Ex Parte Evans

Patent Trial and Appeal Board

Mar 30, 2018

13973964 (P.T.A.B. Mar. 30, 2018)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
13/973,964 08/22/2013
116923 7590 03/30/2018
Chamberlain Legal Services, PLLC
POBOX2303
Cadiz, KY 42211
FIRST NAMED INVENTOR
Scott Evans
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
ATTORNEY DOCKET NO. CONFIRMATION NO.
3377
EXAMINER
WAGGENSPACK, ADAM J
ART UNIT PAPER NUMBER
3782
MAILDATE DELIVERY MODE
03/30/2018 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 ST ATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte SCOTT EV ANS
Appeal2017-004675
Application 13/973,964
Technology Center 3700
Before BRETT C. MARTIN, ANNETTE R. REIMERS, and BRENT M.
DOUGAL, Administrative Patent Judges.
MARTIN, Administrative Patent Judge.
DECISION ON APPEAL
Appeal2017-004675
Application 13/973,964
STATEMENT OF CASE
Appellant 1 appeals under 35 U.S.C. § 134(a) of the Examiner's
rejection of claims 4--7 and 21. Claims 1-3 and 8-20 have been cancelled.
App. Br. 8. We have jurisdiction under35 U.S.C. § 6(b).
We AFFIRM.
THE INVENTION
Appellant's claims are directed generally "to frrearm carry devices
and systems and frrearm accessories." Spec. 2, 1. 14. Claims 4 and 5,
reproduced below, are illustrative of the claimed subject matter:
4. A concealed handgun holster comprising a portion of the
holster shaped to receive a trigger guard and a dedicated
attachment tab on the opposite side of the holster from the
portion of the holster shaped to receive a trigger guard, with a
continuous unobstructed opening extending from the bottom of
the holster to the top of the dedicated attachment tab and a
plurality of mounting positions to mount at least one accessory.
5. A mounting clip attachable to a holster comprised of an
upward portion and a downward portion, with the downward
portion taking up at least about 25% of the length of the clip and
wherein the upward portion of which is positioned at a negative
angle relative to the vertical axis of the holster and wherein the
downward portion is vertically flush with the holster such that
the holster is forced against the user's body., the clip further
comprising a frrst leg and second leg with a top and bottom end,
with a portion of the top end extending away from the frrst leg
and a portion of the top end extending away from the second leg,
with a connecting portion between the extended portions to
create a loop between the frrst and second leg, with the sides of
the frrst and second legs extending downward from the loop.
1 The real party in interest is the Appellant. App. Br. 6.
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Application 13/973,964
REFERENCES
The prior art relied upon by the Examiner in rejecting the claims on
appeal is:
Baldocchi
Bianchi
Alessi
Mauriello
us 3,910,469
Des. 273,821
us 4,821,934
us 5,573, 157
REJECTIONS
The Examiner made the following rejections:
Oct. 7, 1975
May 15, 1984
Apr.18,1989
Nov. 12, 1996
Claims 4 and21 standrejectedunder35U.S.C.§102(b)as being
anticipated by Baldocchi. Non-Final Act. 2.
Claims 5-7 stand rejected under 35 U.S.C. § 103(a) as being
unpatentable over Mauriello and Alessi alone or with the addition of
Bianchi. Non-Final Act. 4.
ANALYSIS
Regarding claim 4, Appellant takes exception with the Examiner's
interpretation of the term "mounting positions" and asserts that this
interpretation is unreasonable in light of the Specification. See, e.g., Reply
Br. 6-7. The thrust of Appellant's argument is that the term '"mounting
positions' is reasonably interpreted as actual places (such as holes) on the
holster where accessories can be attached," and that Baldocchi is "about
attaching the holster to the belt[,] NOT about attaching accessories to the
holster." Id. In regard to the latter portion of this argument, we note that
Appellant's claims themselves specifically state that a belt clip is considered
an accessory. See claim 21 ("wherein the accessory is selected from the
group comprising a belt clip, [etc.]"). As such, Appellant's own claims
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Application 13/973,964
make it clear that a belt clip is an accessory and so there is nothing wrong
with the Examiner's use ofBaldocchi's belt clip as an accessory.
As to Appellant's first point, we see nothing in Appellant's use of the
term "position" to properly exclude the Examiner's interpretation.
Appellant's Specification, while using the term "position" throughout, also
specifically describes the mounting clips as having "multiple mounting
points [for] further increasing the range of carry options and adjustments."
(Spec. 3, ll. 16-17)( emphasis added). We agree that Baldocchi fails to teach
multiple mounting points, which would convey Appellant's preferred
definition of "position" to mean multiple physical locations rather than the
Examiner's interpretation allowing for a single mounting point, but rotatable
on that point into multiple positions. Appellant's Specification also utilizes
the term "position" to refer to other things besides the accessory clip
describing the user being "able to carry from different positions" (Spec. 1, 11.
20-21 ), "carry position movement" (Spec. 3, 1. 4), "flexible positioning of
the mounting accessories" (Id. 1. 13), "the clip, positioned at a negative
angle" (Spec. 4, 1. 9), "multiple positioning options for[] mounting
accessories, allows additional carry accessories to be mounted and
positioned with and on the holster" (Spec. 8, ll. 10-11), "the position of
carry, the security of the carry, and the location of the carry on the person"
(Spec. 9, ll. 8-9), etc.
We see nothing in the usage of "position" to limit it only to physical
locations (or mounting points as also used in the Specification) of the
accessory clip. In fact, as noted above, Appellant's own Specification
distinguishes between "position of carry" and "location of the carry," which
suggests that position is not intended solely to mean location or mounting
point. Had Appellant claimed mounting "locations" or used the terminology
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Application 13/973,964
found in the Specification of "mounting points" we would agree that
Baldocchi fails to teach such multiple physical points or locations, but we
are not persuaded, given Appellant's Specification, that "position" should be
interpreted so as to exclude the Examiner's construction. As such, we
sustain the Examiner's rejection of claims 4 and 21 as anticipated by
Baldocchi.
Regarding claim 5, Appellant argues that "there is no reasonable
expectation of success for forcing the holster of Mauriello against the user's
body using the loop configuration." Reply Br. 8. Appellant further argues
that "the holster simply cannot function inside the waistband" and that "it is
overwhelmingly obvious that the configuration in Mauriello is intended to
be carried outside the belt." Reply Br. 8-9. Curiously, Appellant points to
claim 4 in arguing that the preamble "very clearly states 'a concealed
handgun holster."' Reply Br. 9. Claim 5, however is not to an entire
holster, but deals only with the accessory clip itself and nowhere in claim 5
is there reference to concealment or inside the waist-band carry. As such,
Appellant's arguments regarding differences between Mauriello and
concealed holsters is inapt.
We also agree with the Examiner that Mauriello' s "angled belt
attachment clearly pushes the bottom of the holster towards a user's body,
and will force it against the user's body during normal use." Ans. 7. As
Appellant's arguments deal with unclaimed aspects relating to concealment
or inside-the-waistband carry, we do not fmd them persuasive. Accordingly,
we sustain the Examiner's rejection of claim 5.
As to claim 6, we agree with the Examiner that one of ordinary skill in
the art "would not conclude that the 'tab' is the top curved portion of the
clip, but thatthe 'tab' is the downward extension labelled as 2 in FIG. 4 and
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Application 13/973,964
best seen in FIGS. 4-5, which is similar to the tab of Alessi." Ans. 7-8.
Appellant also again relies on the unclaimed aspects related to concealed
carry, which are not found in either of claims 5 or 6. Accordingly, we
sustain the Examiner's rejection of claim 6.
DECISION
For the above reasons, we AFFIRM the Examiner's decision to reject
claims 4--7 and 21.
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a)(l )(iv) (2009).
AFFIRMED
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