Ex Parte Mael

Patent Trial and Appeal Board

Feb 28, 2018

14792351 (P.T.A.B. Feb. 28, 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.
14/792,351 07/06/2015 Rodney Mael TUP24558 6689
62439 7590
SINORICA, LLC
20251 Century Blvd.
Suite 140
Germantown, MD 20874
EXAMINER
QIN, JIANCHUN
ART UNIT PAPER NUMBER
2837
NOTIFICATION DATE DELIVERY MODE
03/02/2018 ELECTRONIC
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.
Notice of the Office communication was sent electronically on above-indicated "Notification Date" to the
following e-mail address(es):
SINORICA@GMAIL.COM
sinorica@outlook.com
pair @ sinorica.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte RODNEY MAEL
Appeal 2017-009422
Application 14/792,351
Technology Center 2800
Before JEFFREY T. SMITH, AVELYN M. ROSS,
and MICHAEL G. McMANUS, Administrative Patent Judges.
McMANUS, Administrative Patent Judge.
DECISION ON APPEAL
The Examiner finally rejected claims 1-3, 6-8, 10 and 12-18 of
Application 14/792,351 under 35 U.S.C. §§ 102(a) and 103(a). Final Act.
(April 9, 2014) 2-11. Appellant1 seeks reversal of these rejections pursuant
to 35 U.S.C. § 134(a). We have jurisdiction under 35 U.S.C. § 6(b).
For the reasons set forth below, we AFFIRM.
1 Rodney Mael is identified as the real party in interest. Appeal Br. 2.
Appeal 2017-009422
Application 14/792,351
BACKGROUND
The present application generally relates to a strapless guitar rest
having a curved surface for supporting the curved portion of a guitar and a
base portion for anchoring the strapless guitar rest to the user. Spec. 1-2.
Claim 15, the only claim under appeal, is reproduced below:
15. A strapless guitar rest comprises:
a main rest shelf;
a shelf base;
the main rest shelf comprises a second surface, a first
terminal end, and a second terminal end;
the shelf base comprises a proximal end and a distal end;
the proximal end and the distal end being positioned
opposite each other along the shelf base;
the first terminal end and the second terminal end being
positioned opposite each other along the main rest shelf;
the second surface being concavely contoured from the
first terminal end to the second terminal end;
the second surface being curved away from the distal
end;
the main rest shelf being adjacently connected to the
shelf base;
the main rest shelf being positioned at an offset angle in
relation to the shelf base;
the main rest shelf being positioned adjacent to the
proximal end;
the main rest shelf comprises a shelf tab;
the shelf tab being positioned across the second surface
opposite the shelf base;
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Application 14/792,351
and
the shelf tab being positioned in between the first
terminal end and the second terminal end.
Appeal Br. 16 (Claims App.).
REJECTIONS
The Examiner maintains the following rejections:
1. Claims 1, 3, and 7 are rejected under 35 U.S.C. § 102(a)(1) as
anticipated by Gaston2. Final Act. 2-3.
2. Claims 2, 6, 10, 12, and 13 are rejected under 35 U.S.C. § 103(a)
as obvious over Gaston in view of Rasmussen3. Id. at 4-7.
3. Claims 8 and 15-18 are rejected under 35 U.S.C. § 103(a) as
obvious over Gaston in view of Coglitore4. Id. at 7-10.
4. Claim 14 is are rejected under 35 U.S.C. § 103(a) as obvious over
Gaston in view of Rasmussen and further in view of Coglitore.
DISCUSSION
Appellant seeks review only as to the rejection of claim 15. Appeal
Br. 7. Accordingly, the rejections of all other pending claims are summarily
affirmed. See 37 C.F.R. § 41.37(c)(l)(iv) (2012); Hyatt v. Dudas, 551 F.3d
1307, 1313-14 (Fed. Cir. 2008); see also Manual of Patent Examining
Procedure (MPEP) § 1205.02 (9th ed. Mar. 2014) (“If a ground of rejection
stated by the examiner is not addressed in the appellant’s brief, appellant has
2 US 6,031,167, issued Feb 29, 2000.
3 US 1,945,162, issued Jan. 30, 1934.
4 US 2015/0053061 Al, published Feb. 26, 2015.
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Application 14/792,351
waived any challenge to that ground of rejection and the Board may
summarily sustain it, unless the examiner subsequently withdrew the
rejection in the examiner’s answer.”).
Appellant submits three arguments in support of the appeal. First,
Appellant argues that Gaston failed to disclose the limitation “the main rest
shelf being positioned at an offset angle in relation to the shelf base” of
claim 15. Appeal Br. at 7-8. The Examiner determined that the limitation
“an offset angle” should be construed broadly to include any angle that
forms “an offset from for example a 180 degree plane.” Answer 12.
Accordingly, the Examiner determined that Gaston’s disclosure of an angle
formed by foot pad 12 and leg pad 14, which angle “is about 90 degree[s],”
teaches an offset angle.
The Specification teaches as follows with regard to the term “offset
angle.”
Additionally, the main rest shelf 1 is positioned at an
offset angle 4 in relation to the shelf base 2. In reference to
FIG. 3 and FIG. 8, the offset angle 4 is an obtuse angle,
wherein the main rest shelf 1 is angle[d] upwards when the
present invention is positioned within the pants, pocket, or belt
of the user. The offset angle 4 compensates for the
displacement of the present invention when the guitar body is
positioned on the main rest shelf 1. ... If the main rest shelf 1
was oriented perpendicular or at an acute angle in relation
to the shelf base 2, then the main rest shelf 1 would be
angled downwards due to the weight of the guitar, allowing
the guitar to easily slide off. Therefore, it is the object of the
offset angle 4 to compensate for the downward displacement of
the main rest shelf 1, allowing the main rest shelf 1 to remain
perpendicular or at an upwards angle in relation to the user's
body when under the weight of the guitar.
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Appeal 2017-009422
Application 14/792,351
Spec. 6 (emphasis added). Thus, the Specification describes an embodiment
where the offset angle is obtuse and specifically discusses the advantages of
an obtuse offset angle vis-a-vis perpendicular and acute angles.
As noted by the Examiner, during examination, claim terms must be
given their broadest reasonable construction consistent with the
Specification. In re ICON Health and Fitness, Inc., 496 F.3d 1374, 1379
(Fed. Cir. 2007). An applicant seeking a narrower construction must either
show why the broader construction is unreasonable or amend the claim to
expressly state the scope intended. In re Morris, 127 F.3d 1048, 1057 (Fed.
Cir. 1997). “Absent claim language carrying a narrow meaning, the PTO
should only limit the claim based on the specification or prosecution history
when those sources expressly disclaim the broader definition.” In re Bigio,
381 F.3d 1320, 1325 (Fed. Cir. 2004).
Here, the Specification describes certain advantages of the main rest
shelf being positioned at an obtuse offset angle relative to the shelf base.
Spec. 6. Such description, however, falls short of an express disclaimer of
other offset angles. According the term “offset angle” its broadest
reasonable interpretation, it is construed to include acute, perpendicular, and
obtuse angles.
In view of the foregoing, Appellant has not shown reversible error in
regard to the Examiner’s determination that Gaston teaches a main rest shelf
positioned at an offset angle relative to the shelf base.
Appellant’s second argument is that Gaston fails to teach a “shelf
base” as required by claim 15. Appeal Br. 9-10. In rejecting claim 15, the
Examiner found that Gaston teaches “a shelf base (30).” Final Act. 10. In
the Answer, the Examiner determined that the term “shelf base” may include
“a layer of foam material bonded to the surface of a base plate.” Answer 12.
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Application 14/792,351
Gaston provides that “leg pad5 14 similarly has a plastic reinforcing
plate 28 .... the leg pad is provided with a layer of foam material 30
bonded to the surface of the plate 28.” Gaston 3:17-23.
Appellant has not articulated a reason why Gaston’s foam material 30
bonded to plastic plate 28 could not satisfy the “shelf base” limitation.
Accordingly, Appellant has not shown reversible error in regard to the
Examiner’s determination that Gaston teaches a “shelf base.”
Appellant’s third argument is that Gaston fails to teach that “the shelf
base comprises a proximal end and a distal end.” Appeal Br. 10-11. In this
regard we adopt the analysis of the Examiner as set forth at pages 10-11 of
the Answer.
CONCLUSION
The rejection of claims 1,3, and 7 as anticipated by Gaston is
summarily affirmed. The rejection of claims 2, 6, 10, 12, and 13 as obvious
over Gaston in view of Rasmussen is summarily affirmed. The rejection of
claims 8 and 16-18 as obvious over Gaston in view of Coglitore is
summarily affirmed. The rejection of claim 14 as obvious over Gaston in
view of Rasmussen and further in view of Coglitore is summarily affirmed.
The rejection of claim 15 as obvious over Gaston in view of Coglitore is
affirmed.
5 With regard to the terms “foot portion” and “leg portion,” Gaston provides
that the invention “defines a generally L-shape (FIG. 2) when in use, having
a foot portion 12 forming a user's thigh pad and an elongated leg portion 14
forming a user's chest pad.” Gaston 2:42^14.
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Application 14/792,351
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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