Ex Parte Gorans et al

Patent Trial and Appeal BoardMar 31, 2017

13142998 (P.T.A.B. Mar. 31, 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. 294.00240101 1033 EXAMINER WANG, MICHAEL H ART UNIT PAPER NUMBER 3647 MAIL DATE DELIVERY MODE 13/142,998 09/08/2011 26813 7590 03/31/2017 MUETING, RAASCH & GEBHARDT, P.A. P.O. BOX 581336 MINNEAPOLIS, MN 55458-1336 Marc S. Gorans 03/31/2017 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 MARC S. GORANS and MATTHEW HENRY ERICKSON Appeal 2014-008471 Application 13/142,998 Technology Center 3600 Before ANNETTE R. REIMERS, THOMAS F. SMEGAL, and JEFFREY A. STEPHENS, Administrative Patent Judges. REIMERS, Administrative Patent Judge. DECISION ON APPEAL STATEMENT OF THE CASE Marc S. Gorans and Matthew Henry Erickson (Appellants) appeal under 35 U.S.C. § 134(a) from the Examiner’s decision to provisionally reject claims 1—24 of the subject application for obviousness-type double patenting over claim 10 of Application No. 13/142,997, to reject under 35 U.S.C. § 102(b) claims 1—6 and 12—15 as anticipated by Oloff (US 4,120,266; iss. Oct. 17, 1978), and to reject under 35 U.S.C. § 103(a): (1) claims 16—19 and 22 as unpatentable over Oloff; (2) claims 7—9, 20, 21, and 24 as unpatentable over Oloff and Krebs (US 5,267,778; iss. Dec. 7, 1993); (3) claims 10 and 11 as unpatentable over Oloff and Dazai (US Appeal 2014-008471 Application 13/142,998 7,146,936 B2; iss. Dec. 12, 2006); and (4) claim 23 as unpatentable over Oloff and Gorans (US 2006/0207519 Al; pub. Sept. 21, 2006). We have jurisdiction under 35 U.S.C. § 6(b). We REVERSE. CLAIMED SUBJECT MATTER The claimed subject matter relates to “[pjoultry carriers and methods of restraining poultry.” Spec. 12, Figs. 1,3. Claims 1,16, and 24 are independent. Claim 1 is illustrative of the claimed subject matter and recites: 1. A carrier apparatus for atraumatic restraint of a live bird, the apparatus comprising: a torso support element shaped to support and atraumatically retain the torso of a live bird restrained in the carrier; a leg clamp apparatus operably attached to the torso support element, the leg clamp apparatus positioned to receive and atraumatically retain a thigh of a live bird restrained in the carrier, wherein the leg clamp apparatus comprises an open configuration in which the thigh can be positioned in the leg clamp apparatus and a closed configuration in which the thigh is retained in the leg clamp, and further wherein the thigh is retained in a selected angular orientation relative to the torso support element; a head support operably attached to the torso support element and positioned to receive a head of a bird restrained in the carrier with its chest supported against the torso support element; and a head clamp operably attached to the head support, wherein the head clamp and the head support cooperate to receive and atraumatically retain a head of a bird between the head clamp and the head support. 2 Appeal 2014-008471 Application 13/142,998 ANALYSIS Obviousness—Type Double Patenting Claims 1—24 The Examiner provisionally rejects claims 1—24 of the subject application on the ground of non-statutory, obviousness-type double patenting over claim 10 of co-pending Application No. 13/142,997 (hereinafter “the ’977 application”). Final Act. 17—19; see also Appeal Br. 24. Since institution of this rejection, applicants in the ’997 application have (1) withdrawn claim 10 and claim 14, which depends from claim 10; and (2) canceled claims 11—13 and 15, which originally depended either directly or indirectly from claim 10. See Amendment to the Claims for the ’977 application (filed Feb. 1, 2017); see also Original Claims for the ’977 application (filed June 30, 2011). Because the circumstances surrounding the co-pending ’997 application have changed since institution of the double patenting rejection in the subject application, we decline to reach the rejection, and leave it to the Examiner to determine whether the provisional obviousness-type double patenting rejection is still proper. Anticipation by Oloff Claims 1—6 and 12—15 Independent claim 1 is directed to a carrier apparatus including “a head clamp operably attached to [a] head support, wherein the head clamp and the head support cooperate to receive and atraumatically retain a head of a bird between the head clamp and the head support.” Appeal Br., Claims App. 1. The Examiner finds that Oloff discloses that “the top part of pad 110 in Figure 10 comprises a support for the head of an animal, and 3 Appeal 2014-008471 Application 13/142,998 the neck restraint member 99 forms a clamp that is operably attached to the head support (pad 110).” Ans. 18; see also id. at 3; Final Act. 3. The Examiner further finds that “[t]he positioning of the neck restraint member 99 with respect to the adjustable arm strap clamps 80 and 81 makes it fully capable of receiving and retaining a head of a bird between the restraint member and the pad 110.” Ans. 18. Oloff discloses that (1) “[ejnergy absorbing pad[] . . . 110, shown in FIG. 10,” is “provided over [the] body support plate [27]”; and (2) “[i]n the operation of the device, the animal is anesthetized and placed on the restraint apparatus 10 with its back on pad 110.” See Oloff, 3:43—50 (emphasis added). In this case, we agree with the Examiner that neck restraint member 99 of Oloff retains the head of an animal.1 See Final Act. 3; see also Ans. 3, 18; Appeal Br. 13; Reply Br. 3^4. However, the Examiner fails to direct us to any discussion in Oloff regarding neck restraint 99 and energy absorbing pad 110 being “operably attached” or “cooperat[ing] to receive and atraumatically retain a head of a bird between the head clamp and the head support.” See Appeal Br. 12, 14; see also Reply Br. 3^4. According to Oloff, once an animal is anesthetized, it is placed on its back on energy absorbing pad 110 and then neck restraint 99 is applied to the animal. See Oloff, 3:48—59. Oloff does not describe neck restraint 99 (head clamp) and energy absorbing pad 110 (head support) being “operably attached” or cooperating to receive and atraumatically retain the head of an animal between the neck restraint 99 (head clamp) and energy absorbing pad 110 (head support). 1 Oloff discloses that “[a] slidable neck restraint holds the head and neck in place.” Oloff, Abstract (emphasis added). 4 Appeal 2014-008471 Application 13/142,998 We further note that energy absorbing pad 110 (head support) receives an animal “on its back” not with “its chest” supported against the bottom part of energy absorbing pad 110 (torso support element). See Final Act. 3; see also Ans. 3; Appeal Br. 10; id. at Claims App. I.2 Based on the foregoing reasons, the Examiner fails to establish by a preponderance of the evidence that Oloff anticipates the carrier apparatus of claim 1. Accordingly, we do not sustain the Examiner’s rejection of claims 1—6 and 12—15 as anticipated by Oloff. Obviousness Rejections Claims 7—11 and 16—24 Claims 7—11 depend either directly or indirectly from claim 1. See Appeal Br. Claims App. 3^4. Independent claim 16 is directed to a method of atraumatically restraining a live bird in a carrier apparatus and independent claim 24 is directed to a carrier apparatus for atraumatic restraint of a live bird both of which include similar limitations directed to the head support and the head clamp. See Appeal Br. Claims App. 4—5, 6—7. In the obviousness rejections, the Examiner relies on the same unsupported findings in Oloff regarding the head support and the head clamp. See Final 2 Claim 1 recites “a head support operably attached to the torso support element.” Appeal Br. Claims App. 1 (emphasis added). Here, the Examiner finds “the bottom part” of energy absorbing pad 110 represents “the torso support element” and “the top part” of energy absorbing pad 110 represents “the head support.” See Final Act. 2—3; see also Ans. 2—3. However, given that energy absorbing pad 110 of Oloff is a single uniform pad (see Oloff, 3:43—50, Fig. 10), the Examiner fails to establish how “the bottom part” of energy absorbing pad 110 is “operably attached” to “the top part” of energy absorbing pad 110. 5 Appeal 2014-008471 Application 13/142,998 Act. 7—17; see also Ans. 7—17. The Examiner does not rely on Krebs, Dazai, or Gorans to remedy the deficiencies of Oloff discussed above. Accordingly, we do not sustain the Examiner’s obviousness rejections of claims 7—11 and 16—24. DECISION We do not reach the Examiner’s decision to provisionally reject claims 1—24 of the subject application for obviousness-type double patenting over claim 10 of Application No. 13/142,997. We REVERSE the Examiner’s decision to reject claims 1—24 under 35U.S.C. §§ 102 and 103. REVERSED 6