Ex Parte Perner

Patent Trial and Appeal Board

Aug 31, 2017

13463986 (P.T.A.B. Aug. 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.
13/463,986 05/04/2012 Judd J. Perner D5121.345.101 7635
25281 7590 09/05/2017
DICKE, BILLIG & CZAJA
FIFTH STREET TOWERS
100 SOUTH FIFTH STREET, SUITE 2250
MINNEAPOLIS, MN 55402
EXAMINER
RASHID, MAHBUBUR
ART UNIT PAPER NUMBER
3657
NOTIFICATION DATE DELIVERY MODE
09/05/2017 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):
USPTO.PATENTS @dbclaw.com
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PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte JUDD J. PERNER
Appeal 2017-004934
Application 13/463,986
Technology Center 3600
Before MICHAEL J. STRAUSS, LARRY J. HUME, and
JASON M. REPKO, Administrative Patent Judges.
REPKO, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Appellant1 appeals under 35 U.S.C. § 134(a) from the Examiner’s
rejection of claims 1—20. App. Br. 30.2 We have jurisdiction under 35
U.S.C. § 6(b).
We affirm.
1 Appellant identifies the real party in interest as D B Industries, LLC.
App. Br. 3.
2 Throughout this opinion, we refer to (1) the Final Rejection (“Final Act.”)
mailed October 7, 2015, (2) the Appeal Brief (“App. Br.”) filed January 15,
2016, (3) the Examiner’s Answer (“Ans.”) mailed December 1, 2016, and
(4) the Reply Brief (“Reply Br.”) filed January 31, 2017.
Appeal 2017-004934
Application 13/463,986
THE INVENTION
Appellant’s claimed invention can be used in a safety harness to
absorb the kinetic energy of a falling worker. Spec, 1, 4, 15. In one
embodiment, the system is connected to a safety harness and a lanyard by
snap hooks. Id. ^ 15. The lanyard is connected to a support structure. Id. If
the user falls, the snap hooks pull away from each other while the system
absorbs the energy. Id. In particular, the system uses tear yams to hold
together two strips of webbing. Id. 123. During the fall, the tear yams
break and the strips are tom from opposite ends to absorb the energy from
the fall. Id. According to Appellant, this arrangement addresses the need
for an effective, efficient, and compact energy absorber, as compared to
bulkier, heavier designs. See id. 111-2.
Claim 15 is reproduced below with our emphasis:
15. An energy absorber system comprising:
a first strip of webbing having a first webbing first end
portion, a first webbing second end portion and a first central
portion positioned between the first webbing first end portion
and the first webbing second end portion;
a second strip of webbing having a second webbing first
end portion, a second webbing second end portion and a second
central portion between the second webbing first end portion
and the second webbing second end portion;
a plurality of tear yams coupling the first central portion
of the first webbing to the second central portion of the second
webbing to form a mid portion of the first and second strips of
webbing such that the first webbing first end portion of the first
strip is positioned proximate the second webbing first end
portion of the second strip and the first webbing second end
portion of the first strip is positioned proximate the second
webbing second end portion of the second strip, the mid portion
of the first and second strips having a centrally located
unattached portion without tear yarns, the mid portion of the first
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Application 13/463,986
and second strips of webbing includes a pair of ramp down
sections each having a tear yarn arrangement that produces
transition tear strength sections that lead into the centrally
located unattached portion;
a first connection member, the first webbing first end
portion of the first strip of webbing and the second webbing
second end portion of the second strip of webbing coupled to the
first connection member; and
a second connection member, the second webbing first end
portion of the second strip of webbing and the first webbing
second end portion of the first strip of webbing coupled to the
second connection member, such that when the first and second
connection members are pulled away from each other during a
fall event the tear yams holding the mid portion of the first and
second strips of webbing are tom generally simultaneously from
opposite ends of the mid portion of the first and second strips
therein absorbing energy until the first and second strips of the
webbing are separated.
THE REJECTIONS
The Examiner relies on the following as evidence:
Klink
Fischer et al.
Jennings et al.
Schickhardt
US 5,529,343
US 2006/0011415 Al
US 7,726,350 B2
GB 2,283,505 A
June 25, 1996
Jan. 19, 2006
June 1, 2010
May 10, 1995
Claims 1,2, 4—7, and 9-19 stand rejected under 35 U.S.C. § 103(a) as
unpatentable over Jennings and Klink. Ans. 2—8.
Claims 3 and 20 stand rejected under 35 U.S.C. § 103(a) as
unpatentable over Jennings, Klink, and Fischer. Ans. 8.
Claim 8 stands rejected under 35 U.S.C. § 103(a) as unpatentable over
Jennings, Klink, and Schickhardt. Ans. 9.
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Application 13/463,986
THE REJECTION OVER JENNINGS AND KLINK
The Tear-Yarn Ramp-Down Arrangement
Independent claim 1 recites, in part, “the mid portion including at
least one tear yam ramp down arrangement that is positioned proximate a
centrally located portion of the mid section”. Similarly, independent
claim 15 recites, in part, “a pair of ramp down sections each having a tear
yam arrangement”.
Appellant’s arguments (App. Br. 11—13, 15, 19-21, 24—29; Reply
Br. 3—5) raise the issue of whether the Examiner has erred in concluding that
these limitations would have been obvious over the Jennings-Klink
combination. For the reasons discussed below, we conclude that the
Examiner did not err in this regard.
In particular, the Specification discloses that the ramp-down sections
transition from the desired tear strength of mid portion 130 to no tear
strength in the centrally unattached section 230. Spec. 122. This prevents
an instantaneous shock as strips 110 and 120 separate. Id. One such
embodiment is illustrated in Figure 3B below. Id.
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Application 13/463,986
ria 3i
S08o
Figures 3B is a side-view, which shows tear-yarn ramp-down
arrangement 227a and 227b. Spec, f 11.
Figure 3B shows the energy absorber during a fall event. Id. ^ 11. Although
this is only an illustrative embodiment (Spec. 124), this embodiment,
nevertheless, provides a background understanding of the limitation at issue.
In the rejection of claims 1 and 15, the Examiner finds Jennings and
Klink collectively teach the recited tear-yam ramp-down arrangement.
Ans. 2-4 (claim 1), 5—7 (claim 15). In particular, the Examiner finds
Jennings teaches a plurality of tear yams coupling the mid sections of two
strips. Id. at 2, 5 (citing Jennings Fig. 7, element 36). Jennings’s Figure 7 is
reproduced below.
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Application 13/463,986
2.TU
3 y
Jennings’s Figure 7 shows a tear-away energy-absorbing webbing.
Jennings col. 4 11. 65-67.
Although Jennings teaches a tear-way webbing that absorbs shock
(see, e.g., id. col. 7,11. 50-60), the Examiner finds Jennings’s yams (36) do
not ramp down, as recited. Ans. 3,6.
In concluding the recited ramp-down feature would have been
obvious, the Examiner turns to Klink. Id. In particular, the Examiner finds
that Klink teaches a tear-yam ramp-down arrangement in Figure 4. Id.
Klink’s Figure 4 is shown below.
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Application 13/463,986
Klink’s Figure 4 shows a rippable seam loaded along parallel lines of
action of ripping force Ftear. Klink col. 2 11. 48-55.
The Examiner concludes it would have been obvious to use Klink’s
teaching of ramping down the tearing force in Jennings’s tear-away energy­
absorbing webbing. See, e.g., Ans. 11.
Appellant argues Jennings lacks the recited mid-portion with at least
one tear-yam ramp-down arrangement. App. Br. 11 (claim 1), 24—25
(claim 15). According to Appellant, Jennings teaches a ramp up—not ramp
down—of binder yams approaching the center. Id. at 11, 25. But these
arguments are unpersuasive because the Examiner relies on the combination
of teachings from Jennings and Klink to address the limitation at issue and,
in particular, Klink, not the argued Jennings, for disclosing the disputed
ramp down limitation. See Ans. 3, 6. “Non-obviousness cannot be
established by attacking references individually where the rejection is based
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Application 13/463,986
upon the teachings of a combination of references.” In re Merck & Co., 800
F.2d 1091, 1097 (Fed. Cir. 1986) (citing In re Keller, 642 F.2d 413, 425
(CCPA 1981)).
In Appellant’s view, Jennings teaches away from a ramp-down
arrangement. App. Br. 12, 26. We disagree. Appellant does not provide
sufficient, persuasive evidence that Jennings criticizes, discredits, or
otherwise discourages other force profiles—such as a ramp down—to teach
away. See In re Fulton, 391 F.3d 1195, 1201 (Fed. Cir. 2004). Rather,
Jennings explicitly states that “[o]f course, the present invention provides for
other activation force profiles.” Jennings col. 10 11. 6—7. In fact, Jennings
discloses customizing a force profile to fit the application. Id. col. 9,
11. 62-67
Jennings’s statements are also consistent with the Examiner’s
articulated rationale for combining the references. See Ans. 11. That is, the
Examiner explains that both Jennings and Klink disclose a shock absorber
for a harness, but each reference teaches a different orientation customized
to the application. Id.; see also id. at 4 (discussing using the profile that
makes the system efficient); accord Jennings col. 9,11. 62—67.
Appellant contends the Examiner’s reason for combining Klink and
Jennings has no merit and the Examiner has not made a prima facie case of
obviousness. App. Br. 15 (claim 1), 29 (claim 15); Reply Br. 3—5. In
Appellant’s view, Klink teaches a different arrangement than Jennings and
one of ordinary skill would not look to combine the two references.
App. Br. 13 (claim 1), 26—28 (claim 15); Reply Br. 3—5. In particular,
Appellant argues Jennings is not designed to work with an inflatable
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protective bag, as Klink is, and Jennings teaches ramping up, not down.
App. Br. 13, 19-20, 26-27.
We are not persuaded the combination of Klink and Jennings is
improper. Appellant has not shown, for example, that using Klink’s ramp
down profile in Jennings would have been uniquely challenging or otherwise
beyond the level of ordinarily skilled artisans. See Leapfrog Enters., Inc. v.
Fisher-Price, Inc., 485 F.3d 1157, 1162 (Fed. Cir. 2007). Nor has Appellant
shown the Examiner’s proposed combination would render the prior art
unsuitable for its intended purpose to teach away from such an approach.
See In re Gordon, 733 F.2d 900, 902 (Fed. Cir. 1984).
Instead, just as Klink teaches using a ramp-down arrangement for a
safety belt, Jennings teaches a safety belt. See Jennings Fig. 13; Ans. 11.
And the Examiner reasons that ramping down would have been suitable for
this desired application to reduce the shock felt by the user. Id. at 10-11.
On this record, the Examiner’s proposed enhancement predictably uses the
prior art elements according to their established functions, and involves a
creative step well within the level of ordinarily skilled artisans. See KSR
Inti Co. v. Teleflex, Inc., 550 U.S. 398, 417, 421 (2007).
Accordingly, we are unpersuaded that the Examiner erred in
concluding that the one tear-yam ramp-down arrangement recited in
claims 1 and 15 would have been obvious over the Jennings-Klink
combination.
The Centrally Unattached Portion
Claim 15 further recites, in part, “the first and second strips having a
centrally located unattached portion without tear yams.” Claim 9 recites a
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similar limitation. Although claim 1 recites a “centrally located mid
portion,” claim 1 does not recite that the portion is unattached.
Appellant’s arguments (App. Br. 14, 16—18, 20, 22—26, 28—29;
Reply Br. 3—5) raise the issue of whether the Examiner has erred in
concluding that the centrally unattached portion, as recited in claims 9
and 15, would have been obvious over the Jennings-Klink combination. For
the reasons discussed below, we conclude that the Examiner did not err in
this regard.
Specifically, the Examiner finds Jennings does not teach a centrally
located unattached portion. Ans. 3,6. In concluding that claims 9 and 15
would have been obvious, the Examiner finds that Klink teaches this feature.
Id. at 3—4, 6—7.
Appellant contends that Jennings lacks the recited centrally located
unattached portion. App. Br. 8—10 (claim 1), 16—18 (claim 9), 22—26
(claim 15). According to Appellant, Jennings teaches an exchange segment,
not an unattached portion. Id. at 18 (claim 9), 24 (claim 15). But these
arguments are unpersuasive because the Examiner relies on Klink, in
combination with Jennings, to address the unattached portion. See Ans. 3, 6.
Appellant further argues that Klink’s flap-like superimposed safety-
belt plies do not have a centrally unattached portion, as recited. App. Br. 29
(claim 15); Reply Br. 3^4 (claim 9), 5 (claim 15). According to Appellant,
Klink only works by ripping the seams toward the fold, which is not an
unattached portion within the rippable seams. Reply Br. 3—5.
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Klink’s Figure 1 is pictured below.
A part of Klink’s Figure 1 showing a rippable seam with a loop 20.
Klink’s seam terminates before the end of the flap and forms loop 20.
Klink Fig. 1. The seam rips under tension forces on either side of loop 20.
Id. col. 2 11. 44-47. That is, Klink’s loop is unattached, and this unattached
area terminates the rippable seam. See id. Because Klink’s unattached
portion terminates the seam, the unattached portion essentially defines the
activation force profile. See id.
As discussed above, it would have been obvious to use a particular
force profile as desired for a particular application. For example, the
activation force profile can be customized for users with various weights or
other types of applications, as desired. See Jennings col. 9,1. 62—col. 10,
1. 7. The Examiner merely proposes using the particular activation force
profile disclosed by Klink as defined by the rippable seam in Figures 1
and 4. See Ans. 3—4, 6—7, 11.
Regarding the location of the unattached portion, Jennings teaches an
exchange segment at a midpoint. Jennings col. 8 11. 37—46. Therefore,
incorporating Klink’s unattached portion in Jennings’s webbing at this
midpoint would result in a centrally located unattached portion, as claimed.
See Ans. 12 (illustrating the midpoints of Klink and Jennings).
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In view of this explanation (see, e.g., id.), we are unconvinced by
Appellant’s argument that the Examiner has not adequately explained how
the flap-like superimposed safety belt plies would be implemented with
Jennings’s load bearing webbings. App. Br. 14 (claim 1), 20 (claim 9),
28—29 (claim 15); Reply Br. 4—5. To the extent these teachings are different,
we further note that the standard for obviousness is not bodily incorporation.
That is, the Examiner is not proposing incorporating Klink’s seatbelt into
Jennings. Rather, the Examiner proposes customizing Jennings’s activation
force profile according to Klink’s teachings for use in a seatbelt
arrangement. Ans. 11. Nor are we persuaded by Appellant’s argument
against the Examiner’s prima facie case of obviousness. See App. Br. 13—15
(claim 1), 19—21 (claim 9), 26—29 (claim 15); Reply Br. 3—5. As discussed
above, the Examiner’s proposed enhancement to Jennings uses prior art
elements predictably according to their established functions—an obvious
improvement. See KSR, 550 U.S. at 417.
Accordingly, we sustain the Examiner’s obviousness rejection of
independent claims 1, 9, and 15, as well as claims 2, 4—7, 10-14, and 16—19,
not argued separately with particularity. See App. Br. 30; Reply Br. 5.
THE REMAINING OBVIOUSNESS REJECTIONS
Claims 3, 8, and 20 depend from claims 1 or 15. The Examiner
rejects claims 3 and 20 under 35 U.S.C. § 103(a) as unpatentable over
Jennings, Klink, and Fischer (Ans. 8), and claim 8 as unpatentable over
Jennings, Klink, and Schickhardt (id. at 9). In arguing against the rejections
for claims 3, 8, and 20, Appellant refers to the arguments presented for the
independent claims 1 and 15. Reply Br. 5. Appellant does not argue claims
3, 8, and 20 separately with particularity. See App. Br. 30. Therefore, for
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the reasons discussed in connection with claims 1 and 15, we also sustain the
rejections of claims 3, 8, and 20.
DECISION
We affirm the Examiner’s rejection of claims 1—20.
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a)(l)(iv). See 37
C.F.R. §41.50(f).
AFFIRMED
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