Ex Parte Giduck

Patent Trial and Appeal Board

Dec 6, 2013

11836542 (P.T.A.B. Dec. 6, 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.
11/836,542 08/09/2007 John P. Giduck 3385/3 3389
23381 7590 12/06/2013
Dorr, Carson & Birney, P.C.
5299 DTC Boulevard
Suite 340
Greenwood Village, CO 80111
EXAMINER
CUOMO, PETER M
ART UNIT PAPER NUMBER
3673
MAIL DATE DELIVERY MODE
12/06/2013 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 JOHN P. GIDUCK
____________________

Appeal 2011-009044
Application 11/836,542
Technology Center 3600
____________________

Before: JENNIFER D. BAHR, SCOTT A. DANIELS, and JILL D. HILL,
Administrative Patent Judges.

DANIELS, Administrative Patent Judge.

DECISION ON APPEAL

Appeal 2011-009044
Application 11/836,542

2
STATEMENT OF THE CASE
Appellant appeals under 35 U.S.C. § 134 from a rejection of claims
1-23 and 27-30. Claims 24-26 are withdrawn. We have jurisdiction under
35 U.S.C. § 6(b).
We affirm.
THE INVENTION
The claims are directed to a flexible litter for transporting an injured
person by a rescuer for example. Spec. 1. Claim 1, reproduced below with
emphasis added to relevant structural and functional elements of the litter, is
illustrative of the claimed subject matter:
1. A flexible litter for transporting a body, said flexible litter
including:
a substantially rectangular main section extending along
a first axis and having two side edge portions spaced from each
other and extending substantially parallel to the first axis, said
main section further including head and foot end edge portions
spaced from each other and extending substantially transversely
of the first axis between said side edge portions, the body to be
transported being receivable on the rectangular main section
between said side edge portions with the head of the body
adjacent the head end edge portion thereof and the feet of the
body adjacent the foot end edge portion thereof,
said flexible litter further including at least one, central,
loop-shaped handgrip attached to one of the end edge portions
and positioned substantially centrally along said one end edge
portion and substantially centrally between said side edge
portions, the loop-shaped handgrip having at least one loop
substantially straddling said first axis, the loop of said handgrip
further extending a relatively short, first distance away from the
main section of the flexible litter in an initial position along said
first axis to receive and be capable of being gripped by a
carrier’s hand, said flexible litter additionally including at least
a first set of two, loop-shaped shoulder straps, each shoulder
Appeal 2011-009044
Application 11/836,542

3
strap being respectively attached adjacent respective side edge
portions of the main section of the flexible litter and adjacent
the one end edge portion and handgrip attached thereto
wherein the loop of each shoulder strap extends a second
distance outwardly away from the main section of the flexible
litter in an initial position transversely of the first axis and away
from the loop of the other shoulder strap, said second distance
being substantially greater than said first distance of said
handgrip wherein each shoulder strap can be substantially
passed in a direction substantially along said first axis through
the same at least one loop of said handgrip attached to said one
end edge portion of the main section of the flexible litter and
looped over a carrier’s shoulder.

REFERENCES
The prior art relied upon by the Examiner in rejecting the claims on
appeal is:
Ferguson
Sakurai
Weeks
Elliott
Piazza
US 2,788,530
US 5,317,770
US 5,442,821
US 5,457,829
US 6,196,229 B1
Apr. 16, 1957
Jun. 7, 1994
Aug. 22, 1995
Oct. 17, 1995
Mar. 6, 2001
Smith US 2003/0070234 A1 Apr. 17, 2003

REJECTIONS
The Examiner made the following rejections:
Claims 1-18 and 27-30 stand rejected under 35 U.S.C § 103(a) as
being unpatentable over Smith, Weeks, and Piazza. Ans. 3-11.
Claims 19 and 22 stand rejected under 35 U.S.C § 103(a) as being
unpatentable over Smith, Weeks, Piazza, and Sakurai. Ans. 11-12.
Claim 20 stands rejected under 35 U.S.C § 103(a) as being
unpatentable over Smith, Weeks, Piazza, Sakurai, and Ferguson. Ans. 12-
13.
Appeal 2011-009044
Application 11/836,542

4
Claim 21 stands rejected under 35 U.S.C § 103(a) as being
unpatentable over Smith, Weeks, and Piazza, and Ferguson. Ans. 13.
Claim 23 stands rejected under 35 U.S.C § 103(a) as being
unpatentable over Smith, Weeks, Piazza, Sakurai, and Elliott. Ans. 13.

ANALYSIS
Claims 1-18 and 27-30 as unpatentable over
Smith, Weeks, and Piazza
Claims 1-13, 27, and 28
Appellant argues claims 1-13, 27 and 28 as a group, where claim 1 is
the only independent claim. See Br. 8. We select claim 1 as representative
of the group where claims 2-13, 27 and 28 stand or fall with claim 1. See 37
C.F.R. 41.37(c)(1)(vii) (2011).
The Examiner finds that Smith teaches a flexible litter including inter
alia a rectangular main section for supporting a body, and handgrips for
carrying the litter and body. Ans. 3-4. The Examiner points out that the
hand grips however are not centrally located on the ends of the main section
as called for in claim 1. Ans. 4. The Examiner turns to Weeks for the
teaching of a flexible litter with centrally located loop-shaped handgrips 36.
Id., see also Weeks, Fig. 1. The Examiner further notes that neither Smith
nor Weeks disclose shoulder straps and finds that “Piazza teaches a flexible
litter including a loop-shaped handgrip (16) and [at] least a first set of two,
loop-shaped shoulder straps (14).” Ans. 4-5. The Examiner reasons that one
of ordinary skill in the art would have been motivated to include the central
handgrip of Weeks with Smith’s litter to allow only one or two people to
move a patient painlessly. Ans. 4 citing Weeks, col.3, ll. 2-4. The Examiner
Appeal 2011-009044
Application 11/836,542

5
also explains that it would have been obvious to provide the shoulder straps
in Piazza with Smith’s litter “to provide more leverage for the ‘lifter’ to help
in lifting a patient by using a combination of the lifter’s shoulders and
hands/arms.” Ans. 5. The Examiner determined that the claimed function of
passing the should straps through the handgrip recited in claim 1 was an
intended use limitation and explained that the combination of Smith, Weeks
and Piazza was capable of performing such a function “since all the straps
of Smith (as modified) are flexible and can be manipulated in any
direction/orientation.” Id.
Appellant argues that neither Weeks nor Smith have shoulder straps,
and that Week’s central handgrips 36 as shown in Figure 2 of Weeks do not
extend in an initial position away from the main section along a longitudinal
axis, but in fact extend upwardly perpendicular to the longitudinal axis. Br.
8. Appellant also asserts that Weeks side handgrips 26 do not extend a
greater distance than the central handgrips 36, and also that the side
handgrips 26 do not extend outwardly away from the main section of the
litter as recited in claim 1. Id. Appellant further argues that Piazza’s device
is not a full length litter as called for in claim 1, and provides “absolutely no
teaching or suggestion to pass his side shoulder straps through any of his
side handgrips let alone through a front handgrip (which he does not have).”
Br. 8.
With respect to Appellant’s initial argument, it is immaterial to our
analysis that neither Weeks nor Smith has shoulder straps since the
Examiner relies upon Piazza for this feature. See Ans. 5.
Addressing Appellant’s contention that Weeks’ Figure 2 does not
disclose the claimed “initial position”, we point out that the “initial position”
Appeal 2011-009044
Application 11/836,542

6
is defined in claim 1 only by the loop-shaped handgrip “extending a
relatively short, first distance away from the main section of the flexible
litter.” The Examiner, however, relies on Smith, not Weeks as disclosing
“an initial position” of the litter, with the handgrips 16 extending away from
the main body of the litter as in Smith’s Figure 1. Ans. 14, 22. We are not
persuaded that Smith does not disclose an “initial position” because claim 1
provides no structural or functional limitations of the “initial position”
besides the orientation of the handgrip, and because the argument with
respect to Weeks fails to address the Examiner’s rejection based on Smith.
We acknowledge that Weeks appears to have similarly sized
handgrips 36 and 26 as shown best in Figure 1 as Appellant asserts. See Br.
8. However, claim 1 calls for each shoulder strap to extend a second
distance outwardly from the litter greater than the handgrip’s first distance,
and the Examiner relies upon Piazza as disclosing the larger shoulder straps
feature. Ans. 15. Appellant’s argument with respect to Weeks simply does
not apprise us of error in the Examiner’s position and reliance upon the
shoulder straps disclosed by Piazza.
Appellant’s argument that Piazza does not disclose a full length litter
also does not apprise us of error in the Examiner’s combination of references
since the Examiner is only relying upon Piazza for teaching the longer
shoulder straps on the sides of the litter device. Br. 8. Appellant’s argument
amounts to a piecemeal attack on the reference where the Examiner relies on
the combined teachings of the references. See In re Merck & Co., 800 F.2d
1091, 1097 (Fed. Cir. 1986) (“Non-obviousness cannot be established by
attacking references individually where the rejection is based upon the
teachings of a combination of references.” (Citation omitted)).
Appeal 2011-009044
Application 11/836,542

7
Appellant’s assertion that Piazza does not disclose or teach passing
the side shoulder straps though the handgrip is also not persuasive because
claim 1 does not positively recite the inter-relationship of the shoulder strap
passed through the handgrip as a limiting feature of the claims. Claim 1
recites merely that “each shoulder strap can be substantially passed in a
direction substantially along said first axis through the same at least one loop
of said handgrip.” We agree with the Examiner’s position that regardless of
Piazza’s failure to teach the shoulder strap and hand grip intertwined
together, given the Examiner’s combination of Smith as modified by Weeks
and Piazza, the longer shoulder straps could be passed through the central
handgrip and looped over a carrier’s shoulder.
To the extent Appellant argues that passing Piazza’s shoulder straps
through the handgrip as recited in claim 1 would destroy Piazza’s mobilizer
for its intended use (Br. 9), Piazza is considered by the Examiner only for
the shoulder straps whereas Smith is the underlying invention being
modified with the addition of such shoulder straps. Ans. 15. Appellant’s
argument that Piazza cannot pass his shoulder strap “through the same
handgrip” does not explain how Smith’s flexible litter with handgrips 16,
and the additional shoulder straps from Piazza could not accomplish this
function, or why Smith would be rendered inoperable for its intended use
with the addition of shoulder straps. Br. 9.
The bald assertion that only Appellant’s “own disclosure would teach
or suggest such modifications” does not apprise us of error in the
Examiner’s findings or reasoning. Br. 9. The Examiner has provided an
articulated reasoning with rational underpinnings to support the legal
Appeal 2011-009044
Application 11/836,542

8
conclusion of obviousness which is not disproven by Appellant’s arguments
as specifically addressed above.
Accordingly, we sustain the rejection of claims 1 and claims 2-13, 27
and 28 fall therewith.

Claims 14-18, 29, and 30
Appellant points out that claim 14 was rewritten in independent form
to include the handgrips on both ends of the litter and with the associated
should straps on each end. Br. 11. Appellant explains that these limitations
distinguish over the prior art for the same reasons as claim 1 and because of
“the structure now being recited to be at both ends of the litter.” Id.
Appellant points out that Piazza only has the shoulder straps adjacent one
end of the mobilizer. Br. 11.
The Examiner replies that it is the Smith reference being modified
with the addition of shoulder straps from Piazza, and that it would be
obvious to incorporate a shoulder strap around each of the grips of Smith.
“to provide more leverage for the ‘lifter’ to help in lifting a patient by using
a combination of the lifter’s shoulders and hands/arms.” Ans. 19.
Appellant’s bare contention that there is no reason or motivation to place
shoulder straps at the other end of Piazza fails to address the Examiner’s
modification of Smith with Piazza on one hand, and the Examiner’s well
articulated reasoning on the other.
Similar to claim 1, claim 14 recites that “each shoulder strap . . . can
be passed through the loop of the second handgrip.” Appellant contends that
the combination of Smith, Weeks, and Piazza does not necessarily teach the
interplay and arrangement of the shoulder straps passed through the
Appeal 2011-009044
Application 11/836,542

9
handgrips. Br. 11. Again, because the interrelationship between the
shoulder strap and handgrip is not claimed as a positively recited functional
or structural limitation, the combination need not teach such interplay or
arrangement to support the conclusion of obviousness. We agree with the
Examiner’s position that nothing in the individual references or the
combination precludes the longer shoulder straps from being passed through
the central handgrip and looped over a carrier’s shoulder. Ans. 20.
Appellant has failed to identify any facts or articulate any technical
reasoning that would patentably distinguish claim 14 from the cited prior art
references. We sustain the Examiner’s rejection of claim 14.
Claims 15-18, 29, and 30 depend from claim 14 and add various
limitations including inter alia, the first and second shoulder straps being
identical in size and shape (claim 15), a third set of shoulder straps (claim
17), and wherein the loop of the hand grips is symmetrical (claim 29).
Appellant offers no new arguments for the patentability of these dependent
claims and relies, instead, on the arguments asserted in support of claim 14.
Br. 11-12.
Inasmuch as we sustain the Examiner’s rejection of claim 14 and
Appellant has failed to identify any facts or articulate any technical
reasoning that would patentably distinguish these dependent claims from the
cited prior art references, we sustain the Examiner’s rejection of claims 15-
18, 29, and 30 for the same reasons as stated herein with respect to claim
14.1

1 Alternatively, Appellant’s paragraph addressing claims 15-18, 29, and 30
does not constitute a separate argument for patentability of the claims. See
37 C.F.R. § 41.37(c)(1)(vii) (Statements that merely point out what a claim
Appeal 2011-009044
Application 11/836,542

10

Claims 19 and 22 as unpatentable over Smith,
Weeks, Piazza, and Sakurai
Appellant’s argument as to the Examiner’s further combination of
Sakurai does not address claim 22 specifically, and states only that the
additional cited art, including Sakurai, is inadequate to reject claim 19. Br.
10. Such an argument does not apprise us of error in the Examiner’s
combination of Sakurai teaching a pouch 48 to secure the legs and feet of a
patient, or of straps 28 to secure the patient body on the litter. Ans. 12.
We sustain the Examiner’s rejection of claims 19 and 22.

Claim 20 as unpatentable over Smith, Weeks,
Piazza, Sakurai, and Ferguson
Appellant does not specifically address the Examiner’s further
combination of Sakurai and Ferguson, for both a foot (Sakurai) and head
(Ferguson) pouch on the litter to secure a patient. See Br. 9-10. Appellant
states only that the additional cited art, including Sakurai and Ferguson, is
inadequate to reject claim 20. Br. 10. Such an argument does not apprise us
of error in the Examiner’s combination of Sakurai and Ferguson.
Accordingly, we sustain the Examiner’s rejection of claim 20.

Claim 21 as unpatentable over Smith, Weeks,
Piazza, and Ferguson
Claim 21 depends directly from claim 1 and Appellant does not
specifically address the Examiner’s reliance upon Ferguson for a head pouch
on the litter to secure a patient. See Br. 9-10. Appellant states only that the

recites are not considered to present an argument for separate patentability of
the claim).
Appeal 2011-009044
Application 11/836,542

11
additional cited art, including Ferguson, is inadequate to reject claim 21. Br.
10. Such an argument does not apprise us of error in the Examiner’s
reliance upon Ferguson. Accordingly, we sustain the Examiner’s rejection
of claim 21.

Claim 23 as unpatentable over Smith, Weeks,
Piazza, Sakurai, and Elliott
The Examiner relies upon Elliott for teaching a storage pouch 16
attached to the main section of the litter for storing the collapsed main
section, straps and grips as a compact way to carry and store the litter. Ans.
13. Appellant states only that the additional cited art, including Sakurai and
Elliot, is inadequate to reject claim 23. Br. 10. Such an argument does not
apprise us of error in the Examiner’s combination of Sakurai and Elliot.
Accordingly, we sustain the Examiner’s rejection of claim 23.

Appellant’s Argument Summary and
Impermissible Hindsight
Disapproving of the Examiner’s combination of Smith, Weeks, and
Piazza, Appellant inquires as to “[h]ow does such a person [of ordinary skill
in the art] end up with Applicant’s litter of claim 1?” Br. 12. Appellant
asserts that “the three references are figuratively and literally going in
separate directions and their individual traits must be considered.” Id.
Appellant essentially contends, with the various arguments summarized at
pages 12-14 of the Brief, that the Examiner’s combination relies upon
impermissible hindsight, in that without Appellant’s disclosure, “there is no
reason to make the combination proposed by the Examiner let alone in such
Appeal 2011-009044
Application 11/836,542

12
a manner to enable it to perform the intended use recited in claim 1.” Br. 14
see also Ans. 24.
As discussed supra, the Examiner has presented a well-articulated
reasoning and rational underpinnings in support of the combination of the
Smith, Weeks and Piazza references. Appellant’s rhetorical questions and
associated arguments pointing out the various aspects relied upon by the
Examiner from each of the individual references urges us to consider that the
rejection is based on improper hindsight because there is no teaching or
suggestion in Smith, Weeks, nor Piazza for the Examiner’s proposed
modifications. Br. 12-14. We are not persuaded by these arguments
directed to the individual references because there is no requirement that the
references themselves provide the suggestion for the proposed
modifications. See KSR Int’l Co. v. Teleflex, Inc., 550 U.S. 398, 419 (2007)
(“The obviousness analysis cannot be confined by a formalistic conception
of the words teaching, suggestion, and motivation, or by overemphasis on
the importance of published articles and the explicit content of issued
patents.”). Thus, we find unavailing Appellant’s contention that the
Examiner has relied on impermissible hindsight reconstruction. Given the
breadth of Appellant’s claims, we are not persuaded that combining the
respective familiar elements of the cited references in the manner proffered
by the Examiner is “uniquely challenging or difficult for one of ordinary
skill in the art.” See Leapfrog Enters., Inc. v. Fisher-Price, Inc., 485 F.3d
1157, 1162 (Fed. Cir. 2007) (citing KSR, 550 U.S. at 418).
To the extent Appellant’s Argument Summary addresses the
underlying combination of Smith, Weeks and Piazza for each of the rejected
and pending claims 1-23 and 27-30, we find no error in the Examiner’s
Appeal 2011-009044
Application 11/836,542

13
underlying combination of references, reasoning, and rationale for the
combination of Smith, Weeks and Piazza as applied to claims 1-23 and 27-
30.

DECISION
For the above reasons, the Examiner’s rejection of claims 1-18 and
27-30 as unpatentable over Smith, Weeks, and Piazza is AFFIRMED.
The Examiner’s rejection of claims 19 and 22 as unpatentable over
Smith, Weeks, Piazza, and Sakurai is AFFIRMED.
The Examiner’s rejection of claim 20 as unpatentable over Smith,
Weeks, Piazza, Sakurai, and Ferguson is AFFIRMED.
The Examiner’s rejection of claim 21 as unpatentable over Smith,
Weeks, Piazza, and Ferguson is AFFIRMED.
The Examiner’s rejection of claim 23 as unpatentable over Smith,
Weeks, Piazza, Sakurai, and Elliott is AFFIRMED.
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a)(1)(iv).

AFFIRMED

llw