11293199 (B.P.A.I. Nov. 20, 2011)

Ex Parte Dresher

Board of Patent Appeals and InterferencesNov 20, 2011

11293199 (B.P.A.I. Nov. 20, 2011)

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. 11/293,199 12/05/2005 Michael J. Dresher CO-F03143-01 4511 37398 7590 11/21/2011 TAIYO CORPORATION 401 HOLLAND LANE Suite 407 ALEXANDRIA, VA 22314 EXAMINER RESTIFO, JEFFREY J ART UNIT PAPER NUMBER 3618 MAIL DATE DELIVERY MODE 11/21/2011 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 BOARD OF PATENT APPEALS AND INTERFERENCES ____________________ Ex parte MICHAEL J. DRESHER ____________________ Appeal 2009-014886 Application 11/293,199 Technology Center 3600 ____________________ Before: JOHN C. KERINS, WILLIAM V. SAINDON, and MICHAEL C. ASTORINO, Administrative Patent Judges. SAINDON, Administrative Patent Judge. DECISION ON APPEAL Appeal 2009-014886 Application 11/293,199 2 STATEMENT OF THE CASE Appellant appeals under 35 U.S.C. § 134 from the Examiner’s decision rejecting claims 1, 2, 6-10, 14-17, and 20 under 35 U.S.C. § 103(a) as unpatentable over Chait (US 6,942,234 B1, iss. Sep. 13, 2005) and Beard (US 5,826,897, iss. Oct. 27, 1998). Claims 3-5, 11-13, 18, and 19 are withdrawn. We have jurisdiction under 35 U.S.C. § 6(b). Claim 1, reproduced below with added emphasis, is illustrative of the claimed subject matter. 1. A stroller comprising: a seat designed to accommodate at least one passenger to be transported by the stroller, a frame element and at least one wheel supporting the frame, a first arm member configured to be gripped by a human hand mechanically coupled to the frame element such that the first arm member moves in a reciprocating manner with respect to the frame element, a second arm member configured to be gripped by a human hand mechanically coupled to the frame element such that the second arm member moves in a reciprocating manner with respect to the frame element, and a coupling member mechanically coupled to the first arm member and to the second arm member such that the reciprocating movement of the first arm member is substantially maintained in opposition to the reciprocating movement of the second arm member whereby the natural periodic movement of human arms during walking or jogging is facilitated, wherein the at least one passenger is transported by the stroller in a substantially forward direction when a user who walks or jogs substantially behind the stroller applies forces to the first arm member and second arm member. SUMMARY OF DECISION We REVERSE. Appeal 2009-014886 Application 11/293,199 3 OPINION This issue in this case is whether the Examiner’s proposed combination of Chait’s scooter, modified to include a seat (as taught in Beard), is a “stroller” as required by independent claims 1, 9 and 16. The Examiner found that a “stroller” merely requires a seat and wheels. Ans. 4. The Examiner found that “the operator is an intended use and has been given little patentable weight,” apparently with respect to the “wherein” clause of claim 1, which requires the passenger in the seat of the stroller to be transported “when a user who walks or jogs substantially behind the stroller applies forces to the [stroller’s arms].” Id. Appellant has not offered any particular definition of “stroller.” Nevertheless, Appellant has identified that a stroller “is designed so that it can accommodate at least one passenger who can be transported as the operator propels the stroller.” Br. 9. In addition, Appellant notes that the “operator of the present [(i.e., claimed)] stroller is positioned behind the stroller.” Br. 10. Accordingly, Appellant’s suggested interpretation of the term “stroller” coincides with a dictionary definition of “stroller.” 1 Claim 1 requires that the passenger (accommodated by the seat) is transported by the stroller “when a user who walks or jogs substantially behind the stroller” applies a force to the stroller. While the “wherein” clause may not affirmatively require any particular structure, the limitation 1 The definition of “stroller” includes “A child’s push-chair, esp. a collapsible buggy.” Oxford English Dictionary (2nd ed., 1989) (http://www.oed.com/view/Entry/191769) (last viewed Nov. 10, 2011). See also Comaper Corp. v. Antec, Inc., 596 F.3d 1343, 1348 (Fed. Cir. 2010) (it is appropriate to consult general dictionary definition for the ordinary and customary meaning where the patent specification does not assign or suggest a particular definition of a term). Appeal 2009-014886 Application 11/293,199 4 will preclude those particular prior art structures incapable of satisfying this limitation. The Examiner makes no findings with respect to how the proposed combination satisfies the “wherein” limitation. It is unclear to us how the scooter of Chait, modified to have a seat, would be capable of having a passenger in the seat transported by a user substantially behind the stroller applying force to the arms of the stroller. The arms in Chait are located at the fore end of the scooter, with the passenger on the middle portion (platform 11). Chait, col. 5, ll. 28-33. If a seat were added where the passenger would normally stand in Chait, then that seat and passenger would obstruct a user behind the stroller from applying force to the arms. Accordingly, the Examiner’s proffered combination fails to describe a stroller wherein the passenger is transported “when a user who walks or jogs substantially behind the stroller applies forces to the [arm members]” as required by independent claims 1, 9, and 16 and the claims that depend therefrom. DECISION For the above reasons, we reverse the Examiner’s decision regarding claims 1, 2, 6-10, 14-17, and 20. REVERSED hh