Ex Parte Lakes et al

Patent Trial and Appeal BoardOct 10, 2018

14262388 (P.T.A.B. Oct. 10, 2018)

UNITED STA TES p A TENT AND TRADEMARK OFFICE APPLICATION NO. FILING DATE 14/262,388 04/25/2014 132800 7590 10/12/2018 Michael Best & Friedrich LLP (Specialized) 100 East Wisconsin A venue Suite 3300 Milwaukee, WI 53202 FIRST NAMED INVENTOR Robert Lakes 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. 087271-9214-USOO 1234 EXAMINER HUYNH, KHOA D ART UNIT PAPER NUMBER 3732 NOTIFICATION DATE DELIVERY MODE 10/12/2018 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): mkeipdocket@michaelbest.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte ROBERT LAKES, DAVIDE. STROUD, MICHAEL GRIM, and MIKE KRYNOCK Appeal2018-000769 Application 14/262,388 Technology Center 3700 Before LINDA E. HORNER, WILLIAM A. CAPP, and GEORGE R. HOSKINS, Administrative Patent Judges. CAPP, Administrative Patent Judge. DECISION ON APPEAL STATEMENT OF THE CASE Appellants 1 seek our review under 35 U.S.C. Â§ 134 of the non-final rejection of claims 1-7 and 9-21 under 35 U.S.C. Â§ 102(a) as anticipated by Cotterman (US 2013/0239303 Al, pub. Sept. 19, 2013). We have jurisdiction under 35 U.S.C. Â§ 6(b). We AFFIRM. 1 Specialized Bicycle Components, Inc. is the Applicant and real-party-in- interest. Appeal Br. 2. Appeal2018-000769 Application 14/262,388 THE INVENTION Appellants' invention relates to bicycle helmets. Spec. ,r 1. Claim 1, reproduced below, is illustrative of the subject matter on appeal. 1. A helmet comprising: a main body having a concave interior for receiving a user's head; an adjustment mechanism; and a head strap coupled to the main body and having an end coupled to the adjustment mechanism, the head strap positioned in a loop that spans continuously from the end at least 1.5 wraps around the interior of the main body. OPINION Claim 1 The Examiner finds that Cotterman discloses all of the elements of claim 1. Non-Final Action 7-9. In particular, the Examiner finds that Cotterman's head strap 102, which includes forehead strap 108 and lace 114, wraps 1. 5 times around the interior of the main body as claimed. Appellants argue that Cotterman' s head strap does not span "continuously" from an end at least 1.5 wraps around the interior of the main body. Appeal Br. 7. Appellants argue that "continuously" should be construed to mean "uninterrupted in extent." Id. Appellants contend that the Examiner errs in considering that the "doubled over" portions of lace 114 of Cotterman are properly included in calculating 1.5 wraps around the interior of the main body. Id. at 8. In response, the Examiner points out that Cotterman' s head strap is no less "uninterrupted in extent" than the preferred embodiment of Appellants' invention. Ans. 3 (noting that all pieces of Cotterman's head strap are connected to each other). The Examiner distinguishes between Appellants' 2 Appeal2018-000769 Application 14/262,388 loop, which comprises of a plurality of individual components, and a continuous strap made from a single material. Id. at 4. With respect to the 1.5 wraps limitation, the Examiner finds that Cotterman's lace 114 is doubled at areas 132a and 132b and then is continuous to strap 120. Id. Such doubled over areas, according to the Examiner, are sufficient for the belt to span 1.5 wraps around the head. Id. In reply, Appellants admit that their head strap is comprised of a plurality of components, including two belts 34. [O]ne of the belts 34 starts at the adjustment mechanism 32, wraps around the interior of the main body 22, and terminates at one end of the occipital pad 36 .... The other belt 34 continues from the other end of the occipital pad 3 6, wraps around the interior of the main body 22, and ends at the adjustment mechanism 32. Thus, the two belts 34 and the occipital pad 36, which together define the head strap 30, are positioned in a loop that spans continuously at least 1.5 wraps around the interior of the main body 22. Reply Br. 3. Appellants argue that using a "pencil test," there is no way to trace a continuous loop, beginning at an end of lace 114 coupled to tightening mechanism 116, that would span at least 1.5 wraps around the interior. Id. at 5. Appellants argue that any such tracing would require tracing over at least a portion of the same element twice. Id. Cotterman discloses a tightening system for a helmet. Cotterman, Abstract. Cotterman' s head strap is comprised of forehead strap 108, lace 114, and tightening mechanism 116. Id. at Fig. 1, ,r,r 75-77. Together, the strap components completely encircle the head of the user. Id. The respective lengths of forehead strap 108 and lace 114 are not explicitly disclosed in Cotterman's specification. However, a careful review of Figures 1 and 3 supports a finding that the linear length of lace 114 is at least 3 Appeal2018-000769 Application 14/262,388 twice as long as forehead strap 108. Id. at Figs. 1, 3. Thus, the Examiner's finding that the linear length of Cotterman' s strap is 1.5 times the circumference of a user's head is supported by a preponderance of the evidence. See Ans. 4 ( one and one-half times around the head). The foregoing leaves us with two questions: (1) does Cotterman's strap "span continuously" from the end; and, if so (2) does it wrap 1.5 times around the interior of the main body as claimed? Claims App. Appellants and the Examiner disagree as to the meaning of span continuously as well as 1.5 wraps around. During examination of a patent application, pending claims are given their broadest reasonable construction consistent with the specification. In re Am. Acad. of Sci. Tech Ctr., 367 F.3d 1359, 1364 (Fed. Cir. 2004). Under the broadest reasonable interpretation standard, claim terms are given their ordinary and customary meaning as would be understood by one of ordinary skill in the art in the context of the entire disclosure. In re Translogic Tech., Inc., 504 F.3d 1249, 1257 (Fed. Cir. 2007). Construing claims broadly during prosecution is not unfair to the applicant, because the applicant has the opportunity to amend the claims to obtain more precise claim coverage. Am. Acad. of Sci., 367 F.3d at 1364. In the instant case, Appellants admit that their preferred head strap is comprised of two belts 34 and occipital pad 3 6. Reply Br. 3; Spec. ,r 21. Thus, "continuously" should be construed as broad enough to encompass a plurality of components that are linked together to form a continuous circuit much as a plurality of chain links can be combined to form a continuous chain. See Vitronics Corp. v. Conceptronic, Inc., 90 F.3d 1576, 1583 (Fed. Cir. 1996) (explaining that a claim construction that excludes an inventor's preferred embodiment is "rarely, if ever, correct and would require highly 4 Appeal2018-000769 Application 14/262,388 persuasive evidentiary support"); see also Irdeto Access, Inc. v. Echostar Satellite Corp., 383 F.3d 1295, 1300 (Fed. Cir. 2004) ("Even when guidance is not provided in explicit definitional format, the specification may define claim terms by implication such that the meaning may be found in or ascertained by a reading of the patent documents") (internal quotations omitted). We agree with the Examiner that a construction of "continuously" that is broad enough to read on Appellants' strap, with its various belt and occipital pad connections, is also broad enough to read on Cotterman's strap, which is similarly comprised of a plurality of interconnected components. With respect to Appellants' "pencil test" argument, we are not persuaded that the claim language requires that a pencil must be able to trace a line along the loop without doubling over any segment in order to say that it "spans continuously." Here, it is enough that, together, lace 114, forehead strap 108, and adjustment mechanism 116, circumscribe the interior of the helmet in an unbroken loop and that the linear length of the combined components equals or exceeds the linear distance equal to 1.5 wraps around the interior of the main body. Next, we tum our attention to the meaning of "wraps around." Appellants contend that, because Cotterman's lace 114 reverses direction first at lace guide 124a and then again at lace guide 124b, that the overlapping portions resulting from the reversals of direction should not be counted as "wrapping around" the interior of the main body as claimed. Appeal Br. 8. In effect, Appellants contend that we should construe "wraps around'' as limited to wrapping in a manner that begins at one point and then proceeds continuously in a single direction so as to complete one full circle and then extends in the same direction for an additional half-circle. In other 5 Appeal2018-000769 Application 14/262,388 words, it proceeds in a single, substantially circular, direction as with a spiral. In our view, this is an unreasonably narrow interpretation of the claim language. Since Appellants' head strap starts at occipital pad 36, the two belts 34 may be viewed as proceeding in opposite directions, one in a clockwise direction and the other in a counterclockwise direction from pad 36. Thus, when the two belts intersect at or near front belt guide 44 to complete a full circle, they begin to overlap each other in opposite directions. Spec. ,r 17. The illustrated head strap 30 includes two flexible belts 34 and an occipital pad 36. One of the belts 34 is secured to one side of the occipital pad 36 and the other belt is secured to the opposing side of the occipital pad 36. The belts 34 then travel in opposite directions around the concave interior 26 of the main body 22 and terminate at the rear of the helmet body .... Due to the described arrangement, it can be seen that the head strap 30 overlaps itself around a majority of the helmet 20. Id.; see also Fig. 3. Having reviewed Appellants' Specification and drawings and interpreting "wraps around" in light of Appellants' own disclosure, we construe "wraps around'' as broad enough to encompass a change in direction of the strap while it "wraps around" the interior of the main body. We see no patentable distinction between Appellants' belts 34 overlapping in opposite directions at the front of the helmet and Cotterman' s laces 114 reversing direction at lace guides 124a and 124b. In both instances, substantially the entire length of the head strap circumscribes the user's head with approximately one-half of the circumferential length overlapping another portion of the strap. 6 Appeal2018-000769 Application 14/262,388 In view of the foregoing discussion, we determine the Examiner's findings of fact are supported by a preponderance of the evidence. Accordingly, we sustain the Examiner's unpatentability rejection of claim 1. Claim 6 Claim 6 depends indirectly from claim 1 and directly from claim 5 and adds the limitation: "wherein at least a portion of the flexible belt is spaced rearward from the occipital pad." Claims App. The Examiner finds that this limitation is met by Cotterman. Non-Final Action 10, citing Figure 3. Specifically, the Examiner identifies lace 114 as corresponding to the flexible belt and base 126 as corresponding to the occipital pad. Id. Appellants argue that the lace 114 extends through the base 126, so it does not follow that the lace 114 also can be spaced rearward of base 126. Appeal Br. 10. In response, the Examiner explains that, contrary to Appellants' position, lace 114 passes through yoke 110, which is spaced rearward of yoke base 126. Ans. 9--10. Figure 1 of Cotterman depicts an assembly disposed at the rear of the helmet comprised of yoke base 126, yoke 110, and tightening mechanism 116. Cotterman teaches that lace 114 is coupled to tightening mechanism 116. Cotterman ,r 80. Tightening mechanism 116 is depicted in Figure 1 as being spaced rearward of yoke 110 and yoke base 126. Id.; see also Figs. 2-3, 5A, and 5B. Based on our review of the Figures, at least a portion of lace 114 that is coupled to tightening mechanism 116 is spaced rearward from yoke base 126. Thus, in our view, the Examiner's finding of fact is supported by a preponderance of the evidence and, accordingly, we sustain the rejection of claim 6. 7 Appeal2018-000769 Application 14/262,388 Claims 2-7, 9, 10, and 21 These claims depend, directly or indirectly, from claim 1 and are not separately argued. They fall with claim 1. See 3 7 C.F .R. Â§ 41.3 7 ( c )(1 )(iv) (failure to separately argue claims). Claim 11 The Examiner finds that Cotterman discloses all of the elements of claim 11. Non-Final Action 10-11. In particular, the Examiner finds that Cotterman's flexible belt overlaps onto itself at a front of the main body. Id. Appellants argue that Cotterman does not overlap at the front. Appeal Br. 10-11. According to Appellants, front means "foremost part of." Id. at 11. Appellants take the position that Cotterman' s lace 114, which is the part of the strap that overlaps onto itself, is disposed on the sides or rear of the helmet. Id. Appellants emphasize that Cotterman's forehead strap 108 is disposed at the front, but does not overlap itself. Id. In response, the Examiner disagrees with Appellants' construction of "front" meaning "foremost part." Ans. 11. The Examiner states that a helmet may be considered to have "a front" and "a back." Id. "When considered in this way, the front would be front half, the back would be back half." Id. The Examiner interprets the Figures of Cotterman such that elements disposed anterior to straps 142 are "at a front" and elements disposed posterior to straps 142 are at the back thereof. Id. The Examiner finds that overlapping portions of lace 142 are disposed anterior to straps 142 and, therefore, are "at a front" of the main body. Id. In reply, Appellants argue that the Examiner's interpretation is "unreasonably broad." Reply Br. 7. Appellants reiterate their previous 8 Appeal2018-000769 Application 14/262,388 position that Cottennan's lace 114 is disposed on the sides and rear of the helmet. Id. The dispute between Appellants and the Examiner is a matter of claim construction over the meaning of "front." Essentially, Appellants contend that any disposition of an overlapping portion of the head strap that does not include the foremost part of the helmet is outside of the scope of the claim. However, Appellants' proposed construction of "foremost part" provides little or no assistance in construing the term, because Appellants provide no guidance as to how wide such "part" is, other than implying that such "part" must be less than the foremost hemisphere of the helmet. As previously discussed, we are bound to give claims their broadest reasonable construction consistent with the specification. Am. Acad. of Sci., 367 F.3d at 1364. Again, under such standard, claim terms are given their ordinary and customary meaning as would be understood by one of ordinary skill in the art in the context of the entire disclosure. Trans logic Tech., 504 F.3d at 1257. Appellants' disclosure does not mention the word "front" apart from identifying element 44 as the "front belt guide." See, e.g., Spec. ,r 21. While Appellants' construction of "foremost part" may be reasonable, Appellants fail to furnish any persuasive evidence or argument as to why the Examiner's alternative construction regarding the front hemisphere of the helmet is unreasonable. When confronted with two or more reasonable interpretations, we are constrained to adopt the broadest reasonable construction. Am. Acad. of Sci., 367 F.3d at 1364. In this case, we cannot say that the Examiner's construction is unreasonable. 9 Appeal2018-000769 Application 14/262,388 Adopting the Examiner's broad, but reasonable construction, an overlapping portion of Cotterman' s lace 114 is disposed within the front hemisphere of the helmet interior and, therefore, meets the claim limitation of overlapping onto itself "at a front." Consequently, we sustain the Examiner's rejection of claim 11. Claim 17 Claim 17 depends indirectly from claim 11 and directly from claim 16 and adds the limitation: "wherein at least a portion of the flexible belt is spaced rearward from the occipital pad." Claims App. This claim presents the identical issue that we discussed in connection with claim 6 and resolved in the Examiner's favor. For similar reasons, we sustain the Examiner's rejection of claim 17. Claims 12-16 and 18-20 These claims depend, directly or indirectly, from claim 11 and are not separately argued. They fall with claim 11. 37 C.F.R. Â§ 4I.37(c)(l)(iv). DECISION The decision of the Examiner to reject claims 1-7 and 9-21 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)(l )(iv). AFFIRMED 10