Ex parte Balodis

Board of Patent Appeals and Interferences

Sep 23, 1999

08406108 (B.P.A.I. Sep. 23, 1999)

Application for patent filed March 17, 1995. According to applicant,1
this application is a CIP of S.N. 07/934,289, filed 09/24/1992; which is a CON
of S.N. 07/718,063, filed 06/20/1991.
1
Paper No. 20
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(2) is not binding precedent of the Board.
UNITED STATES PATENT AND TRADEMARK OFFICE
_______________
BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
_______________
Ex parte BRIAN BALODIS
______________
Appeal No. 1997-3706
Application 08/406,1081
_______________
HEARD: September 11, 1999
_______________
Before CALVERT, Administrative Patent Judge, MCCANDLISH,
Senior Administrative Patent Judge, and BAHR, Administrative
Patent Judge.
CALVERT, Administrative Patent Judge.

DECISION ON APPEAL
This is an appeal from the final rejection of claims 1 to
5. Claims 6 to 10, the other claims in the application, stand
Appeal No. 1997-3706
Application 08/406,108
2
withdrawn from consideration under 37 CFR § 1.142(b) as being
directed to a nonelected invention.
The claims on appeal are drawn to a method of using a
universal umbrella carrying device, and are reproduced in the
appendix of appellant's brief.
The references applied in the final rejection are:
Vogel 2,493,705 Jan. 3, 1950
Girton 2,812,123 Nov. 5, 1957
Torres 3,279,663 Oct. 18, 1966
Saari et al. (Saari) 3,334,794 Aug. 8, 1967
Foo 4,085,872 Apr. 25, 1978
Taylor 5,025,819 June 25, 1991
Claims 2 to 5 stand finally rejected under 35 U.S.C. §
103 on the following grounds:
(1) Unpatentable over Taylor in view of Foo and Torres;
(2) Unpatentable over Saari;
(3) Unpatentable over Saari in view of Girton, Torres and
Vogel.
Since appellant states on page 4 of the brief that claims
1 to 5 are in a single group, we select claim 1 and will
decide the appeal based thereon. 37 CFR § 1.192(c)(7).
Rejection (1)
Appeal No. 1997-3706
Application 08/406,108
3
The basis of this rejection is stated on page 3 of the
examiner's answer as follows:
As seen in figure 7, Taylor discloses a carrying
device formed with two aperture loops (24,25) for
carrying an umbrella. The device does not disclose
the claimed positioning between the device and the
umbrella for the particular embodiment nor the strap
being formed from an elastic material. However,
Torres and Taylor (Figure 3) show the attachment of
a shoulder strap on the handle and bottom of an
umbrella while Foo discloses elastic as a shoulder
strap material. It would have been obvious to
position the device (23) of Taylor on the handle and
bottom of the umbrella as such arrangement is known
as shown in Torres and in Figure 3 of Taylor, a mere
choice between known arrangements. It also would
have been obvious to make the aperture loop elastic
as shown by Foo for providing a better grip between
the strap and the umbrella.
We will not sustain this rejection. The device 23 shown
in Taylor's Fig. 7, to which the examiner refers, is disclosed
as being mounted with the upper loop 24 about a spine member
(rib) 12a of the umbrella, and the lower loop 25 about the
umbrella tip, as shown in Fig. 6 (col. 4, lines 19 to 23).
Even assuming that it would have been obvious to make the
Taylor loops 24, 25 of elastic, as the examiner proposes, in
Appeal No. 1997-3706
Application 08/406,108
As disclosed in col. 4, lines 19 to 42, device 23 is called a2
“support strap web,” and is used to carry a jacket 28 in cavity 27.
4
order to perform the method recited in claim 1 one would have
to lengthen the strap 23 of Taylor, insert the top (handle)
end 14 of the umbrella into loop 24, and then carry the
umbrella by strap 23. We do not consider that these
modifications of Taylor would have been obvious to one of
ordinary skill as “a mere choice between known arrangements”
because Taylor does not disclose that the umbrella is carried
by strap 23 and, as shown in Fig. 6, Taylor's umbrella is2
already provided with a carrying strap, namely, line 20 in
housing 22. There would therefore be no motivation or
suggestion for one of ordinary skill to modify Taylor's strap
23 to provide yet a second carrying strap in addition to the
strap (20) already provided, it being noted that Torres and
Foo each disclose the use of only a single carrying strap.
Rejection (2)
With regard to this rejection, the examiner states:
As seen in figure 6, Saari et al discloses a rubber
shoulder strap with closed apertures (78 or 92) for
holding elongated articles. The device does not
specifically disclose holding an umbrella, however,
Appeal No. 1997-3706
Application 08/406,108
5
in column 4 lines 3-5, Saari et al notes that the
device can be used to carry other elongate sporting
devices. It would have been obvious to carry a golf
umbrella in the shoulder strap of Saari et al for
freeing the hands of the user and as Saari et al
notes the carrying of other elongate sporting
devices, of which, a golf umbrella falls into this
category. As the gun and fishing rod are shown
attached at opposite ends, it would have been
obvious to attach the umbrella in the same manner
for allowing balanced carrying. The apertures 78
remain permanently closed if not removed and
apertures 92 are permanently closed. [Answer, p. 4]
While appellant argues on page 8 of the brief that it
would not have been obvious to use the Saari device to carry
an umbrella we do not agree, for the reasons stated by the
examiner, supra.
Appellant further argues that neither Saari's loops 78
nor slots 92 are “elastic cuffs . . . formed of a permanently
closed loop of flexible, elastic material” as recited in claim
1 (brief, page 7; reply brief, page 4). We agree. As for
loops 78, the examiner contends that they are “permanently
closed if not removed” (answer, page 4), but it is evident
from this statement that if they are not closed when removed,
then they are not formed of permanently closed loops, which is
what claim 1 requires. Slots 92 likewise do not meet the
Appeal No. 1997-3706
Application 08/406,108
The American College Dictionary (Random House, 1970).3
6
language of claim 1. Although the examiner contends that
“[a]ny end member surrounding the article [being carried] can
be considered a 'cuff'” (answer, page 6), claim 1 requires
that each cuff be “formed of a permanently closed loop of . .
. material.” Words in a claim will be given their ordinary
and accustomed meaning, unless it appears that the inventor
used them differently, Envirotech Corp. v. Al George, Inc.,
730 F.2d 753, 759, 221 USPQ 473, 477 (Fed. Cir. 1984), and in
the context of this case, the ordinary meaning of “loop” may
be taken as “a folding or doubling of a cord, lace, ribbon,
etc., upon itself, so as to leave an opening between the
parts.” We do not consider that the slots 92 of Saari fit3
this definition, since they are not formed by any folding or
doubling of strap 72,74.
Rejection (2) therefore will not be sustained.
Rejection (3)
In this rejection, the examiner combines Saari with
Girton, Torres and Vogel, the latter three references being
cited as evidence that it would have been obvious to utilize
Appeal No. 1997-3706
Application 08/406,108
7
the Saari shoulder strap for carrying an umbrella (answer,
page 5). However, as noted in the above discussion of
rejection (2), even though we consider that it would have been
obvious to put the Saari strap to such use, claim 1 still
distinguishes over Saari in other respects, which are not
taught by Girton, Torres and/or Vogel.
We accordingly will not sustain rejection (3).
Appeal No. 1997-3706
Application 08/406,108
8
Conclusion
The examiner's decision to reject claims 2 to 5 is
reversed.
REVERSED
Ian A. Calvert
Administrative Patent Judge )
)
)
)
Harrison E. McCandlish, Senior ) BOARD OF
PATENT
Administrative Patent Judge ) APPEALS AND
) INTERFERENCES
)
)
Jennifer D. Bahr )
Administrative Patent Judge )
Appeal No. 1997-3706
Application 08/406,108
9
IAC/cam
Appeal No. 1997-3706
Application 08/406,108
10
Karl F. Milde, Jr.
Milde, Hoffberg & Macklin, LLP
10 Bank Street, Suite 460
White Plains, NY 10606