Ex Parte BuschDownload PDFPatent Trial and Appeal BoardDec 26, 201713068965 (P.T.A.B. Dec. 26, 2017) Copy Citation 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 2 Appeal 2016-007832 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 3 Appeal 2016-007832 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 4 Appeal 2016-007832 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 5 Appeal 2016-007832 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 6 Appeal 2016-007832 Application 13/068,965 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 7 Copy with citationCopy as parenthetical citation