Ex Parte Glassco

Patent Trial and Appeal BoardJun 16, 2017

14018956 (P.T.A.B. Jun. 16, 2017)

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. 14/018,956 09/05/2013 Joe T. GLASSCO TUP15120 1031 62439 7590 06/20/2017 EXAMINER SINORICA LLC 20251 Century Blvd. COLLINS, DARRYL J Suite 140 Germantown, MD 20874 ART UNIT PAPER NUMBER 2872 NOTIFICATION DATE DELIVERY MODE 06/20/2017 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): SINORICA@GMAIL.COM sinorica@outlook.com pair @ sinorica.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte JOE T. GLASSCO Appeal 2016-005714 Application 14/018,9561 Technology Center 2800 Before PETER F. KRATZ, DONNA M. PRAISS, and DEBRA L. DENNETT, Administrative Patent Judges. PRAISS, Administrative Patent Judge. DECISION ON APPEAL2 STATEMENT OF CASE Appellant appeals under 35 U.S.C. § 134 from the Examiner’s Final rejection of claims 1, 3, 5, 7—15, 18, and 19. We have jurisdiction under 35 U.S.C. § 6(b). 1 The real party in interest is identified as Joe T. Glassco. Br. 2. 2 In this Opinion, we refer to the Specification, filed Sept. 5, 2013 (“Spec.”), the Final Office Action appealed from, mailed Feb. 26, 2015 (“Final Act.”), the Appeal Brief, filed July 21, 2015, was amended Nov. 6, 2015 (“Br.”), and the Examiner’s Answer, mailed Mar. 9, 2016 (“Ans.”). Because the Amended Appeal Brief is not paginated, we assign sequential numbers beginning with the first page of the Amended Appeal Brief when citing to the Appeal Brief. Appeal 2016-005714 Application 14/018,956 We AFFIRM. The claims are directed to a pair of glasses used for working out and training a user’s vision. Spec. 1:10—12. Claims 1, 9, and 15 are independent. Claim 1 below is illustrative (subject matter in dispute italicized): 1. A vision training tool comprises: a visual inhibitor; a strap; the visual inhibitor comprises a first blinder, a second blinder, a first eyelet, a second eyelet, a bridge, a first fastening region, and a second fastening region; the strap comprises a first strap end, a second strap end, and a strap midsection; the first blinder being adjacently connected to the bridge; the second blinder being connected to the bridge opposite the first blinder; the first eyelet traversing through the first blinder adjacent to the bridge; the second eyelet traversing through the second blinder adjacent to the bridge; the first fastening region being positioned on the first blinder opposite the first eyelet; the secondfastening region being positioned on the second blinder opposite the second eyelet; the strap being connected to the visual inhibitor; the strap midsection being positioned in between the first strap end and the second strap end; the first strap end being connected to the first fastening region; the second strap end being connected to the second fastening region; the strap further comprises a first fastener; the first fastening region comprises a first extrusion and a first strap slot; the first extrusion being adjacently connected to the first blinder; 2 Appeal 2016-005714 Application 14/018,956 the first strap slot traversing through the first extrusion; the first strap end looping through the first strap slot; the first fastener being connected to the strap midsection adjacent to the first strap end; the first strap end being attached to the strap midsection by the first fastener; the strap further comprises a second fastener; the second fastening region comprises a second extrusion and a second strap slot; the second extrusion being adjacently connected to the second blinder; the second strap slot traversing through the second extrusion; the second strap end looping through the second strap slot; the second fastener being connected to the strap midsection adjacent to the second strap end; and the second strap end being attached to the strap midsection by the second fastener. Br. 20 (Claims App’x). Appellant appeals and the Examiner maintains the following rejections of the claims (Br. 3; Ans. 2): 1. Claims 1 and 9 under 35 U.S.C. § 112,12 as indefinite; 2. Claims 1, 3, 5, 9-13, 15, and 18 under 35 U.S.C. § 103(a) as unpatentable over Baines,3 in view of Chou;4 3. Claim 7 under 35 U.S.C. § 103(a) as unpatentable over Baines in view of Chou and Boden;5 3 Baines, US 4,168,111, issued Sept. 18, 1979. 4 Chou, US 7,856,674 B2, issued Dec. 28, 2010. 5 Boden, US 5,781,273, issued July 14, 1998. 3 Appeal 2016-005714 Application 14/018,956 4. Claims 1 and 8 under 35 U.S.C. § 103(a) as being unpatentable over Stagner,6 in view of Boden; and 5. Claims 9, 14, 15, and 19 under 35 U.S.C. § 103(a) over Stagner in view of Chou. Appellant does not argue the indefmiteness rejection or the obviousness rejections based on Stagner in combination with either Boden or Chou, therefore, we summarily affirm the first, fourth, and fifth rejections. Regarding the second and third rejections, Appellant does not separately argue the patentability of the claims. Br. 6—19. In accordance with 37 C.F.R. § 41.37(c)(l)(iv), and based upon the lack of arguments directed to the subsidiary rejection of claim 7, claims 3, 5, 7, 9-13, 15, and 18 will stand or fall together with claim 1. OPINION Regarding claim 1, the Examiner finds that Baines teaches a vision training tool having a visual inhibitor comprising blinders, eyelets, a bridge, and fastening regions as required by the claim, but fails to teach a strap. Final Act. 6—7. The Examiner also finds that Chou teaches a strap having two ends and fastening regions comprising extrusions such that the strap ends loop through slots traversing the extrusions. Id. at 7. The Examiner determines that it would have been obvious “to modify the fastening regions (temples) of the vision training tool, as taught by Baines, with the well- known functional equivalent strap retainer, as taught by Chou, to securely position eyewear for a wearer.” Id. at 8. Appellant contends that the Examiner’s rejection of claim 1 is in error because “[t]he cited drawings, Fig. 1 of Baines, failed to show the bridge 6 Stagner, US 5,189,445, issued Feb. 23, 1993. 4 Appeal 2016-005714 Application 14/018,956 which is claimed by the current application.” Br. 8. Appellant asserts that Baines fails to teach that the bridge supports the first blinder and the second blinder and rests across a user’s nose when the vision inhibitor is worn by a user. Id. at 8—9. Appellant also argues that the Examiner’s finding that Baines teaches a fastening region is in error because Baines teaches hingedly mounted temples which are not the same structure or function as claimed. Id. at 10—11. Additionally, Appellant asserts that the Examiner erred in finding that Baines discloses the claimed first and second eyelets because “Baines failed to teach a bridge [and] the relationship between the eyelet and the bridge.” Id. at 13. According to Appellant, Baines teaches a clear section or aperture that extends the full height of the lens mounting rim in conjunction with two spaced opaque sections constitute the full lens. Id. Appellant also disputes the Examiner’s finding that Chou discloses a strap.7 Id. at 14. According to Appellant, “[w]hat Chou taught is different from the fasteners claimed in the current invention. The head strap is connecting with the buckle. It is a part of the frame.” Id. at 17. Appellant also quotes the common recitation from independent claims 1, 9, and 15 “the first strap end looping through the first strap slot,” quotes the Examiner’s rejection citing Figure 2 of Chou for disclosing the same recited claim element, and then asserts “[t]he cited drawings, Fig. 2 of Chou, failed to show the structure which is claimed by the current application.” Id. The Examiner responds that Baines’s Figure 1 discloses a bridge that meets the dictionary definition of a bridge, namely, “the part of a pair of 7 Appellant asserts disagreement with the Examiner’s finding that Boden discloses a strap (Br. 14) but then quotes the Examiner’s finding as to Chou {id.), therefore, we understand the Appellant to be disputing the Examiner’s finding as to Chou, not Boden. 5 Appeal 2016-005714 Application 14/018,956 glasses that rest upon the upper bony part of the nose.” Ans. 3^4 (citing Baines, Fig. 1; http://www.meriam-webster.com/dictionary/bridge). Figure 1 as annotated by the Examiner is shown below: Figure 1 shows the vision training aid of Baines with the portion identified by the Examiner as the bridge circled and labeled. Ans. 3; see also Baines Fig. 1. Regarding the first and second eyelets disclosed by Baines, the Examiner notes that claimed elements “the first [second] eyelet traversing through the first [second] blinder adjacent to the bridge” are unclear and subject to an indefmiteness rejection, which construed the terms to mean the first and second blinders are adjacent to the bridge. Ans. 5 (citing Final Act. 5). The Examiner also finds that the first and second eyelets of Baines are adjacent to and attached to the bridge. Id. The Examiner further finds that Baines teaches blocking the peripheral vision of a wearer by providing opaque sections located in the peripheral region of the first and second eyelets even though blocking peripheral vision is not required by the claim. Id. (citing Baines Fig. 1, item 24). 6 Appeal 2016-005714 Application 14/018,956 Regarding the fastening regions required by claim 1, the Examiner finds that even though Baines fails to teach a strap, it does teach that the temples via a hinge fasten the vision inhibitor to the wearer, therefore Baines teaches fastening regions. Id. at 6. The Examiner further responds that Chou is cited for teaching “well-known fasteners used in the ophthalmic art to attach eyewear to a wearer.” Id. at 7.8 We are not persuaded by Appellant’s arguments and find that the preponderance of the evidence supports the rejection of claim 1 for the reasons provided by the Examiner in the Final Action and the Answer. Final Act. 6—8; see also Ans. 3—8. We add the following for emphasis. Appellant’s arguments are unpersuasive because the Examiner’s findings are supported by the record cited on appeal. We are not persuaded that Baines fails to teach the bridge and eyelets recited in claim 1. See Br. 9, 12—13. Appellant does not dispute the Examiner’s annotated Figure 1 of Baines that highlights the portion of Baines’ eyewear that meets the bridge requirement of claim 1. See Ans. 3. Nor does Appellant dispute the Examiner’s finding that each of the first and second blinders as well as the first and second eyelets is adjacent to the bridge as required by claim 1. See Ans. 5. The Appeal Brief reproduces Figure 3 from Appellant’s Specification twice to distinguish Baines. Br. 9, 13. Appellant’s repeated inclusion of Figure 3 suggests that a feature shown in Figure 3 is missing from Baines, however, Appellant does not explain adequately what that 8 The Examiner also responds to the Appellant’s arguments regarding Boden by finding that the claims do not require the first and second strap ends to be permanently affixed to the strap midsection. Ans. 6. The Examiner additionally finds that Boden discloses permanently connecting the strap ends to the midsection. Id. at 6—7 (citing Boden Fig. 1). 7 Appeal 2016-005714 Application 14/018,956 feature is as Baines does disclose the bridge and eyelets as required by claim 1. We decline to add additional limitations to claim 1 based on the embodiment shown in Appellant’s Figure 3. Our reviewing court “has repeatedly ‘cautioned against limiting the claimed invention to preferred embodiments or specific examples in the specification.’” Williamson v. Citrix Online, LLC, 792 F.3d 1339, 1346-A7 (Fed. Cir. 2015). We also are not persuaded that Baines fails to teach fastening regions as Appellant concedes that Baines discloses temples that are hinged to the frame of Baines’s visual inhibitor. Br. 10—11. Appellant does not adequately explain how Baines fails to teach fastening regions generally for attaching the training tool to the head of a wearer. It is insufficient to simply state that the claim element is missing from Baines and that Appellant disagrees with the Examiner’s finding, particularly where the rejection is over the combination of Baines’s visual inhibitor with Chou’s eyewear retainer. Final Act. 6—7. One cannot show nonobviousness by attacking references individually where the rejections are based on combinations of references. See In re Keller, 642 F.2d 413, 426 (CCPA 1981); In re Merck & Co., Inc., 800 F.2d 1091, 1097 (Fed. Cir. 1986). Similarly, Appellant’s argument distinguishing Chou is unpersuasive because it does not address the combination of Chou’s retainer with Baines’s visual inhibitor. Moreover, Appellant does not adequately explain why Chou’s head strap structure does not disclose the claimed extrusions, strap slots, and fasteners for connecting the strap to Baines’s visual inhibitor. Again, Appellant reproduces two figures, Figure 2 from Chou and Figure 9 from the Specification, to suggest a difference exists between the prior art and an embodiment from the Specification. The Specification makes clear 8 Appeal 2016-005714 Application 14/018,956 that the fasteners “can be any type of clamping device, locking mechanism, etc. that can securely hold the first strap end [] and the second strap end.” Spec. 5:21—22. Therefore, the preponderance of the evidence supports the Examiner’s finding that Chou discloses the strap, extrusions, slots, and fasteners required by claim 1. In sum, Appellant has not persuaded us of reversible error in the Examiner’s determination that the teaching of Chou’s strap, extrusions, slots, and fasteners for attaching eyewear to a wearer would have been an obvious modification to the fastening regions of Baines’s vision training tool. CONCLUSION We sustain the Examiner’s rejections of claims 1,3,5, 7—15, 18, and 19. DECISION The Examiner’s decision is affirmed. 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). AFFIRMED 9