Ex Parte Miadich

Patent Trial and Appeal Board

Feb 12, 2016

12623415 (P.T.A.B. Feb. 12, 2016)

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.
12/623,415 11/21/2009 John B. Miadich 135-00200.CIP 6295
71008 7590 02/12/2016
The Law Office of Jane K. Babin
Professional Corporation
c/o CPA Global
P.O. Box 52050
Minneapolis, MN 55402
EXAMINER
VERAA, CHRISTOPHER
ART UNIT PAPER NUMBER
3638
MAIL DATE DELIVERY MODE
02/12/2016 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 JOHN B. MIADICH
____________

Appeal 2013-009620
Application 12/623,415
Technology Center 3600
____________

Before JENNIFER D. BAHR, LINDA E. HORNER, and
BRANDON J. WARNER, Administrative Patent Judges.

HORNER, Administrative Patent Judge.
DECISION ON APPEAL

STATEMENT OF THE CASE
John B. Miadich (Appellant) seeks our review under 35 U.S.C. § 134
of the Examiner’s decision rejecting claims 1–20, which are all of the
pending claims. We have jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM.

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CLAIMED SUBJECT MATTER
Appellant’s claimed subject matter relates to “a multi-purpose
auxiliary member for use with ‘personal cards’ in a card carrying case.”
Spec. 1, para. 2. Of those claims before us on appeal, claims 1 and 18 are
independent. Claim 1, reproduced below, is illustrative of the subject matter
on appeal.
1. A tool for removing a personal card from a card carrying
case comprising:
a) a [sic] attachment component, wherein the attachment
component is a generally flattened body having a generally
planar top card gripping arm and a generally planar bottom card
gripping arm extending distally from a common base such that
the top gripping arm and bottom gripping arm are opposed and
held in a generally parallel orientation to each other, said top
gripping arm and said bottom gripping arm together defining a
card slot having an open front end and closed back end, the card
slot being is [sic] adapted to removably accept and secure a
personal card by tight friction fit; and
b) an extension component disposed upon and extending
distally from the base of the attachment component, said
extension component being adapted for gripping and removal
[of] a personal card from a card carrying case when the tool is
secured to the personal card.
EVIDENCE
The Examiner relied upon the following evidence:
Spaeth
Wiech
Swim
Harmatuik
Lau
Coldiron
US 3,391,694
US 4,197,118
US 4,630,385
US 4,817,253
US 2007/0209264 A1
US 2010/0031476 A1
July 9, 1968
Apr. 8, 1980
Dec. 23, 1986
Apr. 4, 1989
Sept. 13, 2007
Feb. 11, 2010
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REJECTIONS
Appellant appeals from the Final Action, dated June 12, 2012, which
includes the following rejections:
1. Claims 9 and 10 under 35 U.S.C. § 112, second paragraph, as
being indefinite.
2. Claims 1 and 11–13 under 35 U.S.C. § 102(b) as anticipated by
Swim.
3. Claims 1, 9, 10, and 16 under 35 U.S.C. § 102(e) as anticipated by
Coldiron.
4. Claims 18–20 under 35 U.S.C. § 102(b) as anticipated by
Harmatuik.
5. Claims 2, 3, and 14 under 35 U.S.C. § 103(a) as unpatentable over
Swim and Wiech.
6. Claims 4–7 under 35 U.S.C. § 103(a) as unpatentable over Swim
and Spaeth.
7. Claims 8 and 15 under 35 U.S.C. § 103(a) as unpatentable over
Swim.
8. Claim 17 under 35 U.S.C. § 103(a) as unpatentable over Swim and
Lau.
ANALYSIS
First ground of rejection: Indefiniteness
Claim 9 recites “wherein the extension component is hingeably
attached to the base of the attachment component.” Appeal Br. 38 (Claims
App.) (emphasis added). Claim 10 depends from claim 9 and recites
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“wherein the extension component is adapted to rotate about a hinge from a
closed position . . . to an open position.” Id. The Examiner rejected the
claims as indefinite because “the term hingeably does not have a clearly
definite meaning” and “[i]t is unclear whether either claim [9 or 10]
implicitly or inherently requires a hinge to be present or not.” Final Act. 2.
Appellant argues that “‘[h]ingeably’ would be understood by the ordinarily
skilled artisan to be the adverb form of hinge, thereby referring to
connecting parts in a jointed, bendable and/or movable fashion such that a
swinging part (the extension component) of the claimed tool turns.” Appeal
Br. 15. According to Appellant, a hingeably attached “extension component
can be attached by a means other than a conventional hinge, but can operate
in a manner that moves relative to the attachment component.” Id. at 16
(citing Spec. 18, para. 70) (describing “other” means as including “chains,
ties and straps”).
We agree with the Examiner that the term “hingeably” creates
confusion over whether a hinge is required. See Ans. 2. We initially note
that Appellant’s Specification does not describe or define the term
“hingeably.” Instead, the Specification describes an extension component
that is “hinged . . . or otherwise can be moved relative to the attachment
component (e.g.[,] a chain, tie or strap).” Spec. 18, para. 70 (referring to
extension components of Figures 15E and 15F as “hinged”). This
description in the Specification seems to distinguish a hinged attachment,
i.e., an attachment using a hinge, from other extension components, such as
chains, ties, and straps, which may allow movement relative to the
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attachment component without using a hinge. Appellant points to the “chain
loop extension” shown in Figure 17D of the Specification and asserts that
this extension component “does not include a hinge per se, yet this extension
component can operate[] as a hinge and is therefore . . . hingeably attached.”
Reply Br. 6 (citing Spec. 10, para. 51). Although the chain loop extension
component is movable relative to the attachment component (see Spec. 18,
para. 70), we fail to see how the chain loop extension component operates as
a hinge. Thus, when the claim is read in view of the Specification, a person
skilled in the art would not understand what is encompassed by a “hingeably
attached” extension component. If Appellant intends claim 9 to cover
extension components that are connected to an attachment component by
means other than using a hinge, then such claim scope should be made clear
through the use an adverb other than “hingeably” to describe attachment of
the components. In re Morris, 127 F.3d 1048 (Fed. Cir. 1997) (interpreting
35 U.S.C. § 112, second paragraph, as “put[ting] the burden of precise claim
drafting squarely on the applicant”). Accordingly, we affirm the rejection of
claims 9 and 10 and under 35 U.S.C. § 112, second paragraph.
Second ground of rejection: Anticipation by Swim
Appellant argues the claims subject to the second ground of rejection
as a group. Appeal Br. 22–25. We select claim 1 as the representative claim
to decide the appeal of this rejection, with claims 11–13 standing or falling
with claim 1. See 37 C.F.R. § 41.37(c)(l)(iv) (2015).
The Examiner found that Swim discloses the claimed tool including,
inter alia, an attachment component (top and bottom gripping arms 34, 35).
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Final Act. 3. The Examiner found that the gripping “arms define a card slot
having a closed back end and open front end that is adapted to hold a panel
member 21 by a tight friction fit.” Id. According to the Examiner, “when
the device is fit onto a panel member, the arms are stretched against their
resiliency and forced apart so that a panel member can be inserted,” which
“inherently provides a tight friction fit, since the arms, by their resilience,
apply pressure to the surfaces of the panel member, which in turn provides a
frictional interaction.” Id. at 7–8.
Appellant contests this finding and asserts that the tabs disclosed by
Swim attach to a record panel using teeth and an adhesive, which “is
distinguishable from the presently claimed device in which fastening is
achieved by ‘friction after the parts are pushed together, rather than by any
other means of fastening.’” Appeal Br. 22‒23 (quoting Spec. 13, para. 60);
see Reply Br. 11‒12. This argument is not persuasive because it insists upon
an overly narrow reading of the language in claim 1, which does not exclude
using other means of fastening, such as an adhesive, in addition to a tight
friction fit. We decline to import the limitation that the card slot is attached
to a card by tight friction fit “without any other means” from the
Specification into claim 1. See SuperGuide Corp. v. DirecTV Enterprises,
Inc., 358 F.3d 870, 875 (Fed. Cir. 2004) (“Though understanding the claim
language may be aided by the explanations contained in the written
description, it is important not to import into a claim limitations that are not
a part of the claim.”); E-Pass Techs., Inc. v. 3Com Corp., 343 F.3d 1364,
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1369 (Fed. Cir. 2003) (Limitations not explicit or inherent in the language of
a claim cannot be imported from the specification.).
Appellant also argues that the teeth of Swim’s labeling tabs do not
create a tight friction fit because they “engage the surface of the panel to
prevent the device from moving, particularly when tab 14 is pulled away
from the device and the teeth apparently dig in to the panel.” Appeal Br.
22–23 (citing Swim, col. 3, ll. 51–60). According to Appellant, “[t]his is the
opposite of the presently claimed tool in which tight friction fit is achieved
when the parts are pushed together.” Id. at 23 (citing Spec. 13, para. 60).
Appellant’s argument is not persuasive because the Specification states that
a “[t]ight friction fit fastening is achieved by friction after the parts are
pushed together.” Spec. 13, para. 60 (emphasis added). Even if Swim’s
teeth frictionally engaged an album cover only when a tab is pulled away,
any pulling of a tab upon the album cover would necessarily take place after
the tab and album cover had been pushed together.
Appellant asserts that Figure 2B of Swim shows that the reference
fails to disclose “a ‘perfect fit fastening between two mated parts’ as
required by the tight friction fit limitation” because “[i]f the parts were
perfectly mated to provide a tight friction . . ., the tab could not be tilted to
the alternative position shown in FIG. 2B.” Appeal Br. 23. Appellant also
argues that the tab shown in Figure 5 of Swim “is not perfectly mated to the
album cover and is not attached by a tight friction fit” because “the teeth are
the only contact points between the tab and the album cover.” Id. at 24.
Appellant’s arguments are not persuasive because, for the reasons provided
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above, we are not convinced that the claim or the Specification requires a
“tight friction fit” to be formed solely through a “perfect fit fastening
between two mated parts” or that the meaning of this claim limitation must
be read to exclude teeth used to create a friction fit or to exclude any
movement between a tab and card once mated together.
Appellant contends that “the resilient leg[s] of Swim are flexible in
order to be stretched apart far enough to accept the album cover, and are not
rigid as required by claim 1.” Appeal Br. 25. According to Appellant,
although the term “rigid” is not recited in the claim, “it is not necessary to
state that the attachment component is rigid in claim 1 because the
specification defines the attachment component as rigid.” Reply Br. 9
(citing Spec., paras. 74, 87, 92, 100). We do not find a definition of the
attachment component in the Specification that would require us to import
the term “rigid” into the claim. The Specification describes only exemplary
embodiments made from rigid materials without limiting the claimed
attachment component to a rigid structure. For example, paragraph 74 of the
Specification states that “the attachment component . . . may be made
primarily or substantially of a strong, rigid and durable material such metal
or plastic.” Spec. 20, para. 74 (emphasis added). Similarly, paragraph 92
states that “[t]he attachment component can be made of any durable, rigid
material.” Id. at 29, para. 92 (emphasis added). See also id., para. 87
(describing “[a]n exemplary personal card removal tool” as including an
attachment component that is rigid); id., para. 100 (describing the invention
“[i]n one aspect.”) We decline to limit the claim to the exemplary
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embodiments disclosed in the Specification. SuperGuide Corp., 358 F.3d at
875 (“[A] particular embodiment appearing in the written description may
not be read into a claim when the claim language is broader than the
embodiment.”).
Appellant raises two additional arguments in the Reply Brief that were
not presented in the Appeal Brief. See Reply Br. 12; compare Appeal Br.
22–25. These arguments are not timely, and Appellant does not present any
evidence or explanation to show good cause why these arguments should be
considered by the Board at this time. See 37 C.F.R. § 41.41(b)(2) (“Any
argument raised in the reply brief which was not raised in the appeal brief, or
is not responsive to an argument raised in the examiner’s answer . . . will not
be considered by the Board . . . unless good cause is shown.”).
For the above reasons, we affirm the Examiner’s rejection of claim 1
as anticipated by Swim. Claims 11–13 fall with claim 1.
Third ground of rejection: Anticipation by Coldiron
Appellant argues the claims subject to the third ground of rejection as
a group. Appeal Br. 26–28. We select claim 1 as the representative claim,
and claims 9, 10, and 16 stand or fall with claim 1. See 37 C.F.R.
§ 41.37(c)(l)(iv).
The Examiner found that “Coldiron teaches an accessory clamp
having gripping arms 13 forming a slot adapted to hold a card with a tight
friction fit, and an extension 18 that is attached to a common base via a
hinge.” Final Act. 3. According to the Examiner, “the device taught by
Coldiron is capable of being used with a card.” Ans. 3. The Examiner’s
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finding that Coldiron’s device is capable of being used with a card rests on a
sound basis because Coldiron discloses a clamp 13 formed by movable jaw
4 and base jaw 1. Coldiron, para. 57‒58. Jaw 4 has gripping teeth 8 with
serrated edges, and base jaw 1 has serrated edges 10. Id. It is reasonable for
the Examiner to find that, were a credit card placed between jaws 1, 4, the
card would be engaged and retained by a tight frictional fit formed between
the faces of the card and gripping teeth 8 and serrated edges 10.
Appellant argues that the device of Coldiron is not capable of being
used to accept and secure a card because “a typical personal card, such as a
credit card, would just slip or be ejected out of the device of Coldiron when
the movable jaw clamps down on it.” Reply Br. 14. Appellant adds that
“[e]ven a thin paper or cardstock personal [card] could not be used with
Coldiron’s device since deforming the card sufficiently to hold it securely in
the gripping teeth would damage or destroy the card.” Id. at 14–15. These
assertions are not persuasive of error as they amount to mere attorney
argument unsupported by objective evidence. See In re Pearson, 494 F.2d
1399, 1405 (CCPA 1974). Appellant offers no evidence to establish that a
personal card would be ejected or damaged when clamped by the device of
Coldiron.
Appellant also argues that top lid 18 of Coldiron does not meet the
claimed extension component because “any card or other item secured in the
movable jaw would be released when the lid was opened and thus, could not
be grasped to remove the card from a card carrying case.” Appeal Br. 27;
see Reply Br. 15–16. This argument is not convincing because it is based
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upon a misplaced presumption that top lid 18 could not be gripped for
removing a card without opening the lid, which would unclamp the device
from a card. We agree with the Examiner that “the lid could be grasped
without opening the lid, and thus is capable of the recited function of
removing a card.” Ans. 4.
Appellant further argues that “the rigid attachment component of
instant claim 1 can clearly be distinguished from the bottom connecting
device 11 of Coldiron, which is described and illustrated as a ‘flexible’ and
‘resilient’ loop.” Appeal Br. 27. This argument is substantially similar to
the argument raised for claim 1 with respect to the second ground of
rejection. See id. at 24–25; see Reply Br. 9–11. For the reasons explained in
the analysis of the second ground of rejection, supra, this argument is also
not persuasive here. Moreover, Appellant’s argument is not responsive to
the Examiner’s rejection, because the Examiner did not rely on Coldiron’s
bottom connecting device 11 to address the attachment component
limitation; rather, the Examiner cited clamp gripping arms 13. See Final
Act. 3 (citing Coldiron, Fig. 2a).
Appellant also raises several new arguments in the Reply Brief for the
first time. See Reply Br. 16–17; compare Appeal Br. 26–28. These
arguments are not timely, and thus are not considered. See 37 C.F.R.
§ 41.41(b)(2). For the above reasons, we affirm the Examiner’s rejection of
claim 1 as anticipated by Coldiron. Claims 9, 10, and 16 fall with claim 1.
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Fourth ground of rejection: Anticipation by Harmatuik
Claims 18 and 20
The Examiner found that Harmatuik discloses “a card holding device
comprising an extension component with a plurality of gripping arms 18 and
20[,] attached to a common base 10, that provide a plurality of card slots that
are adapted to firmly grasp cards within the slots.” Final Act. 4 (citing
Harmatuik, Fig. 2). Appellant asserts that Harmatuik discloses gripping
arms which are separated by a distance less than a card thickness and exert a
clamping force to hold a card in place. Appeal Br. 28 (citing Harmatuik,
col. 1, ll. 28–33). According to Appellant, “arms that are separated by a
distance less than the thickness of a card are not perfectly mated to the card
as required by the instant[] specification’s definition of tight friction fit.” Id.
This argument is not persuasive because the Specification states that “tight
friction fit” and “interference fit” are “used interchangeably,” and describes
that “[a]n interference fit is generally achieved by shaping one or the other
of two mating parts so that one or the other (or both) slightly deviate in size
from the nominal dimension.” Spec. 13, para. 60. Harmatuik reasonably
discloses a slight deviation in gripping arm separation distance and card
thickness because a large deviation could prevent a card from fitting
between the gripping arms. Thus, we are not persuaded that Harmatuik fails
to disclose a tight friction fit as called for in claim 1.
Appellant also argues that Harmatuik’s “flexible arms are the opposite
of the claimed rigid arms.” Appeal Br. 28. This argument is substantially
similar to the argument raised with respect to the second ground of rejection.
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See id. at 24–25; see Reply Br. 9–11. Appellant’s argument is unconvincing
here for the same reasons discussed supra in the analysis of the second
ground of rejection.
For the above reasons, we affirm the Examiner’s rejection of claim 18
as anticipated by Harmatuik. We likewise affirm the rejection of dependent
claim 20 as anticipated by Harmatuik, for which Appellant does not raise
any separate patentability arguments. See Appeal Br. 29.
Claim 19
Claim 19 depends from claim 18 and recites “wherein the bottom card
gripping arm of the first card slot is coextensive with the top card gripping
arm for the second card slot.” Appeal Br. 40 (Claims App.) (emphasis
added). The Examiner found that Harmatuik teaches “gripping arms [that]
are the same length and thus can be considered to be co-extensive.” Final
Act. 4. Appellant argues that the Examiner’s reading of coextensive is
improper because the Specification discloses “that the bottom card gripping
arm of the first card slot and the top card gripping arm for the second card
slot occupy the same space, or in other words, . . . are the same – not just of
the same length.” Appeal Br. 29 (citing Spec. 31, para. 100).
Appellant’s Specification states that “the upper arm of one card slot is
contiguous or coextensive with and thereby serves as the lower arm of
another card slot.” Spec. 31, para. 100. Although the Specification provides
an example of an embodiment in which the upper arm of one card slot serves
as the lower arm of another card slot, the Specification does not provide a
lexicographic definition of “coextensive.” We must be careful not to read a
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particular embodiment appearing in the written description into the claim if
the claim language is broader than the embodiment. See SuperGuide Corp.,
358 F.3d at 875. Although the specification should be used to interpret the
meaning of a claim, it is improper to confine the claims to the embodiments
found in the specification. In re Trans Texas Holdings Corp., 498 F.3d
1290, 1299 (Fed. Cir. 2007) (citations omitted). In addition to the
specification, dictionary definitions are also pertinent in this analysis. Id.
An ordinary meaning of “coextensive” is “[h]aving the same limits,
boundaries, or scope.” The American Heritage Dictionary of the English
Language (2007), available at http://www.credoreference.com/entry/
mdictenglang/coextensive. Based on this ordinary meaning, we find that the
Examiner’s definition of “coextensive” as having the same length is
reasonable. See Final Act. 4. Appellant does not contest the Examiner’s
finding that Harmatuik teaches gripping arms that are the same length, and
thus we are not persuaded of error in the Examiner’s rejection. See Final
Act. 4. For these reasons, we affirm the rejection of claim 19 as anticipated
by Harmatuik.
Sixth ground of rejection: Obviousness over Swim and Spaeth
Appellant argues that the Examiner’s proposed combination of Swim
and Spaeth used to reject claims 4‒7 is improper because Spaeth “is not
analogous art and does not address the problem solved by the present
invention.” Appeal Br. 32; see Reply Br. 19. In particular, Appellant asserts
that “[t]he card in Spaeth labels the tool . . . [which] is the opposite problem
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solved by the presently claimed invention where the tool labels or identifies
the card.” Appeal Br. 33.
“The analogous-art test requires that the Board show that a reference
is either in the field of the applicant’s endeavor or is reasonably pertinent to
the problem with which the inventor was concerned in order to rely on that
reference as a basis for rejection.” In re Kahn, 441 F.3d 977, 986–87 (Fed.
Cir. 2006) (citing In re Oetiker, 977 F.2d 1443, 1447 (Fed. Cir. 1992)). “A
reference is reasonably pertinent if, even though it may be in a different field
from that of the inventor’s endeavor, it is one which, because of the matter
with which it deals, logically would have commended itself to an inventor’s
attention in considering his problem.” In re Clay, 966 F.2d 656, 659 (Fed.
Cir. 1992). “In other words, ‘familiar items may have obvious uses beyond
their primary purposes.”’ In re ICON Health & Fitness, Inc., 496 F.3d 1374,
1380 (Fed. Cir. 2007) (quoting KSR Int’l Co. v. Teleflex Inc., 550 U.S. 398,
420 (2007)).
Although we agree with Appellant that Spaeth is not from the same
field of endeavor as Appellant’s claimed card removal tool, we are not
persuaded by the argument that Spaeth is not reasonably pertinent to the
problem with which the inventor was concerned. Spaeth discloses a stepped
card slot for the purpose of accommodating cards of varying thickness. See
Spaeth, col. 2, ll. 26–29. This teaching in Spaeth would have been
reasonably pertinent to the problem of allowing the inventor’s card removal
tool to accept cards of varying thicknesses. See Spec. 28, para. 91.
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Appellant also argues that “[t]here is simply no teaching or suggestion
in Spaeth that the syringe would be attached to a card and used to insert or
remove the card from a card carrying case, such as a wallet.” Appeal Br. 33;
see Reply Br. 18. This argument is not convincing because it is not
responsive to the Examiner’s articulated rejection. The Examiner does not
propose to attach the syringe of Spaeth to a card for removing a card from a
carrying case. Rather, the Examiner relied on Spaeth to demonstrate that it
was known at the time of the invention to utilize a tapered or stepped slot to
accept and secure cards of varying thickness. See Final Act. 5. Based on
this teaching, the Examiner determined that it would have been obvious to
one having ordinary skill in the art at the time of the invention to modify the
card slot of Swim to be tapered or stepped as taught by Spaeth in order to
wedgingly attach to an album cover and to accommodate covers of varying
thickness. Id. Appellant does not specifically address the reasoning
articulated by the Examiner for the proposed modification.
Appellant further argues that Spaeth does not cure the alleged
deficiencies of Swim in the rejection of independent claim 1, from which
claims 4–7 depend. Appeal Br. 34. For the reasons provided above, we find
no deficiency in the rejection of claim 1. As such, this argument does not
apprise us of error in the Examiner’s rejection of claims 4–7.
For the above reasons, we affirm the rejection of claims 4–7 as
unpatentable over Swim and Spaeth.
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Fifth, seventh, and eighth grounds of rejection: Obviousness over one or
more of Swim, Wiech, and Lau
To contest the rejections of claims 2, 3, 8, 14, 15, and 17, Appellant
relies on the arguments presented for patentability of claim 1, from which
these claims depend, and argues only that neither Wiech nor Lau cures the
asserted deficiencies of Swim. Appeal Br. 30, 34–35. For the same reasons
provided supra in our analysis of the rejection of claim 1 as anticipated by
Swim, we do not find these arguments persuasive of error. Accordingly, we
affirm the rejections of claims 2, 3, and 14 as unpatentable over Swim and
Wiech, of claims 8 and 15 as unpatentable over Swim, and of claim 17 as
unpatentable over Swim and Lau.
DECISION
The decision of the Examiner to reject claims 1–20 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). See 37 C.F.R.
§ 1.136(a)(1)(iv).

AFFIRMED