12353204 (B.P.A.I. Jan. 28, 2011)

Ex Parte Kelley

Board of Patent Appeals and InterferencesJan 28, 2011

12353204 (B.P.A.I. Jan. 28, 2011)

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. 12/353,204 01/13/2009 Scott Kelley 210859.19977 2364 7590 01/28/2011 Kleinberg & Lerner, LLP Suite 1080 2049 Century Park East Los Angeles, CA 90067 EXAMINER KAVANAUGH, JOHN T ART UNIT PAPER NUMBER 3728 MAIL DATE DELIVERY MODE 01/28/2011 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 BOARD OF PATENT APPEALS AND INTERFERENCES ____________________ Ex parte SCOTT KELLEY ____________________ Appeal 2010-003451 Application 12/353,204 Technology Center 3700 ____________________ Before: WILLIAM F. PATE III, JENNIFER D. BAHR, and LINDA E. HORNER, Administrative Patent Judges. PATE III, Administrative Patent Judge. DECISION ON APPEAL1 1 The two-month time period for filing an appeal or commencing a civil action, as recited in 37 C.F.R. § 1.304, or for filing a request for rehearing, as recited in 37 C.F.R. § 41.52, begins to run from the “MAIL DATE” (paper delivery mode) or the “NOTIFICATION DATE” (electronic delivery mode) shown on the PTOL-90A cover letter attached to this decision. Appeal 2010-003451 Application 12/353,204 2 STATEMENT OF CASE Appellant appeals under 35 U.S.C. § 134 from a rejection of claims 1- 20. We have jurisdiction under 35 U.S.C. § 6(b). We affirm. The claims are directed to a closure device for a shoe. Claim 1, reproduced below, is illustrative of the claimed subject matter: 1. A shoe in combination with a closure device comprising: a strap fixedly attached at each end to a shoe upper; a receiving point fixedly attached to the shoe upper; and a fastening mechanism fixedly attached to the strap and adapted to fasten to the receiving point. REFERENCE The prior art relied upon by the Examiner in rejecting the claims on appeal is: Harris US 177,396 May 16, 1876 REJECTIONS Claims 1-20 stand rejected under 35 U.S.C. § 102(b) as being anticipated by Harris. Ans. 3. Claims 1-20 stand provisionally rejected under 35 U.S.C. § 101 as claiming the same invention as that of copending application 12/202,362. Ans. 4. Claims 1-20 stand provisionally rejected on the ground of non- statutory obviousness-type double patenting as being unpatentable over the claims of copending application 11/532,332.2 Ans. 5. Claims 1-20 had previously been rejected over this application on the ground of same 2 This application issued as US 7,837,418 on Nov. 11, 2010. The Examiner will review the provisional status of this rejection when this application is returned to the Technology Center. Appeal 2010-003451 Application 12/353,204 3 invention-type double patenting under 35 U.S.C. § 101. That rejection was withdrawn by the Examiner in the Answer. Ans. 4. OPINION Appellant argues all claims as a single group. Brief 3, l. 17; and 5, l. 5. We choose claim 1 as representative and claims 2-20 will stand or fall with claim 1. See 37 C.F.R. § 41.37(c)(1)(vii). We adopt as our own the Examiner’s findings of fact on page 3 of the Answer. We further adopt as our own the Examiner’s response to Appellant’s arguments found on pages 6 and 7 of the Answer. The Examiner’s finding that claim 1 lacks novelty over Harris has not been persuasively rebutted by the Appellant. Accordingly, the rejection of claims 1-20 under 35 U.S.C. § 102 is affirmed. The Appellant has chosen not to argue the provisional same invention- type double patenting rejection under 35 U.S.C. § 101 and the provisional non-statutory obviousness-type double patenting rejection found on pages 4 and 5 of the Answer. See Reply Br. 3. Accordingly, the Examiner’s provisional double patenting rejections of claims 1-20 are summarily affirmed. DECISION The rejection of claims 1-20 under 35 U.S.C. § 102 is affirmed. The provisional rejection of claims 1-20 under 35 U.S.C. § 101 same invention-type double patenting is affirmed. The provisional rejection of claims 1-20 under non-statutory obviousness-type double patenting is affirmed. Appeal 2010-003451 Application 12/353,204 4 No time period for taking any subsequent action in connection with this appeal may be extended under 37 C.F.R. § 1.136(a). See 37 C.F.R. § 1.136(a) (1)(iv). AFFIRMED nlk Kleinberg & Lerner, LLP Suite 1080 2049 Century Park East Los Angeles CA 90067