Ex Parte Gerstmar

Board of Patent Appeals and Interferences

Mar 30, 2007

10434712 (B.P.A.I. Mar. 30, 2007)

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for publication and is not binding precedent of the Board

UNITED STATES PATENT AND TRADEMARK OFFICE
____________________

BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
____________________

Ex parte GAIL L. GERSTMAR
____________________

Appeal 2007-0270
Application 10/434,712
Technology Center 3700
____________________

Decided: March 30, 2007
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Before: TERRY J. OWENS, MURRIEL E. CRAWFORD, and
STUART S. LEVY, Administrative Patent Judges.

LEVY, Administrative Patent Judge.

DECISION ON APPEAL

STATEMENT OF CASE
Appellant appeals under 35 U.S.C. § 134 (2002) from a final rejection
of claims 1-5 and 7. We have jurisdiction under 35 U.S.C. § 6(b) (2002).
Appellant invented a modular cervical support and redefinition
structure (Specification 1).
Claim 1 is representative of the invention and reads as follows:

Appeal 2007-0270
Application 10/434,712

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1. Modular cervical support and redefinition structure
comprising

a collar having a central cervical region, and possessing
opposite-side inside and outside surfaces and upper and lower
edges, removeably wrapable about a user's neck with said
inside surface disposed directly adjacent the neck, said central
cervical region disposed against the cervix, and said outside
surface facing substantially 180° rearwardly away from the
neck, and

pillow structure removeably attachable to said outside
surface of said collar at the location of said central cervical
region, and substantially vertically centrally between said upper
and lower edges, to coact with the collar, outwardly and
rearwardly thereof, in the furnishing of cervical support for the
user with such coaction taking place along a line-of-action
which extends from the pillow structure, through said collar's
opposite-side inside and outside surfaces, and through the
central cervical region of the collar to the user's cervix, and
with this line-of-action lying in a plane which, with said support
and redefinition structure in use by a user, intersects said collar,
said pillow structure, and the user's neck and cervix, at a
location which is generally vertically centered on the user's
cervix.

The Examiner rejected claims 1- 5 and 7 under 35 U.S.C. § 102(b) as
being anticipated by Flinsch.
The prior art relied upon by the Examiner in rejecting the claims on
appeal is:
Flinsch US 673,872 May 14, 1901

Appellant contends, inter alia, that the Examiner has misinterpreted
the phrase "vertically centered" by treating these terms as separate and non-
interdependent concepts (Reply Br. 2). It is argued that the phrase
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"vertically centered" means centered in a vertical sense between something
above and something below. (Reply Br. 3). The Examiner's position can be
found on pages 3-4 of the Answer.
We reverse.
ISSUE
Has Appellant shown that the Examiner erred in holding that Flinsch
anticipates claims 1-5 and 7. The issue turns on whether Flinsch teaches the
pillow member being located "substantially vertically centrally between the
upper and lower edges" of the collar, as recited in claim 1 and as similarly
recited in independent claims 3 and 4.

FINDINGS OF FACT
1. Appellant invented a modular cervical support and redefinition
structure. (Specification 1).
2. Flinsch discloses a support for the neck and head to prevent
stiffness in the neck and to obviate pains in the head. (p. 1, l. 6 and
ll. 18-23).
3. Flinsch further discloses a cushion or bolster and an auxiliary
cushion b, which is attached to cushion a by spring press-buttons c.
(p. 1, ll, 35-42).
4. Flinsch additionally discloses that the auxiliary cushion b may be
attached to cushion a, along the outer rim of cushion a. (p. 1, ll. 41-
43).

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PRINCIPLES OF LAW
A claim is anticipated only if each and every element as set forth in
the claim is found, either expressly or inherently described, in a single prior
art reference. Verdegaal Bros. Inc. v. Union Oil Co., 814 F.2d 628, 631, 2
USPQ2d 1051, 1053 (Fed. Cir. 1987). The inquiry as to whether a reference
anticipates a claim must focus on what subject matter is encompassed by the
claim and what subject matter is described by the reference. As set forth by
the court in Kalman v. Kimberly-Clark Corp., 713 F.2d 760, 772, 218 USPQ
781, 789 (Fed. Cir. 1983), it is only necessary for the claims to “read on”
something disclosed in the reference, i.e., all limitations of the claim are
found in the reference, or “fully met” by it.

ANALYSIS
From our review of the record, we find that to meet the language
“substantially vertically centrally between said upper and lower edges”, it is
necessary that the pillow structure be located substantially vertically
between the upper and lower edges of the collar 22. This is shown in
Appellant’s figure 4 where the pillow 26 is vertically centered between the
upper and lower edges of the collar 22. The term "centered" refers to being
centered between the upper and lower edges, not in the back of the collar.
Turning to Flinsch, we find that auxiliary cushion b, while it can be located
along the back of the collar, is attached at c near the top of the cushion a.
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Because the auxiliary collar is located near the top of the cushion a, the
auxiliary cushion is not located vertically centrally between the upper and
lower edges of the cushion a. Accordingly, we agree with Appellant (Reply
Br. 3) that the Examiner erred in finding that Flinsch anticipates claims 1-5
and 7.

CONCLUSION OF LAW
On the record before us, Appellant has shown that the Examiner has
erred in holding that the teachings of Flinsch anticipate claims 1-5 and 7. It
follows that we cannot sustain the rejection of these claims.

DECISION
The Examiner's rejection of claims 1-5 and 7 is reversed.

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REVERSED

vsh

ROBERT D. VARITZ, P.C.
4915 SE 33RD PLACE
PORTLAND OR 97202
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