Ex Parte Refsum

Patent Trial and Appeal BoardNov 7, 2012

10483918 (P.T.A.B. Nov. 7, 2012)

UNITED STATES PATENT AND TRADEMARK OFFICE ____________________ BEFORE THE PATENT TRIAL AND APPEAL BOARD ____________________ Ex parte BJORN REFSUM ____________________ Appeal 2010-010864 Application 10/483,918 Technology Center 3700 ____________________ Before: LINDA E. HORNER, SCOTT E. KAMHOLZ, and MITCHELL G. WEATHERLY, Administrative Patent Judges WEATHERLY, Administrative Patent Judge. DECISION ON APPEAL Appeal 2010-010864 Application 10/483,918 2 STATEMENT OF CASE Appellant appeals under 35 U.S.C. § 134 from the decision of the Examiner rejecting claims 1-3 and 5-9. Claim 4 is canceled. We have jurisdiction under 35 U.S.C. § 6(b). We reverse. The claims are directed to a harness for a child. Claim 1, reproduced below, is illustrative of the claimed subject matter: 1. A harness (1) for a child, comprising a unitary yoke (2) having a back portion (3), a front portion (4) and two side portions (7), where the side portions (7) extend from the back portion (3) and are connected with the front portion (4) by length adjustable side straps (8), so that the mentioned parts constitute a seat element, with length adjustable shoulder straps (11), from the upper back part of the back portion (3) to the front portion (4), wherein the back portion (3) also has fastening devices (13) in the side extremities on the outer area, which makes fastening of a carrying strap or fastening to seats for children possible. App. Br., Claims Appx. REFERENCES The prior art relied upon by the Examiner in rejecting the claims on appeal is: Huber Nunemacher Schultz US 3,027,058 US 4,149,687 US 6,397,389 B1 Mar. 27, 1962 Apr. 17, 1979 Jun. 4, 2002 Appeal 2010-010864 Application 10/483,918 3 REJECTIONS Appellant seeks our review of the following rejections: 1. Claims 1 and 5 stand rejected under 35 U.S.C § 102(b) as being anticipated by Nunemacher. Ans. 3. 2. Claims 1-3 and 5-7 stand rejected under 35 U.S.C § 103(a) as being unpatentable over Schultz and Nunemacher. Ans. 5. 3. Claims 8 and 9 stand rejected under 35 U.S.C § 103(a) as being unpatentable over Schultz, Nunemacher, and Huber. Ans. 7. OPINION Anticipation of claims 1 and 5 The Examiner rejects claims 1 and 5 as anticipated under § 102(b) by Nunemacher. Ans. 3-5. The Examiner equates the following structures from Nunemacher to the structures of independent claim 1: Nunemacher Claimed Structure Front panel 13 Back portion Back panel 11 Front portion Extensions 19 and 20 on front panel 13 Side portions with length adjustable side straps Shoulder straps 25 Shoulder straps Couplers 62, 64 Fastening devices Ans. 3-4. In use, Nunemacher’s extensions 19 and 20 wrap around an infant and fasten to each other via buttons 22 on extension 20 that mate with button holes 21 on extension 19. Ans. 3-4 (citing Nunemacher col. 4, ll. 38-47). The Examiner asserts that the plurality of buttons 22 and button holes 21 on Appeal 2010-010864 Application 10/483,918 4 extensions 19 and 20 render the extensions “length adjustable.” See Ans. 3 (citing Nunemacher col. 4, ll. 38-47). The Examiner also asserts that Nunemacher’s extensions 19 and 20 are “connected with” Nunemacher’s back panel 11 because Nunemacher’s front panel 13, back panel 11, and extensions 19 and 20 are constructed as a “unitary yoke” in which all three structures are “connected.” Ans. 10. Appellant contends that the Examiner erred in finding that Nunemacher describes the claimed “side portions” that are “connected with the front portion … by length adjustable side straps.” App. Br. 14. More specifically, Appellant contends that Nunemacher fails to teach the claimed side portions because Nunemacher’s extensions connect to each other without connecting to Nunemacher’s back panel or any other structure. Id. We agree with the Examiner that Nunemacher’s side portions are connected to its front portion in a sense. Namely, the identified side and front portions are part of a unitary yoke. However, the claim requires that the side portions be “connected with the front portion by length adjustable side straps.” While Nunemacher’s extensions 19 and 20 are straps and “length adjustable,” they are not the means by which the side portions connect to the front portion as required by claim 1. We also note that claim 1 recites a “unitary yoke” of which the claimed back, front, and side portions are a part. Thus, the inherent “connection” among these portions is distinct from the later-recited requirement that the “side portions” are connected with the front portion … by length adjustable side straps.” Therefore, we reverse the Examiner’s rejection of independent claim 1 and dependent claim 5 under § 102(b). Appeal 2010-010864 Application 10/483,918 5 Obviousness of claims 1-3 and 5-9 The Examiner rejects claims 1-3 and 5-7 as unpatentable in light of the combination of Schultz and Nunemacher. Ans. 5-7. Claims 8 and 9 are rejected as obvious over Schultz, Nunemacher, and Huber. The Examiner finds that Schultz does not teach the “back portion having fastening devices in the side extremities on the outer area, which makes fastening of a carrying strap or fastening to seat for children possible” of claim 1. Ans. 5-6. The Examiner asserts that a skilled artisan would have found it obvious to modify Schultz by adding Nunemacher’s couplers 62, 64 to make it possible to fasten a carrying strap or a seat restraint to the harness. Ans. 6. The Examiner contends that a skilled artisan would have been motivated to modify Schultz “to enhance security and allow the infant to be carried when not walking.” Id. Appellant argues that Schultz’s harness cannot function as a carrier because its snaps and hook-and-loop fasteners would not securely hold a child who is large enough to walk with little or no assistance. App. Br. 21. Appellant also contends that a skilled artisan would not be motivated to add Nunemacher’s fastening devices to Schultz because Schultz’s harness does not need “additional security to prevent a child from coming free of the harness, as it is intended solely for use with a walking child.” App. Br. 23. Finally, Appellant argues that adding Nunemacher’s couplers 62, 64 to Schultz’s harness would render it less secure as a carrier because it would add load to Schultz’s hook-and-loop fasteners 52, making them more likely to disengage. App. Br. 24. We find that the Examiner has not adequately articulated why a skilled artisan would have been led to add fastening devices to enhance Appeal 2010-010864 Application 10/483,918 6 security in Schultz’s walking harness which included holding loops to support a child if the child stumbled. Schultz, Figs. 2 and 6. We further find that the Examiner has failed to adequately explain what would have led a skilled artisan to modify Schultz’s walking harness to be used as a carrier. “A factfinder should be aware, of course, of the distortion caused by hindsight bias and must be cautious of arguments reliant upon ex post reasoning.” KSR Int’l Co. v. Teleflex Inc., 550 U.S. 398, 421 (2007). Schultz teaches a structure used as a walking harness with quick release openings that are closed by relatively insecure snaps in the crotch and hook- and-loop fasteners on the side extensions. Such structures do not readily lend themselves to use as a carrier. Schultz never mentions using its harness to carry children; it is designed to aid children who are learning to walk. Schultz, col. 1, ll. 8-23. By contrast, Nunemacher’s baby pouch is designed to carry younger children from six to eight weeks old until the time at which they begin to walk. Nunemacher, col. 6, ll. 45-49. Absent hindsight, we fail to see a reason, and the Examiner has not adequately articulated a reason, that would have led one of ordinary skill in the art to modify Schultz’s walking harness to render it capable of being used as a carrier. We therefore reverse the Examiner’s rejection of claims 1-3 and 5-9 under § 103(a). DECISION For foregoing reasons, we reverse the Examiner’s rejections of claims 1-3 and 5-9. REVERSED Klh