TruBlue LLC

Patent Trials and Appeals Board

Mar 3, 2022

2021003067 (P.T.A.B. Mar. 3, 2022)

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. 16/041,431 07/20/2018 John McGowan 04572.0002USC1 8515 23552 7590 03/03/2022 MERCHANT & GOULD P.C. P.O. BOX 2903 MINNEAPOLIS, MN 55402-0903 EXAMINER LE, MARK T ART UNIT PAPER NUMBER 3617 NOTIFICATION DATE DELIVERY MODE 03/03/2022 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): USPTO23552@merchantgould.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE ____________ BEFORE THE PATENT TRIAL AND APPEAL BOARD ____________ Ex parte JOHN MCGOWAN and MARC REICH ____________ Appeal 2021-003067 Application 16/041,431 Technology Center 3600 ____________ Before MICHELLE R. OSINSKI, JILL D. HILL, and BRANDON J. WARNER, Administrative Patent Judges. WARNER, 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 41, 42, 44, 46-54, and 57-59. Appeal Br. 5. Claims 43, 45, 55, 56, and 60 have been withdrawn. Id. We have jurisdiction over the appeal under 35 U.S.C. § 6(b). We AFFIRM. 1 We use the word “Appellant” to refer to the “applicant” as defined in 37 C.F.R. § 1.42. Appellant identifies the real party in interest as TruBlue LLC. Appeal Br. 3. Appeal 2021-003067 Application 16/041,431 2 CLAIMED SUBJECT MATTER Appellant’s disclosed invention relates generally to “trolleys usable for traversing cables such as zip lines,” and particularly to such trolleys “adapted to perform better under different circumstances or in different applications using braking including impact braking.” Spec. ¶ 14. Claims 41 and 51, reproduced below with emphasis added, are the independent claims on appeal and are representative of the subject matter. 41. A trolley for traversing a zip line, the trolley comprising: a first side plate; a second side plate; a forward sheave rotatably mounted between the first side plate and the second side plate about a forward axle; a rearward sheave rotatably mounted between the first side plate and the second side plate about a rearward axle, wherein the first side plate is spaced apart from the second side plate such that a bottom gap is defined in the trolley beneath the forward sheave and the rearward sheave, and wherein the bottom gap extends along an entire length of the trolley, the zip line being receivable through the bottom gap to install the trolley on the zip line; a central anchor point defined in at least one of the first side plate and the second side plate, wherein the central anchor point is disposed between the forward sheave and the rearward sheave, and above the zip line when the trolley is installed; and a carabiner configured to couple to the central anchor point for attaching a rider to the trolley, wherein the central anchor point is shaped and sized to allow the carabiner to rotate relative to the first side plate and second side plate. Appeal 2021-003067 Application 16/041,431 3 51. A trolley for traversing a zip line in a first direction, the trolley comprising: two side plates spaced apart from one another; a first load-bearing sheave rotatably mounted between the two side plates at a first axle; a second load-bearing sheave rotatably mounted between the two side plates at a second axle and rearward of the first sheave relative to the first direction, wherein a bottom gap is defined between the two side plates and beneath the first load- bearing sheave and the second load-bearing sheave such that the bottom gap is open and extending a length of the trolley, and wherein the zip line is receivable through the bottom gap to install the trolley on the zip line; and an anchor coupling pivotably coupled to the two side plates for attaching a payload, wherein the anchor coupling is pivotable about an axis, and wherein the axis is disposed between the first load-bearing sheave and the second load- bearing sheave, and above the zip line when the trolley is installed so that during deceleration of the payload and the payload swinging around the axis via the anchor coupling, uplifting moment induced on the trolley is reduced and the weight of the payload keeps the first load-bearing sheave loaded on the zip line. EVIDENCE The Examiner relied on the following evidence in rejecting the claims on appeal: Petzl US 6,810,818 B2 Nov. 2, 2004 Lerner US 8,601,951 B2 Dec. 10, 2013 Strasser US 2015/0375758 A1 Dec. 31, 2015 Appeal 2021-003067 Application 16/041,431 4 REJECTIONS The following rejections are before us for review: I. Claims 41, 42, 44, 46, and 51-54 stand rejected under 35 U.S.C. § 102(a)(1) as anticipated by Petzl. Final Act. 2. II. Claims 47-50, 58, and 59 stand rejected under 35 U.S.C. § 103 as being unpatentable over Petzl and Lerner. Id. at 2-3. III. Claim 57 stands rejected under 35 U.S.C. § 103 as being unpatentable over Petzl and Strasser. Id. at 3. ANALYSIS Rejection I - Anticipation by Petzl Appellant presents argument against the rejection of independent claims 41 and 51 together, and does not set forth any additional arguments for the other claims subject to Rejection I. See Appeal Br. 18-26. We select independent claim 41 as representative of the issue that Appellant presents in this appeal, with claims 42, 44, 46, and 51-54 standing or falling therewith. See 37 C.F.R. § 41.37(c)(1)(iv). Appellant contends that the anticipation rejection is deficient because “Petzl’s snap-hook 22 is not rotatable within the orifices 24, 26” of side plates 20a, 20b, as the claim requires. Appeal Br. 20; see id. at 20-26. Thus, the disputed issue is whether the Examiner’s finding that Petzl’s device does provide for such rotation (Final Act. 2; see also Ans. 8-9) is supported by a preponderance of the evidence. In short, upon a thorough review of the evidence before us, this finding is sufficiently supported and we sustain the rejection. Appeal 2021-003067 Application 16/041,431 5 Initially, we note that our analysis herein focuses on rotation of the carabiner/snap-hook relative to the side plates in a longitudinal direction. We focus on rotation in this direction because it is the most logical direction of rotational movement based on Appellant’s disclosure, and because the claim simply requires the allowance of rotation of the carabiner relative to the side plates without specifying any particular amount or direction of such rotation. Accordingly, whether or not Petzl’s device allows for some limited rotational movement in the transverse direction, as the Examiner also finds (see Ans. 9), becomes somewhat extraneous if Petzl’s device allows for rotational movement in the longitudinal direction.2 As to whether Petzl’s device allows for the carabiner/snap-hook to rotate relative to the side plates in a longitudinal direction, the Examiner’s finding that Petzl does provide for such rotation (Final Act. 2; see also Ans. 8-9) is supported by a preponderance of the evidence. Although we appreciate Appellant’s observation that Petzl describes advantages of keeping the snap-hook in a stable vertical position that is perpendicular to the side plates, including the longer end of side plate 20b acting as a stop and the snap-hook being held captive within orifices 24, 26 (see Appeal Br. 20-22), nothing about this arrangement would prevent longitudinal rotation of the snap-hook. Rather, Petzl’s snap-hook 22 can rotate relative to side plates 20a, 20b in a longitudinal direction (i.e., swing back and forth within orifices 24, 26 in the direction of cable 21) without interfering with 2 Although we appreciate Appellant’s observation that the longer end of Petzl’s side plate 20b is “arranged as a stop” (Appeal Br. 20 (quoting Petzl, col. 2, ll. 36-38)), it appears from a review of Petzl’s Figure 2 and the accompanying description that such a stop structure would serve to limit (as opposed to eliminate) some rotational movement in the transverse direction. Appeal 2021-003067 Application 16/041,431 6 the stop at the bottom of plate 20b and within a vertical plane where snap- hook 22 is maintained in a stable vertical position perpendicular to side plates 20a, 20b.3 See Petzl, Figs. 2, 3; accord Final Act. 2; Ans. 4 (including an annotated reproduction of Fig. 3 of Petzl), 7-9. Further, with regard to Petzl’s inclusion of rubber insert 24, which Appellant urges would restrict rotation of snap-hook 22 (see, e.g., Appeal Br. 21-22), the Examiner has the better position. First, from a review of Petzl’s Figures 3 and 5, there can be no credible dispute that one of ordinary skill in the art would readily appreciate that, absent insert 34, snap-hook 22 would rotate longitudinally within apertures 24, 26 of side plates 20a, 20b based on their relative sizes and the curved nature of the interfacing surfaces. The relevant question, then, is whether inclusion of rubber insert 24 would alter that arrangement by preventing such rotation. On this question, we agree with the Examiner that the deformable material of insert 24, along with the necessity of being able to insert snap-hook 22 therethrough in order to assemble the device, would not prevent such rotation in the longitudinal direction. See Ans. 8-9. In sum, on the record before us, we discern no error in the Examiner’s finding that Petzl’s device allows for rotation of snap-hook 22 within orifices 24, 26 of side plates 20a, 20b, as required by the claim. Accordingly, we sustain the rejection of independent claim 1, and claims 42, 44, 46, and 51-54 falling therewith, under 35 U.S.C. § 102(a)(1). 3 Indeed, as will be readily appreciated by one of ordinary skill in the art, such longitudinal rotation of Petzl’s snap-hook 22 would be necessary to allow the force of a load hanging therefrom to remain directed vertically downward in situations where cable 21 may be inclined or declined at an angle other than perfectly horizontal. Appeal 2021-003067 Application 16/041,431 7 Rejections II and III - Obviousness over Petzl and Lerner or Strasser With respect to the rejections of claims 47-50 and 57-59, which depend directly or indirectly from one of independent claims 41 and 51, Appellant expressly states that these rejections “are not argued separately herein,” relying instead on the argument for the base claims. Appeal Br. 18. For the same reasons that Appellant’s argument does not apprise us of error in Rejection I, we are likewise not apprised of error in Rejections II and III. Accordingly, we sustain the rejections of claims 47-50 and 57-59 under 35 U.S.C. § 103. DECISION We AFFIRM the Examiner’s decision rejecting claims 41, 42, 44, 46, and 51-54 under 35 U.S.C. § 102(a)(1) as anticipated by Petzl. We AFFIRM the Examiner’s decision rejecting claims 47-50, 58, and 59 under 35 U.S.C. § 103 as being unpatentable over Petzl and Lerner. We AFFIRM the Examiner’s decision rejecting claim 57 under 35 U.S.C. § 103 as being unpatentable over Petzl and Strasser. 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). Appeal 2021-003067 Application 16/041,431 8 CONCLUSION In summary: Claim(s) Rejected 35 U.S.C. § Reference(s)/Basis Affirmed Reversed 41, 42, 44, 46, 51-54 102(a)(1) Petzl 41, 42, 44, 46, 51-54 47-50, 58, 59 103 Petzl, Lerner 47-50, 58, 59 57 103 Petzl, Strasser 57 Overall Outcome 41, 42, 44, 46-54, 57-59 AFFIRMED