Ex Parte Husing

Patent Trial and Appeal BoardOct 26, 2012

11114595 (P.T.A.B. Oct. 26, 2012)

UNITED STATES PATENT AND TRADEMARK OFFICE ____________________ BEFORE THE PATENT TRIAL AND APPEAL BOARD ____________________ Ex parte RICHARD L. HUSING ____________________ Appeal 2010-007524 Application 11/114,595 Technology Center 3600 ____________________ Before JOHN C. KERINS, EDWARD A. BROWN, and BENJAMIN D.M. WOOD, Administrative Patent Judges. BROWN, Administrative Patent Judge. DECISION ON APPEAL Appeal 2010-007524 Application 11/114,595 2 STATEMENT OF THE CASE Appellant appeals under 35 U.S.C. Â§ 134(a) from the rejection of claims 1-3, 6-11, and 14. (Br. 5). An Oral Hearing was held on October 18, 2012. We have jurisdiction over this appeal under 35 U.S.C. Â§ 6(b). We AFFIRM. THE CLAIMED SUBJECT MATTER Independent claims 1 and 11 are on appeal. Claim 1 is illustrative of the claimed subject matter and is reproduced below: 1. A handle comprising: a generally planar ring-shaped structure including a first side, a second side, a third side and a fourth side defining a perimetrical planar structure enclosing an open interior portion, an inner edge of the fourth side extending within the open interior portion and being contoured to form a grip; a locking mechanism comprising: a) a first hole positioned in substantially the center of the second side of the ring-shaped structure opposite the grip and extending through the second side of the ring-shaped structure in a direction transverse a plane defining the ring-shaped structure, and b) second and third holes spaced from each other and extending through at least one of the first side and the third side of the ring-shaped structure in a direction transverse a plane defining the ring- shaped structure; and a string secured to the ring-shaped structure through the locking mechanism by threading a first end of the string through the first hole of the second side, and threading the first end of the string through at least one of the second or third holes in either the first side or the third side, such that the first end of the string is removably secured to the ring-shaped structure. Appeal 2010-007524 Application 11/114,595 3 THE REJECTIONS Appellant seeks review of the following rejections: 1. Claims 1-3, 8-11, and 14 under 35 U.S.C. Â§ 103(a) as unpatentable over Martin (US 3,387,752; iss. Jun. 11, 1968), Day (US 5,203,480; iss. Apr. 20, 1993), and Mercer (US 2,812,125; iss. Nov. 5, 1957). 2. Claims 6 and 7 under 35 U.S.C. Â§ 103(a) as unpatentable over Martin, Day, Mercer, and Williamson (US 2,519,528; iss. Aug. 22, 1950). ANALYSIS Claims 1-3, 8-11, and 14 The Examiner found Martin discloses a handle comprising first, second, and third sides 26 (left, bottom and right sides), and a fourth side 24 (top side) of support frame 18, where each of these sides has a plurality of holes 27. (Ans. 3, 7) (see also Martin, col. 2, l. 70 â€“ col. 3, l. 4; Fig. 2). The Examiner found Martin does not disclose that the fourth side 24 is contoured to form a grip. (Ans. 3). The Examiner found Day discloses finger grooves 7, and concluded that it would have been obvious to one of ordinary skill in the art to modify Martin's fourth side 24 to include Day's finger grooves 7 to provide a firm grip to the user. (Ans. 3, 7-8). The Examiner also found that the combination of Martin and Day does not include the claimed string. (Ans. 4). The Examiner found Mercer discloses a string 10 secured to a structure through a locking mechanism by threading the string 10 through a first hole 15, and then through a second hole 15 or third hole 16, on the hand grip 17. (Ans. 4) (citing Mercer, Figs. 1 and 2, col. 2, ll. 43-67). The Examiner concluded that it would have been obvious to further modify Martin's device by threading Mercer's string 10 Appeal 2010-007524 Application 11/114,595 4 through the first hole 27 (on the second side), and then through the second hole 27 (on the first side) or the third hole 27 (on the third side), to firmly secure the string to the structure to facilitate carrying of items. (Ans. 4). Appellant contends that Mercer does not teach or suggest passing the flexible member (10) through a hole in a first side and then through a hole in a second side, of a ring member, because Mercer's fish stringer only includes a plate member 11 with a plurality of holes 15, 16. (Br. 13). Appellant also contends that Martin does not teach or suggest that the holes 27 around the support frame 18 are configured to receive and lock a string in place, but only describes using the holes 27 for securing hook assemblies 21 to the support frame 18. (Id.) These contentions are not persuasive. Firstly, Appellant's contentions analyze Martin and Mercer separately. However, non-obviousness cannot be established by attacking these references individually where the rejection is based upon the teachings of a combination of references. In re Keller, 642 F.2d 413, 425 (CCPA 1981). Appellant has not addressed the Examiner's combination of teachings and rationales for combining these teachings. Secondly, Martin provides evidence that it was known in the art for a fish stringer to include a ring-shaped structure configured to be grasped at one side by a user, and to include holes at each of its other three sides for receiving fish-securing elements. Mercer provides evidence that it was known in the art to alternatively secure fish to a string and to secure the string to a handle configured to be grasped by a user; and for the handle to include a plurality of holes to allow the string to be threaded through selected ones of them to secure the string to the handle to prevent it from Appeal 2010-007524 Application 11/114,595 5 separating from the handle when carrying fish, as well as to be unthreaded from the holes to either add fish to, or remove fish from, the string. In light of the teachings of Martin and Mercer, we agree with the Examiner that it would have been obvious to one skilled in the art to modify Martin's fish stringer by substituting the hook assemblies 21 with Mercer's string 10, which provides the same fish-securing function as the hook assemblies 21. We further agree with the Examiner that it would have been obvious to secure the string to Martin's support frame 18 "by threading a first end of the string . . . such that the first end of the string is removably secured to the ring-shaped structure," as claimed. Securing the string to Martin's support frame in this way would prevent the string from separating from the support frame when carrying fish, and also allows it to be unthreaded from the holes. This substitution of elements is no more than "the simple substitution of one known element for another" with predictable results. See KSR Int'l Co. v. Teleflex, Inc., 550 US. 398, 417 (2007). Thus, we conclude that the handle recited in claim 1 would have been obvious to one skilled in the art in view of Martin, Day, and Mercer. Therefore, we sustain the rejection of claim 1. Appellant relies on the dependency of claims 2, 3, and 8-10 from claim 1 for patentability. (Br. 13). Thus, we also sustain the rejection of these dependent claims for similar reasons as those discussed supra for claim 1. Claim 11 is directed to a handle for carrying a load comprising, inter alia, "a string removably secured to the ring-shaped structure by threading a first end of the string through the securing hole, and threading the first end of the string through at least one of the pair of locking holes." The Appeal 2010-007524 Application 11/114,595 6 Examiner's findings and conclusions (Ans. 3, 6-12) and Appellant's arguments for patentability (Br. 11-13) for claim 11 are similar to those discussed supra with respect to claim 1. We also sustain the rejection of claim 11. Appellant relies on the dependency of dependent claim 14 from claim 11 for patentability. (Br. 13). We also sustain the rejection of claim 14. Claims 6 and 7 Claims 6 and 7 depend from claim 1. Appellant contends that Williamson does not cure the alleged deficiencies of Martin, Day, and Mercer for claim 1. (Br. 14). As we find no deficiencies in the Examiner's rejection of claim 1, we also sustain the rejection of claims 6 and 7. DECISION The Examiner's decision rejecting claims 1-3, 6-11, and 14 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)(1)(iv). AFFIRMED Klh