Ex Parte Doumit

Patent Trials and Appeals BoardApr 12, 2019

14979813 - (D) (P.T.A.B. Apr. 12, 2019)

UNITED STA TES p A TENT AND TRADEMARK OFFICE APPLICATION NO. FILING DATE 14/979,813 12/28/2015 44088 7590 Kaufhold Dix Patent Law P. 0. BOX 89626 SIOUX FALLS, SD 57109 04/16/2019 FIRST NAMED INVENTOR AzizDoumit 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 ATTORNEY DOCKET NO. CONFIRMATION NO. SKl 1461 2675 EXAMINER SPATZ,ABBYM ART UNIT PAPER NUMBER 3732 NOTIFICATION DATE DELIVERY MODE 04/16/2019 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): j ason@kaufboldlaw.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte AZIZ DOUMIT Appeal2018-006056 Application 14/979,813 1 Technology Center 3700 Before LINDA E. HORNER, DANIEL S. SONG, and JEFFREY A. STEPHENS, Administrative Patent Judges. HORNER, Administrative Patent Judge. DECISION ON APPEAL STATEMENT OF THE CASE Appellant seeks our review under 35 U.S.C. Â§ 134(a) of the Examiner's rejection of claims 1, 4, and 5 under 35 U.S.C. Â§ 103 as unpatentable over Williams (US 2005/0223465 Al, published October 13, 2005), Roberge (US 2,992,433, issued July 18, 1961), and DiBemardo 1 Applicant Aziz Doumit is identified as the real party in interest. Appeal Brief (December 19, 2017, "Br.") 2. Appeal2018-006056 Application 14/979,813 (US 2014/0013482 Al, published January 16, 2014). Final Office Action (June 19, 2017, "Final Act."). 2 We have jurisdiction under 35 U.S.C. Â§ 6(b). Appellant contests the Examiner's findings as to the teachings of Williams. For the reasons explained below, we do not find error in the Examiner's rejection. Thus, we AFFIRM. CLAIMED SUBJECT MATTER The claimed subject matter on appeal relates to a "support device for supporting a user's back when the user bends over." Specification (December 28, 2015, "Spec.") 1, 1. 14. The support device comprises a vest having a pair of pockets and a panel made of resiliently bendable material provided in each pocket. Id. at 1, 11. 18-22. The panels support the user's back when a user bends over. Id. at 1, 11. 22-23. Claims 1 and 5 are the independent claims. Claim 1 is representative3 of the subject matter on appeal and is reproduced below with the disputed limitations shown in italics for emphasis. 1. A bodily support assembly comprising: a vest being configured to be worn, said vest having a back side, a pair of lateral sides and a front side, said front side being longitudinally split to define a pair of mating edges wherein said vest is configured to be worn around a torso having said back side covering a back, each of said front side and said back side being comprised of a resiliently stretchable material, said mating edges being matable with respect to each other wherein said mating edges are configured to retain said vest on the torso, said vest having a waist portion, said waist portion extending upwardly from a bottom edge of said vest 2 Claims 2 and 3 are canceled. Br. 7 (Claims Appendix). 3 Appellant argues claims 1, 4, and 5 as a group. Br. 5. We select claim 1 as representative, and claims 4 and 5 stand or fall with claim 1. See 37 C.F.R. Â§ 4I.37(c)(l)(iv). 2 Appeal2018-006056 Application 14/979,813 toward a middle of said vest, said waist portion being configured to surround hips when said vest is worn thereby inhibiting said vest from sliding upwardly on the torso when a user bends over, each of said lateral sides having a pair of holes extending therethrough wherein each of said holes is configured to have an arm extended therethrough, said holes being laterally aligned defining an upper torso portion of said vest between said holes, each of said holes being positioned in upwardly spaced relationship to a top of said waist portion to define an abdomen portion extending between said waist portion and said upper torso portion; a pair of pockets, each of said pockets being coupled to said vest, each of said pockets is positioned on said back side, each of said pockets being longitudinally oriented on said back side extending across said abdomen portion and said upper torso portion of said vest between said waist portion and a collar of said vest; and a pair of panels, each of said panels being removably insertable into an associated one of said pockets, each of said panels being comprised of a resiliently bendable material wherein each of said panels is configured to support the back when the user bends over thereby inhibiting the user from being injured when the user bends over. Br. 7 (Claims Appendix). ANALYSIS The Examiner found that Williams discloses a vest having a waist portion, as recited in claim 1. Final Act. 3. The Examiner identified the claimed waist portion in annotated Figure 2 of Williams, which is reproduced below. Id. at 9. 3 Appeal2018-006056 Application 14/979,813 F ' ..., 1gure .t- EJ \71 \ ______ .J : S,'3, ,.....\ -A-----, L ______ J [~] Figure 2 is annotated by the Examiner to indicate a waist portion "A" of vest member 20 which extends from a bottom edge of the vest to an area midway between upper strap 51 and lower strap 51 of fitting system 50. The Examiner found that this identified waist portion "is capable of surrounding hips when said vest is worn thereby inhibiting said vest from sliding upwardly on the torso when a user bends over." Id. at 3. 4 Appeal2018-006056 Application 14/979,813 Appellant argues Williams "does not teach [the area identified by the Examiner as waist portion "A"] covering the waist and it is not apparent that it would do so based on the disclosure." Br. 5. Appellant argues that the Examiner's finding that Williams's vest is "capable of covering a wearer's waist" is in error because Williams does not disclose or discuss the possibility of the device covering the waist. Id. at 5-6 ( emphasis omitted). We find explicit disclosure in Williams that the vest covers a wearer's waist to support the contested finding. An ordinary meaning of "waist" is "the typically narrowed part of the body between the hips and chest or upper back." Merriam-Webster On-Line Dictionary, www.merriam- webster.com/dictionary/waist (definition la) (last accessed March 26, 2019). The claim recites that the waist portion "extend[ s] upwardly from a bottom edge of said vest toward a middle of said vest." Williams discloses "a vest that covers the torso of the individual." Williams ,r 22. An ordinary meaning of "torso" is "the human body apart from the head, neck, arms, and legs: the human trunk." Merriam-Webster On-Line Dictionary, www.merriam-webster.com/dictionary/torso ( definition 1) (last accessed March 26, 2019). Based on the ordinary meaning of "torso," we find that Williams describes a vest that covers the part of the body that includes the waist. Further, Williams describes that vest member 20 includes a chest area 21, a back area 22, and a pair of side areas 23. Williams ,r 22. This disclosure describes that the vest surrounds the user's torso on the front, back and sides. Thus, we agree with the Examiner's finding, as shown in annotated Figure 2 above, that Williams discloses a vest that covers the wearer's waist. As further support for this finding, Williams describes that chest area 21 and back area 22 extend "from a neck of the individual to a 5 Appeal2018-006056 Application 14/979,813 waist of the individual." Id. ,r 23. Further, Figure 7 of Williams depicts an image of a person wearing the vest, and clearly shows the vest covering a narrowed area of the person's torso below the chest and upper back. See Fig. 7 (showing straps in white and showing the vest extending between the straps and below the lower strap such that it covers the narrowed area of the person's torso below the chest and upper back). Thus, Appellant has not identified error in the rejection based on the Examiner's finding that Williams' s vest is capable of covering the wearer's waist. The claim further requires that the waist portion is "configured to surround hips when said vest is worn thereby inhibiting said vest from sliding upwardly on the torso when a user bends over." Br. 7 (Claims Appendix). The Examiner found that the portion ofWilliams's vest identified by the Examiner as waist portion "A" is "capable of surrounding hips when said vest is worn thereby inhibiting said vest from sliding upwardly on the torso when a user bends over." Final Act. 3. We also do not find error in this finding by the Examiner. As noted above, Williams discloses that the vest covers the wearer's torso. Williams ,r 22. A person's "torso" refers to the person's "trunk." See supra (ordinary meaning of "torso"). Hips are part of a person's trunk. 4 We agree with the Examiner's finding that a person's torso or trunk includes the wearer's waist and hips. Examiner's Answer (March 1, 2018, "Ans."), at 2. As further 4 An ordinary meaning of "hip" is "the laterally projecting region of each side of the lower or posterior part of the mammalian trunk formed by the lateral parts of the pelvis and the upper part of the femur together with the fleshy parts covering them." Merriam-Webster On-Line Dictionary, www.merriam-webster.com/ dictionary/hip (definition la) (emphasis added) (last accessed March 26, 2019). 6 Appeal2018-006056 Application 14/979,813 support for this finding, Williams discloses that chest area 21 and back area 22 "may exhibit a longer configuration that covers portions of the individual below the waist." Williams ,r 23. Thus, we do not find error in the Examiner's finding that Williams discloses a vest having "a waist portion" is configured to "surround hips" when worn. The Examiner also found that Williams' s vest member 20 includes a pair of pockets (32) positioned on a back side of the vest and extending across an abdomen portion ("D") and upper torso portion (portion between armholes 25) of the vest between the waist portion ("A") and a collar ("C") of the vest. Final Act. 4 (referring to annotated Figure 2, shown above). Appellant argues that Williams does not "disclose the positioning of the pockets as claimed extending from the waist portion to the collar." Br. 6. The Examiner did not find, however, that Williams' s pockets 32 extend from the waist portion to the collar. Rather, the Examiner found that pockets 32 extend "between said waist portion (A) and a collar (C) of said vest." Final Act. 4. The Examiner's finding comports with the claim language, which recites "each of said pockets ... extending across said abdomen portion and said upper torso portion of said vest between said waist portion and a collar of said vest." Br. 7 (Claims Appendix) ( emphasis added). We agree with the Examiner's claim construction of "between said waist portion and a collar" as requiring only that the pockets extend in the area that lies between these two portions of the vest and not requiring that the pockets extend from one recited portion to the other recited portion of the vest. Ans. 4 ("a pair of pockets extending between said waist portion and a collar of said vest ... is 7 Appeal2018-006056 Application 14/979,813 not the same as claiming pockets extending from the waist portion to the collar."). As noted by the Examiner, the Examiner's interpretation of the scope of the claim language is consistent with Appellant's Figures. Ans. 4-5 (citing Figure 1 of Appellant's application). Appellant's Figure 1 is reproduced below. Figure 1 is an exploded view of the back of vest 12 showing pockets 42 extending between waist portion 36 and collar 44. Figure 1 does not show pockets 42 abutting or extending into either portion such that it extends from waist portion 36 to collar 44. Thus, Appellant's argument is not commensurate in scope with the claim language. For this reason, Appellant has not demonstrated error in the Examiner's finding that Williams discloses 8 Appeal2018-006056 Application 14/979,813 pockets "extending ... between said waist portion and a collar of said vest," as recited in claim 1. DECISION The decision of the Examiner rejecting claims 1, 4, and 5 is affirmed. No time period for taking any subsequent action in connection with this appeal may be extended under 37 C.F.R. Â§ 1.136(a). See 37 C.F.R. Â§ 1.136(a)(l )(iv). AFFIRMED 9