Ex Parte Reddington

Patent Trial and Appeal Board

Jan 3, 2013

11523494 (P.T.A.B. Jan. 3, 2013)

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.
11/523,494 09/19/2006 William Reddington 840-002CIP 6268
1026 7590 01/04/2013
CLIFFORD G. FRAYNE
136 DRUM POINT RD
SUITE 7A
BRICK, NJ 08723
EXAMINER
SUTTON, ANDREW W
ART UNIT PAPER NUMBER
3765
MAIL DATE DELIVERY MODE
01/04/2013 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 PATENT TRIAL AND APPEAL BOARD
____________

Ex parte WILLIAM REDDINGTON

Appeal 2010-011625
Application 11/523,494
Technology Center 3700
____________

Before CHARLES N. GREENHUT, WILLIAM A. CAPP, and
NEIL T. POWELL, Administrative Patent Judges.

CAPP, Administrative Patent Judge.

DECISION ON APPEAL
Appeal 2010-011625
Application 11/523,494
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STATEMENT OF THE CASE
Appellant seeks our review under 35 U.S.C. § 134 of the non-final
rejection of claims 1-6 as unpatentable under 35 U.S.C. § 103(a) over Aileo
(US 3,237,202, issued Mar. 1, 1966) and Cumbie (US 4,724,546, issued Feb.
16, 1988). We have jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM.
THE INVENTION
Appellant’s invention is a hard hat with a slidable face shield. Spec.
3. Claim 1, reproduced below, is illustrative of the subject matter on appeal.
1. A safety hard hat and face shield assembly comprising:
a safety hard hat of one piece construction having a dome
member and unitary visor, said visor having a slot formed therein
proximate the intersection of said visor and said dome member, said
dome member having a recessed groove integrally formed therein,
said recessed groove centered above said visor slot;
a facial shield slidably positioned in said visor slot, said facial
shield having a threaded aperture centrally positioned proximate an
upper edge thereof;
a securing means positioned through said threaded aperture in
said facial shield and selectively frictionally engageable in said
recessed groove in said dome member, said securing means
frictionally securing said facial shield and permitting the positioning
of said facial shield in a slidably down, face protecting position or in
an upward, non-use position, said securing means comprises a
rotatable one piece tension knob with threaded fastener portion
rotatably receivable within said threaded aperture in said facial
shield, said threaded fastener portion slidable within said recessed
groove in said dome portion and is selectively frictionally
engageable with said recessed groove so as to position said facial
shield on said dome member;
a head band and harness assembly snap fit within said dome
member and adjustable to the head of a user.
Appeal 2010-011625
Application 11/523,494
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ANALYSIS
Appellant argues claims 1-6 as a group. App. Br. 9-20. We select
claim 1 as representative of the group. Claims 2-6 stand or fall with claim 1.
See 37 C.F.R. § 41.37(c)(1)(vii) (2011).
The Examiner finds that Aileo teaches a hard hat with a dome and
recessed groove as claimed. Ans. 3. The Examiner also finds that Aileo
teaches a face shield that slides into up and down positions as claimed. Id.
The Examiner also finds that Aileo discloses a securing means that
frictionally engages the hard hat for raising and lowering the face shield and
that the securing means is received in a threaded aperture as claimed. Id.
The Examiner concedes that Aileo does not teach a hard hat with a
brim (visor) that has a slot to accommodate a face shield. Ans. 4. However,
the Examiner finds that Cumbie teaches a headgear with a brim (visor) that
has a slot to allow a shield to pass through. Id. The Examiner concludes
that it would have been obvious to a person of ordinary skill in the art to
modify Aileo’s helmet with a brim (visor) to shield sunlight. Id.
Appellant admits that Aileo discloses a helmet with a rigid shell and
sliding face shield. App. Br. 12. However, Appellant makes a number of
arguments in an attempt to distinguish the invention from the prior art and
rebut the Examiner’s conclusion that Aileo and Cumbie are combinable. We
will address each of Appellant’s arguments in turn.
First, Appellant argues that Aileo is directed to an aviation helmet,
not a construction hard hat. App. Br. 13. We interpret this argument as
accusing the Examiner of relying on non-analogous art. A reference
qualifies as prior art for an obviousness determination when it is analogous
to the claimed invention. Innovention Toys, LLC. v. MGA Entertainment,
Inc., 637 F.3d 1314, 1321 (Fed. Cir. 2011). A reference is analogous under
Appeal 2010-011625
Application 11/523,494
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the “field of endeavor” test if the structure and function of the prior art is
such that it would be considered by a person of ordinary skill in the art
because of similarity to the structure and function of the claimed invention
as disclosed in the application. In re Bigio, 381 F.3d 1320, 1325-26
(Fed.Cir. 2004). Appellant’s Specification states: “The present invention
relates to protective wear.” Spec. 1. In comparison, Aileo “relates to a
protective helmet . . . for warding off blows and impact.” Aileo, col 1, ll.
10-12. Aileo is from the same field of endeavor as Appellant identified in
the Specification. The Examiner did not err in relying on Aileo.
Next, Appellant attempts to distinguish the invention as of one piece,
unitary construction made of high impact plastic, whereas Aileo is allegedly
of multi-piece construction. App. Br. 13-14. First, claim 1 does not claim
“plastic” or any other particular material, consequently, Appellant’s
argument is not commensurate with the scope of the claim. Second, we
agree with the Examiner that the fully assembled helmet of Aileo is of one
piece construction as it is one helmet. Nothing in the Specification or the
claims precludes the claimed hard hat from being assembled from a plurality
of individual components. Upon completion of the assembly, the hard hat
would properly be considered to be a “unit.”
Appellant next calls attention to its “one piece” tension knob with
threaded fastener. App. Br. 14 (“Appellant’s tension knob is of one piece
molded construction”). Aileo teaches that:
in order to provide for holding the visor in any desired position,
the detent means comprises an outwardly disposed manually
operable member 391 in which is secured a flat headed screw
393. The screw 393 may be secured by molding the member
391 about the screw adjacent the head thereof.
Appeal 2010-011625
Application 11/523,494
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Aileo, col. 6, ll. 24-29. Appellant’s argument requires us to construe the
term “one piece tension knob.” During examination of a patent application,
pending claims are given their broadest reasonable construction consistent
with the specification. In re Am. Acad. of Sci. Tech Ctr., 367 F.3d 1359,
1364 (Fed. Cir. 2004). “Therefore, we look to the specification to see if it
provides a definition for claim terms, but otherwise apply a broad
interpretation.” In re ICON Health & Fitness, Inc., 496 F.3d 1374, 1379
(Fed. Cir. 2007). As with our treatment of “one piece construction” of the
hard hat above, we construe “one piece tension knob” as broad enough to
encompass the structure described in column 6 of Aileo supra. After
member 391 is molded about flat head screw 393, the resulting structure is
“one piece” within the meaning of claim 1.
Appellant next attempts to distinguish Aileo by arguing that it is
adapted for high velocity air flow conditions. App. Br. 14. Appellant argues
that adding a brim would exacerbate a problem that Aileo seeks to avoid.
App. Br. 15. We find this argument unpersuasive. Appellant admits that
brimmed hard hats were known. Spec. 4; fig. 1. There is nothing in claim 1
that addresses the aerodynamic performance of the invention. Thus, we are
not persuaded that a person of ordinary skill in the art would be discouraged
from modifying Aileo with a Cumbie brim and slot simply because a
construction site experiences less air flow than an aviation environment.
Appellant next argues that the combination of Aileo and Cumbie is
improper because the various physical features of Aileo cannot be physically
incorporated into Cumbie and vice versa. App. Br. 17-18. In particular,
Appellant expresses concern that adding a domed top with a snap-fit harness
to Cumbie’s brim might rumple the coiffure of someone who dons the hard
hat. App. Br. 18. This argument is not persuasive.
Appeal 2010-011625
Application 11/523,494
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A determination of obviousness based on teachings from multiple
references does not require an actual, physical substitution of elements. In
re Etter, 756 F.2d 852, 859 (Fed.Cir.1985) (en banc). The test for
obviousness is not whether the features of a secondary reference may be
bodily incorporated into the structure of the primary reference. In re Keller,
642 F.2d 413, 425 (CCPA 1981). We agree with the Examiner that a
person of ordinary skill in the art would have found it obvious to create a
hard hat with an incorporated, slidable face shield as claimed. Ans. 4.
We sustain the Examiner’s rejection of claims 1-6.
DECISION
The decision of the Examiner to reject claims 1-6 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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