Ex Parte Rudd et al

Patent Trial and Appeal BoardJul 14, 2016

13611538 (P.T.A.B. Jul. 14, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE APPLICATION NO. FILING DATE 13/611,538 09/12/2012 28291 7590 07118/2016 SMART & BIGGAR 1000 DE LA GAUCHETIERE ST. W. SUITE 3300 MONTREAL, QC H3B 4W5 CANADA FIRST NAMED INVENTOR David H. RUDD 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. 86421-92C 7892 EXAMINER ANNIS, KHALED ART UNIT PAPER NUMBER 3765 NOTIFICATION DATE DELIVERY MODE 07/18/2016 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): USPTO.MTL@SMART-BIGGAR.CA PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte DAVID H. RUDD and THIERRY KRICK Appeal2014-005622 Application 13/611,538 Technology Center 3700 Before LYNNE H. BROWNE, THOMAS F. SMEGAL, and ERIC C. JESCHKE, Administrative Patent Judges. BROWNE, Administrative Patent Judge. DECISION ON APPEAL STATEMENT OF THE CASE David H. Rudd and Thierry Krick (Appellants) appeal under 35 U.S.C. Â§ 134 from the rejection of claims 1-15 and 20. We have jurisdiction under 35 U.S.C. Â§ 6(b). We REVERSE. Appeal2014-005622 Application 13/611,538 CLAIMED SUBJECT MATTER The claims are directed to a helmet for a hockey or lacrosse player. Claim 1, reproduced below, is illustrative of the claimed subject matter: 1. A helmet for receiving the head of a hockey or lacrosse player, said helmet extending along a longitudinal axis and compnsmg: (a) an outer shell for covering at least a portion of the head, said outer shell having an inner surface and an outer surface; (b) a skeleton mounted within said outer shell, said skeleton being made of a semi-rigid material and having an inner surface and an outer surface, said skeleton comprising a plurality of members, said plurality of members comprising at least one member having first and second projecting walls, a bottom wall extending between said first and second projecting wall, and an elongated channel defined between said first and second projecting walls and extending along said first and second projecting walls and said bottom wall, each of said first and second projecting walls extending upwardly from said bottom wall at an angle higher than 90Â° relative to said bottom wall and towards said inner surface of said outer shell such that, in use, said first and second projecting walls are adapted to deflect upon an impact to said outer shell; and ( c) an inner lining at least partially covering said inner surface of said skeleton, said inner lining having an inner surface for contacting a substantial portion of the player's head. REFERENCES The prior art relied upon by the Examiner in rejecting the claims on appeal is: Lovell Cantwell Durocher us 4,307,471 us 4,766,614 US 6,981,284 B2 2 Dec. 29, 1981 Aug.30, 1988 Jan.3,2006 Appeal2014-005622 Application 13/611,538 REJECTIONS 1 I. Claims 1--4, 12, and 20 stand rejected under 35 U.S.C. Â§ 102(b) as anticipated by Cantwell. II. Claims 7, 9--11, and 13-15 stand rejected under 35 U.S.C. Â§ 103(a) as unpatentable over Cantwell. III. Claims 5 and 6 stand rejected under 35 U.S.C. Â§ 103(a) as unpatentable over Cantwell and Lovell. IV. Claim 8 stands rejected under 35 U.S.C. Â§ 103(a) as unpatentable over Cantwell and Durocher. DISCUSSION Rejection I The Examiner determines that Cantwell discloses each and every limitation of independent claim 1. See Final Act. 4--7. In particular, the Examiner finds that Cantwell discloses "first and second projecting walls and said bottom wall defining a channel (See Fig. A)." Id. at 7. Appellants argue that"[ w ]hile the Examiner identifies an 'elongated channel' in Figure A reproduced above, the Examiner's identified channel is rather a space between two separate and distinct cones and such a space cannot be construed as an 'elongated channel'." Appeal Br. 19. In support of this argument, Appellants note "that the word 'channel' is defined as 'a long gutter, groove, or furrow' and the claimed 'elongated channel' cannot therefore simply be a 'space' as the one identified by the Examiner on 1Drawing objections are petitionable, not appealable matters not within our jurisdiction. See MPEP Â§Â§ 1002 and 1201. Accordingly, we do not consider Appellants' arguments pertaining to the drawing objection. 3 Appeal2014-005622 Application 13/611,538 Figure A." Id. (citing Merriam-Webster.com, http://www.merriam- webster.com). Appellants are correct. The ordinary and customary meanings of the claim term channel are: 1 a : the bed where a natural stream of water runs b : the deeper part of a river, harbor, or strait c : a strait or narrow sea between two close landmasses d : a means of communication or expression: as (1 ): a path along which information (as data or music) in the form of an electrical signal passes (2) plural: a fixed or official course of communication e : a way, course, or direction of thought or action f : a band of frequencies of sufficient width for a single radio or television communication g : CHANNELER 2 a : a usually tubular enclosed passage: CONDUIT b : a passage created in a selectively permeable cell membrane by a conformational change in membrane proteins; also: the proteins of such a passage - compare ION CHANNEL 3 : a long gutter, groove, or furrow 4 : a metal bar of flattened U-shaped section Merriam-Webster.com, http://www.merriam- webster.com/dictionary/channel (last accessed July 8, 2016). The space between Cantwell' s elastomeric members 22 cannot fairly be read on the claimed channels. Thus, the Examiner's finding is in error. For this reason, we do not sustain the Examiner's decision rejecting claim 1, and claims 2--4 and 12, which depend therefrom. Independent claim 20, similarly requires "an elongated channel defined between said first and second projecting walls." Appeal Br. 27. Accordingly, we do not sustain the Examiner's decision rejecting claim 20 for the same reason. Re} ections II-IV 4 Appeal2014-005622 Application 13/611,538 Rejections II-IV rely on the same erroneous finding as Rejection I. Therefore, we do not sustain the Examiner's decisions rejecting claims 7, 9- 11, and 13-15 as unpatentable over Cantwell, the Examiner's decision rejecting claims 5 and 6 as unpatentable over Cantwell and Lovell, and the Examiner's decision rejecting claim 8 as unpatentable over Cantwell and Durocher, for the same reason. DECISION The Examiner's rejections of claims 1-15 and 20 are REVERSED. REVERSED 5