Ex Parte Centen et al

Patent Trial and Appeal Board

Dec 23, 2013

12171755 (P.T.A.B. Dec. 23, 2013)

UNITED STATES PATENT AND TRADEMARK OFFICE
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BEFORE THE PATENT TRIAL AND APPEAL BOARD
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Ex parte COREY CENTEN and SARAH SMITH
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Appeal 2011-011962
Application 12/171,755
Technology Center 3700
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Before NEAL E. ABRAMS, STEFAN STAICOVICI, and HYUN J. JUNG,
Administrative Patent Judges.

ABRAMS, Administrative Patent Judge.

DECISION ON APPEAL

STATEMENT OF THE CASE

Corey Centen et al. (Appellants) seek our review under 35 U.S.C.
§ 134 from the Examiner’s decision rejecting claims 1-6 and 8-29. We have
jurisdiction over the appeal under 35 U.S.C. § 6(b).
We AFFIRM-IN-PART.
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Application 12/171,755

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THE INVENTION
The claimed invention is directed to a support device for assisting a
wearer in the administration of cardiopulmonary resuscitation (CPR).
Claims 1 and 27, reproduced below, are illustrative of the subject
matter on appeal.
1. A support device for assisting a wearer in the
administration of cardiopulmonary resuscitation (CPR), the
device comprising:
a wearable support for strengthening at least one of the
wearer's wrist, hand or forearm, the wearable support being
adapted to circumscribe a majority of the circumference of the
at least one of the wearer's wrist, hand or forearm; and
a substantially rigid hyperextension barrier provided on
the wearable support, the hyperextension barrier having a body
and a protrusion extending at a fixed angle from the body of the
hyperextension barrier, the body of the hyperextension barrier
being adapted to conform to a dorsal side of wearer's wrist joint
and the protrusion adapted to extend over a back of a wearer's
hand, for preventing hyperextension of the wearer's wrist
beyond the fixed angle;
wherein the fixed angle is configured to promote a dorsal
wrist angle suitable for the administration of CPR; and
wherein the wearable support is adapted to be in close
contact with the at least one of the wearer's wrist, hand or
forearm, to provide support to the wearer through compression
of the at least one of the wearer's wrist, hand or forearm.
27. The device of claim 1 wherein the fixed angle is at
about 90 degrees.

Appeal 2011-011962
Application 12/171,755

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THE PRIOR ART
The Examiner relied upon the following as evidence of
unpatentability:
Hu US 5,600,849 Feb. 11, 1997
Skewis US 5,652,955 Aug. 5, 1997
Gaylord US 5,928,172 Jul. 27, 1999
Walker US 5,987,641 Nov. 23, 1999
Palazzolo US 6,827,695 B2 Dec. 7, 2004

THE REJECTIONS
Claims 1-3, 5, 6, 8, 9, 13, 14, 28 and 29 stand rejected under
35 U.S.C. § 102(b) as being anticipated by Skewis.
Claims 4 and 10 stand rejected under 35 U.S.C. § 103(a) as being
unpatentable over Skewis in view of Walker.
Claims 11, 12, 15 and 16 stand rejected under 35 U.S.C. § 103(a) as
being unpatentable over Skewis in view of Hu.
Claims 17 and 18 stand rejected under 35 U.S.C. § 103(a) as being
unpatentable over Skewis in view of Gaylord.
Claims 19-27 stand rejected under 35 U.S.C. § 103(a) as being
unpatentable over Skewis in view of Palazzolo.

OPINION
Claims 1-3, 5, 6, 8, 9, 13, 14, 28 and 29
Anticipation - Skewis
The dispositive issue with regard to claim 1 is whether the CPR wrist
angle required by the claim is provided by the Skewis device. According to
the Examiner, the Skewis hand and wrist protector for skaters discloses all of
the structure recited in Appellants’ independent claim 1 because it is
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Application 12/171,755

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“capable of promoting a dorsal wrist angle suitable for the administration of
CPR.” Ans. 4. Basic to this conclusion is the Examiner’s position that “a
user doesn’t have to hyperextend his/her wrist beyond 50[°] to apply CPR,”
and therefore the Skewis device provides an angle that is “suitable for the
administration of CPR,” which is all that claim 1 requires. Ans. 8.
Appellants argue that the 50° angle provided by Skewis is
“insufficient for performing CPR” (App. Br. 6), and therefore the device is
not “configured to promote a dorsal wrist angle suitable for the
administration of CPR,” as required by claim 1. (App. Br. 7). Also,
according to Appellants, successful CPR requires that a force of 100-125
pounds be directed at a right angle to the sternum of the patient, and this
would be “nearly impossible” to accomplish using the Skewis wrist support
“because the rescuer could not lean directly over the patient so as to use the
rescuer’s own body weight to generate the necessary force.” App. Br. 7-9.
Appellants also point out that paragraph [0050] of their application states
that the inventive device “encourages the wearer to maintain his or her
forearm perpendicular to his or her hand,” which occurs when the fixed
angle meets the terms of claim 1. Reply Br. 4.
Independent claim 1 requires that the support device promote a dorsal
wrist angle “suitable” for the administration of CPR. However, the term
“suitable” does not appear in Appellants’ Specification in the context of
describing the angle between the wearer’s arm and hand. It is stated in
paragraph [0038] that hyperextension barrier 7 ensures that the wearer’s
hand “is kept at a recommended angle to the wearer’s forearm.” However,
the only values recited are “90 degrees” and “about 90 degrees” in paragraph
[0039], and “perpendicular” in paragraph [0050]. No clue has been provided
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in the disclosure as to what constitutes the range within which the angle
recited in claim 1 must fall in order to be “suitable,” and in this regard we
note that dependent claim 27 further limits claim 1 by requiring that the
“suitable” angle be “about 90 degrees,” which establishes that claim 1 is
intended to encompass more than an angle of “about 90 degrees.”
Skewis discloses a wrist protector for skaters that is adapted to
circumscribe a majority of the circumference of the wearer’s wrist. It
comprises a substantially rigid hyperextension barrier adapted to conform to
the dorsal side of the wearer’s wrist, and has a protrusion extending at a
fixed angle “of not greater than 50° from the long axis of the forearm.” Col.
2, ll. 4-14; Fig. 1. Therefore, the Skewis device would not permit the
wearer’s wrist to assume a position at an angle of 90 degrees to the wearer’s
forearm. However, while Appellants have argued that Skewis’ 50° angle is
not a “suitable” angle for administering CPR, they have not disclosed a
range of values that constitute a “suitable” angle, have not provided
evidence establishing that CPR cannot be accomplished by a CPR rescuer
with hands oriented to a 50° angle and, considering the ancillary argument,
have not provided evidence that a CPR rescuer cannot apply a force of 100-
125 pounds at a right angle to the patient’s sternum with hands at a 50°
angle. This being the case, we find no support for Appellants’ conclusion
that the Skewis device is not “configured to promote a dorsal wrist angle
suitable for the administration of CPR.”
Therefore, while we have carefully considered all of the arguments
presented by Appellants, they have not convinced us that the Examiner’s
rejection of independent claim 1 is in error, and the rejection is sustained.
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Because Appellants have chosen not to separately argue the patentability of
claims 2, 3, 5, 6, 8, 9, 13, 14, 28 and 29, which depend from claim 1(App.
Br. 4-5), the rejection of these claims also is sustained.
Claims 4 and 10
Obviousness – Skewis in view of Walker
Claims 11, 12, 15 and 16
Obviousness – Skewis in view of Hu
Claims 17 and 18
Obviousness – Skewis in view of Gaylord
Appellants have not argued the separate patentability of the dependent
claims to which these three rejections apply (App. Br. 4-5), and therefore the
rejections of claims 4, 10-12, and 15-18 are sustained.
Claims 19-27
Obviousness – Skewis in view of Palazzolo
Appellants also have not argued the separate patentability of
dependent claims 19-26 (App. Br. 4-5), and the rejection of these claims is
sustained.
Claim 27 depends from claim 1, and describes the “fixed angle”
recited in claim 1 as being “about 90 degrees.” The entirety of the
Examiner’s rejection of claim 27 is that “[t]he fixed angle being about 90
degrees is a design choice.” Ans. 7. Appellants argue that such is not the
case, for the claimed angle is disclosed in their Specification along with
reasons why it is desirable, and that Skewis teaches away from this
limitation. App. Br. 9-10.
Appellants’ Specification teaches that a proper angle for CPR is
“with the hand at 90 degrees to the wrist” (para. [0039]), and that “the
[inventive] device encourages the wearer to maintain his or her forearm
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perpendicular to his or her hand” (para. [0050]). These statements have not
been controverted by the Examiner, and support Appellants’ position that the
angle of “about 90 degrees” recited in claim 27 is not merely a matter of
design choice. Moreover, as noted above, Skewis specifically teaches an
angle not greater than 50°. See Skewis, col. 2, ll. 9-12. The rejection of
claim 27 therefore is not sustained.

DECISION
The rejection of claims 1-3, 5, 6, 8, 9, 13, 14, 28 and 29 as being
anticipated by Skewis is sustained.
The rejection of claims 4 and 10 as being unpatentable over Skewis in
view of Walker is sustained.
The rejection of claims 11, 12, 15 and 16 as being unpatentable over
Skewis in view of Hu is sustained.
The rejection of claims 17 and 18 as being unpatentable over Skewis
in view of Gaylord is sustained.
The rejection of claims 19-26 as being unpatentable over Skewis in
view of Palazzolo is sustained.
The rejection of claim 27 as being unpatentable over Skewis in view
of Palazzolo is not sustained.
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-IN-PART

JRG