Ex parte Bacque

Board of Patent Appeals and Interferences

May 17, 1999

08549061 (B.P.A.I. May. 17, 1999)

Application for patent filed October 27, 1995. 1
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THIS OPINION WAS NOT WRITTEN FOR PUBLICATION
The opinion in support of the decision being entered
today (1) was not written for publication in a law
journal and (2) is not binding precedent of the Board.
Paper No. 13
UNITED STATES PATENT AND TRADEMARK OFFICE
________________
BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
________________
Ex parte STEVE E. BACQUE
________________
Appeal No. 98-2049
Application 08/549,0611
________________
ON BRIEF
________________
Before MEISTER, McQUADE and CRAWFORD, Administrative Patent
Judges.
McQUADE, Administrative Patent Judge.
DECISION ON APPEAL
Steve E. Bacque appeals from the final rejection of
claims 1 through 11, all of the claims pending in the
application. We reverse and remand the application to the
Appeal No. 98-2049
Application 08/549,061
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examiner for further consideration.
The invention relates to “a lasso toy which is designed
to be safely and easily used by children of all ages”
(specification, page 1). Claim 1 is illustrative and reads as
follows:
1. A lasso toy comprising:
a generally elongate rope;
a handle having an axial bore, said bore being
dimensioned to slidingly receive said rope;
a swivel provided on a first end of said rope, said
swivel cooperating with said handle to permit rotational
movement of said handle about said rope while limiting axial
movement of said rope relative to said handle; and
means cooperating between a second end of said rope and
an intermediate portion of said rope for detachably securing
said second end to said intermediate portion of said rope and
thereby create a noose, said securing means permitting said
second end to release from said intermediate portion under
limited predetermined tension in said noose to thereby prevent
unsafe use of said toy.
The references of record relied upon by the examiner as
evidence of obviousness are:
Schweitzer 3,401,932 Sept. 17, 1968
Muys 4,375,886 Mar. 8, 1983
Sauerbrey 5,005,828 Apr. 9, 1991
Additional references of record discussed below are:
Appeal No. 98-2049
Application 08/549,061
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Daniels 2,044,240 Jun. 16, 1936
Hoody 2,592,696 Apr. 15, 1952
Items relied upon by the appellant as evidence of non-
obviousness are:
The 37 CFR § 1.132 Declarations of Steve E. Bacque
and A. Kevin Alexander filed on June 10, 1996 as
part of Paper No. 4.
Claims 1 through 5, 7 and 8 stand rejected under 35
U.S.C. § 103 as being unpatentable over Schweitzer in view of
Muys, and claims 6 and 9 through 11 stand rejected under 35
U.S.C. § 103 as being unpatentable over Schweitzer in view of
Muys and Sauerbrey.
Reference is made to the appellant’s brief (Paper No. 9)
and to the examiner’s answer (Paper No. 10) for the respective
positions of the appellant and the examiner with regard to the
merits of these rejections.
Schweitzer, the examiner’s primary reference, discloses
plural embodiments of a spinning lariat or lasso. In the
embodiment shown in Figure 1,
a hand hold 10 is connected by means of a swivel 11
to a fixed loop 12 formed in one end of a rope body
Appeal No. 98-2049
Application 08/549,061
This application matured into U.S. Patent No. 3,249,356,2
which is of record in the instant application.
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13. The loop 12 defines one end of a spindle
portion 14 of the rope body 13 which is a continuous
section of rope. The other end of the spindle 14 is
defined by a repositionable adjustable keeper 15
which also defines a spinning loop 16 at the point
13a where it attaches to the second end position of
the rope body 13. The details of the keeper 15 are
shown more fully in co-pending application Ser. No.
264,186, but it generally is a two-piece member[2]
having opposed curved rope retaining portions
connected by a flange with screw fastening means
through the flange portions, holding the fastening
means together, and when tightened, it exerts
pressure on the rope to hold the rope in a fixed
relation. The free end 17 of the rope 13 is held by
a keeper 15a against the section of rope body 13
directly aligned with spindle 14 [column 1, line 68,
through column 2, line 14).
The principle issue with regard to the rejection of
claims 1 through 5, 7 and 8 is whether Schweitzer teaches, or
would have suggested, a lasso toy meeting the recitation in
independent claim 1 of means cooperating between the second
end and intermediate portion of the rope for detachably
securing same to create a noose wherein the securing means
permits the second end to release from the intermediate
portion under limited predetermined tension in the noose to
thereby prevent unsafe use of the toy. The appellant’s
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Application 08/549,061
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argument that Schweitzer falls short in this regard (see pages
4 and 5 in the brief) is persuasive.
More particularly, the examiner’s determination that
Schweitzer’s keepers 15, 15a constitute a securing means
having the properties called for in claim 1 (see pages 5 and 6
in the answer) finds no factual support in the disclosure of
the Schweitzer reference (or in the disclosure of Application
264,186, now U.S. Patent No. 3,249,356, mentioned therein),
and
rests on a characterization of Schweitzer’s keepers which is
completely unreasonable. Since Muys’ disclosure of a jump
rope having a handle-swivel construction of the sort recited
in the appealed claims does not overcome this deficiency in
Schweitzer, we are constrained to conclude that this reference
combination fails to establish a prima facie case of
obviousness with respect to the subject matter recited in
claim 1 and in claims 2 through 5, 7 and 8 which depend
therefrom.
Dependent claims 6 and 9 further define the securing
means recited in parent claim 1 as being hook and loop
Appeal No. 98-2049
Application 08/549,061
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securing material. Independent claim 10 is generally similar
in scope to claim 1, but requires, instead of the securing
means set forth in claim 1, hook and loop fastening material
cooperable between the second end and intermediate portion of
the rope to form the rope into a noose, with the material
being dimensioned and configured to permit release of the
second end from the intermediate portion upon predetermined
limited tension of the noose to thereby prevent unsafe use of
the toy. The examiner’s reliance on Sauerbrey in combination
with Schweitzer and Muys to meet the hook and loop limitations
in claims 6, 9 and 10 is not well founded.
Sauerbrey discloses a high jump assembly 10 consisting of
upright standards 12, 14, brackets 18, 20 adjustably mounted
on the standards, and a ribbon releasably connected at each
end to the brackets via hook and loop fasteners designed to
disengage when subjected to a predetermined tear force (see,
for example, column 6, lines 56 through 59) to prevent injury
to a jumper.
Even if Sauerbrey is assumed for the sake of argument to
be analogous art (the appellant submits that it is not), there
Appeal No. 98-2049
Application 08/549,061
Since the references applied by the examiner fail to3
establish a prima facie case of obviousness with respect to
the subject matter recited in claims 1 through 11, we find no
need to consider in any detail the appellant’s rebuttal
evidence of non-obviousness. We would note in passing,
however, that the showings of commercial success in the
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is nothing in Sauerbrey’s use of hook and loop material to
releasably position a high jump ribbon which would have
suggested the use of such material in place of Schweitzer’s
lasso keepers. The examiner’s reasoning to the contrary (see
page 4 in the answer) clearly is predicated on speculation,
unfounded assumptions and hindsight reconstruction. Thus,
here again we are constrained to conclude that the reference
combination relied upon by the examiner fails to establish a
prima facie case of obviousness with respect to the subject
matter recited in claims 6, 9 and 10, and in claim 11 which
depends from claim 10.
In light of the foregoing, we shall not sustain the
standing 35 U.S.C. § 103 rejections of claims 1 through 11.3
Appeal No. 98-2049
Application 08/549,061
declarations proffered by the appellant are rather ambiguous
and speculative, and have not been placed in any meaningful
context (see, for example, In re Huang, 100 F.3d 135, 137, 40
USPQ2d 1685, 1689 (Fed. Cir. 1996); Cable Elec. Prods. Inc. v.
Genmark, Inc., 770 F.2d 1015, 1026-27, 226 USPQ 881, 887-88
(Fed. Cir. 1985)).
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Finally, the application is remanded to the examiner to
consider whether the subject matter recited in claim 1 or any
other claim would have been obvious within the meaning of 35
U.S.C. § 103 in view of the combined teachings of Hoody and
Daniels, with or without additional prior art references. In
this regard, Hoody discloses a lariat or lasso toy which is
made safe for children by the inclusion of an element 14 for
detachably securing end and intermediate portions of the
lariat rope to create a noose wherein the element permits the
end portion to release from the intermediate portion under
limited predetermined tension in the noose. Daniels discloses
a spinning rope or lasso having a handle-swivel construction
of the type required by the claims to facilitate spinning the
rope.
In summary:
a) the decision of the examiner to reject claims 1
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Application 08/549,061
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through 11 under 35 U.S.C. § 103 is reversed; and
b) the application is remanded to the examiner for
further consideration.
REVERSED AND REMANDED
JAMES M. MEISTER )
Administrative Patent Judge )
)
)
)
JOHN P. McQUADE ) BOARD OF PATENT
Administrative Patent Judge ) APPEALS AND
) INTERFERENCES
)
)
MURRIEL E. CRAWFORD )
Administrative Patent Judge )
Appeal No. 98-2049
Application 08/549,061
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James R. Raden
Jones Day Reavis and Pogue
77 West Wacker Drive
Chicago, IL 60601-1692
jpm/kai