Ex Parte Kilbey

Patent Trial and Appeal Board

Jan 9, 2018

13886363 (P.T.A.B. Jan. 9, 2018)

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.
13/886,363 05/03/2013 Bryan E. Kilbey 21472-26813 6798
38642 7590 01/09/2018
WTT FY HORTON
EXAMINER
215 SOUTH MONROE STREET NELSON, KERI JESSICA
2ND FLOOR
TALLAHASSEE, EL 32301 ART UNIT PAPER NUMBER
3772
MAIL DATE DELIVERY MODE
01/09/2018 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 BRYAN E. KILBEY
Appeal 2017-005396
Application 13/886,363
Technology Center 3700
Before PHILIP J. HOFFMANN, BRADLEY B. BAYAT, and
AMEE A. SHAH, Administrative Patent Judges.
HOFFMANN, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Pursuant to 35 U.S.C. § 134(a), Appellant1,2 appeals from the
Examiner’s decision to reject claims 1—20. We have jurisdiction under
35 U.S.C. § 6(b).
We AFFIRM.
1 When we refer to the Appeal Brief, we refer to the Appeal Brief filed on
July 18, 2016. Further, although the pages of the Appeal Brief are
unnumbered, we number the pages sequentially, numbering the page titled
“AMENDED APPEAL BRIEF OF PETITIONER” as page 1.
2 Appellant identifies the real party in interest as Bryan E. Kilbey, although
“[t]he invention is licensed for use by Professional Products, Inc.” Appeal
Br. 1.
Appeal 2017-005396
Application 13/886,363
According to Appellant, “the invention comprises a wrist orthotic[,]
which may be adjusted to accommodate a wide variety of anatomical
differences.” Spec. 2. Claims 1 and 11 are the only independent claims on
appeal. Below, we reproduce claim 1 as illustrative of the appealed claims.
1. A method for attaching a wrist splint to a patient
having a hand, a wrist, and a forearm, comprising:
a. providing a wrist splint, including
i. a top panel having a hand end and a forearm end,
ii. a bottom panel having a hand end and a forearm
end, said bottom panel offset from said top panel by a
radius gap,
iii. providing a radius tab,
iv. providing a radius lace, said radius lace
spanning said radius gap, with said radius lace anchored
to a first lace anchor on said top panel proximate said
hand end of said top panel, passing through a first eye on
said bottom panel, through a second eye on said radius
tab, through a third eye on said bottom panel, through a
fourth eye on said top panel, through a fifth eye on said
top panel, through a sixth eye on said bottom panel,
through a seventh eye on said radius tab, through an
eighth eye on said bottom panel, and anchored to a
second lace anchor on said top panel proximate said
forearm end of said top panel;
b. said second and seventh eyes on said radius tab being
configured to allow said radius lace to slide easily therethrough
so that moving said radius tab in a direction parallel to said
radius gap continuously varies a distance,
i. between said first eye and said second eye,
ii. between said second eye and said third eye,
iii. between said sixth eye and said seventh eye,
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Appeal 2017-005396
Application 13/886,363
iv. between said seventh eye and said eighth eye,
thereby altering an angle between said radius tab and said
wrist splint;
c. installing said wrist splint on said hand, wrist, and
forearm, of said patient;
d. creating a desired divergence angle between said top
panel and said bottom panel by offsetting said radius tab a
selected distance from said hand end of said top panel; and
e. attaching said radius tab to said wrist splint in a fixed
position.
REJECTIONS AND PRIOR ART
The Examiner rejects claims 1—3, 7—9, 11—13, and 17—19 under
35 U.S.C. § 103(a) as unpatentable over Hely (US 6,893,410 Bl, iss.
May 17, 2005) and Harris (US 5,769,804, iss. June 23, 1998).
The Examiner rejects claims 4—6, 10, 14—16, and 20 under 35 U.S.C.
§ 103(a) as unpatentable over Hely, Harris, and Fritsch (US 7,175,603 B2,
iss. Feb. 13, 2007).
ANALYSIS
Obviousness rejection based on Hely and Harris
Independent claim 1 and its dependent claims 2, 3, and 7—9
As set forth above, independent claim 1 recites, among other
recitations “said second and seventh eyes on said radius tab being configured
to allow said radius lace to slide easily therethrough.” Appeal Br., Claims
App. Appellant essentially argues that the rejection of claim 1 is in error
because “neither [Hely nor Harris teaches or] suggests a structure allowing
the radius tab to slide along the lace.” Id. at 24. More specifically,
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Appeal 2017-005396
Application 13/886,363
Appellant argues that using “[t]he combination of Hely and Harris to declare
claim 1 obvious is [based on] impermissible hindsight,” because although
“Harris has eyes on the radius tab [(i.e., strap 32a)]. . ., the rest of the
Harris structure (the use of the solid fastener 37) makes it impossible to slide
the Harris tab along the laces.” Id. (citation omitted). Based on our review,
however, Appellant does not persuade us that this understanding of Harris is
correct.
Specifically, we agree with the Examiner that, notwithstanding that
Harris does not describe that strap 32a slides on lace 30, as shown in
Harris’s Figure 4 (for example),
lace (30) of the brace taught by Harris extends on either side of
the fastener (37) between eyelets (361, 363) such that some
degree of movement of the lace through those eyelets will be
enabled in the direction that will pull the fastener closer to the
eyelets, wherein the lace may also move in the opposite
direction when the fastener is pulled further away from the
eyelets.
Answer 8. Restated, the configuration illustrated in Harris’s Figure 4
reasonably conveys that although Harris’s fastener 37 may limit the degree
to which lace 30 is permitted to slide through strap 32a, Harris’s
arrangement still allows the lace to slide, some amount, through the strap
eyes, as recited by independent claim 1. Conversely, the claims do not
specify, for example, a minimum length of the lace that must be permitted to
slide through the radius tab’s eyes. See, e.g., Answer 8.
Thus, based on the foregoing, Appellant does not persuade us that the
Examiner errs in the rejection. Therefore, we sustain the obviousness
rejection of independent claim 1, and the rejection of claims 2, 3, and 7—9
that depend on claim 1 and which Appellant does not argue separately.
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Appeal 2017-005396
Application 13/886,363
Independent claim 11 and its dependent claims 12, 13,
and 17—19
Appellant argues that the rejection of claims 11—13 and 17—19 is in
error for the same reasons that are set forth above for claim 1. Appeal
Br. 24—25. Thus, inasmuch as we sustain claim 1 ’s rejection, we also sustain
the rejection of claims 11—13 and 17—19.
Obviousness rejection based on Hely, Harris, and Fritch
Dependent claims 4—6 and 10
Appellant argues that the rejection of claims 4—6 and 10, which
depend from claim 1, is in error for the same reasons that the rejection of
claim 1 is in error. Appeal Br. 24. Because we sustain claim l’s rejection,
we also sustain the rejection of claims 4—6 and 10.
Dependent claims 14—16 and 20
Appellant argues that the rejection of claims 14—16 and 20, which
depend from claim 11, is in error for the same reasons that the rejection of
claim 1 is in error. Appeal Br. 25. Because we sustain claim l’s rejection,
we also sustain the rejection of claims 14—16 and 20.
DECISION
We AFFIRM the Examiner’s obviousness rejections of claims 1—20.
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a).
AFFIRMED
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