Ex Parte Knight

Board of Patent Appeals and Interferences

Jun 10, 2011

11306674 (B.P.A.I. Jun. 10, 2011)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________________

BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
____________________

Ex parte WILLIAM L. KNIGHT
____________________

Appeal 2009-012383
Application 11/306,674
Technology Center 3700
____________________

Before: JENNIFER D. BAHR, JOHN C. KERINS, and STEFAN
STAICOVICI, Administrative Patent Judges.

BAHR, Administrative Patent Judge.

DECISION ON APPEAL

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STATEMENT OF CASE
William L. Knight (Appellant) appeals under 35 U.S.C. § 134 from
the Examiner’s rejections of claims 1-16 under 35 U.S.C. § 102(b) as being
anticipated by Weiser (US 6,106,357, iss. Aug. 22, 2000); and of claim 15
under 35 U.S.C. § 103(a) as being unpatentable over Weiser, both alone and
in combination with Thompson (US 6,042,447, iss. Mar. 28, 2000). We
have jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM-IN-PART.

The Invention
The claims are directed to a rattle stick for attracting animals. See
Spec., para. 2. Claim 1, reproduced below, is illustrative of the claimed
subject matter:
1. A rattle stick for attracting animals, comprising:
an elongated member having at least one knob on an
outer surface, and
a sleeve that fits over the elongated member and has at
least one knob on an inner surface that engages the knob on
the outer surface of the elongated member when the sleeve
is moved over the elongated member.

OPINION
Claims 1-13, 15, and 16
The Examiner correctly found that Weiser’s game call satisfies all of
the limitations of independent claims 1 and 7. See Ans. 3-4. In relevant
part, the Examiner found that Weiser’s reed 36 satisfies the limitation of a
“knob” on an elongated member (reed assembly 16) because of its
protuberance from the outer surface of elongated member (reed assembly)
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16, and that Weiser’s adjustment pin 46 satisfies the limitation of a knob “on
an inner surface” of a sleeve assembly (housing 14). Ans. 3.
Appellant argues that Weiser’s reed 36 would not be recognized as the
“knob” called for in Appellant’s claims 1 and 7. App. Br. 4. Specifically,
citing one dictionary definition, Appellant urges us to construe the term
“knob” as a rounded protuberance. See Reply Br. 2.
When claim terminology is construed in the United States Patent and
Trademark Office, claims are to be given their broadest reasonable
interpretation consistent with the specification, reading claim language in
light of the specification as it would be interpreted by one of ordinary skill in
the art. In re Am. Acad. of Sci. Tech. Ctr., 367 F.3d 1359, 1364 (Fed. Cir.
2004).
Appellant’s Specification uses the term “knob” in a manner that is not
limited to rounded protuberances. See Spec., para. 18 (stating that “[t]he
knobs 24 are of any shape and height such as square, rounded, triangular, or
the like,” and contemplating “annular” knobs as one alternative).
Accordingly, we cannot, consistently with Appellant’s Specification,
construe the term “knob” in claims 1 and 7 as requiring a rounded
protuberance. Appellant has not persuaded us that the Examiner’s reading
of the “knob” called for in claims 1 and 7 on Weiser’s reed 36 extending
from the reed supporting end 32 of an elongate reed assembly 16 is
unreasonable, in light of the description of a “knob” in Appellant’s
Specification.
Appellant also argues that Weiser’s adjustment pin 46 is not “on the
inner surface of housing 14” because adjustment pin 46 is “a separate body”
disposed through a bore 12 in the housing 14. App. Br. 4. We do not agree
with Appellant. As pointed out by the Examiner on page 6 of the Answer,
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Appellant’s claims 1 and 7 do not require that the claimed sleeve and knob
be an integral, or one-piece, structure.
Finally, Appellant argues that Weiser does not satisfy the limitation of
claims 1 and 7 calling for engagement of the knob on the inner surface of the
sleeve and “the knob on the outer surface of the elongated member when the
sleeve is moved over the elongated member.” App. Br. 5. Specifically,
Appellant acknowledges that reed assembly 16 rotates relative to housing 14
with the pin always staying engaged or in contact with the reed 36, but
contends that this relative rotation of the housing 14 and reed assembly 16
does not constitute movement of the housing 14 (sleeve) over the reed
assembly 16 (elongated member). Id. We do not agree with Appellant.
Claims 1 and 7 do not specify that the movement is longitudinal, or
otherwise distinguish the movement over rotational movement. Rotational
movement of the reed assembly 16 relative to the housing 14, or
consequently of the housing 14 relative to the reed assembly 16, constitutes
movement of the sleeve (housing 14) over the elongated member (reed
assembly 16), as called for in claims 1 and 7.
For the above reasons, Appellant has not persuaded us of error in the
Examiner’s rejection of claims 1 and 7 as being anticipated by Weiser. We
sustain the rejection of claims 1 and 7, as well as the rejection of dependent
claims 2-6, which fall with claim 1, and of dependent claims 8-13, 15, and
16, which fall with claim 7. See 37 C.F.R. § 41.37(c)(1)(vii); App. Br. 5.
Appellant has not presented any separate arguments against the
rejections of claim 15 as being unpatentable over Weiser, and over Weiser in
combination with Thompson. Accordingly, we sustain these rejections as
well.
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Claim 14
Appellant’s claim 14, which depends indirectly from claim 7,
requires, in addition to the knob on the outer surface of the elongated
member recited in claim 7, a grunt reed insert positioned within the bore of
the handle of the elongated member. The Examiner attempts to read this
grunt reed insert limitation on the reed base 39 of reed 36, i.e., the portion of
reed 36 inserted into the bore (partially hollow central portion 30). The reed
base 39 is not a “grunt reed insert” as that terminology is used in Appellant’s
Specification. See Spec., para. 21; fig. 2. Rather, that portion of reed 36 is
simply the portion of the reed 36 (the remainder of which the Examiner
relies on to satisfy the “knob” limitation) restrained within the reed receiving
end 32 of the reed assembly 16. We do not sustain the rejection of claim 14.

DECISION
For the above reasons, the Examiner’s decision is affirmed as to
claims 1-13, 15, and 16, and reversed as to claim 14.
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a)(1)(iv).

AFFIRMED-IN-PART

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