Rick Snow

Patent Trials and Appeals BoardMar 22, 2021

2020004997 (P.T.A.B. Mar. 22, 2021)

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. 15/439,504 02/22/2017 Rick Jay Snow RSPB 0101 PUSP 8007 22045 7590 03/22/2021 Brooks Kushman 1000 Town Center 22nd Floor Southfield, MI 48075 EXAMINER HARMON, CHRISTOPHER R ART UNIT PAPER NUMBER 3649 NOTIFICATION DATE DELIVERY MODE 03/22/2021 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): docketing@brookskushman.com kdilucia@brookskushman.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte RICK JAY SNOW Appeal 2020-004997 Application 15/439,504 Technology Center 3600 Before STEFAN STAICOVICI, BENJAMIN D. M. WOOD, and PATRICK R. SCANLON, Administrative Patent Judges. WOOD, Administrative Patent Judge. DECISION ON APPEAL STATEMENT OF THE CASE Pursuant to 35 U.S.C. § 134(a), Appellant1 appeals from the Examiner’s decision to reject claims 1 and 3–21. See Final Act. 1. We have jurisdiction under 35 U.S.C. § 6(b). We affirm. 1 “Appellant” refers to the applicant as defined in 37 C.F.R. § 1.42. Appellant does not identify the real party in interest in the Appeal Brief. Appeal 2020-004997 Application 15/439,504 2 CLAIMED SUBJECT MATTER The claims are directed to a fishing lure. Claim 1, reproduced below, is illustrative of the claimed subject matter: 1. A fishing lure to simulate the action of dying bait, comprising: a lure body extending from a first distal end to a second distal end, said lure body having a longitudinal line and a lateral line, each of said lateral and longitudinal lines extending through said first distal end and said second distal end, each of said lateral and longitudinal lines extending through a physical center of said lure body, said lure body having a nose at said first distal end; a line tie having an anchor secured to said nose of said lure body at a point coincident with an intersection of said lateral line and said longitudinal line; a leg extending forward and downward from said anchor; and a first eyelet extending from said leg opposite from said anchor for connection to a fishing line, wherein said first eyelet is positioned by said leg to be spaced apart from said lateral line and said longitudinal line. REFERENCES REJECTIONS Claim(s) Rejected 35 U.S.C. § Reference(s)/Basis 1, 3–21 112(b) Indefiniteness 1, 3–5, 8–10, 17 102(a)(1) Cullerton 6, 7, 11, 13–16 103 Cullerton, Lahtinen Name Reference Date Cullerton 2,241,767 May 13, 1941 Lahtinen 3,412,500 Nov. 26, 1968 Appeal 2020-004997 Application 15/439,504 3 OPINION Claims 1 and 3–21: Rejected as Indefinite Appellant argues the claims subject to this rejection as a group. Appeal Br. 4–5. We select claim 1 as representative of the group, and decide the appeal of this rejection on the basis of claim 1 alone. 37 C.F.R. § 41.37(c)(1)(iv). The Examiner determines that “[i]t is unclear how the longitudinal and lateral ‘lines’ define the lure body as both ‘extending through a physical center’ of the body and ‘at a point coincident with an intersection’ at the nose portion.” Final Act. 2. According to the Examiner: [T]he lure body is a three dimensional body wherein a physical center would be ordinarily considered within the body (e.g. center of mass); lines are generally understood to be defined by two points and a plane is generally defined by a point and a line; lines within the lure body would not extend through a singular center and intersect at a distal end as claimed. Lines upon a body surface may each separately divide the body into portions however not commonly considered defining a “center.” Id.; see Ans. 4 (“[b]y definition intersecting lines cannot be either parallel or coincidental/the same line”). Appellant responds that lateral line 22 and longitudinal line 24, depicted in Figures 1 and 2, respectively, “are clearly and separately shown in Figures 1-2 to extend through the first and second distal ends 18, 20 of the lure and through the physical center of the lure body.” Appeal Br. 5. Appellant further asserts that, for the embodiment depicted in these Figures, “the lure body is symmetrical side-to-side such that the lateral and longitudinal lines are coincident.” Id. In the Reply Brief Appellant asserts, “contrary to the Examiner’s assertion,” that “intersecting lines may be coincident lines.” Reply Br. 2. Appeal 2020-004997 Application 15/439,504 4 We agree with the Examiner than claim 1 is indefinite. Claim 1 requires that the claimed lateral line and longitudinal line pass through the same three points—the first distal end, the second distal end, and the “physical center” of the lure body—and, furthermore, “intersect[]” at a point that identifies where the line tie anchor is secured. Appeal Br., Claims App. 1. Appellant states that the claimed lateral and longitudinal lines are “coincident” (Appeal Br. 5; Reply Br. 2); indeed, because they pass through the same three points, they are necessarily the same line.2 It does not make sense to claim a line intersecting with itself.3 Moreover, even if we were to accept that “coincident” lines “intersect” at all points on the lines, as Appellant seems to suggest, such a limitation would not actually identify where on the lure’s nose the line tie anchor is to be secured, as it purports to do. Thus, it would be unclear where on the nose of the lure body the anchor must be located, and a skilled artisan endeavoring to practice the invention could not determine the metes and bounds thereof. Because “a claim is indefinite when the boundaries of the protected subject matter are not clearly delineated and the scope is unclear” (MPEP § 2173.02), we sustain the Examiner’s rejection of claim 1, as well as claims 3–21, which fall therewith, as indefinite. Claims 1, 3–5, 8–10, and 17: Rejected as Anticipated by Cullerton Each of independent claims 1 and 10 requires the fishing lure body to have longitudinal and lateral lines that pass through first and second distal ends and “a physical center of said body.” Appeal Br., Claims App. 1–3. 2 See mathematicsdictionary.com/math-vocabulary.htm (last visited Mar. 12, 2021) (defining “line” as “the shortest distance between two points”). 3 See id. (stating that lines intersect “at only one point.”). Appeal 2020-004997 Application 15/439,504 5 Although the Specification does not expressly define “physical center,” we assume, as does the Examiner (Final Act. 2), that it refers to the body’s center of mass. The Examiner finds that Cullerton discloses a fishing lure with a lure body having “a lateral line . . . in a similar direction to longitudinal line of the body as claimed which can intersect.” Final Act. 3. The Examiner further notes that “these lines are not considered structural elements of the devices but rather general alignment axis which lie within the body portion and in the direction(s) claimed.” Id. The Examiner does not expressly find that Cullerton discloses lateral and longitudinal lines that pass through a lure body’s first and second distal end and physical center. Although we appreciate the Examiner’s position that the lines themselves are not physical constructs, that does not mean that they do not have any structural significance. That is, even though the claims may not require physical lines, they do require that the three points through which the lines pass through—first and second distal ends and physical center—be aligned. The Examiner has not made any finding that the first and second distal ends and physical center of Cullerton’s lure are aligned. Therefore, we do not sustain the Examiner’s rejection of claims 1, 10, and 13, as well as their dependent claims 3–5, 8, 9, and 17, Claims 6, 7, 11, and 13–16: Rejected as Unpatentable over Cullerton and Lahtinen Like claims 1 and 10, claim 13 requires lateral and longitudinal lines passing through the lure’s first and second distal ends and physical center. The Examiner has not made a specific finding that either Cullerton or Lahtinen teaches this limitation. Therefore, for the reasons discussed above, this rejection is not sustained. Appeal 2020-004997 Application 15/439,504 6 CONCLUSION The Examiner’s rejections are decided as follows: DECISION SUMMARY Claim(s) Rejected 35 U.S.C. § Reference(s)/Basis Affirmed Reversed 1, 3–21 112(b) Indefiniteness 1, 3–21 1, 3–5, 8– 10, 17 102(a)(1) Cullerton 1, 3–5, 8– 10, 17 6, 7, 11, 13– 16 103 Cullerton, Lahtinen 6, 7, 11, 13– 16 Overall Outcome 1, 3–21 TIME PERIOD FOR 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