Ex Parte Baker

Patent Trial and Appeal BoardApr 29, 2013

12424544 (P.T.A.B. Apr. 29, 2013)

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. 12/424,544 04/16/2009 William H. Baker BAK-P2009-001 1790 37753 7590 04/30/2013 MARTIN A. WEEKS 1909 ALADDIN NORMAN, OK 73072 EXAMINER HAWK, NOAH CHANDLER ART UNIT PAPER NUMBER 3636 MAIL DATE DELIVERY MODE 04/30/2013 PAPER 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. PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE ____________ BEFORE THE PATENT TRIAL AND APPEAL BOARD ____________ Ex parte WILLIAM H. BAKER ____________ Appeal 2011-003063 Application 12/424,544 Technology Center 3600 ____________ Before PHILLIP J. KAUFFMAN, BARRY L. GROSSMAN, and BART A. GERSTENBLITH, Administrative Patent Judges. GROSSMAN, Administrative Patent Judge. DECISION ON APPEAL Appeal 2011-003063 Application 12/424,544 2 STATEMENT OF THE CASE Appellant appeals under 35 U.S.C. § 134 from the Examiner’s decision finally rejecting claims 1-9. We have jurisdiction over the appeal under 35 U.S.C. § 6(b). We AFFIRM. CLAIMED SUBJECT MATTER Claims 1, 6, and 8 are the independent claims on appeal. Claim 1 is illustrative of the subject matter on appeal, and recites: 1. A shoulder support for a crutch having a pair of upper tubes that slide inside a pair of lower tubes, the shoulder support comprising: (a) a pair of tube caps that are supported at a top of the upper tubes; (b) a channel section positioned between the tube caps and attached to the tube caps by a bolt; (c) a shoulder spring bent into a bow-tie shape with two loops and a narrow portion configured for a user to position the user's underarms atop the shoulder spring to support the user's weight, and configured so that the shoulder spring deflects outwardly when a user bears his weight on the shoulder spring; (d) a resilient shoulder pad that covers the shoulder spring to protect skin beneath arms of the user from scraping and chafing; and (e) at least one rivet to secure the narrow portion of the shoulder spring to the channel section at a top of the channel section. Appeal 2011-003063 Application 12/424,544 3 REFERENCES The Examiner relied upon the following prior art references: REJECTIONS Appellant seeks review of the rejections under 35 U.S.C. § 103(a) of: claims 1 and 2 as unpatentable over Hipwood, Best, Wilson, and Manzeck; claims 8 and 9 as unpatentable over Hipwood, Wilson, and Manzeck; and claims 1-7 as unpatentable over Tunnell, Best, Wilson, and Manzeck. Additionally, claims 1-8 were rejected on the grounds of non-statutory double patenting over claims 1, 2, 3, 15, and 17-20 of U.S. 7,537,017. Because Appellant presents no argument against this rejection, we summarily affirm it. See App. Br. 5; Office Action dated March 26, 2010 at 2-3; Ans. 2-3 (maintaining all the rejections of that Office Action); 37 C.F.R. § 41.37(c)(1)(vii). ANALYSIS Each of the independent claims on appeal calls for a shoulder spring bent into a bow-tie shape configured so that it deflects outwardly when a user bears his weight on the shoulder spring. Each of the obviousness rejections relies in part upon the Examiner’s finding that element 18 of Wilson shown in Figure 1 is a “shoulder spring” as recited in the claims. Hipwood US 1,183,008 May 16, 1916 Wilson US 2,312,786 Mar. 2, 1943 Manzeck US 2,174,588 Oct. 3, 1939 Best Tunnell US 2002/0020438 A1 US 2003/0106576 A1 Feb. 21, 2002 Jun. 12, 2003 Appeal 2011-003063 Application 12/424,544 4 Ans. 4.1 Appellant argues that element 18 is not a shoulder spring as claimed. App. Br. 6. 2 Thus, the issue on appeal is whether Wilson discloses a spring as claimed. The Examiner found that Wilson discloses a crutch having a shoulder spring (shown at reference numeral 18 in Figure 1) bent into a bow-tie shape with two side loops and a narrow center portion, as recited in the claims. Ans. 4. The Examiner also found the shoulder spring loops in Wilson deflect outwardly when a user bears his weight on the crutch, especially if the weight is borne off-center. Id. The basis for the Examiner’s findings is that one of ordinary skill in the relevant technology at the time of invention, looking at Figure 1 in Wilson, “would not think that element 18 is anything other than a thin strip bent into a bowtie” shape or that the illustrated “bowtie” was a “solid” element. Ans. 14. The Examiner also explained that the bowtie-shaped thin strip of metal shown in Wilson “would inherently act as a spring” and would inherently deflect outwardly when loaded with a user’s weight. Id. Appellant argues in support of his position that element 18 in Wilson is “a solid metal piece” which is “unlikely” to be “measurably displaced” and thus would not “behave like a spring.” App. Br. 7. Appellant arrives at these conclusions because Wilson does not refer to element 18 as a spring (App. Br. 7-8); because Wilson states that the crutch is of “durable 1 Citations to “Ans. ___” are to the indicated page in the Examiner’s Answer mailed October 12, 2010. 2 Citations to “App. Br. ___” are to the indicated page in the Appeal Brief filed August 22, 2010. Appeal 2011-003063 Application 12/424,544 5 construction” (App. Br. 8; Reply Br. 23); and because “common sense alone dictates that a solid piece … is much more durable than the curved loop” found by the Examiner (App. Br. 8). Appellant also argues that “there are simply no forces that deflect the shoulder spring outwardly when the crutch is used.” App. Br. 9. We agree with the Examiner. To begin, Appellant’s argument lacks support in the reference in that Wilson does not explicitly state that element 18 is solid metal. Rather, Wilson simply states that element 18 is a “metal arm rest.” Wilson, col. 1, ll. 36-37. Second, Appellant’s contention that arm rest 18 is not referred to as a spring is unpersuasive in that it addresses nomenclature only. See In re Bond, 910 F.2d 831, 832 (Fed. Cir. 1990) (“The elements must be arranged as required by the claim, but this is not an ipsissimis verbis test”). Third, as found by the Examiner, a person of ordinary skill in the art, reviewing Figure 1 of Wilson would conclude that element 18 is a thin strip bent into a bowtie shape that would inherently act as a spring as recited in the claims. A “drawing in a utility patent can be cited against the claims of a utility patent application even though the feature shown in the drawing was unintended or unexplained in the specification of the reference patent.” In re Aslanian, 590 F.2d 911, 914 (CCPA 1979). Also, it is appropriate to “evaluate and apply the teachings of all relevant references on the basis of what they reasonably disclose and suggest to one skilled in the art.” Id. This is exactly what the Examiner did to reach his conclusion. We agree 3 Citations to “Reply Br. ___” are to the indicated page in the Reply Brief filed November 11, 2010. Appeal 2011-003063 Application 12/424,544 6 with the Examiner that Figure 1 in Wilson suggests a bowtie shaped spring structure to a person of ordinary skill in the art. Appellant’s arguments are based on speculation primarily about what is required for a “durable construction.” We note that most of the crutch disclosed in Wilson is made from hollow tubes (see col. 1, ll. 21-22, 34-35), which apparently are sufficiently durable to meet durability requirements of the crutch. The Examiner’s finding that element 18 also is hollow is consistent with the overall construction disclosed in Wilson. Accordingly, Appellant’s evidence and arguments do not apprise us of any error in the Examiner’s findings that Wilson discloses a spring as claimed. Accordingly, we affirm the rejections of claims 1-9 under 35 U.S.C. § 103(a). DECISION Upon consideration of the record as a whole in light of Appellant’s contentions and the preponderance of relevant evidence, we AFFIRM the Examiner’s decision to reject claims 1-9 under 35 U.S.C. § 103(a) as unpatentable over the applied references. We also AFFRIM the Examiner’s decision to reject claims 1-8 on the grounds of non-statutory double patenting over claims 1, 2, 3, 15, and 17-20 of U.S. 7,537,017, as stated on pages 2 and 3 of the Final Rejection mailed March 26, 2010. 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 mls