Ex Parte Harris

Board of Patent Appeals and Interferences

Apr 22, 2004

09374122 (B.P.A.I. Apr. 22, 2004)

1
The opinion in support of the decision being entered today was
not written for publication and is not binding precedent of the
Board.
Paper No. 20
UNITED STATES PATENT AND TRADEMARK OFFICE
__________
BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
__________
Ex parte NEAL HARRIS
__________
Appeal No. 2001-1787
Application 09/374,122
___________
ON BRIEF
___________
Before FRANKFORT, STAAB, and NASE, Administrative Patent Judges.
FRANKFORT, Administrative Patent Judge.
DECISION ON APPEAL
This is a decision on appeal from the examiner's final
rejection of claims 1 through 5, which are all of the claims
pending in this application.
Appellant’s invention relates to a personal communication
tool and method designed to assist in opening lines of
Appeal No. 2001-1787
Application 09/374,122
2
communication between at least two people (e.g., between a
therapist and a client/patient). As can be seen in the drawings
of the present application, the tool (10) is specifically
designed for use by a plurality of people and includes a
plurality of sections (12), with each section including a
“fingerwalk labyrinth” (14) for use by one person. As noted on
page 4 of the specification, the labyrinth provides an elongate
path (15) leading from a periphery of the tool to a centerpoint
(18) of the labyrinth and is defined, in the preferred
embodiment, as a continuous groove (15) winding towards the
centerpoint (18). Adjacent portions of the winding groove or
path (15) are separated from one another by an upstanding wall
(20). Further guidance concerning the method of use and the
structure of appellant’s communication tool is found in the
paragraph bridging pages 4 and 5 of the specification, which
reads as follows:
[t]he method of use for the tool 10 is based on the premise
that through quieting of the mind and slowing down of the
body through relaxation, enhanced interpersonal (between two
or more people) and intra-personal communication
(communication that occurs within individuals to help them
become more self-aware) occurs. As each person moves a
finger 22 through a labyrinth 14, a process commonly
referred to as “fingerwalking”, the fingerwalk takes an
individual from the periphery 24 to the centerpoint 18.
Reaching the centerpoint 18 is not the object, rather it is
the communication that occurs along the “journey” to and
Appeal No. 2001-1787
Application 09/374,122
3
from the centerpoint 18 which is most valuable. Because the
labyrinth path 15 contains no blind alleys or dead ends, the
fingerwalk journey becomes one of introspection and self-
awareness (intra-personal communication), and can easily
foster greater interpersonal communication as well.
Independent claims 1, 4 and 5 are representative of the
subject matter on appeal, and a copy of those claims, as
reproduced from the Appendix to appellant’s brief, is attached to
this decision.
The prior art references of record relied upon by the
examiner are:
Handweller et al. 3,625,516 Dec. 7, 1971
(Handweller)
Sprowls 3,774,319 Nov. 27, 1973
Claims 1 through 4 stand rejected under 35 U.S.C. § 102(b)
as anticipated by Handweller.
Claim 5 stands rejected under 35 U.S.C. § 102(b) as being
anticipated by Sprowls.
Rather than reiterate the conflicting viewpoints advanced by
the examiner and appellant regarding the above-noted rejections,
Appeal No. 2001-1787
Application 09/374,122
4
we refer to the final rejection (Paper No. 4, mailed July 20,
2000), the examiner's answer (Paper No. 13, mailed December 28,
2000), to appellant’s brief (Paper No. 12, filed November 27,
2000) and reply brief (Paper No. 14, filed January 31, 2001) for
a full exposition thereof.
OPINION
Having carefully reviewed the anticipation issues raised in
this appeal in light of the record before us, we have made the
determinations which follow.
Looking first to the examiner’s rejection of claims 1
through 4 under 35 U.S.C. § 102(b) as being anticipated by
Handweller, it is the examiner’s opinion with regard to claims 1
and 4 that Handweller discloses a personal communication tool
comprising “a plurality of sections (fig. 2--Examiner considers
notch 22 as a center point for the walls 16. The upper portion
of walls 16 is the first section and the lower portion of walls
16 is the second section.) configured as claimed” (final
rejection, page 2). In response to appellant’s argument that a
maze as in Handweller is not a labyrinth, the examiner cites a
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Application 09/374,122
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dictionary definition of a labyrinth (answer, page 3) and urges
that he “considers a labyrinth and a maze equivalent.” In
response to appellant’s further argument that in the maze puzzle
of Handweller the mazes are situated completely within the
plurality of opaque walls (16) of the device and it would thus be
impossible to consider such mazes as fingerwalk labyrinths, the
examiner urges (final rejection, page 4) that “a finger is
capable of being inserted within the plurality of walls (16) of
Hanweiler [sic, Handweller] enabling the finger to complete the
fingerwalk labyrinths.”
Even if one might consider the maze puzzle of Handweller to
broadly be a “communication tool” that would facilitate
communication between two opposing players, we share appellant’s
view that one of ordinary skill in the art reading appellant’s
specification would understand that the mazes of Handweller are
not labyrinths and, more particularly, are not fingerwalk
labyrinths as set forth in claims 1 and 4 on appeal. Appellant’s
specification (pages 4-5) and the evidence submitted with the
brief on November 27, 2000 make it clear that a “labyrinth,” as
that term is used in the present application, is not a maze. A
labyrinth is unicursal, with one well-defined path (continuous
Appeal No. 2001-1787
Application 09/374,122
1 Reference number 24 presumably denoting the periphery of
the tool does not appear in drawing Figures 1-3. This oversight
should be corrected during any further prosecution of the
application before the examiner.
6
groove 15 of appellant’s application) that leads in a winding
manner to the center of the labyrinth and back out again. As
appellant specifically notes on page 5 of the specification, the
labyrinth of the present application contains no blind alleys or
dead ends and permits each person using the device to move a
finger (22) through and along the continuous groove (15) defining
the labyrinth, a process commonly referred to as “fingerwalking.”
The fingerwalk takes the individual from the periphery (24)1 to
the center point (18) of the labyrinth.
In contrast to the foregoing, mazes are multicursal and
offer a choice of paths, some of which are blind alleys or dead
ends. A maze is a puzzle to be solved and challenges the choice-
making ability of a player/user, requiring logical, sequential
and analytical activity to find the correct path into the maze
and back out again.
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Application 09/374,122
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Given appellant’s clear definition of what a “labyrinth” is
in the context of the present application, it is immediately
apparent that the mazes of Handweller are not the same thing and,
contrary to the examiner’s assertion (answer, page 3), one
skilled in the art would not have viewed Handweller’s mazes as
being equivalent to appellant’s labyrinths. By merely citing to
a dictionary definition to his liking, the examiner may not
disregard or dismiss the definition provided by appellant in the
specification. The definition provided by appellant in the
originally filed specification is that which must be applied,
unless such definition is entirely repugnant to the usual meaning
of the term, which it is not in the present application.
As has been further urged by appellant, the mazes of
Handweller are contained within a flat container of opaque
material and, for that reason, are referred to as being
“invisible.” Thus, like appellant, we are at a loss to
understand exactly how the examiner can conclude (final
rejection, page 4) that “a finger is capable of being inserted
within the plurality of walls (16) of Hanweiler [sic, Handweller]
enabling the finger to complete the fingerwalk labyrinths.”
Appeal No. 2001-1787
Application 09/374,122
2 While “the path” in claim 5, line 9, has no express
antecedent basis, in accordance with appellant’s disclosure at
page 4, we understand the path and the groove defining the
labyrinth to be one and the same (i.e., continuous groove 15).
As can be seen clearly in Figures 2 and 3 of the application, the
continuous groove (15) provides an elongate, winding path from
the periphery of appellant’s tool to the center point (18) of the
labyrinth.
8
Since Handweller clearly does not teach or disclose an
article comprising a plurality of sections wherein each section
incorporates a “fingerwalk labyrinth” for use by one person, we
agree with appellant that Handweller does not anticipate the
personal communication tool set forth in claims 1 through 4 on
appeal, and, accordingly, the examiner’s rejection of those
claims under 35 U.S.C. § 102(b) will not be sustained.
As for the rejection of independent claim 5 under 35 U.S.C.
§ 102(b) based on Sprowls, we observe that claim 5 addresses a
method of using “a personal communication tool comprising at
least two sections, each section incorporating a fingerwalk
labyrinth for use by one person.” The method includes the steps
of a) the one person gaining access to a fingerwalk labyrinth in
one section, b) placing a finger within a peripheral end of a
groove defining a labyrinth, and c) fingerwalking the path at
least toward a center point of the labyrinth.2
Appeal No. 2001-1787
Application 09/374,122
9
In the rejection (final rejection, page 3), the examiner has
not pointed out where in Sprowls we might find a communication
tool “comprising at least two sections, each section
incorporating a fingerwalk labyrinth for use by one person,” as
set forth in appellant’s claim 5. Instead, it appears the
examiner has merely attempted to read the steps of appellant’s
method on the method of using the blocklike elements (10) of
Sprowls for teaching handicapped or blind and retarded children
to understand and make letters and numbers. Since the examiner
has not accounted for the structure of the specific personal
communication tool recited in and involved in appellant’s method
claim 5, for this reason alone, we are justified in refusing to
sustain the examiner’s rejection of claim 5 under 35 U.S.C.
§ 102(b).
As a further point, we note that claim 5 requires a user to
place a finger “within a peripheral end of a groove defining a
labyrinth.” In appellant’s tool, the groove defining a labyrinth
is continuous groove (15), which groove begins at the periphery
of the tool and provides an elongate, winding path from the
periphery of the tool to the center point (18) of the labyrinth.
Thus, we understand the “peripheral end of a groove defining a
Appeal No. 2001-1787
Application 09/374,122
10
labyrinth” in claim 5 on appeal to be an end of the groove (15)
that extends to the periphery of the tool, as can clearly be seen
in Figures 2 and 3 of the application drawings. Since we find no
corresponding structure in Sprowls wherein a groove defining a
labyrinth extends to a periphery of the blocklike elements (10)
therein, we must for this additional reason refuse to sustain the
examiner’s rejection of appellant’s claim 5 under 35 U.S.C.
§ 102(b).
Appeal No. 2001-1787
Application 09/374,122
11
In light of the foregoing, the decision of the examiner to
reject claims 1 through 4 under 35 U.S.C. § 102(b) as anticipated
by Handweller is not sustained. The examiner’s decision to reject
claim 5 under 35 U.S.C. § 102(b) as anticipated by Sprowls is
also not sustained. Thus, the decision of the examiner is
reversed.
REVERSED
CHARLES E. FRANKFORT )
Administrative Patent Judge )
)
)
) BOARD OF PATENT
LAWRENCE J. STAAB )
Administrative Patent Judge ) APPEALS AND
)
) INTERFERENCES
)
JEFFREY V. NASE )
Administrative Patent Judge )
CEF:pgg
Appeal No. 2001-1787
Application 09/374,122
12
Neal Harris
26402 Edgemond Lane
Barrington, IL 60010
Appeal No. 2001-1787
Application 09/374,122
13
APPENDIX
1. A personal communication tool for use by a plurality of
persons, the tool comprising a plurality of sections, each
section incorporating a fingerwalk labyrinth for use by one
person in moving a finger through the labyrinth toward a center
point thereof.
4. A personal communication tool for use by at least two
persons, the tool comprising at least two sections, each section
incorporation a fingerwalk labyrinth for use by one person in
moving a finger through the labyrinth toward a centerpoint
thereof.
5. A method of using a personal communication tool
comprising at least two sections, each section incorporating a
fingerwalk labyrinth for use by one person, the method including
the steps of:
the one person gaining access to a fingerwalk labyrinth in
one section;
placing a finger within a peripheral end of a groove
defining a labyrinth; and
fingerwalking the path at least toward a centerpoint of the
labyrinth.