Ex Parte Perrego

Board of Patent Appeals and Interferences

Sep 11, 2007

09740169 (B.P.A.I. Sep. 11, 2007)

The opinion in support of the decision being entered
is not binding precedent of the Board.

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
____________

Ex parte DAVID W. PERREGO
____________

Appeal 2007-2294
Application 09/740,169
Technology Center 3700
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Decided: September 11, 2007
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Before DEMETRA J. MILLS, LORA M. GREEN, and RICHARD M.
LEBOVITZ, Administrative Patent Judges.

GREEN, Administrative Patent Judge.

DECISION ON APPEAL
This is a decision on appeal under 35 U.S.C. § 134 from the
Examiner’s final rejection of claims 1-15.1 We have jurisdiction under 35

1 The Amendment after Final Action, dated October 15, 2003, was entered
after petition (Answer 2), thus the claims on Appeal may be found in
Appendix B of the Appeal Brief (Reply Br. 1).
Appeal 2007-2294
Application 09/740,169

U.S.C. § 6(b). Claims 1, 9, and 10 are representative of the claims on
appeal, and read as follows:
1. A vertical traction assembly for using gravity to stretch a person's
spine, said assembly comprising:
a) standing frame means and torso harness means coupled to
depend downwardly from said frame means,
b) said harness means being effective to maintain a person in a
vertical traction suspension position after the person dons said harness
means, and
c) traction force focusing means attached to the frame means for
applying a focused traction pressure directly to a selected location along the
spine of the person who is in said vertical traction suspension position.

9. A vertical traction assembly for using gravity to stretch a person's
spine, said assembly comprising:
a) standing frame means and torso harness means coupled to
flexibly depend downwardly from said frame means, and
b) said frame means including a first non-traction receiving
surface means for supporting a person while standing to don the torso
harness means and a second partial traction receiving surface means for
supporting a person while standing to adjust said harness means with respect
to the person's torso and assembly before the person voluntarily steps to a
vertical, gravity traction suspension position,
c) said harness means being effective to suspend the person from
the frame means for a partial traction pressure when the person stands on
said second partial traction receiving surface means after donning said
harness means,
d) said partial traction pressure being less than a full traction
pressure that is applied to the person while in said vertical, gravity traction
suspension position.

10. A traction assembly for using gravity to stretch a person's spine, said
assembly comprising:
a) freestanding frame means and harness means effective to
releasably gird the torso of a person,
b) said harness means being coupled to flexibly depend
downwardly from said frame means to suspend the person from the frame
means in a vertical traction suspension position, and
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Application 09/740,169

c) focused traction force means adjustably connected to the frame
means for applying traction pressure directly to a selected location along the
spine of the person in said vertical traction suspension position.
The Examiner relies on the following references:
Burton US 4,205,665 Jun. 3, 1980
Nelson US 4,890,604 Jan. 2, 1990
Chitwood US 5,662,597 Sep. 2, 1997

We reverse.

DISCUSSION
Claim 1 stands rejected under 35 U.S.C. § 102(b) as being anticipated
by Chitwood.
Chitwood is cited for teaching a gravity traction assembly, shown in
Figure 1 of Chitwood, comprising a standing frame means and a torso
harness means coupled to depend downwardly from the frame means, with
the torso harness means being effective to maintain a person in vertical
traction suspension, and traction focusing means attached to the frame for
applying a predetermined amount of focused traction pressure directly to the
cervical region of the spine (Answer 4). According to the Examiner, Figures
1 and 2 of Chitwood “clearly show an adjustable inclined table . . . that can
be inclined at [an] angle of 80 degrees . . ., which would appear to be more
vertical than Appellant's inclined table. The harness means of Chitwood
would appear to place the user in an effective vertical traction suspension
position by gravitational force.” (Id.)
Appellant argues that Chitwood does not disclose a harness means
effective to maintain a person in a vertical traction suspension position as
required by claim 1 (Appeal Br. 11). Specifically, Appellant asserts that in
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Application 09/740,169

the assembly of Chitwood, “[t]he person does not hang in a vertical
disposition that is perpendicular to the plane of the horizontal surface
supporting his traction assembly. That is, a person merely reclining on the
inclined Chitwood table 12 is not suspended as Applicant discloses and
claims.” (Id.) We agree, and the rejection is reversed.
In order for a prior art reference to be anticipatory, every element and
limitation of the claimed invention must be found in a single prior art
reference, arranged as in the claim. Karsten Mfg. Corp. v. Cleveland Golf
Co., 242 F.3d 1376, 1383, 58 USPQ2d 1286, 1291 (Fed. Cir. 2001).
The limitation of the claim that “said harness means being effective to
maintain a person in a vertical traction suspension position after the person
dons said harness means” is written as “means-plus-function.” Sage Prods.
Inc. v. Devon Indus., Inc., 126 F.3d 1420, 1427, 44 USPQ2d 1103, 1109
(Fed. Cir. 1997)(The use of the term “means” raises a presumption that the
means-plus-function limitation is intended). A means-plus-function
limitation must be interpreted as the corresponding structure described in the
Specification and equivalents thereof consistent with 35 U.S.C. § 112, 6th
paragraph. See, e.g., In re Donaldson, 16 F.3d 1189, 1193, 29 USPQ2d
1845, 1848 (Fed. Cir. 1994)( in banc).2

2 37 C.F.R. § 41.37(c)(v) (2004) requires that “every means plus function
and step plus function as permitted by 35 U.S.C. 112, sixth paragraph, must
be identified and the structure, material, or acts described in the specification
as corresponding to each claimed function must be set forth with reference
to the specification by page and line number, and to the drawing, if any, by
reference characters.” The rule was effective September 13, 2004, after the
filing date of the instant brief. 69 Fed. Reg. 49960 (August 12, 2004).
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Application 09/740,169

In the Reply Brief, Appellant points to Figure 8 of the instant
disclosure, which shows “a patient in a ‘vertical traction suspension
position’ when held by the torso harness 35 and pad element 25 (the
traction force focusing means attached to the frame means) applies a
‘focused traction pressure directly to a selected location along the spine of
the person who is in said vertical traction suspension position.’” (Reply Br.
4.) Moreover, the Specification teaches that the “torso harness means is
coupled to flexibly depend from the frame structure to suspend the person
from the frame structure in a vertical, gravity traction position.”
(Specification 7.) In addition, the “patient’s lower body freely suspends
from the frame structure to allow for subtle side-to-side shifts in the patient’s
weight . . . .” (Id. at 8.)
We thus interpret “said harness means being effective to maintain a
person in a vertical traction suspension position after the person dons said
harness means” consistent with the structure as shown in Figure 8 that
allows for a vertical traction suspension position and allows the lower body
to freely suspend from the frame structure. Based on that interpretation, we
agree with Appellant that the Chitwood apparatus, wherein a patient is
merely reclining on the inclined table does not meet that limitation, and the
rejection is reversed.
Claim 9 stand rejected under 35 U.S.C. § 102(b) as being anticipated
by Burton.
Burton is cited for teaching an apparatus for spinal traction therapy
utilizing the force of gravity, shown in Figure 2 of Burton (Answer 5). The
apparatus comprises a standing frame means and a torso harness means
coupled to depend downwardly from the frame means, wherein the frame
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Application 09/740,169

means has a foot stop having a first surface means and a second surface
means, wherein both surfaces can support a patient while they don the
harness (id.). According to the Examiner, the harness of Burton is effective
to suspend a person for a partial traction pressure when standing on the
second surface, which is less than full traction pressure applied to a patient
while in the vertical gravity traction suspension position (id.).
Appellant argues that the frame of Burton is a “not a standing
structure” as required by claim 9, as the frame of Burton is a rotating frame
(Appeal Br. 12). We agree, and the rejection is reversed.
The Examiner asserts that Figure 2 of Burton shows the frame, which
may include a rotating portion, is also a standing structure. Claim 9 requires
“standing frame means and torso harness means coupled to flexibly depend
downwardly from said frame means.” In Figure 2 of Burton, the torso
harness is coupled to a bar attached to two circular hoops (col. 4, ll. 55-57)
that rest on rollers driven by a drive motor (col. 5, l. 4), and thus the harness
is not coupled to a standing frame but to rings that rotate around a center.
Burton therefore does not teach all of the limitations of claim 9, and the
rejection is reversed.
Claims 1, 7, and 10-14 stand rejected under 35 U.S.C. § 103(a) as
being obvious over Nelson.
Nelson is cited for teaching a gravity traction assembly (Nelson,
Figure 7) comprising a free stand frame means, focused traction force means
attached to or adjustably connected to the frame means for applying a
predetermined amount of focused traction pressure directly to a selected
location along a user’s spine (Answer 6). According to the Examiner,
Nelson “does not include torso harness means coupled to flexibly depend
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downwardly from the frame means,” but argues that “Nelson suggests that a
body strap (torso harness means) can be used if necessary and desirable (col.
7, lines 16-18)” and that “the torso harness means being effective to
maintain a person in gravity traction suspension position.” (Id.) The
Examiner concludes “[t]herefore, it would have been obvious to one of
ordinary skill in the art at the time of the invention was made to modify . . .
Nelson’s apparatus, as suggested above, to include a torso harness means
coupled to the frame means, for the purpose of securing the user relatively to
the frame means . . . if necessary or desirable.” (Id.)
“In rejecting claims under 35 U.S.C. § 103, the examiner bears the
initial burden of presenting a prima facie case of obviousness. Only if that
burden is met, does the burden of coming forward with evidence or
argument shift to the applicant.” In re Rijckaert, 9 F.3d 1531, 1532, 28
USPQ2d 1955, 1956 (Fed. Cir. 1993) (citations omitted). In order to
determine whether a prima facie case of obviousness has been established,
we considered the factors set forth in Graham v. John Deere Co., 383 U.S.
1, 17 (1996); (1) the scope and content of the prior art; (2) the differences
between the prior art and the claims at issue; (3) the level of ordinary skill in
the relevant art; and (4) objective evidence of nonobviousness, if present.
Appellant argues that in Nelson, the body strap does not depend
downwardly from the table but extends upwardly from it (Appeal Br. 16).
We agree, and as the Examiner does not provide reasons or argument as to
how Nelson renders obvious “torso harness means coupled to depend
downwardly from the frame means,” as required by independent claim 1,
“torso harness means coupled to flexibly depend downwardly from said
frame means,” as required by independent claim 9, or “harness means being
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coupled to flexibly depend downwardly from said frame means,” as required
by claim 10, the Examiner has not met the burden of establishing a prima
facie case of obviousness, and the rejection is reversed.
Moreover, independent claims 1, 9, and 10 all require a harness means
to maintain a person in vertical traction suspension. As noted above with
respect to the rejection over Chitwood, that limitation has been interpreted as
being consistent with the structure as shown in Figure 8, which allows for a
vertical traction suspension position and allows the lower body to freely
suspend from the frame structure. Nelson teaches restraint means are
connected to the frame at the head and ankles or feet in order to restrain
movement relative to the frame (col. 1, ll. 41), to which a body strap may
also be added (col. 7, ll. 16-17). Thus, Nelson also does not render obvious
a harness means to maintain a person in vertical traction suspension.
Claims 2-6, 8, and 15 stand rejected under 35 U.S.C. § 103(a) as being
obvious over the combination of Nelson and Burton.
As Burton does not remedy the deficiencies of Nelson, the rejection is
reversed for the reasons set forth above.

REVERSED

Ssc

NEIL F. MARKVA
8322-A TRAFORD LANE
SPRINGFIELD, VA 22152

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