Ex Parte Janowiak et al

Patent Trials and Appeals Board

Jan 16, 2019

14529274 - (D) (P.T.A.B. Jan. 16, 2019)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
14/529,274 10/31/2014
26659 7590 01/16/2019
RAGGIO & DINNIN, P.C.
6585 ROCHESTER ROAD, SUITE 106
TROY, MI 48085
FIRST NAMED INVENTOR
Anthony R. Janowiak
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
ATTORNEY DOCKET NO. CONFIRMATION NO.
0942-00045 5014
EXAMINER
MEKHAEIL, SHIREF M
ART UNIT PAPER NUMBER
3634
MAIL DATE DELIVERY MODE
01/16/2019 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 ANTHONY R. JANOWIAK, DAVID L. HUFF, and
JASON WILLIAM BARNES
Appeal 2018-003410
Application 14/529,274 1
Technology Center 3600
Before STEFAN STAICOVICI, GEORGE R. HOSKINS, and
BRENT M. DOUGAL, Administrative Patent Judges.
STAICOVICI, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE-
Anthony R. Janowiak et al. ("Appellants") appeal under 35 U.S.C.
§ 134(a) from the Examiner's decision in the Final Office Action (dated Apr.
12, 2017, hereinafter "Final Act.") rejecting claims 1-15. We have
jurisdiction over this appeal under 35 U.S.C. § 6(b ).
1 Irvin Automotive Products, Inc. is the applicant and identified as the real
party in interest in Appellants' Appeal Brief (filed Sept. 8, 2017, hereinafter
"Appeal Br."). Appeal Br. 2.
Appeal2018-003410
Application 14/529,274
We REVERSE.
SUMMARY OF DECISION
INVENTION
Appellants' invention is related "to a gear loop for use on a climbing
harness." Spec. para. 1.
Claim 1, the sole independent claim, is representative of the claimed
invention and reads as follows:
1. A gear loop, said gear loop comprising:
a generally U shaped body, said body is made of a first
predetermined material, said body having a first end and a
second end;
a first end member attached to said first end of said body;
a second end member attached to said second end of said
body, said first and second end members are made of a second
predetermined material; and
said second predetermined material of said first and
second end members provides a hinge type effect for the gear
loop which allows the gear loop to fold back toward a user of
the gear loop.
REJECTIONS
I. The Examiner rejects claim 11 under 35 U.S.C. § 112(b) as being
indefinite.
II. The Examiner rejects claims 1, 2, 6, and 11-15 under 35 U.S.C.
§ 102(a)(l) as being anticipated by Petzl et al. (US 7,967,109 B2, iss.
June 2 8, 2011, hereinafter "Petzl"). 2
2 We view the Examiner's inclusion of claim 5 in the heading of this
rejection as a typographical error. See Final Act. 4.
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Application 14/529,274
III. The Examiner rejects claim 5 under 35 U.S.C. § 103 as being
unpatentable over Petzl.
IV. The Examiner rejects claims 3, 4, and 7-10 under 35 U.S.C. § 103 as
being unpatentable over Petzl and Pytlewski (US 6,604,256 Bl, iss.
Aug. 12, 2003).
ANALYSIS
Rejection I
The Examiner finds that the limitation "said first end member
encapsulates said first end and said second end member encapsulates said
second end," of claim 11, is indefinite because "it is not clear how the first
and second ends are encapsulated." Final Act. 3. According to the
Examiner, because claim 5 recites "first end having a first and second finger,
said first end having a cross beam," it is not clear how the fingers and cross
beam encapsulate the first end and which components are being
encapsulated, as Appellants' drawings do not show any elements that are
encapsulated. Id.; see also Appeal Br. 18 (Claims App'x.).
Appellants argue that the manner in which encapsulation of the first
end and the second end by the first end member and the second end member,
respectively, is adequately illustrated in Figure 2 and described in paragraph
38 of Appellants' Specification. Appeal Br. 4.
In response, the Examiner notes that an ordinary and customary
definition of the term "encapsulate" is "[t]o encase in or as if in a capsule."
Examiner Answer 3--4 ( dated Dec. 11, 2017, hereinafter "Ans.") ( citing
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Application 14/529,274
https://www.thefreedictionary.com/encapsulate). Thus, the Examiner takes
the position that
[T]he first and second ends cannot be "encased as if in a
capsule", because a capsule covers an element at 3 60 degrees in
all 3 dimensions while it is clear that at least the half of the first
or second end that is attached to the rest of the U-shaped body
... cannot be considered to be encapsulated by the first or
second end members respectively.
Id. Further, the Examiner provides an annotated Figure 2 of Appellants'
Drawings, illustrated below, to show the portion of the claimed end that is
not encapsulated:
,a
FIG.2
The Examiner's annotated Figure 2 of Appellants' Drawings illustrates the
end portion of body 12 that according to the Examiner is not encapsulated by
end member 14.
Although we appreciate the Examiner's definition of the term
"encapsulate," nonetheless, in Appellants' Figure 2 first member 14 is
shown as encasing (encapsulating) first end ofbody 12. An ordinary and
customary meaning of the term "end" is "the part of an area that lies at the
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Application 14/529,274
boundary."3 Hence, because first end member 14 is overmolded onto first
end of body 12, as per the description in paragraph 38 of Appellants'
Specification, the boundary of body 12, that is, the first end of body 12, is
"encapsulated" by the first member 14, as called for by claim 11. We, thus,
agree with Appellants that "claim 11 is definite." Reply Brief 2 (filed Feb.
8, 2018, hereinafter "Reply Br.").
Lastly, we note that claim 11 does not depend from claim 5, as the
Examiner suggests, but rather from claim 2; and, thus, does not include the
limitation of "first end having a first and second finger, said first end having
a cross beam." See Appeal Br. 18-19 (Claims App'x.). As such, we do not
need to address this limitation in the context of the Examiner's
indefiniteness rejection.
In conclusion, for the foregoing reasons, we do not sustain the
rejection of claim 11 under 35 U.S.C. § 112(b) as being indefinite.
Rejection II
The Examiner finds that Petzl discloses a gear loop 6 including, inter
alia, a generally U-shaped body 20 having first and second ends, a first end
member 26 attached to the first end of body 20, and a second end member
180 attached to the second end of body 20. Final Act. 4 ( citing Petzl, Fig.
6).
Appellants argue that because Petzl specifically discloses securely
fastening auxiliary strap 26 to lining structure 11 by seams 180, Petzl
3 See https://www.merriam-webster.com/dictionary/end (last visited
January 8, 2019).
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Appeal2018-003410
Application 14/529,274
"discloses that the purported first end member, identified as component 26
by the Examiner and the purported second end member, identified as
component 180, clearly are not attached in any manner to component 20,
identified as the body by the Examiner." Appeal Br. 6 (citing Petzl, col. 3,
11. 1-3).
In response, the Examiner provides an annotated Figure 6 of Petzl,
that we further annotate, as illustrated below, to show how first and second
end members are attached to the ends 22 ofU-shaped body 20:
Loop/portion inside
circle is first end
member
Figure 6
Loop/ portion inside
circle is second end
member
22
24 25
The Examiner's and the Board's annotated Figure 6 of Petzl shows what the
Examiner considers to be first and second ends 22 ofU-shaped body 20
attached to respective first and second end members formed by auxiliary
strap 26.
The Examiner asserts that because "it may be hard to point out exactly
the first and second ends of the body since the exact ends appear right under
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Application 14/529,274
the belt rings 25," nonetheless, "the first and second ends claimed need not
be terminal ends; and consequently a portion of an arbitrary length that
extends from a point on the body up to the terminal end can in its entirety be
considered 'a first or second end'." Ans. 6.
We do not agree with the Examiner's position that "the first and
second ends claimed need not be terminal ends." Id. (emphasis added). As
noted above, an ordinary and customary meaning of the term "end" is "the
part of an area that lies at the boundary." Hence, we construe the limitation
of "a first end and a second end" of independent claim 1 as the terminal
portions of the claimed U-shaped body. Such an interpretation is consistent
with Appellants' Specification which describes body 12 as having "first and
second arms ... [that] form the ends of the gear loop body 12 ... [ and
which are] flat." Spec. 9; see also Spec., Fig. 3; In re Am. Acad. of Sci. Tech
Ctr., 367 F.3d 1359, 1364 (Fed. Cir. 2004).
We appreciate that Figure 6 of Petzl illustrates ends 22 of U-shaped
body 20, as well as seams 180, as being located within belt rings 25.
However, because Petzl specifically discloses that auxiliary strap 26 is
"securely fastened" to lining 11 by seams 180, we agree with Appellants that
"component 26 cannot be attached to component 20 and is in fact only
attached to a lining structure [11] by seam 180." Reply Br. 4; see also Petzl,
col. 3, 11. 1-3. The Examiner's position that auxiliary strap 26 is attached to
U-shaped body 20 requires speculation on the Examiner's part. For
example, as auxiliary strap 26 is looped about strengthening strap 12 to
attach to lining structure 11 by seams 180, the ends 22 ofU-shaped body 20
may simply abut seams 180 without being attached thereto, and, thus, both
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seams 180 and ends 22 ofU-shaped body 20 are located within belt rings 25.
Hence, we agree with Appellants that U-shaped body "20 and auxiliary strap
26 clearly are separate components and are in no way attached to one
another at the end of component 20." Reply Br. 4.
Accordingly, for the foregoing reasons, we do not sustain the rejection
of claims 1, 2, 6, and 11-15 under 35 U.S.C. § 102(a)(l) as anticipated by
Petzl.
Rejections III and IV
The Examiner's modification of Petzl and use of the Pytlewski
disclosure does not remedy the deficiency of Petzl discussed supra. Final
Act. 7-10.
Therefore, for the same reasons discussed above, we also do not
sustain the rejections under 35 U.S.C. § 103 of claim 5 as unpatentable over
Petzl and of claims 3, 4, and 7-10 as unpatentable over Petzl and Pytlewski.
SUMMARY
The Examiner's decision to reject claim 11 under 35 U.S.C. § 112(b)
as being indefinite is reversed.
The Examiner's decision to reject claims 1-15 under 35 U.S.C. §§
102(a)(l) and 103 is reversed.
REVERSED
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