Ex Parte LandoDownload PDFPatent Trial and Appeal BoardNov 8, 201714323979 (P.T.A.B. Nov. 8, 2017) Copy Citation 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. 14/323,979 07/03/2014 Ron Lando 811.122 7081 85444 7590 11/09/2017 Bay Area Technolgy Law Group PC 2171 E. Francisco Blvd., Suite L San Rafael, CA 94901 EXAMINER COLLINS, DARRYL J ART UNIT PAPER NUMBER 2872 MAIL DATE DELIVERY MODE 11/09/2017 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 RON LANDO ____________ Appeal 2017-003646 Application 14/323,979 Technology Center 2800 ____________ Before DONNA M. PRAISS, MONTÉ T. SQUIRE, and JEFFREY R. SNAY, Administrative Patent Judges. SNAY, Administrative Patent Judge. DECISION ON APPEAL1 Appellant appeals under 35 U.S.C. § 134(a) from the Examiner’s decision rejecting claims 1–6. We have jurisdiction under 35 U.S.C. § 6(b). We affirm. 1 We cite to the Specification (“Spec.”) filed July 3, 2014; Final Office Action (“Final Act.”) dated October 13, 2016; Appellant’s Appeal Brief (“App. Br.”) dated November 14, 2016; Examiner’s Answer (“Ans.”) dated January 12, 2017; and Appellant’s Reply Brief (“Reply Br.”) dated January 25, 2017. Appeal 2017-003646 Application 14/323,979 2 BACKGROUND The subject matter on appeal relates to collapsible eyewear. Spec. 1. Representative claim 1 is reproduced from the Claims Appendix of Appellant’s Appeal Brief below, with italics added to highlight the recitation in dispute: 1. Eyewear comprising a pair of lenses, temple pieces and a strap, a pair of releasable connectors connected to respective inner ends of said lenses, a pair of temple pieces, each temple piece having a first segment and a second segment, each of said first segment having a first end and a second end, each first end being pivotally connected to a lens, each second segment having a first end and a second end, said first end of each second segment being pivotally connected to a second end of said first segment and said second end of each of said second segment being captured by said strap, said strap comprising a flexible and shape retentive band of thermoplastic polyester elastomer. Each of independent claims 2 and 3 is directed to a method for folding and storing eyewear having the features recited in claim 1. Claims 4, 5, and 6 depend from claims 1, 2, and 3, respectively. REJECTIONS I. Claims 1, 2, 4, and 5 stand rejected under 35 U.S.C. § 103 as unpatentable over Power,2 Shiue,3 and Wingate.4 2 US 8,025,396 B1, issued September 27, 2011 (“Power”). 3 US 2013/0055489 A1, published March 7, 2013 (“Shiue”). 4 US 1,936,319, issued November 21, 1933 (“Wingate”). Appeal 2017-003646 Application 14/323,979 3 II. Claims 3 and 6 stand rejected under 35 U.S.C. § 103 as unpatentable over Power, Shiue,5 Wingate, and Rabb.6 OPINION Rejection I With regard to Rejection I, Appellant argues the claims as a group. See App. Br. 5–11; Reply Br. 2–6. In accordance with 37 C.F.R. § 41.37(c)(1)(iv), we select claim 1 as representative, and decide the appeal based on the representative claim alone. The Examiner finds that Power discloses eyeglasses having separable lenses, pivotally connected temple pieces, and a strap that is “flexible and shape retentive.” Final Act. 4. The Examiner also finds that Wingate provides a reason to configure Power’s temple pieces as pivotally connected segments to facilitate folding and compact storage. Id. at 5. Appellant argues that Power’s strap is “semi-rigid” and “springy,” App. Br. 5, and contends that those characteristics are distinguishable from the claimed flexible strap, id. at 5–6. Particularly, Appellant argues that if Power’s strap were folded upon itself, it would break, id. at 6. Claim 1 recites the strap as “a flexible and shape retentive band.” The Specification similarly characterizes the strap material as “flexible enough to bend without deforming but is memory retentive enabling strap 33 to return to its original shape even if eyewear 5 has been stored for a protracted period 5 We consider the omission of Shiue from the Examiner’s statement of the rejection, Final Act. 7, harmless error given that Shiue is discussed and relied upon in the Examiner’s reasoning in support of the rejection, id. at 8– 9. 6 US 2,975,426, issued March 21, 1961 (“Rabb”). Appeal 2017-003646 Application 14/323,979 4 of time.” Spec. 7. Power describes the disclosed strap as being “preferably springy enough to retain its shape when released, but also flexible enough to be bendable to some extent without breaking.” Power 1:38–40. On this appeal record, we are not persuaded of reversible error in the Examiner’s finding that Power’s strap meets the recited characteristic of being “flexible and shape retentive.” Appellant additionally argues that Shiue’s disclosure of swimming goggles is unrelated to Power’s endeavor concerning ordinary optical eyewear. We disagree. As the Examiner explains, Ans. 3–4, both Power and Shiue concern flexible straps for holding eyewear about a user’s head. The Examiner relies on Shiue solely as evidence that one skilled in the art would have had a reason to form Power’s strap from thermoplastic material. Id. at 3. Appellant does not dispute that finding. See Reply Br. 2 (acknowledging that “[i]n combining Power with Shiue, one would be led to the conclusion that strap 17 perhaps could be made of a thermoplastic material”). For the foregoing reasons, we sustain Rejection I. Rejection II With regard to Rejection II, Appellant solely argues that Power’s strap is semi-rigid and, for that reason, the temple pieces could not be folded upon themselves. App. Br. 8. For the reasons set forth above in connection with Rejection I, Appellant fails to present persuasive evidence that Power’s flexible and shape retentive strap characteristics differ from those which are recited in the claims. Nor does Appellant point to persuasive evidence or technical reasoning sufficient to establish that Power’s strap is insufficiently Appeal 2017-003646 Application 14/323,979 5 flexible to be folded upon itself. In light of Power’s express teaching that the disclosed strap is “flexible enough to be bendable to some extent without breaking,” Power 1:38–40, we are persuaded that a preponderance of the evidence supports the Examiner’s finding that Power’s strap meets the flexibility and shape retention characteristics recited in the claims. Accordingly, we also sustain Rejection II. DECISION The Examiner’s rejection of claims 1–6 under 35 U.S.C. § 103(a) is affirmed. 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 Copy with citationCopy as parenthetical citation