Ex Parte Rexroad

Board of Patent Appeals and Interferences

Nov 17, 2011

10727927 (B.P.A.I. Nov. 17, 2011)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
____________

Ex parte JOHN REXROAD
____________

Appeal 2009-011609
Application 10/727,927
Technology Center 3600
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Before JOHN C. KERINS, STEFAN STAICOVICI, and
JAMES P. CALVE, Administrative Patent Judges.

STAICOVICI, Administrative Patent Judge.

DECISION ON APPEAL

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STATEMENT OF THE CASE
John Rexroad (Appellant) appeals under 35 U.S.C. § 134 from the
Examiner’s decision rejecting claims 12-19 under 35 U.S.C. § 103(a) as
unpatentable over Reynolds (US 6,098,750, issued Aug. 8, 2000) and Powell
(US 6,138,327, issued Oct. 31, 2000). Claims 1-11 have been canceled.
We have jurisdiction over this appeal under 35 U.S.C. § 6.

THE INVENTION
Appellant’s invention relates to a method and apparatus for supporting
a net 26 with a border 28 along a support member 29 using a plurality of
lock fasteners 32. Spec. 10, l. 24 through Spec. 11, l. 4 and fig. 6.
Claim 12 is representative of the claimed invention and reads as
follows:
12. A method of supporting a net along a support member
comprising the steps of:
providing a support member having a generally elongated
extent and having a given diameter;
providing a plurality of lock fasteners which have a free end
which connects to an opposite end to create a variably constraining
diameter when pulled tight;
providing a net having a border that surrounds the perimeter of
the net with warp and weft members extending generally
perpendicularly thereto to define spaces therebetween;
stretching said border along said support member and fastening
said border member to said support member using said lock fasteners
by wrapping said fastener about said net border and said support
member in said spacing and pulling the free end of said fastener
through a locking mechanism to lock the fastener in place.

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Claim 16 is drawn to an apparatus for supporting a net along a support
member including the limitation of a “border … fastened to said support
member using said lock fasteners.” App. Br., Claims Appendix.

SUMMARY OF DECISION
We REVERSE.

ANALYSIS
Independent claim 12 recites, “fastening said border member to said
support member using said lock fasteners.” Independent claim 16 recites a
“border … fastened to said support member using said lock fasteners.” App.
Br., Claims Appendix.
The Examiner found that Reynolds discloses all the limitations of
independent claims 12 and 16 including a net 60 having a border (perimeter
of the net), support members 20, 30, 40, 50, and fasteners 95. Ans. 3. The
Examiner further found that Reynolds fails to disclose a “lock or rubberized
sleeve about the fasteners.” Id. The Examiner then found that Powell
discloses an adjustable fastener including a strap 10, a lock 22, and a
rubberized sleeve 18. Id. The Examiner concluded that it would have been
obvious “to connect the net and support member of Reynolds et al. with the
straps taught by Powell et al. in order to offer a fastening strap that locks to a
given diameter and provides additional gripping support with a rubberized
sleeve.” Ans. 3-4.
Appellant argues that a person of ordinary skill in the art would not
have combined the lock fastener of Powell with the safety net of Reynolds
because Powell’s rubberized fastener “does not allow the items bundled
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together move relative to each other,” whereas the safety net of Reynolds is
required to slide along vertical posts 20 and 30. App. Br. 10 and 11.
According to Appellant, providing the rubberized Powell fastener to
Reynolds’ safety net “would impermissibly render the Reynolds safety net
inoperable” because “the strap disclosed in Powell cannot allow for the
sliding of bundled items.” Reply Br. 10 and 11.
In response, the Examiner takes the position that because (1) the
fasteners of Reynolds are not limited to spring snap links, but “other forms
of fasteners may be used” (Ans. 4) and (2) “the fastener of Powell can be
tightened to a variety of different diameters, depending on how tightly the
user locks the straps together … the combination of references would have
been obvious to any one of ordinary skill in the art and would provide a
securely connected safety net to surrounding supports.” Ans. 5 and 6.
Where the proposed modification would render the prior art invention
being modified unsatisfactory for its intended purpose, the proposed
modification would not have been obvious. See Tec Air Inc. v. Denso Mfg.
Michigan Inc., 192 F.3d 1353, 1360 (Fed. Cir. 1999); In re Gordon, 733
F.2d 900, 902 (Fed. Cir. 1984). "A reference may be said to teach away
when a person of ordinary skill, upon [examining] the reference, would be
discouraged from following the path set out in the reference, or would be led
in a direction divergent from the path that was taken by the applicant." In re
Gurley, 27 F.3d 551, 553 (Fed. Cir. 1994).
In this case, we find that Reynolds discloses a safety system 10
including vertical posts 20, 30 having guide rails 25, 35 respectively,
horizontal top arm 40, bottom assembly 50, and safety net 60 suspended by
spring snap links 95 between posts 20, 30, top arm 40, and bottom assembly
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50. Reynolds, col. 2, ll. 29-38 and fig. 1. Reynolds further discloses the use
of cables or ropes 70, 80 that allow safety net 60 to move between a first
position where top arm 40 is disposed between the top of posts 20, 30 and a
second position in which the top arm is disposed between the bottom of
posts 20, 30. Reynolds, col. 2, ll. 52-56. Hence, in Reynolds’ safety system
spring snap links 95 travel along guide rails 25, 35 of posts 20, 30 such that
net 60 can be raised and lowered depending on whether net 60 covers an
opening between posts 20, 30 or allows access for people and machinery to
the space between posts 20, 30. We further find that Powell discloses a
securement strap for bundling and holding objects together. Powell,
Abstract and col. 1, ll. 12-13.
As such, in contrast to the safety system of Reynolds which requires
sliding of snap links 95 along posts 20, 30 to move safety net 60, the strap of
Powell restricts motion of the objects held by the strap. Hence, we find that
the combined teachings of Reynolds and Powell would have discouraged a
person of ordinary skill in the art from substituting the securement strap of
Powell for the spring snap links 95 of Reynolds, as the Examiner proposes.
We agree with Appellant that, “the combination of the Reynolds safety net
with the Powell fastener would impermissibly render the Reynolds safety net
inoperable as originally intended.” Reply Br. 10.
Although we appreciate the Examiner’s position that the fasteners of
Reynolds are not limited to spring snap links and the Powell fastener can be
tightened to different diameters, nonetheless, we do not see why a person of
ordinary skill in the art, knowing that Reynolds’ safety net is “readily
employed and deployed, multiple times a day ” (Reynolds, col. 4, ll. 19-20),
would desire to provide additional gripping support to the safety net of
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Reynolds. Moreover, we do not see how additional gripping support is
provided by Powell’s strap to safety net 60 of Reynolds when Powell’s
securement strap is loosened to permit the safety net to move between the
top and bottom of posts 20, 30. As such, the Examiner’s conclusion that the
substitution of Powell’s fastener for the spring snap links 95 of Reynolds, in
order to provide additional gripping support, lacks rational underpinning.
Lastly, we note that claim 12 requires a step of “fastening”1 the border
of the net to the support member, whereas claim 16 requires the border of
the net be “fastened” to the support member. App. Br., Claims Appendix.
Since the net of the Examiner’s proposed combination of Reynolds and
Powell slides along posts 20, 30 (support member) we do not see how the
border of the net is fixed firmly or securely, that is, is fastened to posts 20,
30, as called for by each of claims 12 and 16.
In conclusion, for the foregoing reasons, the rejection of claims 12
and 16, and their respective dependent claims 13-15 and 17-19 under 35
U.S.C. § 103(a) as unpatentable over Reynolds and Powell cannot be
sustained. See In re Fine, 837 F.2d 1071, 1076 (Fed. Cir. 1988).

SUMMARY
The decision of the Examiner to reject claims 12-19 is reversed.

REVERSED

1 An ordinary and customary meaning of the term “fasten” is “to fix
firmly or securely.” MERRIAM WEBSTER’S COLLEGIATE DICTIONARY (10th
Ed. 1997).

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