Ex Parte Plante

Patent Trial and Appeal Board

Apr 26, 2018

14057156 (P.T.A.B. Apr. 26, 2018)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
14/057,156 10/18/2013
63893 7590
DOUGLAS J. VISNIUS
18024 Falcon Green Court
ORLANDO, FL 32820-2712
04/30/2018
FIRST NAMED INVENTOR
Stephen M. Plante
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.
SMPUSl 1524
EXAMINER
WAGGENSPACK, ADAM J
ART UNIT PAPER NUMBER
3782
NOTIFICATION DATE DELIVERY MODE
04/30/2018 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):
apexmasterworks@gmail.com
sfnlhafnap@yahoo.com
dvisnius@bellsouth.net
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte STEPHEN M. PLANTE 1
Appeal2017-001622
Application 14/057, 156
Technology Center 3700
Before: EDWARD A. BROWN, MICHAEL L. WOODS, and
LEE L. STEPINA, Administrative Patent Judges.
STEPINA, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Appellant appeals under 35 U.S.C. § 134(a) from a rejection of claims
1-21. We have jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM.
1 Appellant's Appeal Brief lists Stephen M. Plante, the sole named inventor,
as the real party in interest. Appeal Br. 1.
Appeal2017-001622
Application 14/057, 156
CLAIMED SUBJECT MATTER
The claims are directed to a load bearing system and method. Claim
1, reproduced below, is illustrative of the claimed subject matter:
1. A system comprising:
an acromion-socket to receive a user's acromion-portion
and the acromion-socket is pre-formed to aid in receiving the
user's acromion-portion; and
a strap fastened to the acromion-socket where the strap
connects a load to the user.
Appeal Br. 22 (Claims App.).
REFERENCES
The prior art relied upon by the Examiner in rejecting the claims on
appeal is:
Cast
Chou
US 2,487,423 Nov. 8, 1949
US 2006/0289575 Al Dec. 28, 2006
REJECTIONS
(I) Claims 1-21 are rejected under 35 U.S.C. § 112(b) as
indefinite. 2
(II) Claims 5, 6, 8, 15, and 16 are rejected under 35 U.S.C. § 112(d)
as improper dependent claims.
2 In the heading for Rejection (I), the Examiner lists claims 1-20 as being
indefinite. Non-Final Act. 3. However, the discussion of "acromion-
portion" is under a sub-heading listing claims 1, 2, 6, 7, 9-12, 16, 17, and
19-21. Id. at 4. As all of independent claims 1, 11, and 21 are rejected
based on the lack of clarity in the term "acromion-portion," and all the other
pending claims depend from one of these claims, we understand claims 1-21
to be rejected on this basis.
2
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Application 14/057, 156
(III) Claims 1-6, 8-16, and 17-20 are rejected under 35 U.S.C.
§ 102(a) as anticipated by Chou.
(IV) Claims 1-21 are rejected under 35 U.S.C. § 103(a) as
unpatentable over Cast and Chou.
OPINION
Re} ection (I)
Claims 1, 11, and 21; "acromion-portion"
The Examiner determines that each of independent claims 1, 11, and
21 is indefinite because, in view of the Specification, the term "acromion-
portion" is unclear. Non-Final Act. 4. The Examiner cites Process Control
Corp. v. HydReclaim Corp., 190 F.3d 1350, 1357 (Fed. Cir. 1999) for the
proposition that when a patent drafter acts as his or her own lexicographer to
define a term contrary to its ordinary meaning, the written description must
do so in a way that would put a person of ordinary skill in the art on notice
that the term has been redefined. Id.
Appellant contends that the Examiner erred because an internet search
engine query demonstrates that "there is no ordinary meaning for the term
'acromion-portion' and therefore it is impossible for the term to be defined
contrary to its ordinary meaning by the Applicant." Appeal Br. 4. Appellant
contends that the term "an/ or the like," discussed by the Examiner in the
rejection of claims 1, 11, and 21 (Non-Final Act. 4), appears in the
Specification, but does not appear in the claims. Id. at 5. Appellant then
comes to the conclusion, "the claim recitals in question are standard terms
that would be understood by one of skill in the art and therefore the rejection
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Appeal2017-001622
Application 14/057, 156
is improper and should be withdrawn." Id. Appellant discusses the standard
for an indefiniteness rejection, quotes paragraphs that Appellant contends
are from the Specification in the present application, refers to Figures 1--4,
reiterates that there is no ordinary meaning for the term "acromion-portion,"
and asserts that "[ o ]ne skilled in the art would understand acromion-portion
to be used as a position/size marker with respect to the acromion-socket."
Appeal Br. 6-9. In the Reply Brief, Appellant repeats these arguments and
quotes, among other cases, Nautilus, Inc. v. Biosig Instruments, Inc., 134 S.
Ct. 2120, 2128 (2014). 3
Appellant's admission that there is no ordinary meaning of the term
"acromion-portion" (addressing the Examiner's citation to Process Control)
is unhelpful to Appellant's argument. We understand the Examiner's quote
from Process Control to be for the purpose of pointing out the lack of
assistance the Specification provides in understanding the term "acromion-
portion." Appellant's contention that it is impossible to contradict an
ordinary meaning that does not exist seems to miss the Examiner's point.
As for Appellant's contention that the phrase "an/or the like" in the
Specification (Spec. ,r 29) does not appear in the claims, we note that the
Examiner refers to the Specification as using this phrase, not the claims. See
Non-Final Act. 4. We agree with the Examiner that the use of this phrase
broadens the term "acromion-portion." We also agree with the Examiner
that the Specification sets forth multiple definitions of this term. See Spec.
,r 29 ( explaining that the acromion-portion comprises the user's "acromion
muscles, ligaments, skin, and/or the like" and in another embodiment,
3 Although the language quoted by Appellant is from the Supreme Court's
decision in Nautilus, Appellant's citation is to the Federal Circuit's earlier
decision. Reply Br. 8.
4
Appeal2017-001622
Application 14/057, 156
comprises the user's "acromion, humerus, muscles, ligaments, skin,
clothing, and/or the like.").
Appellant's contention that Figures 1--4 and paragraphs 42 through 49
of the Specification "describe[] the acromion-portion as varying in
position/size depending on the application" is not persuasive as Appellant's
quoted paragraphs are not in the Specification of the application on appeal.
Compare Appeal Br. 7-8 ( citing Spec. ,r,r 42-49), with Spec. ,r,r 42--49.
Furthermore, the examples of the "acromion-portion" in the text reproduced
in Appellant's Appeal Brief and Reply Brief, and referred to by Appellant as
paragraphs 42--49 of the Specification, provide mutually exclusive lists of
body parts that make up the acromion-portion, and, therefore, provide little
assistance in determining the meaning of this term. See Appeal Br. 7-8
( describing in one example that the acromion portion comprises the user's
acromion, while describing another example in which the acromion portion
excludes the user's acromion); Reply Br. 13-14.
We agree with Appellant's contention that claim 1 does not explicitly
require an "acromion-portion." See Appeal Br. 9; Reply Br. 15 (describing
the acromion-portion as a "position/size marker with respect to the
acromion-socket"). However, claim 1 limits the recited acromion-socket in
terms of the acromion-portion, and claim 21 recites the same limitation. See
Appeal Br. 22, 24 (Claims App.). The lack of clarity regarding the meaning
of the acromion-portion causes a lack of clarity in the recited acromion-
socket. Claim 11 explicitly recites "receiving a user's acromion-portion in
an acromion-socket." Id. at 23. Thus, all three independent claims on
appeal suffer from the ambiguity noted by the Examiner in relation to the
"acromion-portion."
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Application 14/057, 156
We have considered all of Appellant's arguments regarding the
rejection of independent claims 1, 11, and 21 and the term "acromion-
portion," but determine the Examiner has the better position. We affirm the
rejection of claims 1, 11, and 21 and the claims depending therefrom as
indefinite.
Claims 6, 8, and 16; "not further limiting"
The Examiner determines that claims 6, 8, and 16 do not further limit
the claims from which they depend. Non-Final Act. 4--5. Appellant
contends, and we agree, that the Examiner has not properly applied the
standard for a rejection based on indefiniteness inasmuch as the question
under§ 112(b) is not whether a dependent claim further limits the claim
from which it depends. Rather, as the Examiner later discusses (see Non-
Final Act. 6), § 112(d) applies in such situations.
Claims 1 and 11; "pre-formed"
The Examiner determines, "It is unclear what, if any, structural or
functional requirements are created by the limitations of the claim, as it is
unclear what it means for the socket to be 'pre-formed' as opposed to merely
formed." Non-Final Act. 5.
Appellant refers to paragraphs 34 and 35 of the Specification as
providing a definition of "pre-forming." We agree with Appellant on this
point, in light of the Specification, a person of ordinary skill in the art would
understand the meaning of the term "pre-formed" as recited in claims 1 and
11. Specifically, prior to installation, the pre-formed socket has a pre-
existing shape that receives the acromion-portion. 4 See Spec. ,r 35.
4 Our discussion of "pre-formed" relates only to this term and does not
negate our conclusion regarding the ambiguity of the term "acromion-
portion."
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Application 14/057, 156
Claim 8; "product-by-process"
The Examiner states, "it is unclear what, if any, structure is implied by
the listed steps (noting that it seems that any 'pre-forming' process can be
considered at least a fabrication process)." Non-Final Act. 5. To the extent
the Examiner's rejection implies that "pre-forming" requires no particular
structure, we disagree for the same reasons discussed above regarding claims
1 and 11 and the term "pre-formed." To the extent the Examiner's rejection
of claim 8 is based on an alleged failure to further limit claim 1, from which
claim 8 depends, this issue is properly addressed under§ 112(d) rather than
§ 112(b ), and we address the Examiner's discussion of claim 8 and § 112( d)
below.
Re} ection (II)
The Examiner determines that claims 5, 6, 8, 15, and 16 fail to further
limit the claims from which they depend. Non-Final Act. 6.
Claims 5 and 15; "vertical line"
Claim 5 recites, "wherein the strap at least one of crosses a vertical
line defined by the user's spinal cord and does not cross a vertical line
defined by the user's spinal cord." Appeal Br. 22 (Claims App.). Claim 15
recites a substantially similar requirement in a method limitation. Id. at 23-
24. The Examiner determines that these claims do not further limit parent
claims 1 and 11, respectively, because "the strap must either cross or not
cross the vertical line." Non-Final Act. 6.
Appellant contends, "Claims 5 and 15 limit[] the parent claim because
the 'vertical line defined by the user's spinal cord' does not include a head-
strap configuration and therefore not 'all of the possibilities' are recited thus
making the rejection improper." Appeal Br. 14.
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Application 14/057, 156
Appellant does not explain how the use of a "head-strap" would
provide a possible configuration not recited in claims 5 and 15, nor does
Appellant explain where such a configuration is found in the Specification or
Figures for purposes of comparison. Claims 5 and 15 use the term "a
vertical line," which, in some contexts can mean a line infinite in length.
Appellant's Figure 1 depicts line 24, defined by the user's 11 spinal cord,
extending beyond the torso of the depicted mannequin. See also Spec. ,r,r 32,
42. The broadest reasonable interpretation of "line" in light of the
Specification and Figures is that it is a line not limited in length by the user's
spinal cord, but, rather, a geometric line extending beyond the user's torso.
Based on this interpretation, we agree with the Examiner that the strap must
either cross, or not cross, the line. We affirm the rejection of claims 5 and
15 as failing to further limit the claims from which they depend.
Claims 6 and 16; "deformable material/hard member"
Claim 6 recites, "wherein the acromion-socket comprises at least one
of a deformable material that aids in engaging the user's acromion-portion
and a hard member that aids in engaging the user's acromion-portion."
Appeal Br. 22 (Claims App.). Claim 16 recites a substantially similar
method limitation. Id. at 24.
We agree with Appellant's contention that these claims do not set
forth all possibilities regarding the configuration of the acromion-socket.
First, as Appellant points out (Appeal Br. 15), one choice is a deformable
material, the other is a hard member. Additionally, both choices recited in
claims 6 and 16 require the material or member to aid in engaging the user's
acromion-portion, whereas, in independent claims 1 and 11, it is the pre-
formed shape that "aids" in receiving the user's acromion portion.
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Application 14/057, 156
Accordingly, we reverse the Examiner's rejection of claims 6 and 16 as
failing to limit claims 1 and 11, respectively.
Claim 8; "pre-forming"
Claim 8 recites, that the pre-form recited in claim 1 is achieved by "at
least one of material cut pattern, fastening pattern, fabrication process, and
material selection." Appeal Br. 22-23 (Claims App.). The Examiner
determines that the term "fabrication process" in claim 8 is so broad that
claim 8 does not exclude any type of pre-forming.
Appellant contends:
The OA incorrectly states that "any method of pre-forming can
be considered a fabrication process," because that is not what is
claimed. The claim recites in part, "the acromion-socket is pre-
formed to aid in receiving the user's acromion-portion."
Obviously the claim excludes the fabrication process where
acromion-socket is pre-formed to inhibit receiving the user's
acromion-portion and therefore all possibilities are not recited in
the claim thus making the rejection improper and subject to
withdrawal.
Appeal Br. 15-16 (emphasis added). Thus, Appellant argues that a pre-
forming operation that does not aid in receiving the user's acromion-portion
is excluded by the claim language (Appellant quotes language from claim 1,
but does not specifically indicate which claim is being discussed).
Appellant's contention, which is based on language in claim 1 rather
than language in claim 8, does not address the Examiner's rejection because
the issue, as explained by the Examiner, is that claim 8 does not further limit
claim 1. In other words, whether claim 1 excludes pre-forming that inhibits
receiving a user's acromion-portion is irrelevant to the question of whether
the "fabrication process" recited in claim 8 further limits the way the pre-
form is achieved in claim 1. Appellant does not explain how all types of
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Application 14/057, 156
preforming are not included in the scope of claim 8. Accordingly, we affirm
the Examiner's rejection of claim 8 as failing to further limit claim 1.
Rejection (III); Anticipation, Chou
With respect to Rejection (III), Appellant argues for claims 1---6, 8-16,
and 17-20 as a group. See Appeal Br. 16-18. We select claim 1 as
representative. See 37 C.F.R. § 4I.37(c)(l)(iv).
The Examiner finds that Chou discloses all the elements required by
claim 1, including an acromion-socket that is pre-formed to aid in receiving
the user's acromion-portion. Non-Final Act. 7 (citing Chou, Fig. 1).
Appellant states, "Fig. 1 of Chou shows base 2 being shaped by straps
10 and/or 20 and/or by gravity. In other words, the only indication that the
base 2 of Chou is pre-formed to aid in receiving the user's acromion-portion
is unsubstantiated speculation, which is improper." Appeal Br. 17; see also
Reply Br. 26-28. Appellant does not argue that the meaning of the term
"acromion-portion" limits claim 1 in any way that excludes the structure
disclosed by Chou. See Appeal Br. 16-18.
In the Answer, the Examiner states, "Chou states in [0014] that the
base 2 is rigid or semi-rigid and therefore is clearly pre-formed into the
shape shown (i.e. the shape of a user's acromion-portion/shoulder) if the
base is rigid and as depicted in the figures of Chou." Ans. 26.
Appellant replies that even rigid components, such as steel rebar, may
be shaped onsite by the end user and that, in the field of carrying devices, the
end user often bends a rigid "back stay" into an s-shape to match the
curvature of the end user's back. Reply Br. 27-28. Thus, according to
Appellant, a finding that base 2 of Chou is rigid does not support a finding
that base 2 is pre-formed. Id.
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Appeal2017-001622
Application 14/057, 156
We reproduce paragraph 14 from Chou below.
The luggage carrying aid illustrated by FIG. 1 includes a
base or anchor portion, generally designated by reference
numeral 2, which is preferably formed from a rigid or semi-rigid
material such as a thermo-plastic,[5J as for example, PVC. The
base 2 is configured to define a barrier generally designated by
reference numeral 4. Preferably, the barrier is a channel or
groove extending through the approximate center of the base 2
so as to define opposed sidewalls designated by reference
numeral 6. The channel 4 and opposed sidewalls 6 form a guide
for receiving and retaining a portion of the carrying strap,
generally designated by reference numeral 8, of luggage or a
carrying bag.
We reproduce Figure 1 of Chou below .
....--\
I
{
FIG.1
5 One on-line dictionary explains that "Thermoplastic materials are types of
plastic which become soft when they are heated and hard when they cool
down." https ://www.collinsdictionary.com/ dictionary/ english/thermoplastic
(last visited April 15, 2018).
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Appeal2017-001622
Application 14/057, 156
Figure 1 depicts base 2 in position on the shoulder of a user. Chou ,r 14.
A preponderance of the evidence supports the Examiner's finding that
base 2 satisfies the "pre-formed" limitation in claim 1. As the Examiner
correctly finds, base 2 of Chou is a rigid or semi-rigid material. Ans. 26
(citing Chou ,r 14); Non-Final Act. 7. Nothwithstanding Appellant's
contention that, in the field of carrying devices, the end-user may bend
equipment to provide a customized fit, Appellant does not identify any
disclosure in Chou that indicates that the end user modifies base 2. Nor do
we find any such indication. Indeed, Chou explains that base 2 includes a
channel 4 and guide-walls 6 that form a guide for receiving the strap. Given
this structure, which fulfills a specific purpose, we find the absence of any
indication that the end user modifies base 2 to be an indication that the
structure is pre-formed. Additionally, Appellant provides no objective
evidence supporting the assertion that, in the field of carrying devices, end-
users bend semi-rigid devices in order to provide a custom fit, much less
objective evidence that devices such as base 2 in Chou are modified this
way. We affirm the rejection of claims 1-6, 8-16, and 17-20 as anticipated
by Chou.
Rejection (IV); Obviousness, Cast and Chou
With respect to Rejection (IV), Appellant argues for claims 1-21 as a
group. See Appeal Br. 18-21. We select claim 1 as representative.
The Examiner finds that Cast discloses all of the features recited in
claim 1, "but does not expressly disclose that the strap is 'fastened to' the
acromion-socket." Non-Final Act. 12. However, the Examiner finds that
Chou discloses a locking element ( 16 or 48/86) that secures the shoulder
strap to the shoulder mounted structure disclosed by Chou. Id. The
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Application 14/057, 156
Examiner reasons that it would have been obvious to add such a locking
element to the acromion-socket 8 of Cast to more firmly hold the strap in
position, preventing the strap from sliding upward or downward when the
user moves. Id. Additionally, the Examiner finds that the modification
would have been a mere substitution of one known shoulder strap holding
structure (14 of Cast) for another (16 or 48/86 of Chou).
Appellant contends that the Examiner's proposed modification would
change the principle of operation of Cast and as well as render Cast's
apparatus unsuitable for its intended use, which, Appellant contends is for
the strap to gravitationally engage pad 5, facilitating ease of donning and
removing golf bag 13. Appeal Br. 18-20; see also Reply Br. 28-36. In this
regard, Appellant contends that the proposed modification would make it
more difficult to remove and don the golf bag and would create a
visual/audial distraction. Appeal Br. 18-20. Appellant also contends that
the proposed modification would render Cast unsatisfactory for its intended
purpose because "latch 72/92/104 of Chou would present a cut, broken
tooth, and/or eye poking hazard every time the golfer teed off." Id. at 20.
In the Answer, the Examiner finds that the proposed modification to
Cast would not preclude use of the device in Cast the same way it is used in
the unmodified state and that the additional structure only provides an option
to more securely hold Cast's strap. Ans. 27-28. The Examiner also finds
that, even in the configuration where the strap in Cast is fastened securely
rather than held by gravity, the principle of operation in Cast is not changed
( the strap would still be held within a groove), and Cast would still function
in its intended use, specifically, for carrying a golf bag. Id. As for the
increase in difficulty in removing and replacing the golf bag alleged by
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Application 14/057, 156
Appellant, the Examiner finds that any additional effort required to don or
remove the golf bag would be negligible, and this tradeoff would be
outweighed by the benefits provided by the proposed modification. Id. at
28-30.
In reply, Appellant reiterates the arguments from the Appeal Brief,
points out that the Examiner referred to paragraph 18 of Cast in error,
contends that Cast does not refer to a "holding strap," contends that the
Examiner relies on "non-existent elements of Cast," and asserts that no case
law supports the Examiner's position regarding weighing "tradeoffs" of
advantages and disadvantages of a modification. Reply Br. 28-35.
We disagree with Appellant that either the principle of operation of
Cast would be changed or that the proposed modification would render the
device in Cast unsuitable for its intended use. Appellant overstates the
principle of operation of the strap in Cast as requiring only gravitational
engagement. See, e.g., Appeal Br. 19; Reply Br. 29. As the Examiner
correctly finds, strap 12 of Cast would operate "in substantially the same
fashion as without the fastening strap, simply with the additional step of
fastening to hold the strap more firmly in place." Ans. 27. In the
Examiner's proposed modification, strap 12 of Cast would still
gravitationally engage pad 5, and, when securely fastened, would also
engage pad 5 via a locking mechanism. We also agree with the Examiner
that "[t]he modified structure [of Cast] would also remain suitable for its
intended purpose, i.e. carrying a golf bag, as the addition of other fastening
structure to more firmly secure the strap in place clearly does not prevent
carrying the golf bag." Id. at 28.
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Application 14/057, 156
We also disagree with Appellant's contention that the Examiner
"argues a mitigation standard that does not exist." See Reply Br. 35. We
agree with the Examiner that, to the extent any extra effort in removing strap
12 of Cast from the shoulder would be required by the proposed
modification, this alleged disadvantage would be outweighed by the benefits
gained. See In re Urbanski, 809 F.3d 1237, 1244 (Fed. Cir. 2016); see also
Winner Int'! Royalty Corp. v. Wang, 202 F.3d 1340, 1349 n.8 (Fed. Cir.
2000) ("The fact that the motivating benefit comes at the expense of another
benefit, however, should not nullify its use as a basis to modify the
disclosure of one reference with the teachings of another. Instead, the
benefits, both lost and gained, should be weighed against one another.").
We find that the Examiner properly weighed the benefits against the alleged
disadvantages of the proposed modification.
Regarding the creation of safety hazards created by the Examiner's
proposed modification, the Examiner states:
In response to Appellant's argument that adding the
clamping/fastening structure of Cast would present a safety
hazard because it was never meant to be added to golf equipment
positioned right next to the user's face, Cast has the structure
located in the same or substantially the same position as it would
be in the combination, and so clearly the structure is intended to
be in that location. Appellant's argument that it would present a
safety hazard in the same location as it is designed to be in is
unsupported by any evidence.
Ans. 30. Thus, the Examiner finds Appellant has not provided evidence of
any safety hazard created by the proposed modification.
Appellant asserts that Cast provides a smooth surface with no sharp
edges, loose portions or hard surfaces, whereas Chou's claim 44 has sharp
edges, loose portions, and hard surfaces. Reply Br. 3 6.
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The Examiner has the better position. We agree with the Examiner
that there is no evidence that Chou's apparatus creates the kind of dangers
upon which Appellant's argument is based. As is clear from Figure 1 of the
present Application and Figure 1 of Cast, both devices are worn on the
user's shoulder, near the user's face.
DECISION
(I) The rejection of claims 1-21 as indefinite is affirmed.
(II) The rejection of claims 5, 6, 8, 15, and 16 as improper
dependent claims is affirmed with respect to claims 5, 8, and 15 and reversed
with respect to claims 6 and 16.
(III) The rejection of claims 1-6, 8-16, and 17-20 as anticipated by
Chou is affirmed.
(IV) The rejection of claims 1-21 as unpatentable over Cast and
Chou is affirmed.
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)(l )(iv).
AFFIRMED
16