Ex Parte Stockinger et al

Patent Trials and Appeals Board

Jan 29, 2019

14362747 - (D) (P.T.A.B. Jan. 29, 2019)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
14/362,747 06/04/2014
23446 7590 01/31/2019
MCANDREWS HELD & MALLOY, LTD
500 WEST MADISON STREET
SUITE 3400
CHICAGO, IL 60661
FIRST NAMED INVENTOR
Christian Stockinger
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.
27492US01 3913
EXAMINER
SKUBINNA, CHRISTINE J
ART UNIT PAPER NUMBER
3754
NOTIFICATION DATE DELIVERY MODE
01/31/2019 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):
mhmpto@mcandrews-ip.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte CHRISTIAN STOCKINGER and ERIC SOLANYK
Appeal2018-004533
Application 14/362,747
Technology Center 3700
Before BIBHU R. MOHANTY, CYNTHIA L. MURPHY, and
KENNETH G. SCHOPPER, Administrative Patent Judges.
MURPHY, Administrative Patent Judge.
DECISION ON APPEAL
The Appellants 1 appeal under 35 U.S.C. § 134 from the Examiner's
final rejections of claims 1-7, 20, and 21. We have jurisdiction over this
appeal under 35 U.S.C. § 6(b ).
We REVERSE.
1 The Appellants identify the real party in interest as "Everlast Climbing
Industries, Inc. DBA Colorado Time System." (Appeal Br. 2.)
Appeal2018-004533
Application 14/3 62,747
STATEMENT OF THE CASE
The Appellants' invention "is in the field of starting assist devices for
swimmers in competitive swimming and training." (Spec. 1, 11. 8-9.)
Illustrative Claim
1. A starting assist apparatus for assisting backstroke
swimmers during a start process, the apparatus comprising:
a footrest operable for positioning in a pool during the
start process and automatic removal from the pool after the start
process, wherein the positioning in the pool corresponds with
an extended position of the footrest and the automatic removal
from the pool corresponds with a retracted position of the
footrest;
a rotatable winding tube comprising a torsion spring
configured to provide a bias force to the rotatable winding tube
in a first direction corresponding with the retracted position of
the footrest;
a plurality of straps coupling the footrest to the rotatable
winding tube, the plurality of straps configured to
simultaneously wind around the rotatable winding tube if the
rotatable winding tube is rotated in the first direction, the
plurality of straps configured to simultaneously unwind from
the rotatable winding tube if the rotatable winding tube is
rotated in the second direction, wherein:
a force applied to the rotatable winding tube in a
second direction that exceeds the bias force provided by
the torsion spring in the first direction rotates the
rotatable winding tube in the second direction to
simultaneously unwind the plurality of straps to move the
footrest to the extended position, and
the bias force provided by the torsion spring in the
first direction automatically and simultaneously winds
the plurality of straps on the rotatable winding tube to
move the footrest to the retracted position in an absence
of the force applied to the rotatable winding tube in the
second direction that exceeds the bias force provided by
the torsion spring in the first direction; and
2
Appeal2018-004533
Application 14/3 62,747
a lock configured to allow rotation of the winding tube in
the first direction to wind the plurality of straps and prevent
rotation of the winding tube in the second direction to unwind
the plurality of straps if the lock is in a closed position.
Carlson
Nichols
Rouhana
Colletto
References
us 1,542,435
us 3,248,069
US 6,773,075 B2
EP 2 740 518 A2
Rejections
June 16, 1925
Apr. 26, 1966
Aug. 10, 2004
June 11, 2014
I. The Examiner rejects claims 1-5, 7, 20, and 21 under 35 U.S.C.
§ 103 as unpatentable over Colletto, Nichols, and Rouhana. (Final Action 3.)
II. The Examiner rejects claim 6 under 35 U.S.C. § 103 as
unpatentable over Colletto, Nichols, Rouhana, and Carlson. (Final Action 6.)
III. The Examiner rejects claim 21 under 35 U.S.C. § 112 as
indefinite. (Final Action 2.)
ANALYSIS
Independent claim 1 recites a "starting assist apparatus for assisting
backstroke swimmers during a start process." (Appeal Br., Claims App.)
The rest of the claims on appeal (i.e., claims 2-7, 20, and 21) depend from,
or otherwise incorporate the limitations of, independent claim 1. (See id.)
Re} ections I and II
Independent claim 1 requires the backstroke-start apparatus to
comprise a "footrest," a "tube," and "straps" that couple the footrest to the
tube. (Appeal Br., Claims App.) The footrest is "operable" for "removal
from the pool after the start process," and this "removal from the pool
corresponds with a retracted position of the footrest." (Id.) Independent
3
Appeal2018-004533
Application 14/3 62,747
claim 1 further recites a "bias force" that "automatically and simultaneously
winds" the straps on the tube to move the footrest "to the retracted position."
(Id.) In other words, the straps are wound around the tube to remove the
footrest from the pool after the start process.
The Examiner finds that Colletto discloses a backstroke-start
apparatus having a footrest 20, a tube 26, and straps 24 coupling the
footrest 20 to the tube 26. (See Final Action 3.) And, the Examiner finds
that Colletto's footrest 20 is shown in the "retracted position" in Figure 6,
reproduced below. (Id.)
Figure 6 shows the Colletto' s backstroke-start apparatus in an "operating
configuration." (Colletto ,r 15.) In the illustrated operating configuration
(i.e., what the Examiner considers the "retracted position"), the footrest 20
and the tube 26 are positioned on the floor of the pool deck adjacent the
starting block 10, and the straps 24 extend with slack therebetween.
4
Appeal2018-004533
Application 14/3 62,747
The Examiner's rejection relies upon Colletto to teach "winding" the
straps 24 onto the tube 26 "for the removal of the starting footrest from the
pool water" (Answer 3), and, "removal from the pool corresponds with [the]
retracted position of the footrest" (Appeal Br., Claims App.).
The problem with the Examiner's position is that, as shown in
Figure 6 reproduced above, Colletto does not teach winding its straps 24
around the tube 26 to move the footrest 20 to the retracted position. 2 Put
another way, Colletto "does not teach using a winding and unwinding reel
device as a solution to the problem of removing the starting assist device."
(Reply Br. 11.) And, as pointed out by the Appellants, the secondary
references do not cure this shortcoming, as the straps disclosed therein are
"not used to pull a footrest ( or anything else for that matter) out of a pool."
(Appeal Br. 13; see also id. at 14, 18.)
The Examiner does indicate that it would have been obvious "to
modify Colletto to include an automatic winding and unwinding device for
the purpose of storing the belts when not in use." (Final Action 4.) But we
agree with the Appellants that "storing belts when not in use is different than
automatically removing a footrest from a pool after a start process as
claimed." ( Appeal Br. 19.)
Thus, we do not sustain the Examiner's rejection of independent
claim 1 as unpatentable over Colletto, Nichols, and Rouhana.
2 Although Colletto discloses that the tube 26 that is somewhat rotatable
relative to the straps 24, this limited rotation is done to provide "length-wise
adjustments" of the belts 24 relative to the "vertical wall of the swimming
pool" when the footrest 20 is positioned in the water. (Colletto ,r 26; see
also id. ,r 28, Figs. 7, 8.) This rotation is not done to remove the footrest 20
from the water, as implied by the Examiner. (See Final Action 3.)
5
Appeal2018-004533
Application 14/3 62,747
The Examiner's further findings and determinations with respect to
the rest of the claims on appeal do not remedy the above-discussed
deficiency in the rejection of independent claim 1. (See Final Action 5---6.)
Thus, we do not sustain the Examiner's rejection of claims 2-5, 7, 20,
and 21 under 35 U.S.C. § 103 as unpatentable over Colletto, Nichols, and
Rouhana; and we do not sustain the Examiner's rejection of claim 6 under
35 U.S.C. § 103 as unpatentable over Colletto, Nichols, Rouhana, and
Carlson.
Re} ection III
Claim 21 recites "[a] plurality of the apparatus" (Appeal Br., Claims
App.); and the Examiner determines that"[ c ]laim 21 is indefinite as it is
unclear what 'the plurality of apparatuses' is referring to." (Final Action 2.)
However, we agree with the Appellants' position that one of ordinary skill in
the art would, upon reading the Specification (see e.g. Spec. 13, 11. 6-13,
Fig. 11), understand that claim 21 is claiming "two or more (i.e., a plurality)
of the apparatus of claim 1." (Reply Br. 6.)
Thus, we do not sustain the Examiner's rejection of claim 21 under
35 U.S.C. § 112 as indefinite.
DECISION
We REVERSE the Examiner's rejections of claims 1-7, 20, and 21.
REVERSED
6