Ex Parte Forsman

Board of Patent Appeals and Interferences

Dec 17, 2008

10185428 (B.P.A.I. Dec. 17, 2008)

UNITED STATES PATENT AND TRADEMARK OFFICE
__________

BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
__________

Ex parte BARLEY A. FORSMAN
__________

Appeal 2008-5438
Application 10/185,428
Technology Center 3700
__________

Decided: December 17, 2008
__________

Before DONALD E. ADAMS, LORA M. GREEN, and
FRANCISCO C. PRATS, Administrative Patent Judges.

GREEN, Administrative Patent Judge.

DECISION ON APPEAL
This is a decision on appeal under 35 U.S.C. § 134 from the
Examiner’s final rejection of claims 1, 3-9, 22-28, and 30-53. We have
jurisdiction under 35 U.S.C. § 6(b).

Appeal 2008-5438
Application 10/185,428

STATEMENT OF THE CASE
The claims are directed to a wearable pack, such as a backpack,
incorporating a strap management system. Claims 1 and 6 are representative
of the claims on appeal, and read as follows:
1. A wearable pack, comprising:
a pack body having a compartment that is accessible via at least one
opening; and
an adjustable harness assembly operatively connected to the pack
body and configured to support the pack body on a user’s body, wherein the
adjustable harness assembly comprises:
a looping strap connected to the pack body;
a sizing strap connected to the pack body and extending a length to a
terminal end;
a sizing fastener connected to the looping strap and adapted to
adjustably secure the sizing strap in one of a plurality of selectable positions
along the length of the sizing strap and thereby form a closed loop with the
looping strap, the sizing strap, and the pack body; wherein the sizing strap is
secured by the sizing fastener at a position other than at the terminal end, the
sizing strap includes a sized length extending between the pack body and the
sizing fastener and an excess length extending from the sizing fastener to the
terminal end; and
a strap management system adapted to retain the excess length,
wherein the strap management system includes a strap fastener with first and
second members extending from the excess length of the sizing strap and
including connectors complementarily configured for releasable attachment
to one another, and wherein the first and second members are configured to
collectively loop around at least a portion of the sizing strap, wherein the
excess length is adapted to be folded upon itself to form a strap bundle and
the first and second members of the strap fastener are configured to
collectively loop around at least a portion of the strap bundle to retain the
strap bundle in a folded configuration.

6. A wearable pack, comprising:
a pack body having a compartment that is accessible via at least one
opening; and
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an adjustable harness assembly operatively connected to the pack
body and configured to support the pack body on a user's body, wherein the
adjustable harness assembly comprises:
a looping strap connected to the pack body;
a sizing strap connected to the pack body and extending a length to a
terminal end;
a sizing fastener connected to the looping strap and adapted to
adjustably secure the sizing strap in one of a plurality of selectable positions
along the length of the sizing strap and thereby form a closed loop with the
looping strap, the sizing strap, and the pack body; wherein the sizing strap is
secured by the sizing fastener at a position other than at the terminal end, the
sizing strap includes a sized length extending between the pack body and the
sizing fastener and an excess length extending from the sizing fastener to the
terminal end; and
a strap management system adapted to retain the excess length,
wherein the strap management system includes a strap fastener configured to
loop around a portion of the sized length of the sizing strap distal the sizing
fastener to retain at least a portion of the excess length proximate the sized
length in an overlapping, unwound relationship to the sized length.

The Examiner relies on the following references:
Thatcher US 5,427,290 Jun. 27, 1995
MacNeil US 6,318,612 B1 Nov. 20, 2001
Tabor US 6,367,674 B1 Apr. 9, 2002
Forsman US 6,497,348 B2 Dec. 24, 2002

We affirm.

ISSUE (Obviousness)
The Examiner concludes that claims 1, 3-7, 9, 22-28, 30-43, 45-47,
and 50-53 are obvious over the combination of Thatcher and MacNeil; that
claims 1, 3-6, 8, 9, 22-28, 30-46, and 48-53 are obvious over the
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combination of Forsman and MacNeil; and claims 1, 3-7, 22-28, 31-43, 45-
47, and 50-53 are obvious over the combination of Tabor and MacNeil.
Appellant contends that the references do not provide any motivation
for the combination, and that the Examiner engaged in impermissible
hindsight in combining them to arrive at the claimed invention.
Thus, the issue on Appeal is: Has Appellant demonstrated the
Examiner has not provided any motivation for combining the cited
references, and that the Examiner engaged in impermissible hindsight in
combining them to arrive at the claimed invention?

FINDINGS OF FACT
FF1 According to the Specification:
Backpacks that include adjustable harnesses have
previously been developed and utilized. Adjustable harnesses
allow a pack to more closely fit a particular user without
requiring the pack to be specially sized for that user. They also
make it easier for a user to put a pack on and take a pack off.
Adjustable harnesses typically include at least one strap that is
longer than necessary to fit most users. Such straps are
typically secured by a fastener that leaves an excess length of
the strap to dangle freely from the fastener. Such a dangling
strap may be undesirable to a user on many levels. Dangling
straps may detract from the aesthetic appearance of a pack, get
undesirably tangled, or strike against a user during use of the
pack.

(Spec. 1.)
FF2 Thus, the invention is drawn to “a wearable pack with a strap
management system.” (Id.) Thus, a “strap fastener is configured to limit
dangling of a strap relative to the rest of the pack by securing the terminal
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end region of the strap, such as to the strap itself or to another portion of the
pack.” (Id.)
FF3 The Examiner rejects claims 1, 3-7, 9, 22-28, 30-43, 45-47, and 50-53
under 35 U.S.C. § 103(a) as being obvious over the combination of Thatcher
and MacNeil (Ans. 3).
FF4 The Examiner also rejects claims 1, 3-6, 8, 9, 22-28, 30-46, and 48-53
under 35 U.S.C. § 103(a) as being obvious over the combination of Forsman
and MacNeil (id. at 4).
FF5 In addition, the Examiner rejects claims 1, 3-7, 22-28, 31-43, 45-47,
and 50-53 under 35 U.S.C. § 103(a) as being obvious over the combination
of Tabor and MacNeil (id. at 6).
FF6 Each of Thatcher, Forsman, and Tabor are cited for teaching the pack
as substantially claimed (id. at 3-7).
FF7 The Examiner finds that none of Thatcher, Forsman, and Tabor teach
a strap management system (id.).
FF8 The Examiner finds, citing figures 7 and 8 of MacNeil, that MacNeil
teaches a strap management system (34, 35, and 36) that prevents the ends of
straps from dangling, getting tangled, and getting in the way (id.).
FF9 Specifically, MacNeil is drawn to “a fastening device for attaching an
item to a vehicle.” (MacNeil, col. 1, ll. 5-7.) The strap ends with a cross-
piece, which can either be fixedly attached to the strap, or removable
connected to the strap (id. at ll. 58-64). When the strap is in use, any excess
strapped is rolled upon itself, and the cross-piece is wrapped around the roll
and fastened together using Velcro (id. at col. 1, l. 66 - col. 2, l. 8).
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FF10 According to MacNeil, that “arrangement allows a minimum number
of portions of the strap to be exposed to the elements, reducing the risk of
any strap portions becoming loosened when the vehicle is in motion and
eliminating any unnecessary flapping of excess portions of the device.” (id.
at col. 2, ll. 7-11.)
FF11 The Examiner concludes that it would have been obvious to one of
ordinary skill in the art at the time the invention was made to use the strap
management system as taught by MacNeil on the straps of the packs of each
of Thatcher, Forsman, and Tabor, in order to prevent the ends of the straps
from dangling, and thus get in the users way (Ans. 3-6).

PRINCIPLES OF LAW
The question of obviousness is resolved on the basis of underlying
factual determinations including: (1) the scope and content of the prior art;
(2) the level of ordinary skill in the art; (3) the differences between the
claimed invention and the prior art; and (4) secondary considerations of
nonobviousness, if any. Graham v. John Deere Co., 383 U.S. 1, 17 (1966).
The Supreme Court has recently emphasized that “the [obviousness]
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’l Co. v. Teleflex Inc., 127 S. Ct. 1727, 1741 (2007). “The
combination of familiar elements according to known methods is likely to be
obvious when it does no more than yield predictable results.” Id. at 1739.
Further, as noted by Court,
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If a person of ordinary skill can implement a predictable
variation, § 103 likely bars its patentability. For the same
reason, if a technique has been used to improve one device, and
a person of ordinary skill in the art would recognize that it
would improve similar devices in the same way, using the
technique is obvious unless its actual application is beyond his
or her skill.

Id. at 1740. Finally, “[a] person of ordinary skill is also a person of ordinary
creativity, not an automaton.” Id. at 1742.

ANALYSIS
Appellant argues that none of Thatcher, Forsman, and Tabor “provide
any disclosure or suggestion of retaining or otherwise doing anything with
the excess lengths of the packs’ straps other than permitting them to dangle
loosely.” (App. Br. 5.) Appellant argues further that MacNeil also fails to
provide any motivation to combine as MacNeil teaches using a fastening
device to attach to non-vehicular items to one another (id.). According to
Appellant, “[w]earable packs with adjustable sizing straps were known at the
time of the MacNeil patent, and, if combining a strap management system
with a wearable pack had been obvious, MacNeil might have suggested such
a combination.” (Id.)
Thus, Appellant asserts, the Examiner has engaged in impermissible
hindsight in combining the references, and looked to the disclosure as filed,
rather than the references, to find the motivation for combining (id. at 6). As
evidence for their assertion, Appellant argues that the Examiner’s cited
motivation for the combination of preventing the straps from dangling and
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getting in the user’s way, may be found in the instant disclosure, but cannot
be found in any of the references relied upon by the Examiner (id. at 8).1
Appellant’s arguments are not convincing. Each of Thatcher,
Forsman, and Tabor teach a hydration pack or sportpack that is worn by the
user through the use of straps. As people are different sizes, the straps are
long enough to accommodate the largest user, and can then be adjusted to
accommodate the size of the person wearing the pack. Thus, in order to
prevent excess strap from tangling with the user or getting in the way, we
conclude that it would have been obvious to the ordinary artisan to use the
strap management system of MacNeil on any of the packs of Thatcher,
Forsman, and Tabor.
As to Appellant’s argument that the references provide no explicit
motivation for the combination, and that the Examiner engaged in
impermissible hindsight, as noted by the KSR court, “if a technique has been
used to improve one device, and a person of ordinary skill in the art would
recognize that it would improve similar devices in the same way, using the
technique is obvious unless its actual application is beyond his or her skill.”
Id. at 1740.
Claims 31-33 “are drawn to embodiments ‘wherein the strap
management system is adapted to retain less than the entire excess length.’”
(App. Br. 12.) According to Appellant, MacNeil teaches away from
retaining anything less than the entire excess length, as “[l]eaving the free

1 Appellant argues further that the Examiner improperly relied upon Spiller
and Suggs to provide motivation (Reply Br. 2.), but as our decision does not
rely in any way on those references, we will not discuss them.
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end less than fully secured would destroy the functionality of the MacNeil
strap management system because the problem of noise, as well as chipping
and scuffing of the vehicle, will not be prevented if the unsecured portion of
the free end is still free to flap about.” (Id.)
As to claims 6, and 47-52, Appellant argues that claim 6 recites that
“a strap fastener configured to loop around a portion of the sized length of
the sizing strap distal the sizing fastener to retain at least a portion of the
excess length proximate the sized length in an overlapping, unwound
relationship to the sized length.” (Claim 6; App. Br. 14.) According to
Appellant, MacNeil teaches away from that limitation as “the overlapping,
unwound strap lengths recited in claim 6 would tend to flap against each
other and potentially against the vehicle of MacNeil when the vehicle is
driven.” (App. Br. 14.)
Claim 3 “recites that strap fastener is adapted to retain the strap
bundle proximate the sizing fastener without the strap fastener extending
around the sized length of the sizing strap.” (Id.) Appellant argues that
MacNeal “clearly instructs that the excess length of the strap is coupled to
the adjacent ‘sized’ length of the strap” (id.), and “does not show, teach or
suggest leaving the bundled strap uncoupled from the sized length of the
strap” (id. at 15).
Claim 22 is drawn to “a harness assembly with at least one adjustable
strap assembly that defines an adjustably sized closed loop with the pack
body,” and further recites “that the pack includes a strap fastener that retains
the excess length of the sizing strap in a bundled configuration proximate the
sizing fastener without extending around the sized length of the sizing
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strap.” (App. Br. 16-17.) Appellant asserts that “MacNeil requires the strap
bundle to be secured directly to the sized strap from which the excess length
is formed.” (Id. at 17.)
Appellant’s arguments are not convincing. As noted by the Examiner,
the structure of MacNeil is capable of performing the limitations recited in
the above claims, that is, the excess length may be folded upon itself to form
a strap bundle; it may be used to retain the strap bundle without the strap
fastener extending around the sized length of the sizing strap; the excess
length may be in an overlapping, unwound relationship to the sized length to
form the strap bundle; it may retain less than the entire length of the straps; it
may use the strap bundle as a handle to decrease the size of the closed loop;
and it may also be used to retain the excess length against the sized length
(see, e.g., Ans. 5). Thus, the recitation of the properties that the strap
management system is capable of doing in the above argued claims does not
distinguish the claimed structure from the structure of the prior art as
combined by the Examiner, and the rejection is affirmed as to the above
argued claims.

As to claims 35-46 and 53, Appellant argues that claim 35 recites “a
wearable pack that includes a harness assembly with at least one adjustably
sized loop defined by the pack body, a looping strap, and a sized length of a
sizing strap, with the sizing strap being adjustably connected to the looping
strap by a unitary sizing fastener,” wherein the strap management system “is
adapted to retain the excess length of the sizing strap with a strap fastener
that is configured so that it cannot pass through the sizing fastener and
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thereby open the closed loop.” (App. Br. 18-19.) MacNeil, Appellant
argues, “discloses a strap assembly that either must open and close a loop
during use of the strap or requires a two-piece releasable fastener to connect
ends of the strap together to form a closed loop.” (Id. at 19.) According to
Appellant, without that structure, “the device of MacNeil would not be
functional, as it could not be secured around the corresponding portions of
the rack and object carried by the rack.” (Id.)
As to claim 35, which we choose as representative, each of Thatcher,
Forsman, and Tabor teach a looping strap, a sizing strap, and a sizing
fastener that defined a closed loop (see, e.g., Ans. 6). Thus, Appellant’s
arguments that MacNeil does not teach that feature are unavailing, as that
structure is provided by the other reference of the combination.

CONCLUSIONS OF LAW
Thus we conclude that Appellant has not demonstrated that the
Examiner has not provided any motivation for the combination, and that the
Examiner engaged in impermissible hindsight in combining them to arrive at
the claimed invention. Thus the rejection of claims 1, 3-7, 9, 22-28, 30-43,
45-47, and 50-53 under 35 U.S.C. § 103(a) as being obvious over the
combination of Thatcher and MacNeil; the rejection of claims 1, 3-6, 8, 9,
22-28, 30-46, and 48-53 under 35 U.S.C. § 103(a) as being obvious over the
combination of Forsman and MacNeil; and the rejection of claims 1, 3-7, 22-
28, 31-43, 45-47, and 50-53 under 35 U.S.C. § 103(a) as being obvious over
the combination of Tabor and MacNeil; are affirmed.

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TIME LIMITS
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a).

AFFIRMED

cdc

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