Ex Parte Muller

Patent Trial and Appeal BoardApr 26, 2016

11218102 (P.T.A.B. Apr. 26, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE APPLICATION NO. FILING DATE FIRST NAMED INVENTOR 111218,102 08/3112005 Hilgard N. Muller 54434 7590 04/28/2016 BOOTH UDALL FULLER, PLC 1255 W. Rio Salado Pkwy. Suite 215 Tempe, AZ 85281 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. 1852.076 9322 EXAMINER SUTTON, ANDREW W ART UNIT PAPER NUMBER 3765 NOTIFICATION DATE DELIVERY MODE 04/28/2016 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): PA TENT@BOOTHUDALL.COM reception@boothudall.com aho@boothudall.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte HILGARD N. MULLER Appeal2014-005180 Application 11/218, 102 1 Technology Center 3700 Before JOSEPH A. FISCHETTI, KENNETH G. SCHOPPER, and AMEE A. SHAH, Administrative Patent Judges. SCHOPPER, Administrative Patent Judge. DECISION ON APPEAL This is an appeal under 35 U.S.C. Â§ 134 from the rejection of claims 1, 5-13, 17-25, and 29-36. We have jurisdiction under 35 U.S.C. Â§ 6(b ). We AFFIRM. BACKGROUND According to Appellant, "[ t ]he present invention relates generally to protective headgear and, more particularly, to an integrated fit and retention system." Spec. 1. 1 According to Appellant, the real party in interest is Bell Sports, Inc. Br. 3. Appeal2014-005180 Application 11/218, 102 CLAHvIS Claims 1, 5-13, 17-25, and 29-36 are on appeal. Claim 1 is illustrative of the appealed claims and recites: 1. An integrated fit and retention system, comprising: a first rigid strap having a first end and a second end, the first end of the first rigid strap coupled to a helmet body proximate a front of the helmet body, the second end of the first rigid strap coupled to the helmet body proximate a rear of the helmet body; a second rigid strap having a first end and a second end, the first end of the second rigid strap coupled to the helmet body proximate the front of the helmet body, the second end of the second rigid strap coupled to the helmet body proximate the rear of the helmet, wherein the first rigid strap and the second rigid strap are coupled at an intersection such that straps share a common second end that couples the straps to helmet body; the first and second rigid straps formed from a rigid material such that the first and second rigid straps are configured to extend upwardly away from the helmet body when the helmet body is positioned upside do\x1n and such that the first and second rigid straps present themselves erect from the helmet body when the helmet body is positioned upside down; a chin strap operable to couple the first and second rigid straps beneath a chin of a wearer; and an elastic fit strap coupling the first and second rigid straps at a point between the first and second ends of each of the first and second rigid straps, the fit strap configured to sit below an occipital lobe of the wearer. Br. 12. 2 Appeal2014-005180 Application 11/218, 102 REJECTIONS 1. The Examiner rejects claims 1, 5-7, 9-13, 17-19, 21-25, 29, 31, and 33-36 under 35 U.S.C. Â§ 103(a) as unpatentable over Molitoris2 in view of Galet3 and Navone. 4 2. The Examiner rejects claims 8, 20, and 32 under 35 U.S.C. Â§ 103(a) as unpatentable over Molitoris in view of Galet, Navone, and Lerra. 5 DISCUSSION Appellant relies on the same arguments for all appealed claims. We address independent claim 1 below and our discussion is equally applicable to independent claims 13 and 25 as they recite similar limitations. With respect to claim 1, the Examiner finds that Molitoris discloses a fit and retention system as claimed except for the requirements that the rigid straps are coupled to form a common second end for coupling to the helmet body and the elastic fit strap. Final Action 2-3. Regarding the common second end, the Examiner finds that Galet discloses straps with a common end for attachment to a helmet and concludes that it would have been obvious to modify Molitoris to include such straps. Id. at 3. Regarding the elastic fit strap, the Examiner finds that Navone teaches an elastic fit strap and concludes that it would have been obvious to incorporate a fit strap into Molitoris's helmet to provide further adjustability and a secure fit. Id. 2 Molitoris et al., US 3,480,966, iss. Dec. 2, 1969. 3 Galet, US 6,311,338 Bl, iss. Nov. 6, 2001. 4 Navone, US 5,551,094, iss. Sept. 3, 1996. 5 Lerra, US 2002/0083562 Al, pub. July 4, 2002. 3 Appeal2014-005180 Application 11/218, 102 We agree with and adopt the Examiner's findings regarding the scope and content of the prior art with respect to claim 1. See Final Action 2--4; Ans. 2--4. As discussed below, we are not persuaded of error by Appellant's arguments. First, Appellant argues that the references do not disclose first and second straps coupled to share a common second end. Br. 8. In support, Appellant asserts that the Examiner relies on Galet for this limitation, which is inappropriate because Galet's straps are flexible chin straps, unlike the rigid straps of Molitoris, and that there is no motivation in the cited references to modify the rigid straps of Molitoris to have the same arrangement as the chin straps in Galet. Id. Appellant contends that only impermissible hindsight would point to motivation for making the proposed combination. Id. We disagree. As noted by the Examiner, the rejection relies on Galet only insofar as Galet teaches the use of a common end for two straps for attachment to a helmet. Ans. 2-3. We agree that Galet provides such a teaching and that one of ordinary skill would have found it obvious to incorporate straps with a common second end as an interchangeable means for attaching straps to Molitoris' helmet. Second, Appellant argues that the references do not disclose an elastic fit strap as claimed because Navone's fit strap is not elastic. We disagree. First, we note that neither the Specification nor the claims provide a specific definition for the term "elastic." A dictionary provides a relevant definition for elastic as "able to resume its normal shape spontaneously after contraction, dilatation, or distortion." The Oxford Dictionaries, http:// http://www.oxforddictionaries.com/us/ definition/ american_english/ elastic, def. 1 (last visited April 22, 2016). Under this definition and the broadest 4 Appeal2014-005180 Application 11/218, 102 reasonable interpretation of the claim, we find that Navone teaches or suggests the use of an elastic fit strap because Navone discloses that the band is semi-rigid and designed to retain its shape. Specifically, Navone describes, "[t]he adjustable headband 53 is fabricated from either thin plastic or some type of reinforced fabric, to make the headband semi-rigid so that it retains a hoop shape." Navone col. 5, 11. 35-38. Next, Appellant argues that there is no motivation to combine Navone's headband with Molitoris or Galet. Br. 9. In support, Appellant primarily argues that there is no motivation to use Navone's headband in Galet's helmet. Id. However, "[t]he test for obviousness is not whether the features of a secondary reference may be bodily incorporated into the structure of the primary reference . . . Rather, the test is what the combined teachings of those references would have suggested to those of ordinary skill in the art." In re Keller, 642 F.2d 413, 425 (CCPA 1981). Further, as noted above, the rejection does not rely on using Galet's chin straps and only relies on Galet's teaching of using a common end for multiple straps attached to a helmet. Based on the rejection before us, i.e., over the combination of Molitoris, Galet, and Navone, we find that the Examiner has provided sufficient motivation for the combination with Navone, which Appellant fails to address. See Final Action 3. Finally, to the extent Appellant generally argues that the rejection is based on impermissible hindsight, we are not persuaded. Br. 9. Appellant has not provided any indication that the rejection is based on information found solely in Appellant's disclosure. See In re McLaughlin, 443 F.2d 1392, 1395 (CCPA 1971). To the extent that Appellant also argues that the rejection is not supported by articulated reasoning with some rational 5 Appeal2014-005180 Application 11/218, 102 underpinning (see Br. 10), we are not persuaded and note that Appellant does not appear to address the reasoning and motivation provided by the Examiner. See Final Action 2--4; Ans. 2--4. Based on the foregoing, we find that the Examiner established a prima facie showing of obviousness with respect to claim 1 without error. Accordingly we sustain the rejection of claim 1. Because Appellant does not present separate arguments for any other appealed claim, we also sustain the rejection of claims 5-13, 17-25, and 29-36. CONCLUSION For the reasons set forth above, we affirm the rejections of claims 1, 5-13, 17-25, and 29-36. 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 6