11215241 (B.P.A.I. Mar. 26, 2009)

Ex Parte Grilliot et al

Board of Patent Appeals and InterferencesMar 26, 2009

11215241 (B.P.A.I. Mar. 26, 2009)

UNITED STATES PATENT AND TRADEMARK OFFICE ____________________ BEFORE THE BOARD OF PATENT APPEALS AND INTERFERENCES ____________________ Ex parte WILLIAM L. GRILLIOT and MARY I. GRILLIOT ____________________ Appeal 2008-6167 Application 11/215,241 Technology Center 3600 ____________________ Decided:1 March 26, 2009 ____________________ 1 The two-month time period for filing an appeal or commencing a civil action, as recited in 37 C.F.R. § 1.304, begins to run from the decided date shown on this page of the decision. The time period does not run from the Mail Date (paper delivery) or Notification Date (electronic delivery). Before WILLIAM F. PATE, III, MICHAEL W. O'NEILL and STEFAN STAICOVICI, Administrative Patent Judges. PATE, III, Administrative Patent Judge. DECISION ON APPEAL STATEMENT OF CASE Appeal 2008-6167 Application 11/215,241 Appellants appeal under 35 U.S.C. § 134 from a rejection of claims 1- 3. We have jurisdiction under 35 U.S.C. § 6(b). The claims are directed to an improvement in a drag harness that discourages abrasion of cloth, e.g., the clothing of the wearer. Spec. p. 1-2. Claim 1 is illustrative of the claimed subject matter and is reproduced below: 1. In a drag harness comprising two arm loops, each of which is adapted to receive a separate arm of a wearer, and gripping means joined to the arm loops, whereby a rescuer grasping the gripping means can drag the wearer, via the drag harness, if the wearer is lying in a supine position, an improvement wherein the arm loops are made from a flexible, tubular, non-abrading material. The prior art relied upon by the Examiner in rejecting the claims on appeal is: Palmer US 5,785,146 Jul. 28, 1998 Yocco US 6,205,584 B1 Mar. 27, 2001 Larson US 6,244,379 B1 Jun. 12, 2001 Claims 1-2 stand rejected under 35 U.S.C. § 103(a) as being unpatentable over Yocco in view of Palmer. Claim 3 stands rejected under 35 U.S.C. § 103(a) as being unpatentable over Yocco and Palmer and further in view of Larson. Claims 1 and 2 are argued as a group and Appellants’ arguments with respect to claim 3 are based solely upon those arguments presented for claims 1 and 2. Br. 6. Appellants do not contest the Examiner's interpretation of Yocco as it pertains to claim 1. Appellants 2 Appeal 2008-6167 Application 11/215,241 contend, however, that by combining Yocco with Palmer the Examiner improperly relied upon hindsight to determine the prior art relevant to the obviousness analysis (Br. 3-4; Re. Br. 2) and the combination of Yocco and Palmer fails to disclose or suggest the claimed, “flexible, tubular, non- abrading material” (Br. 4; Re. Br. 3-4). ISSUE Have Appellants established that the Examiner has erred in rejecting claims 1-3 by relying on Palmer to teach the claimed tubular, non-abrading material? FINDINGS OF FACT 1. The present application is a continuation-in-part of United States Patent Application Serial Number 10/772,560 published as United States Patent Application Publication Number US 2005/0173188 A1 (hereinafter “Lewis”). Spec. 1 ll. 4-7. Lewis illustrates a drag harness 10 having two arm loops 20, each adapted to receive a separate arm of a wearer (Figs. 1- 2; para. [0010]), gripping means 30 joined to the arm loops 20 whereby a rescuer grasping the gripping means 30 can drag the wearer via the drag harness 10 if the wearer is lying in a supine position (para. [0010]). The drag harness in Lewis may be, “made from a single piece of strapping, which may be advantageously made from a flame-resistant material, such as NomexTM material or KevlarTM material.” Para. [0011]. 2. Appellants perceive a problem of the Lewis design to be that arm loops 20 made from strapping tend to excessively abrade adjacent cloth. Such abrasion would damage the protective cloth linings of the coats that may be worn over drag harnesses of the Lewis design. Spec. 1, ll. 15-17. 3 Appeal 2008-6167 Application 11/215,241 3. The Appellants’ claimed invention is similar to the design described in Lewis (Spec. 2, l. 11) except that, “[a]s contemplated by this invention, the arm loops 12 are made from a flexible, tubular, flame-resistant, non- abrading material, such as KevlarTM polyamide fibers, which are woven into flexible tubes” (Spec. 2, ll. 18-20). 4. Appellants explicitly define “non-abrading” to mean, “having a minimal tendency to abrade adjacent cloth, such as a cloth liner of a protective coat worn over the arm loops 12 of the drag harness 10.” Spec. 2, ll. 23- 24. 5. Yocco discloses a drag harness 10 constructed from a single strap 14 of flame resistant material (col. 3, ll. 46-47) having two arm loops 106, 108 adapted to receive a separate arm of a wearer 46, 54 (col. 5, ll. 2-4), and gripping means (112 col. 5, ll. 1-2). Yocco does not disclose that the arm loops are made from a flexible, tubular, non-abrading material. 6. The Palmer invention relates to supporting a load from a support member, specifically supporting an arborist in a tree. Col. 1, ll. 5-8. Palmer acknowledges the problem of climbing devices and methods that cause abrasion damage to the tree. Col. 1, ll. 50-52. 7. To provide vertical support of the arborist Palmer places a compliant element 20 in the crotch 62 of a tree 58 (Fig. 6B). The compliant element may be, “comprised of a single, continuous length of high strength tubular webbing which has been flattened” (col. 4, ll. 5-7) or, “manufactured from natural, synthetic, wire or wire reinforced rope” (col. 5, ll. 65-67). A “compliant sheathing 146 may be employed to provide additional protection to the tree. Such sheathing 146 may, for example, be made of leather, rubber, polyester or other suitable material and may 4 Appeal 2008-6167 Application 11/215,241 be of generally tubular construction through which the compliant element 120 passes.” Col. 6, ll. 14-19. Palmer further states, “instead of being manufactured from tubular nylon webbing, other materials such as polyester, flexible metal wire mesh or Kevlar, and other configurations such as flat webbing may be utilized.” Col. 9, ll. 41-44. 8. Palmer teaches, “[t]he invention has broad applicability to any situation in which a load is desired to be supported temporarily or permanently from a support structure…including…applications in search and rescue.” Col. 10, ll. 30-34. Palmer does not specifically state how the invention would be used in a search and rescue application. 9. Kevlar® may be manufactured to have a wide range of physical properties useful for a wide range of applications. See ENCYCLOPEDIA OF POLYMER SCIENCE AND TECHNOLOGY pp. 558-584 (Under Polyamides, Aromatic; vol. 3, 2001). PRINCIPLES OF LAW The examiner bears the initial burden of factually supporting any prima facie conclusion of obviousness. The key to supporting any prima facie conclusion of obviousness under 35 U.S.C. § 103 is the clear articulation of the reason(s) why the claimed invention would have been obvious. The Supreme Court in KSR International Co. v. Teleflex Inc., 550 U.S. 398, ___, 127 S. Ct. 1727, 1731 (2007) noted that the analysis supporting a rejection under 35 U.S.C. § 103 should be made explicit. The Federal Circuit has stated that “rejections on obviousness grounds cannot be sustained with mere conclusory statements; instead, there must be some articulated reasoning with some rational underpinning to support the legal 5 Appeal 2008-6167 Application 11/215,241 conclusion of obviousness.” In re Kahn, 441 F.3d 977, 988 (Fed. Cir. 2006), cited with approval in KSR, 550 U.S. at ___, 127 S. Ct. at 1741. When making a determination of obviousness “[a]ll words in a claim must be considered in judging the patentability of that claim against the prior art.” In re Wilson, 424 F.2d 1382, 1385. Where no explicit definition for a term is given in the specification, the term should be given its ordinary meaning and broadest reasonable interpretation. E-Pass Technologies, Inc. v. 3Com Corporation, 343 F.3d 1364, 1368 (Fed. Cir. 2003). The ordinary and customary meaning of a claim term is the meaning that the term would have to a person of ordinary skill in the art in question at the time of the invention. Phillips v. AWH Corp., 415 F.3d 1303, 1319 (Fed. Cir. 2005) (en banc). An applicant is entitled to be his or her own lexicographer and may rebut the presumption that claim terms are to be given their ordinary and customary meaning by clearly setting forth a definition of the term that is different from its ordinary and customary meaning(s). See In re Paulsen, 30 F.3d 1475, 1480 (Fed. Cir. 1994). ANALYSIS The Examiner states that, “Palmer shows a support strap 20 made from a tubular material that may be nylon or Kevlar.” Ans. 4. From this premise the Examiner concludes that it would have been obvious to modify the drag harness disclosed in Yocco (Fact 5) to be made from a tubular Kevlar® material, as taught by Palmer, “to enable a strong lightweight non- abrading support.” Ans. 4. Though Palmer doesn’t explicitly disclose a tubular Kevlar® design, both are within the matrix of possible compositions 6 Appeal 2008-6167 Application 11/215,241 for the compliant element of the support strap (Fact 7) which makes it reasonable to read Palmer as teaching a compliant support element made from a tubular material that may be Kevlar®. Ans. 4. This premise, however, does not necessarily support the conclusion that by simply making an element tubular and Kevlar® it will necessarily be, non-abrading within the meaning of that term as it is recited in claim 1. It is true that Palmer has recognized the problem of causing abrasion damage to trees (Fact 6), and it follows that Palmer would seek materials to construct the compliant member that were non-abrading to trees. In claim 1, however, the term non-abrading must be interpreted according to the explicit definition provided in Appellants’ Specification; “non-abrading means having a minimal tendency to abrade adjacent cloth.” The use of non-abrading material in the present application is seen as an improvement upon Lewis which already employs Kevlar® to construct the drag harness disclosed therein (Facts 1-3). Thus, using Kevlar®, in and of itself, does not necessarily yield a material that is non-abrading to cloth. Similarly a tubular or flattened tubular construction will not necessarily yield the claimed non-abrasive characteristics. Appellants have specifically selected a particular tubular Kevlar® construction that is non-abrading to cloth and that limitation must be considered in judging the patentability of the claimed invention. Given the wide range of properties an element made of tubular Kevlar® may possess (See Fact 9) it amounts to speculation and conjecture to conclude that the tubular Kevlar® formulation of Palmer, which may be non-abrasive to trees, is necessarily non-abrasive to adjacent cloth where Palmer is silent on that issue. The fact that Palmer mentions in passing that the support apparatus has applicability in search and rescue does not cure this deficiency. Palmer 7 Appeal 2008-6167 Application 11/215,241 is silent as to specifically how the support apparatus can be used in search and rescue, presumably it would still be for climbing and wrapped around a tree or other structure (See Fact 8). There is no suggestion in Palmer to use the apparatus in a fashion similar to a drag harness by wrapping the compliant element around a person, nor is there a suggestion to select a material that would be non-abrading to cloth if the apparatus were used in that fashion. Palmer, therefore, does not teach or suggest the claimed “non- abrading material.” For this reason the combination of Yocco and Palmer does not support the rejection of claims 1 and 2 under 35 U.S.C. § 103(a). Since Larson does not cure this deficiency, the rejection of claim 3 under 35 U.S.C. § 103(a) as being unpatentable over Yocco and Palmer and further in view of Larson also cannot be sustained. Appellants’ remaining arguments are moot and are not addressed herein. CONCLUSION OF LAW On the record before us, Appellants have established that the Examiner erred in rejecting claims 1-2 under 35 U.S.C. § 103(a) as being unpatentable over Yocco in view of Palmer and claim 3 under 35 U.S.C. § 103(a) as being unpatentable over Yocco and Palmer and further in view of Larson. DECISION For the above reasons, the Examiner's rejections of claims 1-3 are reversed. REVERSED 8 Appeal 2008-6167 Application 11/215,241 LV: Wood, Phillips, Katz, Clark & Mortimer Citicorp Center Suite 3800 500 West Madison Street Chicago, IL 60661-2511 9