Ex Parte Bussell et al

Patent Trial and Appeal Board

Dec 13, 2016

13357436 (P.T.A.B. Dec. 13, 2016)

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.
13/357,436 01/24/2012 Stuart Bussell Bus120104 3319
7590
Stuart Bussell
7904 Vista Guyaba
Carlsbad, CA 92009
12/13/2016 EXAMINER
HAWK, NOAH CHANDLER
ART UNIT PAPER NUMBER
3636
MAIL DATE DELIVERY MODE
12/13/2016 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 STUART BUSSELL and MITCHELL L. BUSSELL
Appeal 2014-007478
Application 13/357,436
Technology Center 3600
Before CHARLES N. GREENHUT, MICHAEL L. HOELTER, and
LISA M. GUIJT, Administrative Patent Judges.
GREENHUT, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Appellants appeal under 35 U.S.C. § 134 from a rejection of claims 1,
7, 9, 11, and 17—20. We have jurisdiction under 35 U.S.C. § 6(b).
We reverse.
Appeal 2014-007478
Application 13/357,436
CLAIMED SUBJECT MATTER
The claims are directed to a compactly collapsible chair canopy.
Claim 1, reproduced below, with emphasis added, is illustrative of the
claimed subject matter:
1. A canopy, adapted for use with a chair having a backrest,
comprising:
a) a frame comprising two members, namely a closed loop
rod and an open arc rod, each made of flexible material, said open
arc rod having two ends;
b) a first sheet secured throughout its entire perimeter to
said closed loop rod, first sheet having a top edge, two sides and
a bottom edge;
c) a second sheet comprising a top edge and a bottom edge
such that:
i. the middle of said bottom edge of said second sheet is
joined by an attachment to the middle of said top edge
of said first sheet, said attachment of said bottom edge
of said second sheet to said first sheet includes all of
said top edge of said first sheet and extends
symmetrically down both said sides of said first sheet
towards said bottom edge of said first sheet, and
ii. said top edge of said second sheet completely confines
said open arc rod; and
d) one or more anchors configured to attach said canopy to said
chair's backrest
REJECTIONS
Claims 1,7, 11, and 17—20 are rejected under 35 U.S.C. § 102(b) as
being anticipated by Le Gette (US 6,478,038 Bl, Nov. 12, 2002)
Claim 9 is rejected under 35 U.S.C. § 103(a) as being unpatentable
over Le Gette.
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Appeal 2014-007478
Application 13/357,436
OPINION
The dispositive issue in this appeal relates to the limitation
emphasized above. Appellants argue the presence of connectors 32 in the
embodiment depicted in Figures 1—3 of Le Gette and relied upon by the
Examiner precludes the open arc rod 34 from being “completely confined”
by the top edge of the recited second sheet. App. Br. 16—17. The Examiner
responds by stating, “[wjhile connectors 32 would naturally b[e] disposed
outwardly of the second sheet/open arc rod assembly, they are not
considered part of the open arc rod itself, and as such, do not preclude the
open arc rod from being completely confined within the second sheet.” Ans.
3. (emphasis added). To the extent it is the Examiner’s position, although
connectors 32 and sheet 50 may cooperate to completely confine rod 34, the
claim attributes the recited confinement to the top edge of the second sheet
itself and not to any other structure. Thus, to meet the claim, under the
Examiner’s interpretation, sheet 50 would need to completely confine rod 34
as opposed to rod 34 being completely confined, with the help of connectors
32, within sheet 50. The Examiner goes on to say that “the connectors could
receive a fabric-covered end of the rod and a fabric covered length of the
loop to pivotally connect the two elements together securely.” Ans. 3. The
Examiner proposed one possible way to embody the schematically
illustrated rod 34 and connectors 32 of Le Gette, but the arrangement
proposed by the Examiner is not one disclosed within the four comers of Le
Gette. As such, it cannot be relied upon to establish anticipation. “The
identical invention must be shown in as complete detail as is contained in the
... claim.” MPEP § 2131 (quoting Richardson v. Suzuki Motor Co., 868 F.2d
1226, 1236, (Fed. Cir. 1989)). The Examiner does not account for this
shortcoming in the § 103(a) rejection.
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Appeal 2014-007478
Application 13/357,436
DECISION
The Examiner’s rejections are reversed.
REVERSED
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