Ex Parte Pangborn

Patent Trial and Appeal Board

Sep 11, 2013

11527019 (P.T.A.B. Sep. 11, 2013)

UNITED STATES PATENT AND TRADEMARK OFFICE
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BEFORE THE PATENT TRIAL AND APPEAL BOARD
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Ex parte DOMINIC J. PANGBORN
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Appeal 2011-011782
Application 11/527,019
Technology Center 3600
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Before JOHN C. KERINS, WILLIAM A. CAPP and NEIL T. POWELL,
Administrative Patent Judges.

KERINS, Administrative Patent Judge.

DECISION ON APPEAL

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STATEMENT OF THE CASE
Dominic J. Pangborn (Appellant) seeks our review under 35 U.S.C.
§ 134(a) of the Examiner’s final rejection of claims 1-5 and 12. We have
jurisdiction under 35 U.S.C. § 6(b). We AFFIRM.

THE INVENTION
Appellant’s invention is directed to a handle. Independent claim 1,
reproduced below, is representative of the claimed subject matter:
1. A handle comprising:

an elongated handle portion having a proximal
end, a distal end, and a top and bottom surface;

a forearm support portion attached at the distal end
of said elongated handle with a top surface for
supporting the underside of a user’s forearm;

said elongated handle portion is directly attached
to said forearm support portion;

said forearm support portion is oriented at an
upward angle of between 5-40° to said elongated
handle portion;

said elongated handle portion is substantially
parallel throughout its length with said forearm
support;

said top surface of said elongated handle portion
and said top surface of said forearm support
portion are substantially parallel to one another;
and

an implement fastener attached to said proximal
end of said elongated handle portion.
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THE REJECTIONS
Appellant appeals from the following rejections:
(i) claims 1, 2 and 12 under 35 U.S.C. § 102(b) as being anticipated
by1 or, in the alternative, under 35 U.S.C. § 103(a) as being unpatentable
over, Panassie (FR 2 851 906, published Sep. 10, 2004)2;
(ii) claims 3-5 under 35 U.S.C. § 103(a) as being unpatentable over
Panassie; and
(iii) claims 1-5 and 12 under 35 U.S.C. § 103(a) as being unpatentable
over Panassie in view of Graj (US 6,698,064 B1, issued Mar. 2, 2004).

ANALYSIS
Claims 1, 2 and 12--Anticipation/Obviousness--Panassie
Appellant argues, with respect to the rejection of claim 1, that
Panassie does not anticipate because Panassie does not disclose a top surface
for supporting the underside of a user’s forearm, but instead discloses an
elbow support. Appeal Br. 4. The Examiner points out that the Abstract of
Panassie identifies that the handle has a forearm rest. Ans. 9. Appellant’s
argument is thus not persuasive of a lack of anticipation.
Appellant additionally argues that claim 1 requires that the handle
portion be directly attached to the forearm support portion, and that Panassie
has two portions attached by means of a pin. Appeal Br. 4. The Examiner
takes the position that the two portions of Panassie’s handle contact each
other and are thus regarded as being directly attached. Ans. 9. Appellant’s

1 The Examiner withdrew, on appeal, a rejection of claims 3-5 as being
anticipated by Panassie. Ans. 2-3.
2 Reference made herein to Panassie is to the English-language translation
that is of record in the application file history.
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argument does not apprise us of error in the Examiner’s position relative to
the claim limitation and the structure in Panassie asserted to meet that
limitation.
Appellant further argues, citing to Figure 4 of Panassie, that the
handle portion and forearm support portion lie in the same plane, and are
thus not parallel to one another as required by claim 1. Appeal Br. 4-5. In
response, the Examiner calls attention to Figure 3 of Panassie as showing a
better view of the handle vis-à-vis this claim limitation, and notes that the
two elements are not in the same plane and are substantially parallel. Ans.
9-10. We agree with the Examiner that Figure 3 of Panassie discloses the
limitation at issue, and, once again, Appellant’s argument is not persuasive
of a lack of anticipation.
Appellant argues, with respect to claim 2, that the handle portion of
the Panassie device is not curved in an upwardly convex manner, and is only
upwardly convex on the top surface, but not the bottom surface. Appeal Br.
5. The Examiner points to portion 3 of the handle in Panassie as being
upwardly convex on both the top and bottom sides. Ans. 10, citing to
Panassie, Fig. 2. Appellant presents no countering argument. The
Examiner’s interpretation of Figure 2 is seen as being correct; Appellant’s
argument does not apprise us of error in the Examiner’s position.
Appellant maintains that the Panassie device does not meet the
limitation in claim 12 calling for the forearm support portion to extend less
than or equal to half way up the underside of the user’s forearm, arguing that
“a handle intended to extend to the elbow of an average user will extend
well past halfway up the forearm of even a very long-armed user.” Appeal
Br. 5. The Examiner takes the position that the relationship in size between
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the handle and the user is completely dependent on the size of the arm. We
do not see any specific disclosure in Panassie that the handle is intended to
extend to the elbow of the user, as asserted by Appellant. While Figure 3
appears to show such positioning, there is no express teaching that this is the
intent in Panassie. We agree with the Examiner that where the forearm
engages the forearm support is dependent on the length of a user’s forearm,
and we also note that it is dependent on where the user grips the proximal
portion of the handle. The Panassie device is thus capable of having its
forearm support portion extend only halfway or less up the forearm of
certain users. Appellant’s arguments do not apprise us of error in the
Examiner’s rejection.
Appellant further argues, with respect to the Examiner’s alternative
rejection of claim 12 as being obvious over Panassie, that “[s]pace saving is
not an issue in the present invention as the handle is already shorter than
Panassie’s and it would not have been obvious to make Panassie out of a
single piece.” Appeal Br. 7. Appellant continues with arguments regarding
the Examiner’s proposed modification to make the Panassie handle out of a
single piece. Id. These arguments are not persuasive, in that they are not
commensurate with the scope of claim 12, in that claim 12 does not require
the handle to be made of a single piece. Apropos to the actual claim 12
limitations, the Examiner maintains that it would have been obvious to make
the Panassie handle in a number of different lengths, and among those
lengths would be ones which would extend only halfway up the forearm or
less. Ans. 11.
The rejection of claims 1, 2 and 12 as being anticipated by Panassie is
sustained. The rejection of these claims as being unpatentable over Panassie
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is also sustained, in that anticipation is the epitome of obviousness. See In
re Pearson, 494 F.2d 1399, 1402 (CCPA 1974); and In re Fracalossi, 681
F.2d 792, 794 (CCPA 1982).
Claims 3-5-Obviousness--Panassie
For claim 3, the Examiner takes the position that it would have been
obvious to apply known handle grip features, including finger grip contours
to interact with the fingers, on the Panassie handle. Ans. 6. Appellant
argues only that the Panassie handle does not have indentation portions for
receiving fingers on the bottom of the elongated handle portion. The
argument is unpersuasive as it does not address the Examiner’s position
regarding the obviousness of modifying the Panassie handle to meet the
claim limitation.
Appellant argues, for claim 4, that to construct the Panassie handle
from a single piece of plastic material would destroy the functionality and
utility of the Panassie handle. Appeal Br. 6. Appellant maintains that the
Panassie design requires that the handle fold in half. Id. The Examiner
concludes that it would have been obvious to form the handle of a single
piece of plastic, in that this would constitute an obvious selection of a known
material based on its suitability for the intended use, and that to do so would
not affect the functionality or utility of the Panassie handle, in that it would
continue to operate to allow for the easy handling of culinary articles.
Ans. 7, 10. We find that the Examiner has the better position here, and we
are not persuaded that the rejection of claim 4 is in error.
Appellant cites to Figure 4 of Panassie as evidencing that the forearm
support means is not knob-shaped, as is required in claim 5, but is instead a
flattened, slightly concave surface. Appeal Br. 5. The Examiner points to
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Figures 2 and 3 of Panassie as evidencing that the forearm support is knob-
shaped. Ans. 7. Appellant has not pointed to any specific definition or
meaning that is to be attributed to the claim term “knob-shaped” that would
exclude the shape of the forearm support as illustrated in Figures 2-4 of
Panassie, and we are thus not apprised of error in the Examiner’s decision.
The rejection of claims 3-5 as being obvious over Panassie is
sustained.
Claims 1-5 and 12--Obviousness--Panassie/Graj
The Examiner relies on Graj as evidencing a handle having a forearm
support made in a single non-folding piece, and presents several reasons
why it would have been obvious to modify the Panassie handle to be made
of a single piece. Ans. 7-8, The Examiner also relies on Graj as evidencing
a forearm support that extends less than or equal to halfway up a user’s
forearm, and concludes that it would have been obvious to modify Panassie
in that manner for providing comfort to a user. Ans. 8-9. The Examiner
takes the position that “[e]ach user is different, and a shorter length may be
more agreeable with some users rather than a longer handle.” Ans. 9.
Appellant counters by attacking the teachings of Graj individually,
and attacking particular teachings not relied on by the Examiner. Appeal Br.
7. These arguments thus do not apprise us of error in the Examiner’s
position.
Appellant also repeats the argument that making the Panassie handle
of a single piece would destroy the functionality of the two piece handle,
asserting that the handle needs to be made in two pieces for storage
purposes. Id. This argument is apparently directed to claim 4, although
Appellant does not specifically identify it as such. The Examiner again
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notes that, were the Panassie handle made in one piece, the functionality of
enabling users to easily handle culinary articles would not be destroyed.
Ans. 11. The Examiner also notes that the ability to be able to fold the
handle would not be a particular issue where storage space is not a problem,
such as in a commercial setting or in a larger kitchen. Ans. 8.
Appellant’s arguments do not apprise us of error in the Examiner’s
rejection, and the rejection of claims 1-5 and 12 as being unpatentable over
Panassie and Graj is sustained.
DECISION
The decision of the Examiner to reject claims 1, 2 and 12 under 35
U.S.C. §§ 102(b) and 103(a) over Panassie is affirmed.
The decision of the Examiner to reject claims 3-5 under 35 U.S.C.
§ 103(a) over Panassie is affirmed.
The decision of the Examiner to reject claims 1-5 and 12 under 35
U.S.C. § 103(a) over Panassie in view of Graj 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)(1)(iv).

AFFIRMED

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