Larry Drake. Hansen

Patent Trials and Appeals BoardJul 31, 2019

14257777 - (D) (P.T.A.B. Jul. 31, 2019)

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. 14/257,777 04/21/2014 Larry Drake Hansen 8207 121620 7590 07/31/2019 Larry Drake Hansen 1581 East Nicklaus Road Sandy, UT 84092 EXAMINER ARYANPOUR, MITRA ART UNIT PAPER NUMBER 3711 MAIL DATE DELIVERY MODE 07/31/2019 PAPER 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. PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte LARRY DRAKE HANSEN Appeal 2019-002252 Application 14/257,777 Technology Center 3700 Before DANIEL S. SONG, MICHAEL L. HOELTER, AND BRETT C. MARTIN, Administrative Patent Judges. MARTIN, Administrative Patent Judge. DECISION ON APPEAL STATEMENT OF THE CASE Pursuant to 35 U.S.C. § 134(a), Appellant,1 Larry Drake Hansen, appeals from the Examiner’s decision to reject claim 1. We have jurisdiction under 35 U.S.C. § 6(b). We AFFIRM. 1 We use the word “Appellant” to refer to “Applicant” as defined in 37 C.F.R. § 1.42(a). Appeal 2019-002252 Application 14/257,777 2 CLAIMED SUBJECT MATTER The sole claim is directed to an approach to providing safety barrier backstop systems for spectators of baseball games. Claim 1, reproduced below, is illustrative of the claimed subject matter: 1. A novel approach to a business process of providing safety barrier backstops for spectators at baseball games, wherein comprising of utilization and implementation of any type of clear or translucent netting or fencing, namely, but not necessarily or limited to: a clear or translucent monofilament polymer netting or fencing; as the backstop of a baseball stadium or field as a new and improved safety barrier, the new and improved approach to said process being easily understandable to those skilled in the art of providing spectator safety backstop barriers. REFERENCE The prior art relied upon by the Examiner is: Sakamoto US 2007/0148452 A1 June 28, 2007 REJECTIONS Claim 1 stands rejected under 35 U.S.C. §112(b) as being indefinite. Final Act. 2. Claim 1 stands rejected under 35 U.S.C. § 102(b) as being anticipated by Sakamoto. Id. OPINION Indefiniteness The Examiner rejects claim 1 as indefinite “because there are no active, positive steps delimiting how the use is actually practiced.” Ans. 5. The Examiner also determines that the claim is indefinite due to the Appeal 2019-002252 Application 14/257,777 3 inclusion of the phrase “not necessarily or limited to a clear or translucent monofilament polymer netting or fencing.” We agree that this language is indefinite. It is unclear whether Appellant intends to claim a specific kind of clear or translucent netting or fencing or not. Furthermore, we agree that the claim is written as a process, but does not actually cite any process steps. The claim is not even clear as to how the netting is to be used, merely stating the “utilization and implantation” of a netting. Also, the phrase “wherein comprising of” is grammatically incorrect and renders the claim indefinite. Overall, it is unclear exactly what Appellant is attempting to claim as the invention. Accordingly, we sustain the rejection. Anticipation The Examiner also rejects claim 1 as anticipated by Sakamoto. As noted by the Examiner, Sakamoto teaches that the netting described therein can be used as netting for “ball-protections, i.e.[,] sports nets.” Ans. 6, citing Sakamoto ¶ 1. The Examiner also points out that Sakamoto discloses that the material is transparent. Id., citing Sakamoto ¶ 71. Notwithstanding our affirmance of the indefiniteness rejection, we nonetheless reverse the anticipation rejection because we do not agree with the Examiner’s findings with respect to Sakamoto. Contrary to the Examiner’s assertion, Sakamoto teaches the netting being formed of a transparent gel raw material without definitively stating that the final product is transparent. The Examiner also points out that “polyethylene filament is clear or transparent and . . . it is known in the filament art, the raw filament maybe either dyed or blended with other clear or color[ed] fibers.” Ans. 6. The Examiner provides no evidence that polyethylene is necessarily clear or translucent upon processing the Appeal 2019-002252 Application 14/257,777 4 transparent gel raw material to a final product, as would be required for inherency in anticipation. The Examiner’s statement appears to be more of a statement of obviousness rather than anticipation and as such we do not sustain the Examiner’s anticipation rejection. Appellant’s other arguments attack the Examiner as citing portions of Sakamoto that allegedly do not exist. See, e.g., Reply Br. 2. Appellant, however, cites to US Patent No. 6,899,950, which is neither the Sakamoto reference nor anywhere cited as prior art of record. It appears that in reviewing the rejection, Appellant was not looking at the correct reference actually cited by the Examiner, as the Examiner’s citations to Sakamoto are correct. Although these arguments are unpersuasive, we do agree that the Examiner has failed to adequately support with evidence the finding of anticipation. Accordingly we do not sustain this rejection. DECISION We AFFIRM the Examiner’s indefiniteness rejection and REVERSE the Examiner’s anticipation rejection. FINALITY AND RESPONSE No time period for taking any subsequent action in connection with this appeal may be extended under 37 C.F.R. § 1.136(a). See 37 C.F.R. § 1.136(a)(1)(iv). AFFIRMED