Ex Parte Modglin

Board of Patent Appeals and Interferences

Aug 22, 2011

10919079 (B.P.A.I. Aug. 22, 2011)

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.
10/919,079 08/16/2004 Herbert A. Modglin 35071 5096
7590 08/22/2011
Hovey Williams LLP
Suite 1000
10801 Mastin Blvd.
Overland Park, KS 66210
EXAMINER
POON, PETER M
ART UNIT PAPER NUMBER
3643
MAIL DATE DELIVERY MODE
08/22/2011 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 BOARD OF PATENT APPEALS
AND INTERFERENCES
____________

Ex parte HERBERT A. MODGLIN
____________

Appeal 2009-013005
Application 10/919,079
Technology Center 3600
____________

Before LINDA E. HORNER, STEFAN STAICOVICI, and
KEN B. BARRETT, Administrative Patent Judges.

HORNER, Administrative Patent Judge.

DECISION ON APPEAL
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STATEMENT OF THE CASE
Herbert A. Modglin (Appellant) seeks our review under 35 U.S.C.
§ 134 of the Examiner’s decision rejecting claims 1, 7, 11, and 20. We have
jurisdiction under 35 U.S.C. § 6(b). We REVERSE.
THE INVENTION
Appellant’s claimed invention is directed to an automatic jigging
device that may be used to impart action to a lure attached to a fishing pole.
Spec. 1, ll. 7-9. Claim 1, reproduced below, is representative of the subject
matter on appeal.
1. A jigging device for imparting action to a fishing lure
secured to a fishing pole having a handle and a rod extending
from the handle, the device comprising:
a frame rigidly secured to an external support;
an arm with a first end pivotally secured to the frame,
wherein the arm includes a substantially horizontal member and
a flange extending substantially downwardly from the
horizontal member;
a fishing pole holder receiver extending substantially
upwardly from the horizontal member of the arm and operable
to support the fishing pole; and
a reciprocating actuator for selectively pivoting the arm
about the first end with respect to the frame, thereby causing the
receiver to reciprocate along a curved path about the first end of
the arm, wherein the actuator is attached to the flange.
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THE REJECTIONS
Appellant seeks review of the following rejections:1
1. The Examiner rejected claims 1 and 7 under 35 U.S.C. § 102(b) as
being anticipated by Lagasse (US 3,839,810; issued October 8, 1974).
2. The Examiner rejected claim 11 under 35 U.S.C. § 103(a) as being
unpatentable over Lagasse in view of Davis (US 5,638,628; issued
June 17, 1997).
3. The Examiner rejected claims 11 and 20 under 35 U.S.C. § 103(a) as
being unpatentable over Davis in view of Lagasse.
ISSUES
Appellant argues that Lagasse does not discloses an arm having a
horizontal member with “a flange extending ‘substantially downwardly from
the horizontal member,’ as recited in claim 1.” App. Br. 12. Appellant
likewise argues that neither Lagasse nor Davis discloses an arm which
includes a substantially horizontal member and has first and second flanges
extending substantially downwardly from the horizontal member, as called
for in claims 11 and 20. App. Br. 14-18.

1 In the Final Office action from which this appeal is taken, the Examiner
rejected claims 1-20. Final Office Action dated April 5, 2006. Appellant
chose to appeal the rejections of only claims 1, 7, 11, and 20. App. Br. 3.
The rejections of claims 2-6, 8-10, and 12-19 are not before us in this appeal.
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The issues presented by this appeal are:
Does Lagasse disclose an arm having a horizontal member and a
flange or flanges extending substantially downwardly from the horizontal
member, as called for in claims 1, 11, and 20?
Does Davis disclose an arm having a horizontal member and first and
second flanges extending substantially downwardly from the horizontal
member, as called for in claims 11 and 20?
ANALYSIS
Claims 1 and 7
In the Final Office Action, the Examiner found that Lagasse discloses
“an arm which includes a substantially horizontal member 49, 50 with a first
end pivotally secured to the frame by way of bearings 48.” Final Office
Action 2. The Examiner further found that “Lagrasse [sic] shows a flange
52 extending substantially downwardly from the horizontal member 50 as
shown in Fig. 4.” Id. In the Answer, however, the Examiner found that
connecting rod 50 of Lagasse along with cam 47 “can be considered as a
reciprocating actuator” and only element 49 is the claimed “arm.” Ans. 3.
Lagasse does not disclose the claimed flange for two reasons. First,
element 52 of Lagasse is disclosed to be a lock screw that is used to connect
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one end of connecting rod 50 to cam 47. Lagasse, col. 3, ll. 33-35; fig. 5.
We find that lock screw 52 is not a flange.2
Second, to the extent that the Examiner found that only element 49 is
the claimed “arm”, then the lock screw 52 does not extend substantially
downwardly from the substantially horizontal member of the arm
(i.e., stroke adjustment slide 49). Rather, lock screw 52 extends through
connecting rod 50, which, according to the Examiner’s findings in the
Answer, is part of the reciprocating actuator.
As such, Lagasse does not disclose the claimed flange. Accordingly,
we cannot sustain the Examiner’s rejection of independent claim 1, or its
dependent claim 7, as being anticipated by Lagasse.
Claim 11
Claim 11 calls for “an arm with a first end pivotally secured to the
frame, wherein the arm includes a substantially horizontal member, a first
flange extending substantially downwardly from the horizontal member, and
a second flange extending substantially downwardly from the horizontal
member.” Claim 11 further calls for “a reciprocating actuator connected to
the first flange” and “a spring . . . connected to the second flange.” For the
same reasons discussed supra in our analysis of claim 1, we find that
Lagasse does not disclose the claimed first flange. We further find that

2 An ordinary meaning of “flange” is “[a] protruding rim, edge, rib, or collar,
as on a wheel or a pipe shaft, used to strengthen an object, hold it in place, or
attach it to another object.” THE AMERICAN HERITAGE DICTIONARY OF THE
ENGLISH LANGUAGE (2007), available at http://www.credoreference.com/
entry/hmdictenglang/flange.
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Lagasse does not disclose the claimed second flange and spring.3 We further
find that Davis does not cure these deficiencies of Lagasse.
In the Final Office Action, the Examiner found that “Davis shows an
arm 170 with a first flange 220 and a second flange 190.” Final Office
Action 3. To the extent that Davis’s oscillating shaft tip 170 corresponds to
the claimed arm, then Davis’s arm (oscillating shaft tip 170) does not have a
“substantially horizontal member” from which the first flange (oscillating
follower 220) and second flange (spring arm 190) extend substantially
downwardly, as called for in claim 11. See Davis, figs. 2 and 6 (showing
oscillating shaft tip 170 as the vertical end portion of vertical oscillating
shaft 140).
In the Final Office Action, the Examiner also found that “Davis shows
a fishing jigging device having a frame 100 [and] an arm 220 pivotally
secured to the frame 100, 130 by way of shaft tip 170 . . . .” Final Office
Action 4. To the extent that Davis’s oscillating follower 220 corresponds to
the claimed arm such that the follower 220 itself is also the substantially
horizontal member, then Davis’s arm (follower 220) does not have a first
flange extending substantially downwardly from the horizontal member and
a second flange extending substantially downwardly from the horizontal
member, as called for in claim 11. See Davis, fig. 6 (showing no flanges
extending from oscillating follower 220).

3 The Examiner relied on Davis to disclose a spring connected to a second
flange. Final Office Action 3.
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As such, the Examiner erred in finding that the combined teachings of
Lagasse and Davis would result in an arm having first and second flanges
extending downwardly from a substantially horizontal member of the arm as
called for in claim 11. Regardless of the order of combination of these
references, their combined teachings would not render obvious the jigging
device of claim 11. Accordingly, we cannot sustain the Examiner’s
rejections of claim 11 as being unpatentable over Lagasse in view of Davis
or over Davis in view of Lagasse.
Claim 20
Similar to claim 11, claim 20 calls for “an arm with a first end
pivotally secured to the frame . . . wherein the arm includes a substantially
horizontal member, a first flange extending substantially downwardly from
the horizontal member, and a second flange extending substantially
downwardly from the horizontal member.” For the same reasons discussed
supra in our analysis of claim 11, we find that neither Davis nor Lagasse
discloses the claimed arm having first and second flanges extending
substantially downwardly from the horizontal member. As such, their
combined teachings would not render obvious the jigging device of
claim 20. Accordingly, we cannot sustain the Examiner’s rejection of
claim 20 as being unpatentable over Davis in view of Lagasse.
CONCLUSIONS
Lagasse does not disclose an arm having a horizontal member and a
flange or flanges extending substantially downwardly from the horizontal
member, as called for in claims 1, 11, and 20.
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Davis does not disclose an arm having a horizontal member and first
and second flanges extending substantially downwardly from the horizontal
member, as called for in claims 11 and 20.
DECISION
The decision of the Examiner to reject claims 1, 7, 11, and 20 is
REVERSED.

REVERSED

nlk