Ex Parte Gelfond et al

Patent Trial and Appeal Board

Sep 11, 2013

11508063 (P.T.A.B. Sep. 11, 2013)

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.
11/508,063 08/22/2006 Lisa Ellen Gelfond INFAN-066A 2040
7663 7590 09/11/2013
STETINA BRUNDA GARRED & BRUCKER
75 ENTERPRISE, SUITE 250
ALISO VIEJO, CA 92656
EXAMINER
NICONOVICH, ALEXANDER R
ART UNIT PAPER NUMBER
3711
MAIL DATE DELIVERY MODE
09/11/2013 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 PATENT TRIAL AND APPEAL BOARD
____________________
Ex parte LISA ELLEN GELFOND,
MAUREEN ANNE O'CONNOR, and
ERIC CHRISTOPHER SUGALSKI
____________________

Appeal 2011-009931
Application 11/508,063
Technology Center 3700
____________________

Before: PHILLIP J. KAUFFMAN, CHARLES N. GREENHUT, and
BART A. GERSTENBLITH, Administrative Patent Judges.

KAUFFMAN, Administrative Patent Judge.

DECISION ON APPEAL

Appeal 2011-009931
Application 11/508,063

2
STATEMENT OF THE CASE
Appellants seek review of the Examiner’s decision to reject claims 1-
16 and 18-20 under 35 U.S.C. § 103(a) as unpatentable over Myers
(US 7,376,993 B2; iss. May 27, 2008) and Forshpan (US 7,096,874 B2; iss.
Aug. 29, 2006). We have jurisdiction under 35 U.S.C. § 6(b).
We affirm.

The Invention
Appellants’ claimed invention relates generally to infant activity toys.
Spec., para. [0003]. Claims 1 and 16 are the independent claims on appeal.
Claim 1, reproduced below, is illustrative of the claimed subject matter:
1. A collapsible gym, comprising:
a frame assembly comprising:
a central support mechanism defining an axis; and
a plurality of support legs pivotally connected to
the central support mechanism;
the frame assembly being selectively movable
between a deployed state wherein each of the support
legs assumes a first position relative to the central
support mechanism, and a collapsed state wherein each
of the support legs assumes a second position relative to
the central support mechanism;
the central support mechanism further comprising
a cam handle selectively movable between a locked
position wherein each of the support legs is maintained in
the first position when the frame assembly is moved to
the deployed state, and an unlocked position wherein
each of the support legs is movable to the second
position, the cam handle defining a plurality of cam
surfaces which are each sized and configured to act
against prescribed portions of respective ones of the
support legs when the cam handle is rotated to the
unlocked position to facilitate the movement of each of
Appeal 2011-009931
Application 11/508,063

3
the support legs from the first position to the second
position;
a mat attached to at least one of the support legs in a
manner wherein the mat is expandable into a generally planar
configuration when the frame assembly is moved to the
deployed state, and foldable into a position at least partially
between the support legs when the frame assembly is moved to
the collapsed state.

OPINION1
The Examiner found that Myers discloses the collapsible gym of
claim 1 except a cam handle selectively moveable from a locked to an
unlocked position as claimed. Ans. 3-4. The Examiner found that Forshpan
discloses a cam handle (cover piece 185, means 205, and knob 220) defining
a plurality of cam surfaces (the portion of upper surface 210 located between
slots 190 of cover piece 185) each sized and configured so that when the
cam handle is rotated to the unlocked position the cam surfaces act against
prescribed portions of respective ones of the support legs (first ends 40 of
support arms 30) to facilitate movement of each of the support legs (support
arms 30) from the first to the second position. Ans. 4-5.
Appellants contend that there is no teaching or suggestion in Forshpan
that knobs 220, means 205, or cover piece 185 (including its upper surface
210) positively act against the first ends 40 of the support arms 30 to
facilitate movement of the support arms 30 to a collapsed state. Br. 8.

1 Appellants state that dependent claims 2-15 stand or fall with independent
claim 1, and dependent claims 18-20 stand or fall with independent claim
16. Br. 5, 9. Appellants mention independent claims 1 and 16, but do not
argue based upon any difference in claim scope between these claims. Br. 6-
9. Therefore, our analysis of claim 1 is applicable to all of the claims on
appeal.
Appeal 2011-009931
Application 11/508,063

4
Rather, according to Appellants, “slots 190 within the cover piece 185
simply provide open spaces which allow for the pivotal movement of the
first ends 40 when the slots 190 are rotated into alignment with respective
ones of the channels 165.” Id.
Appellants’ argument implies that claim 1 calls for the cam surfaces
to “positively act against” the prescribed portions of respective ones of the
support legs to move the support legs from a first to a second position.
However, claim 1 does not call for the plurality of cam surfaces to move the
support legs from a first to a second position by acting against prescribed
portions of respective ones of the support legs. Rather, claim 1 recites that
the cam surfaces act against prescribed portions of the support legs “to
facilitate the movement” of each of the support legs from a first to a second
position.
The Specification does not provide a lexicographical definition of the
claim term “facilitate,” which is commonly understood to mean “to free
from difficulty or impediment.”2 This suggests that claim 1 calls for the cam
surfaces to act against the prescribed portions of respective ones of the
support legs to free the support legs from impediments to movement. See
Rexnord Corp. v. Laitram Corp., 274 F.d 1336, 1342 (Fed. Cir. 2001)
(absent a lexicographical definition, claims terms should be given their
ordinary meaning as understood by a person of ordinary skill in the art).
Consistent with this interpretation, the Specification describes that
[u]pon the rotation of the cam handle 24 to its unlocked
position, the cam portions 32 of the cam handle 24 act against

2 WEBSTER’S UNABRIDGED (1996), “facilitate,” v.t., def. 1. Available online
at http://lionreference.chadwyck.com/.
Appeal 2011-009931
Application 11/508,063

5
the engagement pins 423 and the support legs 16 in a manner
allowing the upper sections 16a to be pivoted from their first
positions extending radially from the central support
mechanism 14, downwardly back toward their second positions.
Spec., para. [0028] (emphasis added). That is, the cam portions act against
prescribed portions of respective ones of the support legs “in a manner
allowing” the support legs to move from the first to the second position. Id.
We fail to discern anything in Appellants’ Specification inconsistent with
the ordinary meaning of the claim term “facilitate.”
In light of the Specification, as interpreted by a person of ordinary
skill in the art, claim 1 calls for the cam surfaces to act against the prescribed
portions of the corresponding support legs to free the support legs from
impediments to movement. Thus, Appellants’ argument that claim 1 calls
for the cam surfaces to “positively act against” the prescribed portions of
respective ones of the support legs to move the support legs from a first to a
second position is unpersuasive because it is not commensurate in scope
with claim 1. See In re Self, 671 F.2d 1344, 1348 (CCPA 1982)
(“[A]ppellant’s arguments fail from the outset because . . . they are not based
on limitations appearing in the claims.”).
Further, Appellants have acknowledged that Forshpan’s cam surfaces
(the portions of upper surface 210 located between slots 190 of cover piece
185) act against the prescribed portions of the corresponding support legs
(first ends 40 or support arms 30) to “allow for the pivotal movement of the
first ends 40 when the slots 190 are rotated into alignment with respective
ones of the channels 165.” Br. 8. Aligning slots 190 with channels 165

3 Engagement pins 42 protrude axially from the upper section 16a of each
support leg 16. Spec., para. [0022]; fig. 5.
Appeal 2011-009931
Application 11/508,063

6
frees Forshpan’s support legs (support arms 30) from impediments to
movement in that it allows for the pivotal movement of the support legs
(support arms 30) from a first to a second position as claimed.
Appellants also argue that the Examiner’s assertion that there is
friction between the first end 40 of support arm 30 and its corresponding slot
190 when the support leg is lowered through the slots 190 is unsupported by
the reference. Br. 9. This argument refers to a finding by the Examiner in
the response to argument portion of the Office Action from which this
appeal was taken. Office Action dated June 10, 2010, at 6. That finding is
not repeated in the Examiner’s Answer, nor relied upon in our affirmance.
Consequently, this argument also does not apprise us of error in the rejection
of claim 1.
As such, we sustain the rejection of claims 1-16 and 18-20.

DECISION
We affirm the Examiner’s decision to reject claims 1-16 and 18-20.
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a). See 37 C.F.R.
§ 1.136(a)(1)(iv).

AFFIRMED

mls