Ex Parte Modglin et al

Patent Trial and Appeal BoardSep 21, 2018

14133933 (P.T.A.B. Sep. 21, 2018)

UNITED STA TES p A TENT AND TRADEMARK OFFICE APPLICATION NO. FILING DATE 14/133,933 12/19/2013 408 7590 09/25/2018 LUEDEKA NEELY GROUP, P.C. PO BOX 1871 KNOXVILLE, TN 37901 FIRST NAMED INVENTOR Michael D. Modglin 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. 68514.US 6133 EXAMINER LEE, MICHELLE J ART UNIT PAPER NUMBER 3772 NOTIFICATION DATE DELIVERY MODE 09/25/2018 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): docketing@luedeka.com LNG.PA TENT@gmail.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte MICHAEL D. MODGLIN, KAREN M. CLEMENTS, CHARLES J. FRENCH, III, SARAH 0. DA VIS, MICHAEL R. GALANTE, and GREGORY S. HODGE Appeal2017-009807 Application 14/133,933 Technology Center 3700 Before JENNIFER D. BAHR, LISA M. GUIJT, and ALYSSA A. FINAMORE, Administrative Patent Judges. GUIJT, Administrative Patent Judge. DECISION ON APPEAL Appellants 1 appeal under 35 U.S.C. Â§ 134(a) from the Examiner's rejection2 of claims 1, 2, 4---6, and 9--11. We have jurisdiction under 35 U.S.C. Â§ 6(b). We AFFIRM. 1 Appellants identify the real party in interest as DeRoyal Industries, Inc. Appeal Br. 2. 2 Appeal is taken from the Final Office Action dated October 17, 2016. Appeal2017-009807 Application 14/133,933 STATEMENT OF THE CASE Claim 1, reproduced below, is the sole independent claim on appeal and exemplary of the subject matter on appeal. Claim 1. An adjustable length brace, comprising: an adjustable length elongate and flexible one-piece body encircling portion made of a soft fabric and having opposite first and second free ends, the first free end being capable of being folded to adjust the length of the first free end and the second free end being capable of being folded over to adjust the length of the second free end to enable adjustment of the length of the one-piece body encircle portion; and first and second end portions, having a length shorter than the one-piece body encircling portion, the first end portion being releasably attachable to the first free end of the one-piece body encircling portion to extend therepast and the second end portion being releasably attachable to the second free end of the one- piece body encircling portion to extend therepast, the first and second end portions being connectable to one another. THE REJECTIONS I. Claims 1, 4---6, 10, and 11 stand rejected under 35 U.S.C. Â§ 102(b) as anticipated by Vollbrecht (US 7,815,585 B2; issued Oct. 19, 2010). II. Claims 2 and 9 stand rejected under 35 U.S.C. Â§ 103(a) as unpatentable over Vollbrecht and Brooks (US 4,475,543; issued Oct. 9, 1984). ANALYSIS Rejection I Regarding independent claim 1, the Examiner finds, inter alia, that Vollbrecht discloses an adjustable length brace comprising an adjustable 2 Appeal2017-009807 Application 14/133,933 length elongate and flexible one-piece body encircling portion (i.e., middle piece 12) having opposite first and second free ends-"the ends of middle piece 12 that attach[] to intermediate pieces 15 on either side." Final Act. 3 (citing Vollbrecht 1:14--15, 3:33--42, Fig. 1). The Examiner also finds that Vollbrecht discloses that the first and second free ends are capable of being folded to adjust their lengths to enable adjustment of middle piece 12, because Vollbrecht's middle piece 12 (including its free ends) is made of soft fabric. Id. ( citing Vollbrecht 3 :33--42, Fig. 1 ). Appellants argue that Vollbrecht's "flat ends 16 are not capable of being folded over to adjust the length of the central piece 12," but "[t]o the contrary, adjustment of the length of the brace is accomplished by adding on additional separate sections 15/15 '." Appeal Br. 9 ( citing Vollbrecht, Fig. 1); Reply Br. 2. Appellants submit that "the additional sections 15/15' may be lost or misplaced, which is a problem not associated with the claimed structures." Appeal Br. 9. The Examiner responds that "the flexibility of the bandage makes it capable of being folded," and the Examiner determines that "[t]he ability to adjust the length by adding sections 15/15' does not prevent the central piece 12 from being able to be folded." Ans. 5. Appellants reply that Vollbrecht's "flat ends 16 are not capable of being folded over to adjust the length of the central piece 12 in the manner of the claims." Reply Br. 2 (emphasis added). Vollbrecht's adjustable orthosis bandage is depicted in Figure 1 below. 3 Appeal2017-009807 Application 14/133,933 18 Fig. 1 Vollbrecht's Figure 1 is a perspective view of a multi-part bandage ... laid out flat, including middle piece 2, intermediate pieces 15, 15 ', and flat ends 16. Vollbrecht 2:61---62; 3:3-12, 32--42. Vollbrecht discloses that "middle piece 12 has flat ends 16 with attachment elements which releasably secure to the counter attachment elements of mouth-like ends 17 of the end pieces 13, 14 or the intermediate pieces 15, 15' ." Id. at 39--42. We understand that the Examiner's rejection relies solely on middle piece 2 of Vollbrecht, without the additional, multiple intermediate pieces 15, 15' connected to middle piece 2, as corresponding to the claimed one- piece body encircling portion. Appellants do not dispute the Examiner's finding supra that middle piece 2 is made of soft fabric. Considering middle piece 2 with flat ends 16 (without intermediate pieces 15, 15'), Appellants' argument does not apprise us of error in the Examiner's determination that flat ends 16 are capable of being folded, or folded over, to result in an adjustment of the length of such ends and middle piece 2. Notably, as set forth supra, Vollbrecht also discloses that flat ends 16 of middle piece 2 may be releasably secured directly to the mouth-like ends 17 of end pieces 13, 14. Claim 1, as set forth supra, does not require flat ends 16 to be attached to 4 Appeal2017-009807 Application 14/133,933 end pieces 13, 14, when folded; rather, claim 1 requires the first and second ends of the one-piece body encircling portion to be capable a/being folded, and also that the first and second end portions are releasably attachable to the first and second free ends. Thus, claim 1 reads on Vollbrecht's adjustable orthosis bandage, and Appellants fail to point out "the manner claimed," which Vollbrecht allegedly fails to disclose. Appellants' argument that Vollbrecht's intermediate pieces 15, 15' may be lost does not apprise us of error in the Examiner's findings, as set forth supra. Accordingly, we sustain the Examiner's rejection of independent claim 1. Appellants do not present arguments for the patentability of claims 4---6, 10, and 11, which depend from claim 1, apart from the arguments presented supra with respect to claim 1. Appeal Br. 8-9; Reply Br. 1-3. Therefore, for essentially the same reasons stated supra, we sustain the Examiner's rejection of claims 4--6, 10, and 11. Re} ection II Appellants do not present any arguments relevant to the Examiner's rejection of claims 2 and 9, which depend from independent claim 1, under 35 U.S.C. Â§ 103(a) as unpatentable over Vollbrecht and Brooks. See Appeal Br. 10-12; Reply Br. 3 ("Appellant's Brief contained information not relevant to the present application."). Accordingly, for essentially the same reasons stated supra with respect to independent claim 1, we sustain the Examiner's rejection of claims 2 and 9. 5 Appeal2017-009807 Application 14/133,933 DECISION The Examiner's decision rejecting claims 1, 2, 4---6, and 9-11 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 6