Ex Parte Busch

Patent Trial and Appeal Board

Dec 26, 2017

13068965 (P.T.A.B. Dec. 26, 2017)

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.
13/068,965 05/25/2011 Richard E. Busch III BUR000EUS 9943
41863 7590
TAYLOR IP, P.C.
P.O. Box 560
142. S Main Street
A villa, IN 46710
12/26/2017 EXAMINER
MILLER, CHRISTOPHER E
ART UNIT PAPER NUMBER
3771
MAIL DATE DELIVERY MODE
12/26/2017 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 RICHARD E. BUSCH, III
Appeal 2016-007832
Application 13/068,965
Technology Center 3700
Before: CHARLES N. GREENHUT, MICHELLE R. OSINSKI, and
BRENT M. DOUGAL, Administrative Patent Judges.
GREENHUT, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Appellant appeals under 35 U.S.C. § 134 from a rejection of claims 1-
10, 13, and 16-18. We have jurisdiction under 35 U.S.C. § 6(b).
We affirm.
Appeal 2016-007832
Application 13/068,965
CLAIMED SUBJECT MATTER
The claims are directed to a restraint system for a spinal
decompression table. Claim 1, reproduced below, is illustrative of the
claimed subject matter:
1 A spinal decompression table, comprising:
a table frame;
a back support portion defining a longitudinal direction,
said back support portion configured to be attached to said frame
and including a central back support portion and a webbing
portion, said webbing portion being coupled with and extending
along each of a pair of opposing sides of said central back support
portion in said longitudinal direction;
at least one pair of arms pivotally connected with and
extending from said webbing portion, opposite from said central
back support portion, in a manner so as to provide flexibility of
movement of said at least one pair of arms relative to said central
back support potion, each of said at least one pair of arms having
a semi-rigid arm base formed of one of semi-rigid plastic, steel,
and stainless steel, and each of said pair of arms having a pair of
respective distal ends; and
a securing mechanism for removably coupling together
said distal ends of each of said at least one pair of arms.
App. Br. 42 (Claims Appendix).
REFERENCES
The prior art relied upon by the Examiner in rejecting the claims on
appeal is:
Stubbs
McKay
Henke
US 3,570,480 Mar. 16, 1971
US 5,983,407 Nov. 16, 1999
US 2006/0161084 A1 July 20, 2006
US 7,276,038 B2 Oct. 2, 2007
US 2008/0269030 A1 Oct. 30, 2008
Reinecke
Hoffman
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Application 13/068,965
REJECTIONS
Claims 1-7, 13, and 16-18 are rejected under 35 U.S.C. § 103(a) as
being unpatentable over Henke, Reinecke, and Stubbs.
Claims 8 and 9 are rejected under 35 U.S.C. § 103(a) as being
unpatentable over Henke, Reinecke, Stubbs, and Hoffman.
Claim 10 is rejected under 35 U.S.C. § 103(a) as being unpatentable
over Henke, Reinecke, Stubbs, and McKay.
OPINION
Claims 1-6 and 10 are argued as a group (App. Br. 17-22) as are
claims 13, 16 and 17 (App. Br. 26-33). Claims 1 and 13 are representative
of their respective groups and, like claim 18 (App. Br. 33^10), contain
similar language relevant to the issues raised. Claims 7-9 are argued as a
group (App. Br. 23-26) based on a limitation similar to that also appearing
in claim 18. There are ultimately three substantive issues raised in this
appeal.
The first issue raised by Appellant relates to the Examiner’s
characterization of portions of Henke’s belt 20 (see Final Act. 3 (annotating
a portion of Henke Fig. 1)) as “arms” according to claims 1 and 13. App.
Br. 17-19, 27-29, 34-36; Reply. Br. 2-5. Appellant contends that the sides
of Henke’s belt are not “arms” because they lack rigidity and the ability to
project from a main part. Id (citing Spec. para. 27.)
The challenge of claim construction is to use the Specification to
interpret the meaning of words expressly recited in the claim without
importing limitations from the Specification having no express basis in the
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Application 13/068,965
claim. In re Prater, 415 F.2d 1393, 1404-05, (CCPA 1969). The cited
portion of the Specification (para. 27) does not indicate that the meaning of
the term arms should be limited only to structures having some degree of
rigidity. That paragraph does not even indicate that the arms themselves
must exhibit rigidity. It states that “[t]he arm base is, for example, a rigid
plastic, steel or stainless steel. The arm base may further be semi-rigid such
that sufficient flexibility is provided to wrap the arm around the body of a
patient.” It is true that a certain amount of rigidity may be attributable to the
arms by virtue of them having a rigid or semi-rigid arm base. However, this
is clearly indicated as an “example” in the Specification. And, in analyzing
the claims the Examiner recognizes the absence of a rigid arm base in
Henke. We are not apprised of any other discussion of the rigidity of the
arms in the Specification. Thus, in light of the Specification, rigidity must
be regarded as a possible, as opposed to a necessary, attribute of the arms,
per se. Thus, rigid is a term that describes a particular type of arm as
opposed to an inherent or implicit characteristic of arms generally. To
attribute that characteristic to the arms of claims 1 and 13 would improperly
import limitations not even present in the Specification into the claims. As
to the next portion of Appellant’s argument on this point, we can see no
reason why the cited portion of Henke’s belt 20 does not project from the
central portion disposed under the user.
Although, for the foregoing reasons, we do not think it was improper
for the Examiner to refer to the cited portions of Henke’s belt 20 as “arms”
this issue is not critical to the Examiner’s rejection because the rejection is
predicated on modifying the cited portion of Henke’s belt to include the
rigid straps 32 of Reinecke as the “arm base.” Ans. 16. The relevant inquiry
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Application 13/068,965
is whether the structure resulting from combining the teachings of Henke
and Reinecke in the manner proposed by the Examiner satisfies the claim
language relating to the arms. Even if the term “arms” itself might imply
some amount of rigidity as Appellant suggests, Appellant does not dispute
that once combined with Reinecke’s straps, a rigid arm base, the resulting
arms themselves would exhibit some rigidity. Instead, with regard to
Reinecke, Appellant disputes that straps 32 have the particular type of
rigidity required of the recited arm bases. App. Br. 19-22, 28, 35.
Appellant contends that the term “semi-rigid” requires some degree of
rigidity in both the longitudinal and transverse direction as opposed to
rigidity in the longitudinal direction and flexibility in the transverse direction
like Reinecke’s straps 32. Id. (citing Reinecke col. 5,11. 47-52). Again,
Appellant is arguing for a construction that not only imports limitations into
the claim but imports limitations not found in the Specification into the
claim. The only detail provided regarding the arm bases is found in
paragraph 27 of the Specification which does not discuss rigidity in any
particular plane or do anything to define “semi-rigid” in any particular way.
The arm bases are not identified by reference numeral in the figures.
Comparing Appellant’s figure 3 to Reinecke’s Figure 2 we are unable to
discern any distinctions that would result in different types of rigidity. Both
figures simply show planar pieces of plastic or other material wrapped
around a user for applying force in the longitudinal direction. In both cases
one skilled in the art would understand that the direction in which the
traction is applied is the important direction to have rigidity, while the
transverse direction, which must conform to the user’s body, would benefit
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Application 13/068,965
from some flexibility. We can see no reason to interpret “semi-rigid” as
precluding such an arrangement.
For the foregoing reasons we sustain the Examiner’s rejection of
claims 1-6, 10, 13, 16, and 17.
We turn to the “biasing member” limitation of claims 7 and 18. The
Examiner relies on either the latch 22 and notches of Reinecke (Final Act.
7), or the ratchet 22 of Hoffman (Final Act. 14; Ans. 23) to satisfy this
limitation. Initially we note that Appellant’s arguments concerning the
meaning of biasing, though they may be consistent with the term’s ordinary
and customary usage, are inconsistent with the usage of the term in
Appellant’s own Specification. See App. Br. 24-25, 39^10; Reply. Br 12-
lb. This issue is illustrated precisely by Appellant’s analogy comparing a
conventional belt and buckle to an elastic waistband (Reply. Br. 15) and
Appellant’s discussion of what would happen when the patient breathes
(App. Br. 12-15). Conventionally speaking, “biasing” would often be
understood in the mechanical arts as something that applies a force, such as
spring force, over a range of movement, as opposed to something used
simply for fixation. However, Appellant’s own Specification does not use
biasing in this conventional way. Paragraph 26 indicates the biasing
member can simply be a “roller 28 for placing tension on strap 22.”
Although there is no further description of roller 28, from Figure 4, that
roller appears to simply take up slack in, or apply additional tension to, strap
22. The device illustrated and described by Appellant seems to simply have
the ability to adjust the effective strap length from patient to patient.
Nothing is said or depicted about any type of spring-like force like that of an
elastic waistband or of the type that would accommodate changes in a
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particular patient’s chest diameter due to breathing. Ans. 23. Both the latch
and notches arrangement of Reinecke and the ratchet arrangement of
Hoffman, like Appellant’s roller 28, serve to change the effective length of
the patient’s straps. We recognize that the term “biasing” is used to describe
this arrangement 26, but we are unable to identify anything in Appellant’s
disclosure to indicate precisely what, if any, additional function the act of
“biasing” requires. Were we to attribute additional functionality to the
biasing member beyond that which is disclosed in the Specification we run
the risk of construing the claims containing this limitation in a manner that
excludes Appellant’s preferred embodiment. We decline to adopt an
interpretation of “biasing member” that may contradict the preferred
embodiment in the Appellant’s Specification. Vitronics Corp. v.
Conceptronic, Inc., 90 F.3d 1576, 1583 (Fed. Cir. 1997) (claim
interpretation excluding the preferred embodiment is rarely, if ever, correct
and would require highly persuasive evidentiary support). Accordingly, we
are not apprised of any reason why the structures relied on by the Examiner
would not reasonably be regarded as biasing members according to claims 7
and 18 in light of Appellant’s Specification.
DECISION
The Examiner’s rejections 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). See 37 C.F.R.
§ 1.136(a)(l)(iv).
AFFIRMED
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