Ex Parte Nyland

Board of Patent Appeals and Interferences

Feb 22, 2012

10848829 (B.P.A.I. Feb. 22, 2012)

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.
10/848,829 05/19/2004 Thomas John Nyland 14684.1US01 4775
7590 02/23/2012
Merchant & Gould P.C.
P.O. Box 2903
Minneapolis, MN 55402-0903
EXAMINER
POON, PETER M
ART UNIT PAPER NUMBER
3643
MAIL DATE DELIVERY MODE
02/23/2012 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 THOMAS JOHN NYLAND
________________

Appeal 2010-001918
Application 10/848,829
Technology Center 3600
________________

Before STEVEN D.A. McCARTHY, GAY ANN SPAHN and
CHARLES N. GREENHUT, Administrative Patent Judges.

McCARTHY, Administrative Patent Judge.

DECISION ON APPEAL

STATEMENT OF THE CASE 1
The Appellant1 appeals under 35 U.S.C. § 134 from the Examiner’s 2
final decision rejecting claims 10, 11, 13, 23-26 and 35. Claims 10 and 23 3
are independent. The Examiner rejects claims 10, 11 and 13 under 35 4
U.S.C. § 102(b) as being anticipated by Roberts (US 2,146,350, issued Feb. 5

1 The Appellant is the real party in interest.
Appeal No. 2010-001918
Application No. 10/848,829

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7, 1939); and claims 23-26 and 35 under § 103(a) as being unpatentable over 1
Perry (US 5,212,900, issued May 25, 1992) and Roberts. Claims 1-9, 12, 2
14-22 and 27-34 are cancelled. We have jurisdiction under 35 U.S.C. § 6(b). 3
We REVERSE. 4
5
Claims 10, 11 and 13 6
Independent claim 10 recites, with emphasis added in the form of 7
italics: 8
10. An arm support device for use with an 9
elongated item having a handle, the arm support 10
device comprising: 11
a coupler adapted to be coupled to the 12
handle; 13
a forearm receiving member defining a 14
channel elongated along a length that extends 15
between open front and rear ends of the forearm 16
receiving member, the channel having an open top 17
side, the forearm receiving member being 18
positioned above the coupler; 19
a pivot member that connects the forearm 20
receiving member to the coupler, the pivot member 21
defining a pivot axis that extends generally in an 22
upward/downward direction and is located 23
adjacent the front end of the forearm receiving 24
member, the forearm receiving member being 25
pivotally moveable about the pivot axis defined by 26
the pivot member, and the length of the forearm 27
receiving member extending generally radially 28
outwardly from the pivot axis. 29
30
Roberts describes a rod and reel stabilizer including a rod engaging 31
clamp 1; an adjustable arm 2; and an adjustable arm clamp 3. (Roberts, col. 32
Appeal No. 2010-001918
Application No. 10/848,829

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1, ll. 37-39). The adjustable arm 2 has perpendicularly-oriented disk-like 1
portions 8, 11 at opposite ends. (Roberts, col. 1, l. 58 – col. 2, l. 3 and figs. 2
2 and 3). The adjustable arm 2 is pivotable relative to the rod engaging 3
clamp 1 about a bolt 9 extending perpendicularly through the disk-like 4
portion 8. The adjustable arm clamp 3 includes jaws 16 pivotable about a 5
bolt 12 extending perpendicularly through the disk-like portion 11. These 6
two pivotable connections appear to represent the only rotational degrees of 7
freedom of the jaws 16 relative to the bolt 9 and the rod engaging clamp 1. 8
The Examiner finds that Roberts’ adjustable arm clamp 3 corresponds 9
to the forearm receiving member recited in claim 10. (Communication 10
mailed Apr. 9, 2009 at 2). The Examiner additionally finds that Roberts’ 11
bolt 9 corresponds to the pivot member recited in claim 10. (Id.) Looking to 12
Figures 2 and 4 of Roberts, the only length direction defined by the jaws 16 13
of the adjustable arm clamp 3 that extends between open front and rear ends 14
is the direction parallel to the pivot axis defined by the bolt 12. The 15
Appellant correctly points out that this length direction does not extend 16
generally outwardly from the pivot axis defined by the bolt 9. (See App. Br. 17
10). Since the Examiner provides no other set of findings which might 18
explain how Roberts might describe each and every element of claim 10, we 19
do not sustain the rejections of claims 10, 11 and 13 under § 102(b) as being 20
anticipated by Roberts. 21
22
Claims 23-26 and 35 23
Independent claim 23 recites, with emphasis added in the form of 24
italics: 25
Appeal No. 2010-001918
Application No. 10/848,829

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23. An arm support device for use with an 1
elongated item having a handle, the arm support 2
device comprising: 3
a handle coupler defining a pivot shaft 4
opening; 5
an arm cradle having a base portion and 6
opposing left and right side walls that define an 7
upwardly facing channel having an open top side, 8
the channel having a width and a length, the width 9
of the channel being defined as the maximum 10
distance measured between the left and right side 11
walls, the length of the channel being generally 12
perpendicular to the width and extending from a 13
front end to a back end of the base portion, and the 14
width of the channel being shorter than the length 15
of the channel; and 16
a pivot pin positioned at the front end of the 17
base portion of the arm cradle, the pivot pin 18
including a pivot shaft portion defining a pivot axis 19
about which the arm cradle pivots, the pivot shaft 20
portion extending downwardly relative to the arm 21
cradle such that the pivot axis extends generally in 22
an upward/downward direction, the pivot shaft 23
portion being pivotally received within the pivot 24
shaft opening of the coupler, the length of the 25
channel of the arm cradle extending generally 26
radially outwardly from the pivot axis. 27
28
Perry describes a limb brace and support device 20 for use with a 29
fishing pole 42. (Perry, col. 2, ll. 8-10 and col. 3, ll. 30-37). The limb brace 30
20 includes a first portion 52 and a second portion 54 connected by an 31
articulating hinge joint 56. (Perry, col. 3, ll. 38-40). The first portion 52 of 32
the limb brace 20 has a longitudinally extending opening 58 so that the first 33
portion 52 cradles the user’s forearm 24. (Perry, col. 3, ll. 40-46). The 34
Appeal No. 2010-001918
Application No. 10/848,829

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second portion 54 has a similar longitudinally extending opening 80 so that 1
the second portion 54 cradles the user’s upper arm 26. (Perry, col. 3, l. 62 – 2
col. 4, l. 1). A hinge connection 90 pivotably connects the first and second 3
portions 52, 54 of the limb brace 20 to permit the user to bend and straighten 4
the user’s elbow 28. (Perry, col. 4, ll. 8-12). The hinge connection 90 5
necessarily has a pivot axis parallel to the planes of the longitudinally 6
extending openings 58, 80 in order to permit the user to bend the user’s 7
elbow 28. (See Perry, fig. 1). 8
The Examiner finds that the first portion 52 of Perry’s limb brace 20 9
corresponds to the arm cradle recited in claim 23. (Communication mailed 10
Apr. 9, 2009 at 5). The Examiner additionally finds Perry’s hinge 11
connection 90 includes a pivot pin 96 corresponding to the pivot pin recited 12
in claim 23. (Id.) The Examiner concludes that it would have been obvious: 13
to change the orientation of the pivot pin to [a] 14
vertical orientation as shown by Roberts so that the 15
upper portion would be connected to the arm 16
cradle and the lower portion received within the 17
pivot pin opening of the handle coupler 100 noting 18
that merely rearranging the location of parts is 19
contemplated. 20
(Id.) 21
The Examiner’s finding that the first portion 52 of Perry’s limb brace 22
20 corresponds to the arm cradle recited in claim 23 implies that the channel 23
defined by the arm cradle is upwardly facing and possessed of an open top 24
portion only if the longitudinally extending opening 58 faces upwardly. The 25
Appellant correctly points out that, if the longitudinally extending opening 26
58 is restrained to face upwardly, the orientation of the pivot pin 96 can only 27
be changed by sacrificing the ability of the hinge connection 90 to permit the 28
Appeal No. 2010-001918
Application No. 10/848,829

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user to bend and straighten the user’s elbow. (See App. Br. 13). This 1
drawback implies that one of ordinary skill in the art would have had to 2
undertake more than a mere rearrangement of parts in order to implement 3
the modification proposed by the Examiner. Since the Examiner fails to 4
explain what further modifications might have been made or what apparent 5
reason one of ordinary skill in the art might have had to make such further 6
modifications, we do not sustain the rejection of claims 23-26 and 35 under 7
§ 103(a) as being unpatentable over Perry and Roberts. 8
9
DECISION 10
We REVERSE the Examiner’s decision rejecting claims 10, 11, 13, 11
23-26 and 35. 12
13
REVERSED 14
15
16
17
Klh 18