Ex Parte Denman

Board of Patent Appeals and Interferences

Nov 18, 2008

10958793 (B.P.A.I. Nov. 18, 2008)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
____________

Ex parte RONALD DENMAN
____________

Appeal 2008-4771
Application 10/958,793
Technology Center 3700
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Decided: November 18, 2008
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Before DEMETRA J. MILLS, RICHARD M. LEBOVITZ, and JEFFREY
N. FREDMAN, Administrative Patent Judges.

LEBOVITZ, Administrative Patent Judge.

DECISION ON APPEAL
This is a decision on appeal from the final rejection of claims 1, 3-9,
15-23, 41, and 42. We have jurisdiction under 35 U.S.C. § 6(b). We affirm.

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Application 10/958,793

STATEMENT OF THE CASE
The claims are directed to a system for improving the balance of a
person. The system comprises a gyrostabilizer attached to the person. The
gyrostabilizer acts to stabilize the human body to which it is attached by
providing resistance to side-to-side and up-and-down movements
(Spec. ¶¶ 26, 39-40).
Claims 1, 3-9, 15-23, 41, and 42 are pending and stand rejected by
the Examiner as follows:
1) Claims 1, 4, 5, 15, 16, 19, 41, and 42 under 35 U.S.C. § 102(e) as
anticipated by Firsov (US Pub. No. 2005/0010150 A1, Jan. 13, 2005) (Ans.
4);
2) Claims 1, 4, 5, 15, 16, 19, 41, and 42 under 35 U.S.C. § 103(a) as
obvious over Firsov (Ans. 6);
3) Claims 3 and 18 under 35 U.S.C. § 103(a) as obvious over Firsov
(Ans. 4);
4) Claims 6 and 17 stand rejected under 35 U.S.C. § 103(a) as obvious
over Firsov and Kellerman (US Pat. No. 5,692,661, Dec. 2, 1997) (Ans. 5);
and
5) Claims 7-9 and 20-23 stand rejected under 35 U.S.C. § 103(a) as
obvious over Firsov and O’Berrigan (US Pat. No. 5,823,845, Oct. 20, 1998)
(Ans. 6).
The following claims are representative of the appealed subject
matter:
1. A system for improving the balance of a person, the system
comprising:
at least one gyrostabilizer; and
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a support for holding the at least one gyrostabilizer, the
support being adapted to communicate with one of a torso and a
hand of a user so as to steady the user while using the at least
one gyrostabilizer, and wherein the support includes a belt for
being attached to a waist of a user.

3. A system as defined in claim 1, wherein the at least one
gyrostabilizer is coupled to the belt so as to be disposed at the
front of a user when wearing the belt.

7. A system as defined in claim 1, further comprising a power
source to communicate with and energize the at least one
gyrostabilizer.

8. A system as defined in claim 7, wherein the power source is
a battery power source.

15. A system for improving the balance of a person, the system
comprising:
a belt; and
at least one gyrostabilizer to be coupled to the belt so as
to steady a user while wearing the at least one gyrostabilizer.

16. A system as defined in claim 15, further comprising
shoulder straps coupled to the belt.

41. A system for improving the balance of a person, the system
comprising:
at least one gyrostabilizer;
a support for holding the at least one gyrostabilizer, the
support including a belt for being attached to the waist of a user
so as to steady the user while using the at least one
gyrostabilizer; and
an elongated handle coupled to the at least one
gyrostabilizer such that the elongated handle laterally extends to
each side of a user for gripping by both hands to further steady
the user.

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42. A system for improving the balance of a person, the system
comprising:
a belt;
at least one gyrostabilizer to be coupled to the belt so as
to steady a user while wearing the at least one gyrostabilizer;
and
an elongated handle coupled to the at least one
gyrostabilizer such that the elongated handle laterally extends to
each side of a user for gripping by both hands to further steady
the user.

ANTICIPATION BY FIRSOV
Claims 1, 4, 5, 15, 16, 19, 41, and 42 stand rejected under 35 U.S.C.
102(e) as anticipated by Firsov (Ans. 4).
Issues
The issues in this rejection are as follows:
1) Does Firsov describe a belt in its orthotic support device as
required by independent claims 1 and 41?
2) Does Firsov further describe a gyrostabilizer “coupled” to the belt
of its orthotic support device as in independent claims 15 and 42?
.
Findings of Fact (FF)
The following numbered findings of fact summarize the relevance of
Firsov’s disclosure:
1. Firsov describes an orthotic bracing device to support and supply forces
to the body of an individual for treatment and rehabilitation of disorders of
the musculoskeletal and nervous system (Firsov, Abstract).
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2. In certain embodiments, the orthotic device is an external skeleton with
rigid support parallel elements 20, shown as bands, which can be arranged to
encircle a region of the body circumferentially (Firsov, ¶¶ 92, 99).
3. Support elements of the orthotic device are circumferentially around the
waist region as shown in Firsov’s Figures 4, 5, and 11.
4. The support elements 20 can comprise fasteners 40 to which other
components may be attached (Firsov, ¶ 100; see e.g. Figure 4).
5. “In a preferred embodiment of orthotic device 10 of the present
invention, suit 30 has enclosed within suit 30 a belt 106” (Firsov, ¶ 111).
The belt can be fully circular (id.).
6. In certain configurations, belt 106 is a specific preferred embodiment of a
support element 20 (Firsov, ¶ 111).
7. “Belt 106 is intended for connection of suit 30 to an additional
component element used for external support for standing, sitting, or
walking etc.” (Firsov, ¶ 111).
8. “Belt 106 has at least one belt connector 108 which is used to connect
belt 106 to the additional support component” (Firsov, ¶ 112).
9. Additional elements, “such as devices for upright support and
ambulation”, can be attached to the device through universal fasteners 40
(Firsov, ¶ 104).
10. “In various embodiments other components can be added to the device.
. . . In certain embodiments further devices such as a gyroscope are added to
assist in maintaining balance” (Firsov, ¶ 105).
Independent claims 1, 15, 41, and 42 at issue in this appeal can be
summarized as follows:
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11. Independent claims 1 and 41 are drawn to a system for improving the
balance of a person comprising a gyrostabilizer and a support for holding the
gyrostabilizer. The support “includes a belt for being attached to a waist of a
user.”
12. Independent claims 15 and 42 are also directed to a system for
improving the balance of a person comprising a gyrostabilizer and a belt.
13. However, claims 15 and 42 recite that the gyrostabilizer is “coupled” to
the belt.
14. Claims 15 and 42 do not recite that the “belt” is intended for being
attached to the waist as do claims 1 and 41.
15. A “belt” is defined as 1) “a band of flexible material . . . for encircling
the waist” or more broadly as 2) “any encircling or transverse band” (The
Random House College Dictionary, p. 124, rev. ed. 1975).
The following factual findings summarize how the limitations in the
claims are found in Firsov.
16. Firsov teaches a body support (FF1, 2) as in independent claims 1 and
41(FF11).
17. Firsov discloses a support element 20 of its orthotic device which is
shown as encircling the waist (FF3), meeting the limitation of a belt
“attached” to a user’s waist as in claims 1 and 41 (FF11).
18. Firsov also describes a circular belt 106 which can be a support element
20 (FF5, 6). The belt 106, when embodied as a support element 20, also
meets the limitation of a waist attached belt as recited in claims 1 and 41
(FF11, 15).
19. For independent claims 15 and 42 which do not require the belt to be
around a subject’s waist, any of the support elements 20 of Firsov’s device
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can be characterized as bands (FF2), in addition to circular belt 106, meeting
the broader alternative definition of the term “belt” (FF15) and the
corresponding limitation in these claims.
20. Firsov also discloses that its device can further comprise a gyroscope
(FF9, 10), meeting the limitation of claims 1, 15, 41, and 42 of a
gyrostabilizer.
21. However, Firsov does not teach that the gyroscope is coupled to the belt
as required by claims 15 and 42.
Principles of Law
Anticipation requires that every element and limitation of the claimed
invention must be found in a single prior art reference, arranged as in the
claim. Karsten Mfg. Corp. v. Cleveland Golf Co., 242 F.3d 1376, 1383 (Fed.
Cir. 2001).
Analysis
Claims 1, 4, 5, and 41
Claims 1 and 41 require a support, a gyrostabilizer, and a belt attached
to the waist (FF11). Firsov describes each of these elements (FF16, 20, and
18, respectively) and therefore meets all the limitations of these claims. For
these reasons, we agree with the Examiner’s determination that claims 1 and
41 are anticipated by Firsov. See Karsten Mfg. Corp., 242 F.3d at 1383.
Appellant argues that Firsov’s “body suit having multiple universal
fasteners . . . does not fit the ordinary meaning of the term ‘belt.’ A belt
typically has ends coupled to one another, and is not commonly understood
to have additional structure such as a universal fastener or other face plate
for coupling an external component thereto” (App. Br. 6).
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This argument does not persuade us that the Examiner erred in
concluding that claims 1 and 41 are anticipated by Firsov. Appellant has not
provided support for the argument that the term “belt” excludes additional
structures, such as the fasteners described in Firsov. To the contrary, the
ordinary meaning of belt as defined in a standard dictionary does not
prohibit it from having other structures attached to it (FF15). Thus, we do
not agree that the Examiner misapprehended its definition.
We affirm the rejection of claims 1 and 41. Claims 4 and 5 were not
separately argued and therefore fall with claim 1. 37 C.F.R. §
41.37(c)(1)(vii).
Claims 15, 16, 19, and 42
Claims 15 and 42 require a support, a gyrostabilizer, and a belt – with
the gyrostabilizer “coupled” to the belt (FF12-13). However, Firsov does
not teach that the gyrostabilizer is coupled to the belt (FF21). Thus, we do
not agree with Examiner’s finding that all the elements of these claims can
be found in the Firsov patent as necessary to establish anticipation. See
Karsten Mfg. Corp., 242 F.3d at 1383. Accordingly, we reverse the
anticipation of claims 15, 42, and dependent claims 16 and 19.

OBVIOUSNESS OVER FIRSOV
Claims 1, 4, 5, 15, 16, 19, 41, and 42 stand rejected under 35 U.S.C. §
103(a) as obvious over Firsov (Ans. 6).
Issue
The issue in this rejection is whether persons of ordinary skill in the
art would have had reason to couple a gyroscope to a belt as recited in
claims 15 and 42.
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Principles of Law
In setting forth a case of obviousness,
it can be important to identify a reason that would have
prompted a person of ordinary skill in the relevant field to
combine the elements in the way the claimed new invention
does . . . because inventions in most, if not all, instances rely
upon building blocks long since uncovered, and claimed
discoveries almost of necessity will be combinations of what, in
some sense, is already known.

KSR Int’l Co. v. Teleflex Inc., 127 S. Ct. 1727, 1741 (2007).
Analysis
The difference between Firsov and claims 15 and 42 is that Firsov
does not disclose that its gyroscope is coupled to the belt as required by the
claims (FF12, 13). However, Firsov teaches that other components can be
attached to its support elements (FF4) and that a belt is preferred support
element in certain configurations (FF6). Firsov also teaches that an
additional support element can be attached to the belt (FF7, 8). Given these
teachings, persons of ordinary skill in the art would have had reason to
couple the gyroscope to the belt, which Firsov teaches can be “added to [to
its device to] assist in maintaining balance” (FF10), as the belt is expressly
described as a suitable location for support components (FF7, 8; see Ans. 7).
In sum, all the elements of claims 15 and 42 can be found in Firsov, as
well as a reason for arranging them in the manner required by the claims.
Consequently, we agree with the Examiner that there is sufficient evidence
to establish prima facie obviousness of claims 15 and 42.
Appellant contends that a
gyroscope would not be used in the embodiment employing a
belt attached to walker since it is the user grabbing onto the
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walker itself and being fastened thereto via a belt which
steadies the user. It makes no sense to attach a gyroscope to the
belt of the walker since the walker and belt are what is being
used in this embodiment to steady the user. In other words, a
gyroscope is mentioned as a possible means to steady the user
where other conventional steadying devices (such as a walker)
are not being used.
(Reply Br. 13.)
We do not agree. Firsov does not restrict the belt to a walker. To the
contrary, Firsov broadly states that the belt can be connected to an additional
support component “for standing, sitting, or walking etc.” (FF7). Thus,
Appellant’s narrower reading of Firsov is not supported when the reference
is read as a whole.
Firsov explicitly teaches that a gyroscope can be “added” to its device
to assist in maintaining balance (FF10). The belt of Firsov’s device is
described as being useful to attach “an additional component element used
for external support for standing, sitting, or walking etc.” (Firsov, ¶ 111;
FF7). While Firsov does not teach the gyroscope attached to this location,
we agree with the Examiner that it reasonably suggests attaching it to the
belt since this region is taught as a useful location for positioning other
components useful in combination with the orthotic device (Ans. 6-7).
Moreover, Firsov describes the gyroscope to assist in “balance” (FF10)
which would be readily understood to be useful when “walking.” Thus,
Firsov’s statement that belt 106 can be used to connect additional elements
for “walking” (FF7) would reasonably be understood to suggest a gyroscope.
Appellant argues that “a gyroscope coupled to the universal fasteners
of the full body suit is not properly understood as being coupled to a belt
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because the full body suit of Firsov does not fall under the ordinary meaning
of a belt” (Reply. Br. 13).
This argument does not persuade us that the Examiner erred. As to
the “belt,” we agree with the Examiner that dictionary supports a broader
definition of belt as being any encircling band (FF15), including the
encircling support elements 20. Appellant has not provided evidence to
support their narrower construction. The fasteners 40 are shown as being
connected to the support elements (FF4). One way to “couple” a component
to Firsov’s “belt” (i.e., support 20) would be to fasten it to the fastener. The
claim does not require nor exclude any particular coupling structure.
For the foregoing reasons, we affirm the rejection of claims 15 and 42
as obvious over Firsov. Claims 1, 4, 5, 16, 19, and 41 were not separately
argued and therefore fall with claims 15 and 42. 37 C.F.R. § 1.37(c)(1)(vii).

Claims 3 and 18
Claims 3 and 18 stand rejected under 35 U.S.C. § 103(a) as obvious
over Firsov (Ans. 4).
Claim 3 is directed to the device of claim 1, but where the
gyrostabilizer is “coupled to the belt so as to be disposed at the front of a
user when wearing the belt.” The Examiner states that it would have been
obvious to “dispose[]” the gyrostabilizer in front of the user “for reasons of
comfort” when sitting or walking with the support (Ans. 4-5).
To establish obviousness, a reason should be provided as to why
persons of ordinary skill in the art would have been prompted to modify the
prior art to have made the claimed invention. See KSR, 127 S. Ct. at 1741.
As the Examiner has provided a logical reason for modifying Firsov to make
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the subject matter of claim 3, and we see no infirmity in it, we conclude that
prima facie obviousness of claim 3 has been established.
Appellant argues as they did for the rejection of claims 1, 4, 5, 15, 16,
19, 41, and 42 as obvious over Firsov that it would not have been obvious to
couple the gyroscope to the belt since it is not configured for or intended to
be used in combination with a gyroscope for maintaining balance (App. Br.
8). For the reasons articulated above, we do not read Firsov to exclude a
gyroscope which would assist maintaining balance, as well as in walking,
from being attached to the belt.
For the foregoing reasons, we affirm the rejection of claim 3. Claim
18 falls with claim 3 because separate reasons for its patentability were not
provided. 37 C.F.R. § 41.37(c)(1)(vii).

OBVIOUSNESS OVER FIRSOV AND KELLERMAN
Claims 6 and 17 stand rejected under 35 U.S.C. § 103(a) as obvious
over Firsov and Kellerman (Ans. 5). The Examiner states that it would have
been obvious to have utilized shoulder straps as in claim 6 for increased
comfort (id.). As we agree with the Examiner’s findings and conclusion,
and Appellant does not provide arguments or evidence to rebut it, we affirm
the rejection of claim 6. Claim 17 falls with claim 6 as separate arguments
for its patentability were not provided. 37 C.F.R § 41.37(c)(vii)(1).

OBVIOUSNESS OVER FIRSOV AND O’BERRIGAN
Claims 7-9 and 20-23 stand rejected under 35 U.S.C. § 103(a) as
obvious over Firsov and O’Berrigan (Ans. 6). The Examiner states that it
would have been obvious to have utilized a battery source as in claims 7 and
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8 for its known advantages as taught by O’Berrigan (id.) As we agree with
the Examiner’s findings and conclusion, and Appellant does not provide
arguments or evidence to rebut it, we affirm the rejection of claim 6. Claim
17 falls with claim 6 as separate arguments for its patentability were not
provided. 37 C.F.R § 41.37(c)(vii)(1).

CONCLUSIONS OF LAW
In summary:
1) We find that Firsov describes a belt in its orthotic device as
required by claims 1 and 41, but does not teach a gyrostabilizer “coupled” to
the belt as in independent claims 15 and 42. Thus, we affirm the
anticipation rejection over claims 1, 41, and dependent claims 4 and 5, and
reverse the anticipation rejection of claims 15, 16, 19, and 42.
2) However, Firsov provides a reason to have coupled a gyroscope to
a belt as required by independent claims 15 and 42. Consequently, we
affirm the obviousness rejection of claims 1, 3-9, 15-23, 41, and 42.

TIME PERIOD
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

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