Ex Parte Ewing

Board of Patent Appeals and Interferences

Mar 10, 2011

11236190 (B.P.A.I. Mar. 10, 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.
11/236,190 09/27/2005 Jay Ewing JE030 6589
25784 7590 03/10/2011
MICHAEL O. SCHEINBERG
P.O. BOX 164140
AUSTIN, TX 78716-4140
EXAMINER
KELLEHER, WILLIAM J
ART UNIT PAPER NUMBER
3673
MAIL DATE DELIVERY MODE
03/10/2011 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 JAY EWING
____________

Appeal 2009-011117
Application 11/236,190
Technology Center 3600
____________

Before WILLIAM F. PATE III, STEVEN D.A. McCARTHY and
FRED A. SILVERBERG, Administrative Patent Judges.

McCARTHY, Administrative Patent Judge.

DECISION ON APPEAL1

1 The two-month time period for filing an appeal or commencing a civil
action, as recited in 37 C.F.R. § 1.304, or for filing a request for rehearing,
as recited in 37 C.F.R. § 41.52, begins to run from the “MAIL DATE”
(paper delivery mode) or the “NOTIFICATION DATE” (electronic delivery
mode) shown on the PTOL-90A cover letter attached to this decision.
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Application 11/236,190

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STATEMENT OF THE CASE 1
The Appellant appeals under 35 U.S.C. § 134 from the Examiner’s 2
final decision rejecting claims 3-10, 13-16 and 18-21.2 More specifically, 3
the Examiner rejects: claims 3, 4, 7-10, 15, 16, 18, 193 and 21 under 35 4
U.S.C. § 102(b) as being anticipated by Kitchen (US 5,931,740, issued Aug. 5
3, 1999); claims 3, 5 and 6 under § 102(b) as being anticipated by Gerig (US 6
5,950,649, issued Sep. 14, 1999); and claims 13, 14 and 20 under 35 U.S.C. 7
§ 103(a) as being unpatentable over Kitchen and Gerig.4 Claims 3, 13 and 8
15 are independent claims. Claims 1, 2, 11, 12 and 17 are cancelled. We 9
have jurisdiction over the appeal under 35 U.S.C. § 6(b). 10
We sustain the rejections of claims 3-6, 8-10, 16, 18 and 21. We do 11
not sustain the rejections of claims 7, 13-15, 19 and 20. 12
Claim 13 is illustrative of the claims on appeal: 13
13. A hammock support comprising: 14
an arch support formed at least in part as a 15
truss including at least two longitudinal members 16
and multiple cross-supports between the two 17
longitudinal members, the arch support including a 18
center and two ends, wherein the arch support 19

2 The current version of the appealed claims is listed in the Appellant’s
Reply Brief dated Feb. 16, 2009.

3 Claim 19 was rejected under § 102(b) as being anticipated by Kitchen. On
page 4 of the Examiner’s Answer, the Examiner failed to include claim 19 in
the preamble of the rejection. Nevertheless, the Examiner’s explanation of
the rejection indicates that the Examiner intended to reject claim 19 on this
ground. Although the Appellant did not provide an argument for claim 19,
claim 19 will be grouped with its parent claim 7 for purposes of this appeal.

4 The Examiner withdrew a rejection of claims 14 and 20 under 35 U.S.C.
§ 112, second paragraph, in a communication dated May 5, 2009.
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forms a downwardly opening arch within a plane, 1
the arch formed of multiple removably 2
interlocking sections; 3
at least three support members to support the 4
arch support on each end, one of the three support 5
members being the corresponding end of the arch 6
support and being in the plane of the arch support, 7
at least two of the support members extending out 8
of the plane of the arch support; and 9
a connector for suspending a hammock from 10
the arch support. 11
12
ISSUES 13
The Appellant argues that claims 4, 16 and 21 are not anticipated 14
solely based on their dependency from parent claims 3 and 15. (See App. 15
Br. 7). The Appellant includes a separate heading for claims 8 and 9 on 16
page 7 of the Appeal Brief. Nevertheless, the Appellant’s argument for 17
claims 8 and 9 is subsumed by the argument provided for their parent claim 18
3. (Id.). As such, claims 4, 8, 9, 16 and 21 stand or fall with either claim 3 19
or claim 15. The Appellant provides separate arguments for claims 7, 13, 20
14, 19 and 20. (App. Br. 7 and 9-11). This appeal turns on the following 21
four issues. 22
First, do the three longitudinal members of Kitchen or Gerig 23
describe a truss and three legs of a tripod base, as called for in claims 24
3 and 15? (App. Br. 6-7 and 9). 25
Second, does Kitchen describe the tripod base of claims 7 and 26
19, wherein the tripod base includes at least one leg including a truss? 27
(App. Br. 7). 28
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Third, does Kitchen describe a hammock, as called for in 1
claims 10 and 18? (App. Br. 8). 2
Fourth, does the combination of Kitchen and Gerig teach at 3
least two support members extending out of the plane of the arch 4
support, as called for in claim 13? (App. Br. 10). 5
6
FINDINGS OF FACTS 7
The record supports the following findings of fact (“FF”) by a 8
preponderance of the evidence. 9
1. We adopt and incorporate by reference the Examiner’s findings in 10
the Answer starting at page 4, line 6 starting “Kitchen discloses an arch 11
support . . .” and ending at page 4, line 13 with “the arch support members.” 12
The findings are supported by Kitchen at column 7, lines 1-3 and Figure 1. 13
2. We adopt and incorporate by reference the Examiner’s findings in 14
the Answer starting at page 5, line 3 starting “Gerig (Figure 4) discloses an 15
arch support . . .” and ending at page 5, line 10 with “the arch support.” 16
3. Kitchen describes rider modules 20, 200 comprising multiple seats, 17
including seats 24, 25 in Figures 3 and 5, and seats 240, 250, 260, 270 in 18
Figure 6 respectively. (Kitchen, col. 7, ll. 41-42 and 63). The rider module 19
20 is suspended from the arch support 10 by support and stabilization lines 20
12, 13. (Kitchen, col. 7, ll. 3-6 and fig. 1). 21
22
ANALYSIS 23
First Issue 24
The Appellant contends that “the Examiner’s interpretation is contrary 25
to the broadest reasonable interpretation of the [word] . . . ‘tripod’ and is 26
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inconsistent with the appellant’s specification.” (App. Br. 7). The Appellant 1
asserts that the ordinary meaning of the term “tripod” is a “three-legged 2
support.” (App. Br. 9, citing WEBSTER’S THIRD NEW INT’L DICTIONARY 3
(2002)). The definition, although broad, is consistent with the Specification, 4
which does not formally define or limit the meaning of the term “tripod.” 5
The Examiner’s finding that the structures of Kitchen and Gerig both 6
include tripod bases is correct. In both structures, the end portions of the 7
three longitudinal members provide three-legged support for the arch 8
supports. The Appellant’s contention that “the longitudinal members join 9
tube portions 7 along a single line, and do not form a tripod” (App. Br. 9) is 10
not persuasive. 11
In both cases, it is the ends of the arch supports, or, more specifically, 12
the end portions of the longitudinal members of the arch supports, which 13
form all three legs of the tripod bases. The Examiner reasons “[t]he legs (at 14
the end of the arch support) and the truss (a part of the arch support) are 15
considered different portions of the Kitchen reference and therefore 16
Appellant's arguments that, ‘[i]f the longitudinal members form the truss of 17
the arch support element, they are a single structure and form only a single 18
leg’ is not persuasive.” (Ans. 8, quoting App. Br. 6-7). In other words, the 19
Examiner finds that “a hammock support can have an arch support, and [a 20
tripod base] where the hammock support meets the ground.” (Ans. 9). 21
Independent claim 3 recites at least one of the legs of the tripod base 22
is “formed by an end of the arch support.” Independent claim 15 recites a 23
step of “providing at least three support members to support the arch support 24
on each of the two end ends, one of the three support members being an end 25
of the arch support on the plane of the arch support.” Despite slight 26
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differences in language, neither claim excludes the possibility that all three 1
legs of the tripod base may be formed at an end of the arch support from 2
portions of the longitudinal support members. 3
With specific reference to the rejection of claim 3, the longitudinal 4
members of Gerig form a support having three legs defined by end portions 5
of the longitudinal members of the arch support. Paragraph 1020 of the 6
Specification states that the “invention is not limited to any particular 7
combination of angles of the support legs” of the tripod base. Since the 8
subject matter of claim 3 is not limited to support legs extending toward or 9
away from one another at any particular angle, the fact that the three legs 10
defined by the end portions of the longitudinal members are apparently 11
arranged in a straight line does not imply that the three legs do not form a 12
tripod base. In other words, the arches described by both Kitchen and Gerig 13
have tripod bases at each end. 14
15
Second Issue 16
Claim 7 recites “the tripod base includes at least one leg including a 17
truss.” The Examiner finds “Kitchen's legs are considered to include a truss 18
because each leg has a cross member joining it to an adjacent leg.” (Ans. 9). 19
The Appellant reasonably defines a truss as “an assemblage of members (as 20
beams, bars, rods) typically arranged in a triangle or combinations of 21
triangles to form a rigid framework (as for supporting a load over a wide 22
area) that cannot be deformed by the application of exterior force, without 23
deformation of one or more of its members.” (App. Br. 9, citing WEBSTER’S 24
THIRD NEW INT’L DICTIONARY (2002)). The Examiner clearly identifies a 25
longitudinal member as a leg. (FF 1). Although each leg is a component in 26
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a truss, each leg does not include a truss. Thus the Appellant correctly 1
contends “[i]f each of the longitudinal members of Kitchen is a separate 2
‘tripod leg’ then none is a truss.” (App. Br. 7). 3
4
Third Issue 5
The Appellant contends that reading the term “hammock” on a chair 6
disclosed by Kitchen is contrary to the plain meaning of the term 7
“hammock” and contrary to the usage of the term in the Specification 8
according to its plain meaning. (App. Br. 8). The Appellant provides a 9
dictionary definition of the term “hammock” as “a swinging couch or bed 10
usu. made of netting or canvas and slung by cord from supports at each 11
end.” (App. Br. 8, citing WEBSTER’S THIRD NEW INT’L DICTIONARY (2002)) 12
(Italics added). The Examiner correctly finds that “[w]ithin this definition is 13
room for things that are sat upon.” (Ans. 9). 14
Kitchen describes the use of seats 24 and 25 in Figures 3 and 5, and 15
seats 240, 250, 260 and 270 in Figure 6. (FF 3). Each of these seats is a 16
swinging couch slung by a support line and a stabilization line at each end. 17
(Id.) Therefore, the Examiner is correct in finding that Kitchen discloses at 18
least one hammock suspended from the arch support. (See Ans. 9). 19
20
Fourth Issue 21
Claim 13 recites “wherein the arch support forms a downwardly 22
opening arch within a plane . . . one of the three support members . . . being 23
in the plane of the arch support, at least two support members extending out 24
of the plane of the arch support.” (Italics added). So “the plane” in the “at 25
least two support members extending out of the plane of the arch support” 26
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has antecedent basis to “wherein the arch support forms a downwardly 1
opening arch within a plane.” (Italics added). 2
The Examiner appears to misconstrue claim 13. The Examiner 3
reasons incorrectly that the “plane as claimed by the Applicant is considered 4
the plane of the ground to which Kitchen is connected. All three 5
longitudinal members of Kitchen are considered to be in the plane (at the 6
ground level) and to also extend out of the plane (into the air).” (Ans. 7). If 7
the ground is “the plane,” however, then it is unclear how the ground would 8
also be the plane with regards to “the arch support forms a downwardly 9
opening arch within a plane.” (Italics added). Simply put, the plane of the 10
ground at best would include a cross section of each leg, not a formation of 11
“a downwardly opening arch within a plane” as recited in claim 13. 12
Therefore, the Appellant correctly contends “that no skilled person 13
would consider ‘the plane of the arch support’ to be the plane of the 14
ground.” (App. Br. 10). Furthermore the Appellant correctly points out 15
“[t]he plane of the arch support is clearly the unique plane which contains 16
the arch support, that is, a plane perpendicular to the ground.” (App. Br. 17
10). 18
19
CONCLUSIONS 20
First, the three longitudinal members of Kitchen and Gerig each 21
describe a truss and three legs of a tripod base, as called for in claim 3. We 22
sustain the rejection of claims 3, 4, 8-10, 15, 16 and 21 under § 102(b) as 23
being anticipated by Kitchen. We also sustain the rejection of claims 3, 5 24
and 6 under § 102(b) as being anticipated by Gerig. Since the language of 25
claim 15 excludes the possibility that more than one of the three support 26
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members might be an end of the arch support, we do not sustain the rejection 1
of claims 15, 16, 18 and 21 under § 102(b) as being anticipated by Kitchen. 2
Second, Kitchen does not describe “wherein the tripod base includes 3
at least one leg including a truss” of claims 7 and 19. We do not sustain the 4
rejection of dependent claims 7 and 19 under § 102(b) as being anticipated 5
by Kitchen. 6
Third, Kitchen describes a hammock. We sustain the rejection of 7
claims 10 and 18 under § 102(b) as being anticipated by Kitchen. 8
Fourth, the combination of Kitchen and Gerig does not teach at least 9
two support members extending out of the plane of the arch support, as 10
called for in claim 13. We do not sustain the rejection of claims 13, 14 and 11
20 under § 103(a) as being unpatentable over Kitchen and Gerig. 12
13
DECISION 14
We AFFIRM the Examiner’s decision rejecting claims 3-6, 8-10, 16, 15
18 and 21. 16
We REVERSE the Examiner’s decision rejecting claims 7, 13-15, 19 17
and 20. 18
No time period for taking any subsequent action in connection with 19
this appeal may be extended under 37 C.F.R. § 1.136(a). See 37 C.F.R. 20
§ 1.136(a)(1)(iv). 21
22
AFFIRMED-IN-PART 23
Klh 24
25
MICHAEL O. SCHEINBERG 26
P.O. BOX 164140 27
AUSTIN, TX 78716-4140 28