Ex Parte Munzel

Patent Trial and Appeal Board

Nov 7, 2017

12714804 (P.T.A.B. Nov. 7, 2017)

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.
12/714,804 03/01/2010 Jon Munzel MUN-100US 7522
13173 7590 11/09/2017
Rlne Filament T aw
EXAMINER
700 E. Maple Road
Suite 450
HICKS, VICTORIA J
Birmingham, MI 48009 ART UNIT PAPER NUMBER
3772
NOTIFICATION DATE DELIVERY MODE
11/09/2017 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):
ag @bluefil amentlaw.com
ap @bluefil amentlaw.com
patentdocketing@bluefilamentlaw.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte JON MUNZEL
Appeal 2016-003837
Application 12/714,804
Technology Center 3700
Before THOMAS F. SMEGAL NATHAN A. ENGELS, and
ERIC C. JESCHKE, Administrative Patent Judges.
SMEGAL, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Jon Munzel (Appellant)1 seeks our review under 35U.S.C. § 134 of
the Examiner’s rejections2 under 35 U.S.C. § 112, second paragraph, of
claims 1,3, 6—9, and 11—16 as being indefinite for failing to particularly
point out and distinctly claim the subject matter which the inventor regards
as the invention; and under 35 U.S.C. § 103(a), of claims 1,3,6, 9, and 11—
16 as unpatentable over Woods (US 1,898,233, iss. Feb. 21, 1933), Patnode
(US 5,143,091, iss. Sept. 1, 1992), Annett (US 6,244,268 Bl, iss. June 12,
2001), and Baynes (US 6,966,320 Bl, iss. Nov. 22 2005); of claim 7 as
unpatentable over Woods, Patnode, Annett, Baynes, and Gavette (US
1 Appellant self-identifies as the real party in interest. Appeal Br. 1.
2 Appeal is taken from the adverse decision of the Examiner as set forth in
the Final Office Action, dated June 4, 2015 (“Final Act.”).
Appeal 2016-003837
Application 12/714,804
6,923,186 B2, iss. Aug. 2, 2005); and of claim 8 as unpatentable over
Woods, Patnode, Annett, Baynes, and Gallob (US 1,545,093, iss. July 7,
1925).3 We have jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM.
CLAIMED SUBJECT MATTER
Claim 1, the sole independent claim, illustrates the claimed subject
matter and is reproduced below with disputed limitations emphasized.
1. A shower curtain comprising:
a polymeric sheet surrounding an aperture and having
securements along a polymer sheet edge to facilitate suspension
of said polymeric sheet from a generally horizontal shower
curtain rod;
an elastomeric ribbon attached to said polymeric sheet to
at least partially cover the aperture to define a portal adjustably
sized with a thinned region or printed indicia designating cut
lines to enlarge the size of the portal to pass an injured limb
through the portal and is adapted to be tensioned against a user
proximal limb relative to a distal injury of the injured limb to
form a seal to retain circulation in the injured limb;
a first flap attached to a first side of said polymeric sheet
along a flap edge and having a slit or cutout, said flap extends
beyond the portal and said slit or cutout extending towards and
not overlapping the portal, said first flap overlying the portal,
the first flap on a side of said polymeric sheet intended to be
exposed to a shower spray; and
wherein the slit or cutout adapted to facilitate the draping
of said first flap over a user proximal portion of the injured
limb to effectively form a shield preventing water spray from a
shower from contacting said seal of the shower curtain between
3 Claims 2 and 17—20 have been canceled. Claims 4, 5, and 10 are
withdrawn. Final Act. 2.
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Application 12/714,804
said elastomeric ribbon and the user proximal portion of the
injured limb.4
ANALYSIS
Indefiniteness of Claims 1, 3, 6—9, and 11—16
We are not persuaded that the Examiner erred in finding claim 1
“indefinite for failing to particularly point out and distinctly claim the
subject matter which the inventor . . . regards as the invention,” in reciting
“the limitation ‘said seal of the shower curtain between said elastomeric
ribbon and the user proximal portion of the injured limb’ in lines 17-18 of
the claim.” Final Act. 2—3. (emphasis added). As the Examiner explains,
“[tjhere is insufficient antecedent basis for this limitation in the claim.” Id.
at 3.
A “satisfactory response” to an indefmiteness rejection “can take the
form of a modification of the language identified as unclear, a separate
definition of the unclear language, or, in an appropriate case, a persuasive
explanation for the record of why the language at issue is not actually
unclear.”/^? re Packard, 751 F.3d 1307, 1311 (Fed. Cir. 2014). However,
Appellant makes no reference to the Examiner’s rejection under 35 U.S.C. §
112, second paragraph. See generally Appeal Br. 4—17.
In the Reply Brief, Appellant for the first time contends that
“reference to the inventive ‘shower curtain’ per the claim preamble fails to
render the claim indefinite.” Reply Br. 8. However, Appellant’s argument
4 In that the Amendment in Response to Final Office Action, dated
September 4, 2015 was not entered, a correct copy of claim 1 on Appeal is
found in the Amendment filed May 18, 2015, rather than in APPENDIX A
to the Appeal Brief, as stated by Appellant at page 8 of the Reply Brief.
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Application 12/714,804
is not responsive to an argument newly raised in the Examiner’s Answer.
Appellant did not set forth this argument in a timely manner prior to filing of
the Reply Brief to permit the Examiner an opportunity to fully respond. See
37 C.F.R. § 41.41(b)(2) (2014) (“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 for
purposes of the present appeal, unless good cause is shown.”). Thus, we do
not consider this argument.
For the foregoing reason, we sustain the Examiner’s decision rejecting
claims 1,3, 6—9, and 11—16 as being indefinite for failing to particularly
point out and distinctly claim the subject matter which the inventor regards
as the invention.
Obviousness of Claims 1, 3, 6, 9, and 11—16 over Woods, Patnode,
Annett, and Baynes; of claim 7 over Woods, Patnode, Annett, Baynes, and
Gavette; and of claim 8 as unpatentable over Woods, Patnode, Annett,
Baynes, and Gallob
Appellant presents certain arguments asserting the patentability of
claims 1,3,6, 9, and 11—16 as a group. Because Appellant also purportedly
argues claims 3,12, and 15 separately (Appeal Br. 14—15; Reply Br. 2—3),
the analysis of the arguments directed at this group overall determines the
outcome for claims 1, 3, 9, 11, 13, 14, and 16.5 We select claim 1 as the
representative claim for this group, and the remaining claims in this group
5 To the extent that Appellant’s reference to additional elements recited in
dependent claims 3, 12, and 15 constitute separate arguments for
patentability of these claims, we address them infra.
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Application 12/714,804
stand or fall with claim 1. See 37 C.F.R. § 41.37(c)(l)(iv). Appellant
submits that claims 7 and 8 stand or fall with claim 1, and does not present
separate arguments for these claims, which are subject to different
rejections. See Appeal Br. 4.6 Thus, the outcome as to claims 1,3, 7—9, 11,
13, 14, and 16 turns on the analysis as to independent claim 1.
Regarding claim 1, the Examiner relies on Woods for teaching, inter
alia, a shower curtain formed of a waterproof sheet (curtain 10) with at least
one aperture (portal) 16 and a first flap 17 “adapted to overlay a proximal
portion of an injured limb to effectively form a shield preventing water spray
from a shower (6) from contacting a seal adapted to be formed around the
injured limb and the proximal portion of the injured limb that is insufficient
to protect the injured limb (the portion of the injured limb that is exposed to
water) from water from the water spray (produced by shower 6).” Final Act.
3^4 (citing Woods, Figs. 1 and 2).
While observing that “Woods does not teach the [waterproof] sheet
being made of a polymeric material, the portal being adjustably sized with a
thinned region or printed indicia designating cut lines to enlarge the size of
the portal, or an elastomeric ribbon attached to said sheet to at least partially
cover the aperture to define a portal adjustably sized to receive a limb,” the
Examiner first determines that Patnode “teaches in Figure 2, column 2, lines
49-54 and column 6, lines 38-41 [,] an analogous device in which the sheet is
made of a polymeric material,” reasoning that “[t]he devices of Woods and
6 We note being admonished by our reviewing court that “applicant can
waive appeal of [any] ground of rejection.” Hyatt v. Dudas, 551 F. 3d 1307,
1314 (Fed. Cir. 2008).
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[Patnode] are analogous inasmuch as they are both barrier materials.” Id. at
4.
From the foregoing, the Examiner reasons that it would have been
obvious “to modify the sheet taught by Woods to be made of a polymeric
material as taught by [Patnode] because this element is known to be a totally
fluid impervious material.” Id. (citing Patnode, col. 6,11. 38-41).
Furthermore, the Examiner explains that because “the device of Woods is
designed to prevent shower water from scattering and escaping from the
sheet. . ., such a modification would enhance the ability of the device of
Woods to contain shower fluid.” Id. (citing Woods, col. 1,1. 48—col. 2,1. 2).
The Examiner also finds that Patnode teaches
an analogous device with an elastomeric ribbon (26) attached to
said sheet (22) to at least partially cover an aperture (24) to define
a portal (28) adjustably sized (via the stretchable, and therefore
adjustable, elastomeric ribbon material) to pass an injured limb
through the portal (28) and is adapted to be tensioned against a
user proximal limb relative to a distal injury of the injured limb
to form a seal, said seal being insufficient to prevent water
passing through said seal to wet the distal injury (inasmuch as
any water passed through the seal would wet the distal injury).
Id. at 5.
The Examiner reasons that it would have been obvious
to modify the aperture and sheet taught by Woods as modified
by Patnode [] with the elastomeric ribbon attached to said sheet
to at least partially cover the aperture to define a portal adjustable
sized to receive a limb as taught by Patnode [] because this
element [elastomeric ribbon] is known to conform to the skin of
the patient and form an effective seal to isolate the limb.”
Id. (citing Patnode, col. 1,11. 59—62).
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Application 12/714,804
The Examiner also explains that “[s]uch a modification [of Woods]
would prevent leakage of shower fluid through the aperture when a limb is
placed therethrough.”7 Id.
While first flap 17 of Woods “can be positioned over the user
proximal portion of the injured limb to effectively form a shield preventing
water spray from a shower from contacting said seal of the shower curtain
between said ribbon and the user proximal portion of the injured limb,” the
Examiner observes that “Woods and Patnode [] do not teach the first flap
having a slit or cutout, wherein the slit, the portal being adjustably sized with
a thinned region, or printed indicia designating cut lines to enlarge the size
of the portal or cutout is adapted to facilitate the draping of said first flap
over the user proximal portion of the injured limb.” Id. at 5—6.
However, the Examiner determines that
Annett [] teaches in Figure 1 and [0007] of the Detailed
Description an analogous device with the first flap (54) having a
slit or cutout (66), said slit or cutout (66) extending towards and
not overlapping the portal (the center of the roll illustrated in
Figure 1), wherein the slit or cutout (66) is adapted to facilitate
the draping of said first flap (54) over the user proximal portion
of the injured limb.
Id. at 6.
From the foregoing, the Examiner reasons that it would have been
obvious
to modify the first flap taught by Woods as modified by Patnode
[] to have a slit or cutout, said slit or cutout extending towards
and not overlapping the portal, wherein the slit or cutout is
adapted to facilitate the draping of said first flap over the user
7 See also Woods, column 1, lines 10-13 (disclosing flexible openings
“adapted to yieldingly close upon the members introduced and afford a seal
against outward escape of the shower”).
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proximal portion of the injured limb as taught by Annett []
because this element is known to provide a finger hold for the
device.
Id. (citing Annett, 17).
Although acknowledging that “Woods, Patnode [] and Annett [] do
not teach the portal being adjustably sized with a thinned region or printed
indicia designating cut lines to enlarge the size of the portal,” the Examiner
finds that “Baynes teaches in Figure 5, column 1, lines 20-24 and column 2,
lines 42-45 an analogous device wherein the portal (the hole formed through
window 16 when the center section 18 is removed) is adjustably sized with a
thinned region (perforation lines 20),” and “with printed indicia (perforation
lines 20) designating cut lines to enlarge the size of the portal.” Id. at 7.
The Examiner also determines that “perforation line (20) is formed of
a line of perforations, and thus a line of cuts, and therefore, indicates the
presence of a cut line (a line formed of cuts)” that “can be considered indicia
inasmuch as the perforation lines (20) are distinctive marks,” and “can be
considered printed indicia inasmuch as the perforation lines (20) are
impressed, and thus printed, in and on the ribbon (16).” Id. From the
foregoing, the Examiner reasons that it would have been obvious “to modify
the portal taught by Woods as modified by Patnode [] and Annett [] to be
adjustably sized with a thinned region or printed indicia designating cut lines
to enlarge the size of the portal as taught by Baynes because this element
enables portions of the ribbon to be selectively removed so that the size of
the portal may be selectively varied,” to “enable the size of the portal to be
varied and customized to accommodate limbs of individuals of different
sizes.” Id. at 7—8 (citing Baynes, col. 1,11. 20-24; col. 2,11. 42-45).
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In taking issue with the Examiner’s findings and conclusions,
Appellant first reproduces verbatim the Examiner’s entire final rejection of
claim 1. See Appeal Br. 5—7. Rather than identifying specific error in the
Examiner’s rejections, Appellant generally contends, first, that “[n]oprima
facie case of obviousness is established as to produce the claimed structure
with the recited interaction [of] the flap having a slit or cutout and the portal
to keep a casted limb dry without cutting off blood circulation to the limb,”
and, second, that “[t]he Annett, Baker, Baynes and Gavette references do not
qualify as prior art under 35 U.S.C. § 103 because they are not analogous to
the invention being claimed.” Id. at 8.
Regarding the first contention, Appellant also asserts that
there must be some motivation found in the prior art or general
knowledge in the art to limit the quality of the seal around a limb
passed through a portal in a shower curtain to retain circulation
in the limb while preventing the wetting of such a limb through
the claimed design of a flap partially overlapping this portal per
claim 1.
Id. at 11; see also Appeal Br. 12.
However, the argument that a motivation must be found in the prior
art is foreclosed by KSR International Co. v. Teleflex Inc., 550 U.S. 398, 402
(2007), in which the Court rejected the rigid requirement of a teaching,
suggestion, or motivation to combine known elements in order to show
obviousness. Id. at 415. Thus, “if a technique has been used to improve one
device, and a person of ordinary skill in the art would recognize that it would
improve similar devices in the same way, using the technique is obvious
unless its actual application is beyond his or her skill.” Id. at 417.
Furthermore, as the Examiner explains, “the features upon which
[Appellant] relies (i.e., limiting the quality of the seal around a limb passed
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Application 12/714,804
through a portal in a shower curtain) are not recited in the rejected claim(s).”
Ans. 18 (emphasis omitted). We agree that Appellant’s contention is
unavailing as it is not commensurate with the scope of claim 1, which is not
limited by the quality of the seal around a limb passed through a portal in a
shower curtain, but merely recites a “an elastomeric ribbon ... to form a seal
to retain circulation in the injured limb.”8 As we are instructed by our
reviewing court, “limitations are not to be read into the claims from the
[Specification.” In re Van Geuns, 988 F.2d 1181, 1184 (Fed. Cir. 1993)
(citing In reZletz, 893 F.2d 319, 321 (Fed. Cir. 1989)).
Without specifically referring to any prior art cited by the Examiner,
Appellant also contends that “the Examiner has resorted to deconstructing
the claimed invention in isolated components and through improper
hindsight construction combined references disclosing individual aspects of
the claimed invention.” Appeal Br. 11. However, we are not persuaded that
the combination of Woods, Patnode, Annett, and Baynes impermissibly uses
the disclosure of the present patent application as a guide. In particular,
Appellant has not identified any knowledge that the Examiner relied upon
that was not otherwise within the level of ordinary skill at the time of the
invention. See In re McLaughlin, 443 F.2d 1392, 1395 (CCPA 1971); see
also Radix Corp. v. Samuels, 13 USPQ2d 1689, 1693 (D.D.C. 1989) (“[A]ny
obviousness inquiry necessarily involves some hindsight.”).
Appellant continues by contending
[njone of Woods, Patnode[,] Annett [], or Baynes, each alone, or
in combination is submitted to teach the subject matter of claim
1 in current form that includes a portal that is adjusted through a
thinned region or printed indicia used to adjust portal tension
8 See supra n.4.
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against a cast limb to retain circulation with a limb inserted
therethrough.
Appeal Br. 12.
Appellant also contends that the prior art does not teach the
[portal tension] being insufficient to preclude the limb from
becoming wet when showering yet affords the benefit of
retaining blood circulation to the distal injured portion; with a slit
or cutout flap that drapes over the proximal portion of the limb
to protect the seal and thereby prevent water leaking through the
seal to wet the casted or injured limb.
Id.
Appellant concludes that because
the claimed invention of claim 1 provides this balanced approach
of an adjustable seal that allows limb circulation, yet by itself is
inadequate coupled with a slit or cutout containing flap to protect
the seal from overhead shower spray that otherwise would
compromise the seal, it is respectfully submitted that this
synergistic interaction renders pending claim 1 allowable over
the prior art of record.
Id. at 13.
However, we agree with the Examiner that “the seal formed by the
device of Patnode [] is capable of functioning to retain circulation in the
injured limb as claimed,” and adopt the additional findings and reasoning of
the Examiner set forth at pages 5—6 of the Final Action and pages 19—20 of
the Answer.
As to the second argument set forth above, Appellant contends that
the “Annett, Baker, Baynes and Gavette references do not qualify as prior art
under 35 U.S.C. § 103 because they are not analogous to the invention of
claim 1.” Appeal Br. 15. Our reviewing court has provided two criteria
useful in finding whether art is analogous: “(1) whether the art is from the
same field of endeavor, regardless of the problem addressed, and (2) if the
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reference is not within the field of the inventor's endeavor, whether the
reference still is reasonably pertinent to the particular problem with which
the inventor is involved.” Comaper Corp. v. Antec, Inc., 596 F.3d 1343,
1351 (Fed. Cir. 2010); see also In re Klein, 647 F.3d 1343, 1348 (Fed. Cir.
2011).
Appellant argues that “the pending claims are directed to a shower
curtain — a durable consumer product hanging in a vertical orientation[—] are
not in the same field of endeavor as [a] disposable surgical drape for
horizontal draping around a surgical field of the prior art,” concluding that
“[n]one of these prior art references is submitted to meet either prong of the
test for analogous prior art.” Id. at 16—17.
One determines whether a prior art reference is within the same field
of endeavor as the subject matter of a claim by comparing the structure and
function of the subject matter recited in the claim to that of the subject
matter disclosed in the reference. In re Bigio, 381 F.3d 1320, 1326 (Fed.
Cir. 2004). Furthermore, the Supreme Court’s decision in KSR International
Co. v. Teleflex, Inc., 550 U.S. 398 (2007), directs us to construe the scope of
analogous art broadly, stating that “familiar items may have obvious uses
beyond their primary purposes, and a person of ordinary skill often will be
able to fit the teachings of multiple patents together like pieces of a puzzle.”
Id. at 402.
We agree with the Examiner that “the devices of the prior art are in
the field of [Appellant’s] endeavor (barrier materials),” as they “are drape
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materials that, similarly to Appellant’s invention, function to provide a
barrier to protect a user’s anatomy (from water, liquid, etc.).”9 Ans. 22.
In the Reply Brief, Appellant for the first time contends that “the
length of the intervening time between the publication dates of the cited
prior art and the claimed invention are also an objective indicator of
nonobviousness.” Reply Br. 7. However, Appellant’s argument is not
responsive to an argument newly raised in the Examiner’s Answer.
Appellant did not set forth this argument in a timely manner prior to filing of
the Reply Brief to permit the Examiner an opportunity to fully respond. 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 for purposes
of the present appeal, unless good cause is shown.”). Furthermore, “[t]he
mere age of the references is not persuasive of the unobviousness of the
combination of their teachings, absent evidence that, notwithstanding
knowledge of the references, the art tried and failed to solve the problem.”
In re Wright, 569 F.2d 1124, 1127 (CCPA 1977).Thus, we consider this
newly presented argument to be without merit.
Regarding claim 3, Appellant misreads the Examiner’s rejection in
contending that “the inclusion of the elastic ribbon in Woods with an elastic
ribbon per Patnode [] and Annett [] implicitly implies the replacement of the
draw band 15 of Woods.” Appeal Br. 14. The Examiner’s rejection of
9 We note that Appellant’s Specification even acknowledges that the prior
art surgery drapes are in the field of Appellant’s endeavor, disclosing the
“inventive drape being used in surgery.” Specification, 116,11. 11—14.
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claim 1 (and dependent claim 3) is based on the first flap 17, not the head
flap 12. See Final Act. 3^4. Thus, Appellant’s contention is without merit.
Regarding claim 12, Appellant contends that “to construe the head
passage 11 [of Wood] as a handle as this structure in usage cannot afford
user support and indeed a handle would detract from arm movement to
facilitate washing per Woods.” Appeal Br. 14. However, the Examiner
explains that “[t]he head passage (11) of Woods can be considered a handle
inasmuch as it is a structure having an opening configured to be gripped with
the hand,” and “[s]ince Appellant has not provided a special definition of
handle in the specification, the examiner must give the term handle its
broadest reasonable interpretation in light of the specification and therefore,
any structure that is able to be gripped with the hand can be considered to be
a handle.” Ans. 20—21.
We determine the scope of the claims in a patent application upon
giving claims “their broadest reasonable interpretation consistent with the
specification” and “in light of the specification as it would be interpreted by
one of ordinary skill in the art.” In re Am. Acad. ofSci. Tech Ctr., 367 F.3d
1359, 1364 (Fed. Cir. 2004) (citations omitted). “Construing claims broadly
during prosecution is not unfair to the applicant. . . because the applicant
has the opportunity to amend the claims to obtain more precise claim
coverage.” Id. We agree with the Examiner that “any structure extending
from the drape of Woods that is able to be gripped with the hand could be
considered to be a handle since Appellant has not recited any additional
structural features that would distinguish the claimed handle from that of the
prior art.” Ans. 21.
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Regarding claim 15, Appellant contends that “there is no teaching of
record of an opening adapted to create a closed loop in which an injured
limb (arm exits via the shower curtain and the hand of that limb is brought
back into shower area[)].” Appeal Br. 15. However, Appellant’s contention
is unavailing as it is not commensurate with the scope of claim 15, which is
not limited to “an opening adapted to create a closed loop,” but merely
recites an opening “adapted to receive a user’s hand of an injured limb.”
Appeal Br. 21, Claims App. As we are instructed by our reviewing court,
“limitations are not to be read into the claims from the [Specification.” In
re Van Geuns, 988 F.2d at 1184.
Based on the foregoing, we sustain the Examiner’s rejections of
claims 1,3,6, 9, and 11—16 over Woods, Patnode, Annett, and Baynes; of
claim 7 over Woods, Patnode, Annett, Baynes, and Gavette; and of claim 8
as unpatentable over Woods, Patnode, Annett, Baynes, and Gallob.
DECISION
We AFFIRM the Examiner’s rejections.
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)(l)(iv).
AFFIRMED
15