Ex Parte Rowe et al

Patent Trials and Appeals Board

Jun 13, 2019

14751860 - (D) (P.T.A.B. Jun. 13, 2019)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
14/751,860 06/26/2015
27805 7590
THOMPSON HINE L.L.P.
10050 Innovation Drive
Suite 400
DAYTON, OH 45342-4934
06/17/2019
FIRST NAMED INVENTOR
Michael D. Rowe
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.
079965-004 l 9US 9932
EXAMINER
SKURDAL, COREY NELSON
ART UNIT PAPER NUMBER
3734
NOTIFICATION DATE DELIVERY MODE
06/17/2019 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):
ipdocket@thompsonhine.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte MICHAEL D. ROWE, MICHAEL A. LORENZ, and
THOMAS J. AFRICA
Appeal2018-009071
Application 14/751,8601
Technology Center 3700
Before JOSEPH A. FISCHETTI, MICHAEL C. ASTORINO, and
AMEE A. SHAH, Administrative Patent Judges.
ASTORINO, Administrative Patent Judge.
DECISION ON APPEAL
Pursuant to 35 U.S.C. § 134(a), the Appellants appeal from the
Examiner's decision rejecting claims 1-32. We have jurisdiction over the
appeal under 35 U.S.C. § 6(b). The Appellants present additional evidence
in the Declaration Under 37 C.F.R. § 1.132 by Michael D. Rowe (hereinafter
"Rowe Deel. ")2.
We REVERSE.
1 "ACCO Brands Corporation is the real party in interest." Appeal Br. 2.
2 Michael D. Rowe is the inventor of the present invention. Rowe Deel. ,-J 4.
Appeal2018-009071
Application 14/751,860
STATEMENT OF THE CASE
Claimed Subject Matter
Claims 1, 22, 23, and 32 are the independent claims on appeal.
Claim 1, reproduced below, is illustrative of the claimed subject matter.
1. A backpack comprising:
a body including a back surface configured to be
positioned adjacent to a back of a wearer when said backpack is
worn, said body further including a front surface at least partially
spaced away from said back surface to define an inner cavity
therebetween, said inner cavity having an upper extent, said body
further including a pair of opposed side surfaces, each side
surface extending between said back surface and said front
surface;
at least one shoulder strap coupled to said body and
positionable over a shoulder of a wearer; and
a releasable fastener that is openable to provide
access to said inner cavity or closable to block access to said
inner cavity, wherein said fastener extends at least partially
across said front surface and both side surfaces, and wherein at
least part of said releasable fastener on said side surfaces, at a
position away from an outer perimeter of each side surface,
extends at a non-perpendicular angle relative to said back
surface;
wherein said body includes a hinge line about which
said body is disposed to bend when said releasable fastener is
opened, at least part of said hinge line being spaced away from
said upper extent of said inner cavity, and wherein said backpack
is configured such that when said releasable fastener is opened
said backpack includes a cover at least partially defined by said
releasable fastener that is hingedly movable relative to said hinge
line.
2
Appeal2018-009071
Application 14/751,860
Rejections
Claims 1-13 and 15-32 are rejected under 35 U.S.C. § 103 as being
unpatentable over Rowe et al. (CA 2,653,277, iss. March 25, 2014)
(hereinafter "Rowe") and Young (US 6,015,072, iss. Jan. 18, 2000). 3
Claim 14 is rejected under 35 U.S.C. § 103 as being unpatentable over
Rowe, Young, and Kryklywicz (US 2013/0146627 Al, pub. June 13, 2013).
ANALYSIS
The Examiner finds that Rowe's Figures 9-11 show a releasable
fastener that "extends at least partially across said front surface and both side
surfaces [of a backpack's body]." Final Act. 3. It is the Examiner's position
that it is "clear [] that Figures 9-11 show a continuous U-shaped line that
extends on both sides and front of the backpack, and that the line is
labelled 24 in each Figure." Ans. 2-3.
The Appellants argue that Rowe's releasable fastener/closure 24, as
shown in Figures 9-11, does not correspond to a fastener that extends at
least partially across the front surface and both side surfaces of a backpack's
body, as required by independent claims 1, 22, 23, and 32. See Appeal
Br. 7-10. The Appellants' argument is persuasive.
In viewing Rowe's disclosure, we determine that Figure 9, which
illustrates the left side view of a backpack embodiment also depicted in
Figures 10 and 11, shows two releasable closures. See Rowe 1. More
specifically, we determine that Figure 9 shows a first releasable closure
marked by reference number 24 and a second releasable closure that is
3 Michael D. Rowe is the first named inventor in Rowe. Rowe Deel. ,-J 6.
3
Appeal2018-009071
Application 14/751,860
unmarked. Infra. Our determination is partly based on Rowe's description
of its releasable closure, which "can take any of a variety of forms, including
a zipper, a slide fastener, hook-and-loop fastening material (i.e.
VELCRO®), snaps, magnets or the like" and the various depictions of the
releasable closure.4 See Rowe 2.
The first releasable closure is depicted by reference number 24 in
Figure 9, which points to a solid line with a dashed line running alongside
the solid line. Rowe's Figure 9 is reproduced below:
FIG. 9
4 Rowe's reference numbers 24 and 58 are identified as a releasable fastener
or closure. See Rowe 2-4. Rowe's reference numbers 36 and 38 are
identified as additional releasable fasteners or closures. Id. at 3. We
understand reference numbers 24, 36, 38, and 58 to refer to the same types
of structures, albeit, in some cases, in different embodiments, or locations.
See id. Figs. 1-11.
4
Appeal2018-009071
Application 14/751,860
Figure 9 shows the left side view of a backpack. Id. at 1. We note that
Figure 9's releasable closure 24 is depicted in the same manner as releasable
closure 24 in Figure 7, which is a different backpack embodiment than
Figure 9. See id. Rowe's Figure 7 is reproduced below:
1:0
FIG~ 7
Figure 7 is a front view a backpack. Rowe 1. Figures 6 and 8 are directed to
the same embodiment as Figure 7. Id. Figures 6 and 8 are reproduced
below:
5
Appeal2018-009071
Application 14/751,860
FIG~ 6 FI(;# 8
Figures 6 and 8 are left side and right side views of the backpack of
Figure 7. See id. Figures 6 and 8 show releasable closure 24 pointing to a
solid line with a dashed line running alongside the solid line like that of
Figures 7 and 9. Additionally, the dashed line runs along a pair of dashed
lines. Moreover, Figures 6-8 show additional releasable closures 36 and 38
pointing to double-solid-line tracks with dashed lines that run along the
double-solid-line tracks and at least one pull tab/zipper pull.
Rowe's Figures 10 and 11, which are directed to the same
embodiment as Figure 9, show releasable closures 24 pointing to double-
solid-line tracks with a pull tab/zipper pull. Id. Rowe's Figures 10 and 11
are reproduced below:
6
Appeal2018-009071
Application 14/751,860
FIG. 10
10
22 \
t. / ·::i.q ··r-1 ,~,,.,~, k,,,
['"'Tr ... L ..... (· . \·)
Ft ~ I : !
ft?// ~ /
~d ,'f /ii1 (,
~/ l/ ( ' , . ,. ,.---r 1"
i
18 ____ ... /
FI(}. 11'
Figures 10 and 11 are front and right side views of the backpack of Figure 9.
Id. In Rowe's Figures 1-5, releasable closures 24 and 58 and additional
releasable closures 36 and 38 are depicted in the same manner as shown in
Figures 10 and 11. Further, the Appellants point out that "Rowe's Figs. 10
and 11 show four ... releasable fasteners (two marked 24), each show with
double-solid-line tracks, defining individual pocket-like structures." Appeal
Br. 8. Indeed, Figure lO's releasable closures (one marked 24 and two
unmarked) have double-solid-line tracks with pull tabs/zipper pulls that start
and end on the front panel; and Figure 11 's releasable closure marked 24 has
a double-solid-line track with a pull tab/zipper pull that starts and ends on
the right side panel.
As discussed above, Rowe describes that its releasable closure can
take a variety of forms. See Rowe 2. Accordingly, we determine that one of
7
Appeal2018-009071
Application 14/751,860
ordinary skill in the art would understand that releasable closures 24, which
are shown differently, refer to different forms of releasable closures.
The second releasable closure in Rowe's Figure 9 is unmarked. In
the same manner as the unmarked releasable closures shown in Figure 10,
the second releasable closure in Figure 9 is depicted by double-solid-line
tracks with a pull tab/zipper pull. See Appeal Br. 8; Reply Br. 4-5; Rowe
Deel. ,i 12; see also Ans. 3-4. Rowe's Figure 9 is reproduced below:
HJ
\
~ 22
(~--20 , ...,
l_ ,,t.;-"'~"'~,,,,\ o:·y·
, ... ~ ... ' 'ti' , .............................. ,~ .. ~·'-.
¥ '~- ... \ I ii"W»»>>::·tJ ~ ~.
\ i \t': \'(\
\ : \~< ,.,i ··1 -: .,. 1\>,
\, ~ t '. X 't. v~
\\ Ii t,, \11*
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l
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' . '• . ....__ ., .. --·''"·-··,c.. i \~\., . ~ l
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, h '·;,.,. 1\ I 1 I ,l ,·-.:c:-,... ,\l 1
~I 1\I ) -~tr~i
~ ' ~ rs4 :,.,~ ....... ~\ H r \\ ~
~""'~--Al h ,~ ·,. ;t1 I ll I
l. _____ }
FIG·. 9
Figure 9 shows the left side view of a backpack. Rowe 1. The unmarked
releasable closure follows a path that is similar to releasable closure 58 and
side flap 60 shown in Figures 4 and 5. See Rowe 1 ("Figs. 9-11 are left
side, front, and right side views of a backpack similar to Figs. 4-5"), 3
8
Appeal2018-009071
Application 14/751,860
("Each releasable closure 58 extends around generally the entire perimeter
of the associated side panel 54 in a generally closed loop to define a side flap
60."). But see Ans. 3 ("Rowe does not disclose what it is about the
backpack of Figures 9-11 that is 'similar' to the backpack of Figures 4
and 5."). Rowe's Figures 4 and 5 are reproduced below:
Figures 4 and 5 show a front perspective view and a side view of a backpack
with a side flap. See Rowe 1, 3.
As discussed above, Rowe describes that its releasable closure can
take a variety of forms. See Rowe 2. Accordingly, we determine that one of
ordinary skill in the art would understand that Figure 9's marked and
unmarked releasable closures, which are shown differently, refer to different
forms of releasable closures.
Further, we determine that one of ordinary skill in the art would
understand Figure 9's double-solid-line track and pull tab to be either a
9
Appeal2018-009071
Application 14/751,860
zipper, a slide fastener, or the like. See Rowe 2, Appeal Br. 7-10; Rowe
Deel. ,i 12 ("two parallel, solid lines with a zipper pull at one end are used to
show a releasable fastener (zipper track)"). However, we cannot ascertain
- and the Examiner fails to explain on the record- how Figure 9's
releasable closure marked 24 can be a releasable fastener/closure while, at
the same time, the double-solid-line track and associated pull tab/zipper pull
that crosses the line marked 24 in Figure 9 is a zipper, a slide fastener, or the
like. As argued by the Appellants, such a scenario "produce[s] an
inoperable and impossible cross-zipper-tracked or overlappingly-tracked
device." Reply Br. 5; see Appeal Br. 10.
On the record before us, we determine that the Examiner fails to
adequately support the finding that releasable fastener marked 24 in Figure 9
corresponds to a "fastener [that] extends at least partially across said front
surface and both side surfaces," as recited in independent claims 1, 22, 23,
and 32. See also MANUAL OF PATENT EXAMINING PROCEDURE (MPEP)
§ 2125(1) ("Drawings and pictures can anticipate claims if they clearly show
the structure which is claimed. In re Mraz, 455 F.2d 1069 ... (CCPA
1972). However, the picture must show all the claimed structural features
and how they are put together. Jockmus v. Leviton, 28 F.2d 812 (2d Cir.
1928).").
Moreover, the Examiner fails to rely on the teachings of Young and
Kryklywicz in any manner that remedies the deficiency in the Examiner's
rejection as discussed above.
Thus, we do not sustain the Examiner's rejections of claims 1-32.
10
Appeal2018-009071
Application 14/751,860
DECISION
We REVERSE the Examiner's decision rejecting claims 1-32.
REVERSED
11