14014986 (P.T.A.B. Nov. 13, 2017)

Ex Parte Ingram

Patent Trial and Appeal BoardNov 13, 2017

14014986 (P.T.A.B. Nov. 13, 2017)

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. A-75165-2 6200 EXAMINER LONG, ROBERT FRANKLIN ART UNIT PAPER NUMBER 3721 MAIL DATE DELIVERY MODE 14/014,986 08/30/2013 40461 7590 11/13/2017 Law Offices of Edward S. Wright 1259 El Camino Real, No. 400 Menlo Park, CA 94025 Kenneth Robert Ingram 11/13/2017 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 KENNETH ROBERT INGRAM Appeal 2016-006152 Application 14/014,9861 Technology Center 3700 Before STEFAN STAICOVICI, MICHAEL L. HOELTER, and FREDERICK C. LANEY, Administrative Patent Judges. STAICOVICI, Administrative Patent Judge. DECISION ON APPEAL STATEMENT OF THE CASE Kenneth Robert Ingram (“Appellant”) appeals under 35 U.S.C. § 134(a) from the Examiner’s decision in the Final Action (dated February 11, 2015, hereafter “Final Act.”) rejecting claims 1—14. We have jurisdiction over this appeal under 35 U.S.C. § 6(b). SUMMARY OF DECISION We REVERSE. 1 Implus Footcare, LLC is the applicant as provided in 37 C.F.R. § 1.46 and McCrane, Inc., dba Harbinger is identified as the real party of interest in Appellant’s Appeal Brief (filed July 13, 2015, hereinafter “App. Br.”). App. Br. 1. Appeal 2016-006152 Application 14/014,986 INVENTION Appellant’s invention relates to “weight lifting and fitness equipment.” Spec. 1,1. 5. Claims 1 and 8 are independent. Claim 1 is illustrative of the claimed invention and reads as follows: 1. A weight lifting strap wrapped in helical fashion about a bar and gripped by a hand with opposite sides of the strap facing the bar and the hand, the strap being fabricated of a woven material with rubberized strands woven into the material on the side which faces the bar but not on the side which faces the hand. REJECTIONS I. The Examiner rejected claims 1—5, 7—12, and 14 under 35 U.S.C. § 103(a) as being unpatentable over Pereira et al. (US 2007/0267084 Al, published Nov. 22, 2007, hereinafter “Pereira”), Skinner (US 3,893,604, issued July 8, 1975), and McBride (US 7,004, 889 B2, issued Feb. 28, 2006). II. The Examiner rejected claims 6 and 13 under 35 U.S.C. § 103(a) as being unpatentable over Pereira, Skinner, McBride, and Parker (US 5,813,950, issued Sept. 29, 1998). Rejection I The Examiner finds that Pereira discloses most of the limitations of independent claims 1 and 8, including, inter alia, a strap 10 of woven material 30 forming woven layers 34, 38 for carrying luggage (weight lifting) having rubberized strands 44 woven into the material on one side or more. Final Act. 4—5 2 Appeal 2016-006152 Application 14/014,986 (citing Pereira, paras. 2, 3, 7, 103—115, Figs. 1—7). The Examiner further finds that Pereira fails to disclose the strap is for weight lifting and is wrapped in helical fashion about a bar and gripped by a hand with opposite sides of the strap facing the bar and the hand with the rubberized strands on the side which faces the bar but not on the side which faces the hand. Id. at 5. Nonetheless, the Examiner finds that: (1) Skinner discloses a garment strap made of woven material with rubberized strands 28, woven into the material, on one side facing a shoulder so as to not slip off the shoulder (citing Skinner, col. 1,11. 48—59 and 63—67, col. 2,11. 1— 26, and Figs. 1—3); and (2) McBride discloses a strap 10, 12 wrapped in a helical manner about a bar with rubberized strands 26/28 woven into the material, that although are arranged on a side facing a user’s hand, nonetheless (as per the Examiner), “the strap can be turned around to have [the] rubberized] side face the bar if [so] desired.” Id. at 5— 6 (citing McBride, col. 2,11. 60-67, col. 4,11. 8—17, 20-55, and Figs. 4, 8). The Examiner concludes that as Pereira discloses a strap with only one side of rubberized layer for lifting and carrying luggage, it would have been obvious to a person having ordinary skill in the art at the time of the invention to modify the strap of Pereira ... to be used for weight lifting with a bar and be wrapped in helical fashion about a bar and gripped by a hand as taught by McBride with opposite sides of the strap facing the bar and the hand with the rubberized strands on the side which faces the bar but not on the side which faces the hand for the desired gripping as taught and evidenced by Skinner having a gripping side face away from the hand and face a shoulder to not slip off the shoulder. Id. at 7. 3 Appeal 2016-006152 Application 14/014,986 Appellant argues that McBride teaches away from modifying the strap of Pereira, according to the teachings of Skinner and McBride. See App. Br. 5. According to Appellant, McBride specifically discloses that the side of its strap that faces the weight bar should not be provided with anti-slip material so that when a user is overwhelmed by a load and is forced to drop the weight, the strap can easily disengage from the weight bar, thereby enhancing user safety and security. Id. at 4; see also McBride, col. 4,1. 65—col. 5,1. 3. At the outset, we note the language in independent claim 1 of “[a] weight lifting strap wrapped in helical fashion about a bar . . . with rubberized strands woven into the material on the side which faces the bar but not on the side which faces the hand.” Appeal Br., App’x. A. Similarly, independent claim 8 recites “[wjeight lifting apparatus, comprising an elongated strap wrapped in helical fashion about a bar . . . with rubberized strands woven into the material on the side facing toward the bar but not on the side facing away from the bar.” Id. As such, because the recitations of claims 1 and 8 cannot be satisfied without the presence of a bar, a person having ordinary skill in the art would understand that the bar is part of the claimed weight lifting strap, as per claim 1, and weight lifting device, as per claim 8. Pereira discloses a lifting strap 10 having a frictionally enhanced top layer 34 woven from rubber threads 22A and nylon threads 22B, and non-frictionally enhanced layer 38 woven from nylon threads 14. See Pereira, paras. 110, 111, Figs. 1 A, IB. Skinner discloses a strap 14 having a non-slip surface 28 for preventing strap 14 from slipping off the shoulder of a user. See Skinner, col. 1,1. 66— col. 2,1. 2, Fig. 4. McBride discloses a strap 10, 12, which wraps around a weight bar in a helical manner, and includes an anti-slip coating 28 on a surface 4 Appeal 2016-006152 Application 14/014,986 facing a user’s hand, but not on a surface facing a weight bar. See McBride, col. 4, 1. 23—col. 5,1. 3, Fig. 8. As such, the Examiner’s rejection modifies Pereira’s lifting strap 10 to helically wrap Pereira’s strap around McBride’s bar such that Pereira’s ffictionally enhanced layer 34 faces McBride’s bar, to obtain desired gripping, as taught by Skinner. Teaching away requires a reference to actually criticize, discredit, or otherwise discourage the claimed solution. See In re Fulton, 391 F.3d 1195, 1201 (Fed. Cir. 2004). In this case, McBride discourages helically wrapping Pereira’s strap around McBride’s bar such that Pereira’s frictionally enhanced layer 34 faces McBride’s bar, because McBride specifically discloses not providing an anti-slip surface on the surface of strap 10, 12 facing a weight bar. See App. Br. 4. According to McBride, when a user is overwhelmed by a load and is forced to drop the weight, strap 10, 12, due to its helical wrap, can disengage with ease from the weight bar, and thus, enhance user safety and security. See McBride, col. 4,1. 66- col. 5,1. 3, Fig. 8. For the same reason, a person of ordinary skill in the art would not helically wrap Pereira’s strap around McBride’s bar such that Pereira’s frictionally enhanced layer 34 faces McBride’s bar. We, thus, do not agree with the Examiner’s position that although “McBride shows the strap having rubberized strands facing ... [a user’s] hand in [F]ig. 8 ... the strap can be turned around to have rubber side face the bar (if desired).” Final Act. 6. In conclusion, for the foregoing reasons, we do not sustain the rejection under 35 U.S.C. § 103(a) of claims 1—14 as unpatentable over Pereira, Skinner, and McBride. 5 Appeal 2016-006152 Application 14/014,986 Rejection II The Examiner’s use of Parker’s disclosure does not remedy the deficiency of the Examiner’s combination of the teachings of Pereira, Skinner, and McBride discussed supra. See Final Act. 12. Accordingly, for the same reasons as discussed above, we also do not sustain the rejection under 35 U.S.C. § 103(a) of claims 6 and 13 as unpatentable over Pereira, Skinner, McBride, and Parker. SUMMARY The Examiner’s decision to reject claims 1—14 under 35 U.S.C. § 103(a) is reversed. REVERSED 6