Ex Parte Einhaus

Patent Trial and Appeal Board

Jun 9, 2017

12521943 (P.T.A.B. Jun. 9, 2017)

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.
12/521,943 09/08/2009 Marco Einhaus 04017.0025U1 4096
35856 7590 06/13/2017
SMTTH TFMPFT RT AHA T T C EXAMINER
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PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte MARCO EINHAUS
Appeal 2016-004729
Application 12/521,943
Technology Center 3600
Before DEBRA K. STEPHENS, CARL W. WHITEHEAD JR, and
JOSEPH P. LENTIVECH, Administrative Patent Judges.
WHITEHEAD JR., Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Appellant is appealing the Final Rejection of claims 1—3, 5, 8, 12, 13,
and 15 under 35 U.S.C. § 134(a). Appeal Brief 9. We have jurisdiction
under 35 U.S.C. § 6(b) (2012).
We AFFIRM.
Introduction
The present invention is directed to a “[sjafety harness for the human
body, having two leg harnesses for two human legs, wherein at least one of
the leg harnesses has an opening which is arranged in such a way as to keep
the vena femoralis at least partially free.” Abstract.
Appeal 2016-004729
Application 12/521,943
Illustrative Claim (disputed limitations emphasized)
1. A safety harness for supporting a human body, comprising:
two leg harnesses for two human legs, at least one of the
leg harnesses capable of contacting a front portion of a first leg
proximal to a crotch of a suspended person and again along an
opposed side of a hip joint below a waist of a suspended person,
wherein at least one of the leg harnesses comprises a
recess, the recess arranged in such a manner that the recess is
capable of keeping a femoral vein of a suspended person at
least partially free when the at least one of the leg harnesses is
in use,
wherein at least one of the leg harnesses comprises a pad
located along the leg harness such that the pad is proximal to a
crotch of a suspended person when the at least one of the leg
harnesses is in use,
wherein a material thickness of the pad is adapted to
form the recess in such a manner that no compression occurs
starting from that portion of the at least one of the leg harnesses
that traverses a femoral vein of a suspended person in both
directions along the at least one of the leg harnesses for at least
50 millimeters when the at least one of the leg harnesses is in
use, the safety harness capable of increasing a hanging time
before occurrence of orthostatic shock.
Rejections on Appeal1
Claims 1, 2, 5, 8, 12, and 13 stand rejected under 35 U.S.C. § 103(a)
as being unpatentable over Diggle (U.S. Patent Number 6,962,232 B2,
1 Appellant does not argue the merits of claims 1, 2, 5, 12, and 13 rejected
under 35 U.S.C. § 103(a) as being unpatentable over Ziminski and Ryniker
or Kuervers; or claim 3 over Ziminski and Ryniker or Kuervers and
Oelschlager. Accordingly, we sustain the Examiner’s rejection. See Ex
parte Frye, 94 USPQ2d 1072, 1075 (BPAI 2010) (precedential) (“If an
appellant fails to present arguments on a particular issue — or, more
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Appeal 2016-004729
Application 12/521,943
issued November 8, 2005) and Ryniker (U.S. Patent Number 2,417,616,
issued May 18, 1947) or Kuervers (U.S. Patent Number 4,938,477, issued
July 3, 1990). Final Rejection 2-4.
Claims 1, 2, 5, 12, and 13 stand rejected under 35 U.S.C. § 103(a) as
being unpatentable over Ziminski (U.S. Patent Number 1,983,829, issued
December 11, 1934) and Ryniker or Kuervers. Final Rejection 4—6.
Claims 1, 2, 5, 8, 12, 13, and 15 stand rejected under 35 U.S.C.
§ 103(a) as being unpatentable over Strong (U.S. Patent Number 4,850,554,
issued July 25, 1989) and Oelschlager (U.S. Patent Number 4,645,033,
issued February 24, 1987). Final Rejection 6—8.
Claims 3 and 15 stand rejected under 35 U.S.C. § 103(a) as being
unpatentable over Diggle or Ziminski and Ryniker or Kuervers and
Oelschlager. Final Rejection 8—10.
ANALYSIS
Rather than reiterate the arguments of Appellant and the Examiner,
we refer to the Appeal Brief (filed August 10, 2015), the Reply Brief (filed
April 1, 2016), the Answer (mailed February 1, 2016) and the Final
Rejection (mailed October 9, 2014) for the respective details. We have
considered in this decision only those arguments Appellant actually raised in
the Briefs.
broadly, on a particular rejection — the Board will not, as a general matter,
unilaterally review those uncontested aspects of the rejection. See, e.g.,
Hyatt v. Dudas, 551 F.3d 1307, 1313—14 (Fed. Cir. 2008) (the Board may
treat arguments appellant failed to make for a given ground of rejection as
waived)”).
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Appeal 2016-004729
Application 12/521,943
Claims 1, 2, 5, 12, and 13 are not obvious over Ziminski, Ryniker or
Kuervers and claim 3 are not obvious over Ziminski, Ryniker or Kuervers,
and Oelschlager
Appellant does not argue the merits of claims 1, 2, 5, 12, and 13
rejected under 35 U.S.C. § 103(a) as being unpatentable over Ziminski and
Ryniker or Kuervers; or claim 3 over Ziminski and Ryniker or Kuervers, and
Oelschlager. Accordingly, we sustain the Examiner’s rejection. See Ex
parte Frye, 94 USPQ2d 1072, 1075 (BPAI 2010) (precedential) (“If an
appellant fails to present arguments on a particular issue — or, more
broadly, on a particular rejection — the Board will not, as a general matter,
unilaterally review those uncontested aspects of the rejection. See, e.g.,
Hyatt v. Dudas, 551 F.3d 1307, 1313—14 (Fed. Cir. 2008) (the Board may
treat arguments appellant failed to make for a given ground of rejection as
waived)”).
Argument A-Claims 1,2,5, 8,12, and 13 are not obvious over
Diggle and Ryniker or Kuervers
Appellant contends “that not a single one of the prior art documents
cited during the proceedings before the USPTO relates to a safety harness
dealing with the problem of orthostatic shock.” Appeal Brief 24 (emphasis
omitted). Appellant further contends “adaptation of the construction of a
safety harness has never been considered as a potential cause for orthostatic
shock prior to the present invention.” Appeal Brief 25.
Appellant argues forming a gap in Diggle’s pad 68 would be
completely against the teaching of Diggle because it would reduce the
protection against injury to the groin area via the gap region. Appeal Brief
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Appeal 2016-004729
Application 12/521,943
25. We find Appellant’s argument conclusory and unpersuasive because
Diggle does not discourage using gaps in conjunction with the pads.2
Appellant further contends Ryniker provides gaps in a hat pad “to
prevent baldness and traumatic alopecia, which was considered to be due to
the failure of the temporal arteries to perform their proper function (column
1, lines 34 to 49, column 2, lines 21 to 28).” Appeal Brief 25. Appellant
argues Ryniker is not applicable because “there are no problems with
baldness and traumatic alopecia in the leg area of a person wearing a safety
harness.” Appeal Brief 25.
Appellant contend Kuervers provides foam pads within a wrist
engaging exercise device to eliminate pressure on a user’s artery and veins.
Appeal Brief 26; see Kuervers column 3, lines 43^49. Appellant argues
Kuervers is not applicable because “orthostatic shock is not an issue at a
wrist of an exercising person.” Appeal Brief 26.
We do not find Appellant’s argument persuasive. We agree with
Appellant’s observation that neither Ryniker nor Kuervers address the issue
of orthostatic shock. However, the particular problem the invention is trying
to solve is to avoid compression of the femoralis vein to prevent orthostatic
2 “A reference may be said to teach away when a person of ordinary skill,
upon reading the reference, would be discouraged from following the path
set out in the reference, or would be led in a direction divergent from the
path that was taken by the applicant.” In re Kahn, 441 F.3d 977, 990 (Fed.
Cir. 2006) (quoting In re Gurley, 27 F.3d 551, 553 (Fed.Cir.1994)). See also
In re Fulton, 391 F.3d 1195, 1201 (Fed. Cir. 2004) (noting that merely
disclosing more than one alternative does not teach away from any of these
alternatives if the disclosure does not criticize, discredit, or otherwise
discourage the alternatives).
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Appeal 2016-004729
Application 12/521,943
shock3 from occuuing, and both Ryniker and Kuervers discloses avoiding
compression or constriction of veins and arteries throughout various portions
of the body to prevent harm. Accordingly, we agree with the Examiner’s
findings that it would have been obvious to one of ordinary skill to modify
Diggle’s pads by incorporating gaps or recesses to avoid compressing the
femoralis vein based upon the teachings of Ryniker or Kuervers.4
Argument B - Claims 1,2,5, 8,12, and 13 are not obvious over
Strong and Oelschager
Appellant argues the Examiner’s findings that Strong’s leg straps have
pads is erroneous. Appeal Br. 28. Appellant further argue that even if the
Strong leg straps were considered to have leg pads based upon Figure 1, the
“pads would not have a gap but appear to simply end at a certain position to
provide a step” and therefore “would not be suitable at all to keep a femoral
vein free for at least 50 mm in both directions from a position that traverses
the femoral vein, as required by [claim 1].” Appeal Brief 28. (emphasis
omitted). Appellant further argues that Strong discloses the “alleged pad” in
Figure 1 without providing any technical reasons for the pads in the
description. Appeal Brief 29. Appellant contends “Oelschlager ’003
provides a strap seat which brings the user in high risk of an orthostatic
3 See Specification 2.
4 “As our precedents make clear, however, the analysis need not seek out
precise teachings directed to the specific subject matter of the challenged
claim, for a court can take account of the inferences and creative steps that a
person of ordinary skill in the art would employ.” KSR Int 7 v. Teleflex Inc.,
550 U.S. 398,418 (2007).
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Appeal 2016-004729
Application 12/521,943
shock” because “Figure 1 shows that foam material 17 is arranged to press
against the femoral vein.” Appeal Brief 29. (emphasis omitted). Appellant
argues, “Combining Oelschlager ‘033 with Strong ‘554 would therefore
direct the skilled person away from the claimed invention and fails to
prevent an orthostatic shock.” Appeal Brief 29.
The Examiner finds it would have been obvious to one of ordinary
skill in the art to modify Strong to include Oelschlager’s foam pads to
eliminate compression on the femoral vein via a recess because “one of
ordinary skill in the art would have good reason to pursue the known options
within his or her technical grasp, as the selected placement option and the
claimed length was one of a finite number of available critical vein positions
and length, respectively.” Final Rejection 7.
We do not agree with the Examiner’s findings and find Appellant’s
argument persuasive. Neither Strong nor Oelschlager address relieving
pressure off of arteries/veins, and, therefore, the Examiner’s reasons for
combining the references are conclusory.5 Therefore we reverse the
Examiner’s obviousness rejection of claims 1, 2, 5, 8, 12, and 13 based on
Strong and Oelschlager.
Argument C-Dependent claims 3 and 15 are not obvious over
Diggle or Ziminski in view of Ryniker or Kuervers and Oelschlager
Appellant argue that there are clear errors in rejecting both dependent
claims 3 and 15, dependent upon independent claims 1 and 12 respectively.
5 “[Rejections on obviousness grounds cannot be sustained by mere
conclusory statements; instead, there must be some articulated reasoning
with some rational underpinning to support the legal conclusion of
obviousness.” KSRInt’l., Co. v. Teleflex Inc., 550 U.S. 398, 418 (2007)
(citing In re Kahn, 441 F.3d 977, 988 (Fed. Cir. 2006)).
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Appeal 2016-004729
Application 12/521,943
Appeal Brief 31—32. The Examiner finds that Oelschlager discloses a
harness that utilizes foam rubber pads. Final Rejection 6, 9. We agree with
the Examiner’s findings that it would have been obvious to modify Diggle
by incorporating foam pads. See Answer 9. Accordingly, we sustain the
Examiner’s rejection of claim 3. We affirm the Examiner’s obviousness
rejection of dependent claim 15 which depends from independent claim 12,
based on our sustaining the Examiner’s obviousness rejection of claims 1, 2,
5, 8, 12 and 13 over Ziminski, Ryniker or Kuervers, and and Oelschlager, as
set forth above.
DECISION
The Examiner’s obviousness rejection of claims 1, 2, 5, 8, 12 and 13
over Diggle and Ryniker or Kuervers is affirmed.
The Examiner’s obviousness rejection of claim 3 over Diggle and
Ryniker or Kuervers and Oelschlager is affirmed.
The Examiner’s obviousness rejection of claims 1, 2, 5, 8, 12 and 13
over Ziminski and Ryniker or Kuervers is affirmed.
The Examiner’s obviousness rejection of claims 3 and 15 over
Ziminski and Ryniker or Kuervers and Oelschlager is affirmed.
The Examiner’s obviousness rejection of claims 1, 2, 5, 8, 12, 13, and
15 over Strong and Oelschlager is reversed.
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a)(1). See 37 C.F.R.
§ 1.136(a)(l)(v).
AFFIRMED
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