Ex Parte Faux et alDownload PDFPatent Trial and Appeal BoardMay 21, 201813853075 (P.T.A.B. May. 21, 2018) Copy Citation UNITED STA TES p A TENT AND TRADEMARK OFFICE APPLICATION NO. FILING DATE 13/853,075 03/29/2013 95261 7590 05/23/2018 Durham, Jones & Pinegar, P.C. 3301 N. Thanksgiving Way, Suite 400 Lehi, UT 84043 FIRST NAMED INVENTOR Jonathan Robert Faux 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. 51849-3000USI1 6262 EXAMINER LEWIS,KIMM ART UNIT PAPER NUMBER 3772 NOTIFICATION DATE DELIVERY MODE 05/23/2018 ELECTRONIC 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. Notice of the Office communication was sent electronically on above-indicated "Notification Date" to the following e-mail address(es): ipmail@djplaw.com ipmailslc@djplaw.com ckoy@djplaw.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte JONATHAN ROBERT FAUX, NICHOLE S. RASMUSSEN, and CHRISTOPHER ROBERT HUGHES Appeal2017-008141 Application 13/853,075 Technology Center 3700 Before MICHAEL L. HOELTER, JILL D. HILL, and PAUL J. KORNICZKY, Administrative Patent Judges. HOELTER, Administrative Patent Judge. DECISION ON APPEAL STATEMENT OF THE CASE This is a decision on appeal, under 35 U.S.C. § 134(a), from the Examiner's Final Rejection of claims 15-32. Br. 2. Claim 1-14, 33, and 34 have been canceled. Br. 2. We have jurisdiction under 35 U.S.C. § 6(b). We AFFIRM. Appeal2017-008141 Application 13/853,075 THE CLAIMED SUBJECT MATTER The disclosed subject matter "relates generally to orthoses and, more specifically, to orthoses that are configured for use in treating conditions that relate to feet, including foot drop." Spec. ,r 2. Method claims 15, 21, and 27 are independent. Claim 15 is illustrative of the claims on appeal and is reproduced below. 15. A method for addressing drop foot, comprising: securing a foot receiving member to a foot of an individual the foot having a drop foot condition; securing a support of an orthosis for addressing drop foot around a lower leg of the individual, above the foot; inserting a hook at a base of each engagement element of a pair of engagement elements of the orthosis into corresponding features on opposite sides of the foot receiving member; introducing tension in at least one flexible elongated element of the orthosis extending between the support and the pair of engagement elements to apply an upward force to the foot receiving member and to the foot; and engaging the foot receiving member with a tooth protruding upwardly from an upper surface of the hook of each engagement element of the pair of engagement elements that has been inserted into a corresponding feature of the foot receiving member. REFERENCES RELIED ON BY THE EXAMINER Nickel et al. Wenger US 2012/0004587 Al US 8,382,694 B2 THE REJECTIONS ON APPEAL Jan. 5,2012 Feb.26,2013 Claims 15, 16, 20-22, 26, 27, and 29-32 are rejected under 35 U.S.C. § 102( e) as anticipated by Wenger. Claims 17-19, 23-25, and 28 are rejected under 35 U.S.C. § I03(a) as 2 Appeal2017-008141 Application 13/853,075 unpatentable over Wenger and Nickel. 1 ANALYSIS The rejection of claims 15, 16, 20---22, 26, 27, and 29-32 as anticipated by Wenger Appellants address independent claims 15, 21, and 27 together. Br. 6-8. Appellants do not separately address dependent claims 16, 20, 22, 26, and 29-32. We address each of the arguments presented with respect to the independent claims, with the remaining claims standing or falling with their respective parent claim. See 37 C.F.R. § 4I.37(c)(l)(iv). Both independent claims 15 and 27 include the limitation, "a tooth protruding upwardly from an upper" surface/end of a hook. Appellants argue, "Wenger does not expressly or inherently describe hooks 26 that include upwardly protruding teeth." Br. 6. The Examiner relies on Wenger's hook fastener 26 as disclosing this limitation, and particularly the fastener's "tooth (constituted by the end of hook 26)." Final Act. 7; see also Ans. 6-7 (referencing Wenger Fig. 4 stating "there is disclosed a hook fastener (26) having a 'tooth' that protrudes upwardly from an upper surface thereof'). Appellants' Specification states that the engagement element (i.e., the recited "hook") "may include a tooth at or near an end of the lower portion" and also "a tooth on the end of each engagement member." Spec. ,r,r 10, 12. Figure 4 of Wenger discloses a U-shaped hook fastener 26 and Appellants do not explain how this U-shape lacks a distal, up-turned end region such that Wenger's hook 26 fails to satisfy this "tooth" limitation. 1 The Final Office Action incorrectly lists the rejection as based on Nickel only, despite discussing both Wenger and Nickel in the body of the rejection. Final Act. 10-11. The Examiner corrects this mistake in the Examiner's Answer. See Ans. 5. 3 Appeal2017-008141 Application 13/853,075 With respect to claims 15 and 2 7, Appellants further contend, "Wenger also lacks any express or inherent description of a method in which tension is introduced into at least one flexible elongated element." Br. 7. The Examiner correlates Wenger's elastic strap 24 to the recited "flexible elongated element." Final Act. 7. Wenger teaches "[w]rapping the elastic strap 24 around the wearer's ankle 6 insures the correct tension is applied along the elastic strap 24." Wenger 6:10-13; see also Wenger 2:41--45, 3: 10-13, 6 :41---65, Abstract. The Examiner also states that "in order for tension to be applied to the wearer's foot to prevent drop foot, tension is necessarily introduced into the elastic strap" 24. Ans. 7. The Examiner also draws Appellants' attention to Wenger's Fig. 8 which shows elastic strap 24 wrapped around the user's leg and secured to the user's shoe. Ans. 8. In view of such teachings, Appellants do not explain how Wenger fails to disclose, either expressly or inherently, a method of introducing tension into the strap as asserted. Regarding claim 21, Appellants contend that Wenger fails to disclose "a method in which a tooth ... may engage an eyelet of conventional footwear." Br. 7. Appellants ignore Wenger's teaching that "hook fasteners 26 can engage either the laces, eyelets 38 or any other looped structure commonly found on conventional shoes 4." Wenger 6:44--46; see also Wenger 2:65-3:1; Final Act. 7, Ans. 8. Accordingly, and based on the record presented, we are not persuaded of Examiner error. We sustain the Examiner's rejection of claims 15, 16, 20-22, 26, 27, and 29-32 as anticipated by Wenger. 4 Appeal2017-008141 Application 13/853,075 The rejection of claims 17-19, 23-25, and 28 as unpatentable over Wenger and Nickel Appellants argue claims 17-19, 23-25, and 28 together. Br. 8-10. We select claim 17 for review, with the remaining claims standing or falling therewith. Claim 1 7 recites the limitation of "rotating a handle and a reel of a reel tensioning system." The Examiner relies on the teachings of Nickel for disclosing this limitation, and provides a reason for Nickel's combination with Wenger. Final Act. 10-11; see also Ans. 9. Appellants contend that there is no teaching that Nickel's handle/reel "could be used to increase tension in a cable of a drop foot brace" and further that the Examiner has not provided a reason to use Nickel's reel system "in a drop-foot brace." Br. 10. Appellants do not dispute that Nickel discloses a common lacing or tensioning system known for use "in medical braces." Br. 9. Instead, Appellants focus on the use of Nickel's system in "a drop foot brace." Br. 10. On this point, Appellants do not address the Examiner's reference to Paragraph 7 of Nickel which states, "[t]he medical brace can be a wrist brace. The medical brace can be an ankle brace." Final Act. 11. Hence, although Nickel is silent regarding a "drop foot" brace, Wenger teaches, "[f]oot drop is typically treated by ankle-foot orthotics" (Wenger 1 :34), and as such, Appellants are not persuasive that one skilled in the art would fail to recognize that Nickel's "ankle brace" could have been used in such a manner. See also Ans. 9. Accordingly, and based on the record presented, we are not persuaded of Examiner error. We sustain the Examiner's rejection of claims 17-19, 23-25, and 28 as unpatentable over Wenger and Nickel. 5 Appeal2017-008141 Application 13/853,075 DECISION The Examiner's rejections of claims 15-32 are affirmed. No time period for taking any subsequent action in connection with this appeal may be extended as set forth in 37 C.F.R. § 1.136(a)(l )(iv). AFFIRMED 6 Copy with citationCopy as parenthetical citation