Ex Parte Baker

Patent Trial and Appeal Board

Apr 29, 2013

12424544 (P.T.A.B. Apr. 29, 2013)

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.
12/424,544 04/16/2009 William H. Baker BAK-P2009-001 1790
37753 7590 04/30/2013
MARTIN A. WEEKS
1909 ALADDIN
NORMAN, OK 73072
EXAMINER
HAWK, NOAH CHANDLER
ART UNIT PAPER NUMBER
3636
MAIL DATE DELIVERY MODE
04/30/2013 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 WILLIAM H. BAKER
____________

Appeal 2011-003063
Application 12/424,544
Technology Center 3600
____________

Before PHILLIP J. KAUFFMAN, BARRY L. GROSSMAN, and
BART A. GERSTENBLITH, Administrative Patent Judges.

GROSSMAN, Administrative Patent Judge.

DECISION ON APPEAL

Appeal 2011-003063
Application 12/424,544

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STATEMENT OF THE CASE
Appellant appeals under 35 U.S.C. § 134 from the Examiner’s
decision finally rejecting claims 1-9. We have jurisdiction over the appeal
under 35 U.S.C. § 6(b).
We AFFIRM.
CLAIMED SUBJECT MATTER
Claims 1, 6, and 8 are the independent claims on appeal. Claim 1 is
illustrative of the subject matter on appeal, and recites:
1. A shoulder support for a crutch having a pair of
upper tubes that slide inside a pair of lower tubes, the shoulder
support comprising:
(a) a pair of tube caps that are supported at a top of the
upper tubes;
(b) a channel section positioned between the tube caps
and attached to the tube caps by a bolt;
(c) a shoulder spring bent into a bow-tie shape with two
loops and a narrow portion configured for a user to position the
user's underarms atop the shoulder spring to support the user's
weight, and configured so that the shoulder spring deflects
outwardly when a user bears his weight on the shoulder spring;
(d) a resilient shoulder pad that covers the shoulder
spring to protect skin beneath arms of the user from scraping
and chafing; and
(e) at least one rivet to secure the narrow portion of the
shoulder spring to the channel section at a top of the channel
section.

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Application 12/424,544

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REFERENCES
The Examiner relied upon the following prior art references:

REJECTIONS
Appellant seeks review of the rejections under 35 U.S.C. § 103(a) of:
claims 1 and 2 as unpatentable over Hipwood, Best, Wilson, and
Manzeck;
claims 8 and 9 as unpatentable over Hipwood, Wilson, and Manzeck;
and
claims 1-7 as unpatentable over Tunnell, Best, Wilson, and Manzeck.
Additionally, claims 1-8 were rejected on the grounds of non-statutory
double patenting over claims 1, 2, 3, 15, and 17-20 of U.S. 7,537,017.
Because Appellant presents no argument against this rejection, we
summarily affirm it. See App. Br. 5; Office Action dated March 26, 2010 at
2-3; Ans. 2-3 (maintaining all the rejections of that Office Action); 37
C.F.R. § 41.37(c)(1)(vii).

ANALYSIS
Each of the independent claims on appeal calls for a shoulder spring
bent into a bow-tie shape configured so that it deflects outwardly when a
user bears his weight on the shoulder spring. Each of the obviousness
rejections relies in part upon the Examiner’s finding that element 18 of
Wilson shown in Figure 1 is a “shoulder spring” as recited in the claims.
Hipwood US 1,183,008 May 16, 1916
Wilson US 2,312,786 Mar. 2, 1943
Manzeck US 2,174,588 Oct. 3, 1939
Best
Tunnell
US 2002/0020438 A1
US 2003/0106576 A1
Feb. 21, 2002
Jun. 12, 2003
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Application 12/424,544

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Ans. 4.1 Appellant argues that element 18 is not a shoulder spring as
claimed. App. Br. 6. 2
Thus, the issue on appeal is whether Wilson discloses a spring as
claimed.
The Examiner found that Wilson discloses a crutch having a shoulder
spring (shown at reference numeral 18 in Figure 1) bent into a bow-tie shape
with two side loops and a narrow center portion, as recited in the claims.
Ans. 4. The Examiner also found the shoulder spring loops in Wilson
deflect outwardly when a user bears his weight on the crutch, especially if
the weight is borne off-center. Id.
The basis for the Examiner’s findings is that one of ordinary skill in
the relevant technology at the time of invention, looking at Figure 1 in
Wilson, “would not think that element 18 is anything other than a thin strip
bent into a bowtie” shape or that the illustrated “bowtie” was a “solid”
element. Ans. 14. The Examiner also explained that the bowtie-shaped thin
strip of metal shown in Wilson “would inherently act as a spring” and would
inherently deflect outwardly when loaded with a user’s weight. Id.
Appellant argues in support of his position that element 18 in Wilson
is “a solid metal piece” which is “unlikely” to be “measurably displaced”
and thus would not “behave like a spring.” App. Br. 7. Appellant arrives at
these conclusions because Wilson does not refer to element 18 as a spring
(App. Br. 7-8); because Wilson states that the crutch is of “durable

1 Citations to “Ans. ___” are to the indicated page in the Examiner’s Answer
mailed October 12, 2010.
2 Citations to “App. Br. ___” are to the indicated page in the Appeal Brief
filed August 22, 2010.
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Application 12/424,544

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construction” (App. Br. 8; Reply Br. 23); and because “common sense alone
dictates that a solid piece … is much more durable than the curved loop”
found by the Examiner (App. Br. 8). Appellant also argues that “there are
simply no forces that deflect the shoulder spring outwardly when the crutch
is used.” App. Br. 9.
We agree with the Examiner. To begin, Appellant’s argument lacks
support in the reference in that Wilson does not explicitly state that element
18 is solid metal. Rather, Wilson simply states that element 18 is a “metal
arm rest.” Wilson, col. 1, ll. 36-37.
Second, Appellant’s contention that arm rest 18 is not referred to as a
spring is unpersuasive in that it addresses nomenclature only. See In re
Bond, 910 F.2d 831, 832 (Fed. Cir. 1990) (“The elements must be arranged
as required by the claim, but this is not an ipsissimis verbis test”).
Third, as found by the Examiner, a person of ordinary skill in the art,
reviewing Figure 1 of Wilson would conclude that element 18 is a thin strip
bent into a bowtie shape that would inherently act as a spring as recited in
the claims. A “drawing in a utility patent can be cited against the claims of a
utility patent application even though the feature shown in the drawing was
unintended or unexplained in the specification of the reference patent.” In re
Aslanian, 590 F.2d 911, 914 (CCPA 1979). Also, it is appropriate to
“evaluate and apply the teachings of all relevant references on the basis of
what they reasonably disclose and suggest to one skilled in the art.” Id.
This is exactly what the Examiner did to reach his conclusion. We agree

3 Citations to “Reply Br. ___” are to the indicated page in the Reply Brief
filed November 11, 2010.
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Application 12/424,544

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with the Examiner that Figure 1 in Wilson suggests a bowtie shaped spring
structure to a person of ordinary skill in the art.
Appellant’s arguments are based on speculation primarily about what
is required for a “durable construction.” We note that most of the crutch
disclosed in Wilson is made from hollow tubes (see col. 1, ll. 21-22, 34-35),
which apparently are sufficiently durable to meet durability requirements of
the crutch. The Examiner’s finding that element 18 also is hollow is
consistent with the overall construction disclosed in Wilson.
Accordingly, Appellant’s evidence and arguments do not apprise us of
any error in the Examiner’s findings that Wilson discloses a spring as
claimed. Accordingly, we affirm the rejections of claims 1-9 under 35
U.S.C. § 103(a).
DECISION
Upon consideration of the record as a whole in light of Appellant’s
contentions and the preponderance of relevant evidence, we AFFIRM the
Examiner’s decision to reject claims 1-9 under 35 U.S.C. § 103(a) as
unpatentable over the applied references.
We also AFFRIM the Examiner’s decision to reject claims 1-8 on the
grounds of non-statutory double patenting over claims 1, 2, 3, 15, and 17-20
of U.S. 7,537,017, as stated on pages 2 and 3 of the Final Rejection mailed
March 26, 2010. 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

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