Ex Parte Brunson et alDownload PDFPatent Trial and Appeal BoardJun 20, 201312184402 (P.T.A.B. Jun. 20, 2013) Copy Citation UNITED STATES PATENT AND TRADEMARK OFFICE ____________ BEFORE THE PATENT TRIAL AND APPEAL BOARD ____________ Ex parte SCOTT BRUNSON, TIM GUENTHER, and SHAUN LINDERBAUM ____________ Appeal 2011-004853 Application 12/184,402 Technology Center 3700 ____________ Before EDWARD A. BROWN, LYNNE H. BROWNE and CARL M. DEFRANCO, Administrative Patent Judges. BROWNE, Administrative Patent Judge DECISION ON APPEAL Appeal 2011-004853 Application 12/184,402 2 STATEMENT OF THE CASE Scott Brunson et al. (Appellants) appeal under 35 U.S.C. § 134 from the Examiner’s decision rejecting claims 1-5. We have jurisdiction under 35 U.S.C. § 6(b). We AFFIRM. THE INVENTION Claim 1, reproduced below, with emphasis added, is representative of the subject matter on appeal. 1. A three piece lifting system comprising: a first elongated strap extending from a first end having a plurality of symmetrically opposed spaced apart loops to a second end having a plurality of symmetrically opposed spaced apart loops; a second elongated strap extending from a first end having a first shoulder loop to a second end having a second shoulder loop and wherein the second elongated strap is disposed through one of the plurality of spaced apart loops of the first end of the first elongated strap; a third elongated strap extending from a first end having a first shoulder loop to a second end having a second shoulder loop and wherein the third elongated strap is disposed through one of the plurality of spaced apart loops of the second end of the first elongated strap; wherein the first elongated strap engages a load so that two workers wearing the second and third elongated straps are enabled to carry the load; and wherein the first and second ends of the first elongated strap are symmetric and the plurality of symmetrically opposed loops at the first and second end of the first elongated strap have evenly Appeal 2011-004853 Application 12/184,402 3 spaced loop openings which receive the second and third elongated straps through symmetrically opposite loop openings if the load is symmetrical or offset loop openings if the load is not symmetrical at the first and second ends of the first elongated strap such that the length of the first elongated strap is adjustable depending on the size of the load and the load's weight is evenly distributed by the first strap underneath the load. PRIOR ART Theal US 2,431,780 Dec. 2, 1947 Falzone US 6,641,008 B2 Nov. 4 2003 GROUNDS OF REJECTION 1. Claims 1-5 stand rejected under 35 U.S.C. § 103(a) as unpatentable over Falzone in view of Theal. 2. Claims 1-5 stand rejected under 35 U.S.C. § 103(a) as unpatentable over Theal in view of Falzone. OPINION Prima Facie Case The rejections (1) and (2) rely on the same references with the only difference being the order of the references in the statement of the rejection. When a rejection is based on a combination of references, the order in which prior art references are cited to the Applicant is of no significance, but merely a matter of exposition. In re Bush, 296 F.2d 491, 496 (C.C.P.A. 1961). We will focus on rejection (2) and thereby address both rejections. For rejection (2), Appellants argue claims 1-5 as a group. We select independent claim 1 as the representative claim and claims 2-5 stand or fall Appeal 2011-004853 Application 12/184,402 4 with claim 1. See App. Br. 3-9; Reply Br. 2-9; see also 37 C.F.R. § 41.37(c)(1)(vii) (2011). The Examiner finds that Theal discloses all of the elements of claim 1 except for the plurality of loops at each end of the first strap. See Ans. 5-6. The Examiner further finds that Falzone discloses a load bearing strap with a plurality of loops along its length. See Ans. 6. The Examiner determines that Falzone’s loops allow a user's harness to be selectively positioned through different loops in order to adjust the distance between the harnesses of the two users. See Ans. 6. The Examiner concludes that it would have been obvious to modify Theal’s first strap to include a plurality of loops as taught by Falzone for this reason and because “[t]here is no inventive step in replacing the length adjusting buckle of Theal with the length adjusting loops of Falzone, a mere substitution of known harness length adjusters, absent a showing of unexpected results.” Ans. 6 Appellants argue “Falzone fails to disclose a three piece lifting system comprising a first, second, and third harness.”1 App. Br. 5; see also Reply Br. 3. Appellants further argue “Theal is unable to cure Falzone, as Theal similarly fails to disclose this limitation.” App. Br. 5; see also Reply Br. 3- 4. We disagree. As the Examiner correctly finds, Theal clearly discloses first (8), second (7) and third (7a) elongated straps. See Ans. 5. Appellants further argue Theal does not disclose straps 7 and 7a disposed through one of a plurality of symmetrically opposed or offset loop openings on either end of 1 Claim 1 recites first, second and third elongated straps, not harnesses. Therefore, we assume that Appellants meant to argue that Falzone fails to disclose first, second and third straps. Appeal 2011-004853 Application 12/184,402 5 an elongated strap that receive two separate elongated straps through symmetrically opposing or offset loop openings such that the first strap is positioned underneath the load in an adjustable manner to evenly distribute the load's weight with the first strap depending upon whether the load is symmetrical. App. Br. 5. In response to this argument, the “Examiner notes that such arguments attack each reference individually and do not attack the combination of the references as set forth in [] the rejection[].” Ans. 7. The Examiner then reminds Appellants that “[o]ne cannot show nonobviousness by attacking references individually where the rejections are based on combinations of references.” Ans. 7-8 (citing In re Keller, 642 F.2d 413, 208 USPQ 871 (CCPA 1981) and In re Merck & Co., 800 F.2d 1091,231 USPQ 375 (Fed. Cir. 1986). We agree. The Examiner did not rely upon Theal to teach the plurality of loops required by claim 1. In the combination this feature is taught by Falzone. Thus, Appellants’ argument is not convincing as it is not responsive to the rejection as articulated by the Examiner. In the Reply Brief, in response to the Examiner’s position that Appellants’ arguments attack the references individually discussed supra, Appellants argue that their “remarks appropriately distinguished the teachings of the references on the basis that the disclosures of the individual cited references fail to combine to meet [] all of the limitations of claim 1.” Reply Br. 3 (emphasis added). Appellants then discuss how each of the references fails to disclose the claimed invention and conclude: Thus, because neither cited reference, Theal nor Falzone, discloses a single/first strap which has both a first end with a Appeal 2011-004853 Application 12/184,402 6 plurality of symmetrically opposed spaced apart loops and evenly spaced loop openings and additionally a second end with a plurality of symmetrically opposed spaced apart loops and evenly spaced loop openings, Theal and Falzone simply cannot be combined to meet each and every limitation of Applicant's independent claim 1. Id. at 4. Appellants’ argument is not convincing. As discussed supra, one cannot show nonobviousness by attacking the references individually where the rejection is based on a combination of teachings. In this case, the Examiner finds that Theal discloses a first strap having a loop at each end and a buckle that controls the spacing between the second and third straps. See Ans. 5-6. The Examiner further finds that Falzone teaches the use of a plurality of loops along the length of a load bearing strap to control the spacing between the strap and a harness (second strap). Ans. 5. The Examiner reasons that it would have been obvious to substitute Falzone’s adjustment mechanism for Theal’s, thereby resulting in a lifting system comprising each of the features recited in claim 1. Id. Appellants have not apprised us of error in the Examiner’s findings or reasoning. For these reasons, we find that the Examiner has made a prima facie case of obviousness for claim 1 and claims 2-5 which depend therefrom. Secondary Considerations Appellants contend that “the Affidavit and supporting Exhibits of objective evidence of commercial success and consumer acceptance and praise of the invention defined by the claims of the instant application rebuts any obviousness rejection.” App. Br. 6. The Examiner provides detailed analysis of the evidence provided by Appellants on pages 8-11 of the Examiner’s Answer. We agree with and adopt the Examiner’s analysis Appeal 2011-004853 Application 12/184,402 7 noting two critical deficiencies in the evidence which are not adequately addressed by the Linderbaum Affidavit: 1. With respect to the evidence of commercial success, Appellants have failed to establish the required nexus between the evidence of commercial success and the claimed invention2; and 2. With respect to the evidence of consumer acceptance and praise, Appellants have failed to show consumer acceptance and praise of the invention claimed in claim 1. Having considered all the evidence presented by Appellants against obviousness and weighing all the evidence anew, it is our conclusion that the strong evidence for obviousness outweighs the weak evidence against it. See In re Fenton, 451 F.2d 640, 643 (CCPA 1971) (the court balanced the Patent Office's case against the strength of Appellants’ objective evidence of non-obviousness.). CONCLUSION For these reasons, we conclude that the subject matter of claim 1 would have been obvious to one of ordinary skill in the art over Theal and Falzone. Appellants do not make separate arguments for patentability of claims 2-5 which depend from claim 1. Hence, we sustain the rejection of claims 1-5 as unpatentable over Theal and Falzone. 2 We further note that Appellants have provided no evidence of market share for the lifting system recited in claim 1. Appeal 2011-004853 Application 12/184,402 8 DECISION The Examiner’s rejections of claims 1-5 are 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). AFFIRMED Klh Copy with citationCopy as parenthetical citation