Application 15/708,038 20 CONCLUSION In summary: Claim(s) Rejected 35 U.S.C. § Reference(s)/Basis Affirmed Reversed 35, 44, 57 112, second paragraph Indefinite 35, 44, 57 57 112, first paragraph Written Description 57 34, 52, 53 102(a) Lanzarone 34, 52, 53 53, 55 102(a) Griffin 53, 55 53, 55 103(a) Griffin, Polzin, Pansini7 53, 55 33 103(a) Griffin, Polzin, Balint Pansini8 33 34, 43, 50 103(a) Griffin, Polzin, Pansini9 34, 43, 50 35–40, 44, 45, 48 103(a) Griffin, Polzin, Pansini 35–40, 44, 45, 48 41 103(a) Griffin, Polzin, Pansini, Canale, Lanzarone10 41 42, 52 103(a) Griffin, Polzin, Pansini, Lanzarone11 42, 52 46, 47 103(a) Griffin, Polzin, Pansini, McFarland 46, 47 49, 51 103(a) Griffin, Polzin, Pansini, Lofley 49, 51 54 103(a) Griffin, Pansini 54 7 The rejection is stated in the alternative, but is addressed in the table as a whole because the outcome is the same for each alternative. 8 Supra, n.7. 9 Supra, n.7. 10 Supra, n.7. 11 Supra, n.7. Appeal 2021-001239 Application 15/708,038 21 Claim(s) Rejected 35 U.S.C. § Reference(s)/Basis Affirmed Reversed 56 103(a) Griffin, Polzin, Pansini, Lofley12 56 57 103(a) Griffin, Polzin, Pansini, Lofley13 57 33 103(a) Pansini, Balint, Lanzarone, DeMoura14 33 34–45, 48, 50, 52 103(a) Pansini, Lanzarone, Polzin, DeMoura15 34–45, 48, 50, 52 41 103(a) Pansini, Lanzarone Polzin, Canale, DeMoura16 41 46, 47 103(a) Pansini, Lanzarone, Polzin, McFarland, DeMoura17 46, 47 49, 51 103(a) Pansini, Lanzarone, Polzin, Lofley, DeMoura18 49, 51 53–55 103(a) Pansini, Polzin, Lanzarone19 53–55 56, 57 103(a) Pansini, Polzin Lanzarone, Lofley20 56, 57 Overall Outcome 35, 44, 57 33, 34, 36–43, 45–56 12 Supra, n.7. 13 Supra, n.7. 14 Supra, n.7. 15 Supra, n.7. 16 Supra, n.7. 17 Supra, n.7. 18 Supra, n.7. 19 Supra, n.7. 20 Supra, n.7. Appeal 2021-001239 Application 15/708,038 22 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 IN PART