Ex Parte Senyei et al

Patent Trial and Appeal Board

Apr 28, 2014

12069134 (P.T.A.B. Apr. 28, 2014)

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.
12/069,134 02/06/2008 Andrew Senyei DYNO.001A 5644
27299 7590 04/29/2014
GAZDZINSKI & ASSOCIATES, PC
16644 WEST BERNARDO DRIVE
SUITE 201
SAN DIEGO, CA 92127
EXAMINER
HICKS, VICTORIA J
ART UNIT PAPER NUMBER
3772
MAIL DATE DELIVERY MODE
04/29/2014 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 ANDREW SENYEI, M. LOU MARSH,
STUART L. GALLANT, STUART KARTEN,
MICHAEL JACOB ROCHA, STEVEN K. PIOREK,
ERIC OLSON, and PAUL CASH
____________________

Appeal 2012-000702
Application 12/069,134
Technology Center 3700
____________________

Before: JOHN C. KERINS, LYNNE H. BROWNE, and
BEVERLY M. BUNTING, Administrative Patent Judges.

BUNTING, Administrative Patent Judge.

DECISION ON APPEAL

Appeal 2012-000702
Application 12/069,134

2
STATEMENT OF THE CASE
Appellants appeal under 35 U.S.C. § 134 from a rejection of claims
1-5, and 68-96. We have jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM-IN-PART.

CLAIMED SUBJECT MATTER
The claims are directed to a traction apparatus and method. Claim 1,
reproduced below, is illustrative of the claimed subject matter:
1. Traction apparatus, comprising:
a collar member; and
a head member, said head member being mated to said
collar member such that said head member can rotate relative to
said collar member around a first axis, yet not move
substantially in a direction longitudinal along said axis;
wherein said rotation allows the head of a wearer of said
apparatus to rotate, yet substantially maintains a prescribed
degree of traction on the spine thereof.

REFERENCES
The Examiner relies on the following prior art references in rejecting
the claims on appeal:
McFarland
Hankins
Becerra
Marsh
Rahman
Baker
US 3,776,224
US 6,447,468 B1
US 6,984,217 B2
US 7,128,724 B2
US 7,166,063 B2
US 7,608,052 B1
Dec. 4, 1973
Sep. 10, 2002
Jan. 10, 2006
Oct. 31, 2006
Jan. 23, 2007
Oct. 27, 2009
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REJECTIONS1
1. Claim 96 is rejected under 35 U.S.C. § 112, first paragraph, as
failing to comply with the written description requirement. Ans. 4.
2. Claim 68 is rejected under 35 U.S.C. § 112, second paragraph, as
being indefinite. Office Communication mailed June 21, 2011.
3. Claim 78 is rejected under 35 U.S.C. § 112, second paragraph, as
being indefinite. Office Communication mailed June 21, 2011.
4. Claims 1-5, 89, and 92 are rejected under 35 U.S.C. § 102(b) as
being anticipated by McFarland. Ans. 4.2
5. Claims 68, and 71-73 are rejected under 35 U.S.C. § 102(b) as
being anticipated by Baker. Ans. 6.
6. Claims 82 and 96 are rejected under 35 U.S.C. § 102(b) as being
anticipated by Hankins. Ans. 7.
7. Claims 69 and 70 are rejected under 35 U.S.C. § 103(a) as being
unpatentable over Baker, and Rahman. Ans. 9.
8. Claims 74-81 are rejected under 35 U.S.C. § 103(a) as being
unpatentable over Marsh and McFarland. Ans. 10.
9. Claims 83 and 84 are rejected under 35 U.S.C. § 103(a) as being
unpatentable over Hankins and McFarland. Ans. 13.
10. Claims 85-87 are rejected under 35 U.S.C. § 103(a) as being
unpatentable over Hankins, McFarland, and Rahman. Ans. 14.

1 In the Examiner’s Answer, the Examiner withdrew the rejection of claim
74 under 35 U.S.C. 112, first paragraph, as failing to comply with the
written description requirement. Ans. 3.
2 We note that Appellants erroneously refer to the anticipation rejections
citing McFarland, Baker, and Hankins, respectively, as under 35 U.S.C. §
102(a) in the Appeal Brief and the Reply Brief.
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11. Claim 88 is rejected under 35 U.S.C. § 103(a) as being
unpatentable over Hankins, McFarland, and Becerra. Ans. 16.
12. Claim 90 is rejected under 35 U.S.C. § 103(a) as being
unpatentable over McFarland and Marsh. Ans. 17.
13. Claims 91 and 93-95 are rejected under 35 U.S.C. § 103(a) as
being unpatentable over McFarland and Hankins. Ans. 17.

ANALYSIS
1. 35 U.S.C. § 112, First Paragraph: Claim 96
The Examiner finds that there is no support in the Specification for
claim 96’s limitation directed to a first member that rests “on at least a
portion of the torso of said user.” Ans. 4. Both the Examiner and
Appellants concur that the shoulder girdle is a part of the torso. App. Br. 6;
Ans. 20-21. Nonetheless, the Examiner submits that the disclosure in the
Specification of the apparatus resting on the wearer’s shoulders is not
sufficient support for the limitation of the device resting on “at least a
portion of the torso,” because the limitation is broader than the teaching in
the specification. Ans. 20-21. The Examiner’s position is untenable, as
Figure 6 illustrates the collar portion resting on the shoulders of the user.
See Spec, fig. 6.
For these reasons, we do not sustain the rejection of claim 96 under 35
U.S.C. § 112, First Paragraph.

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2. 35 U.S.C. § 112, Second Paragraph: Claim 68
3. 35 U.S.C. § 112, Second Paragraph: Claim 78
Appellants have not argued the rejection of claims 68 and 78 under 35
U.S.C. § 112, second paragraph, in the Appeal Brief or Reply Brief.
Appellants thus have waived any argument of error, and we summarily
sustain the rejections of claims 68 and 78.3

4. Anticipation: Claims 1-5, 89, and 92 - McFarland
Claim 1
The Examiner finds that McFarland describes a traction apparatus
having a collar member 10, and head member 59, 64 coupled to the collar
member to rotate relative to the collar member around a first axis, yet not
move substantially in a direction longitudinal along the first axis. Ans. 4,
citing McFarland, 1:6-9; 1:16-21; 1:24-26; 1:31-37; 1:56-58; 1:64-67; 2:10-
15; and 5:4-7.
Appellants argue the Examiner erred, because McFarland discloses
substantial movement in a direction longitudinal along the first axis, contrary
to the requirement in claim 1 that the collar portion does not move
substantially in a direction longitudinal along the first axis. App. Br. 7;
Reply Br. 5-8. According to Appellants, McFarland’s apparatus facilitates
movement substantially in two directions, around a first axis (i.e. back and
forth movement) and along the first axis in a direction longitudinal to the

3 See In re Berger, 279 F.3d 975, 984, 985 (Fed. Cir. 2002) (holding that the
Board did not err in sustaining a rejection under 35 U.S.C. § 112, second
paragraph, when the applicant failed to contest the rejection on appeal);
MPEP § 1205.02, 8th ed., Rev. 8, July 2010 (“If a ground of rejection stated
by the examiner is not addressed in the appellant’s brief, that ground of
rejection will be summarily sustained by the Board.”).
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first axis (up and down movement). Id. Appellants contend that the head
frame is able to rotate relative to the collar around a first and second axis
that is longitudinal to the first axis, and the tubular posts attaching the head
frame to the collar portion preclude maintaining a prescribed degree of
traction while “permitting the ‘maximum number of degrees of freedom’ of
movement enjoyed by the user.” Id. In the Reply Brief, Appellants suggest
that the tilting movement of the jaw support member 59, which is attached to
the rear head support 64, further demonstrates that the invention of
McFarland allows movement in an up and down direction, contrary to the
requirement of claim 1 that the head member not move substantially in a
direction longitudinal along the axis. Reply Br. 7.
Having carefully considered the Examiner’s proposed rejection in
light of each of Appellants’ arguments, we do not find Appellants’
arguments to be persuasive. Appellants miscomprehend the claims, which
define an axis of rotation of the members relative to one another and then
precludes substantial movement longitudinally along the same axis. Thus,
Appellants’ contention that the tubular posts of McFarland attaching the
head frame to the collar portion prevent maintaining traction and instead
promote movement, is not convincing. Further, Appellants do not
convincingly apprise of us of error in the Examiner’s determination that
McFarland’s’ device meets the claim limitations by supplying “constantly
sustained traction,” and that the second spring means of McFarland
provides an upward tension to the head which restricts movement in the
longitudinal direction. Ans. 21-22; see also McFarland 1:16-26. The
Examiner reasonably explains how any tilting movement of the jaw portion
of the head member of McFarland’s device constitutes movement about the
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vertical axis, and not along the vertical axis as Appellants suggest. Id.
Moreover, McFarland describes how the adjustment screws enable tilting of
the jaw support member relative to the rear head support to accommodate a
variety of head configurements and are then tightened, and not to allow
movement in an up and down direction as Appellants suggest. See
McFarland 3:63-4:15; 4:64-67.
As such, we sustain the rejection of claim 1 as anticipated by
McFarland.
Claims 2 and 89
Appellants argue claims 2 and 89 together. Claim 2 depends from
claim 1 and further requires that the collar member is articulated so that the
head member and at least a portion of the collar member can rotate relative
to the remainder of the collar member, around a second axis. Clms. App’x.
Independent claim 89 is similar to claim 2, and further requires that the
collar member be locked in a particular position. Id. Appellants contend
that McFarland only discloses rotation of the head frame (59 and 64) relative
to the shoulder harness 10 for adjustment purposes to accommodate the
shoulders of the user, and such adjustments are not the same as rotation of a
portion of the shoulder harness with respect to the remainder of the harness,
as required by claims 2 and 89. App. Br. 7-8; Reply Br. 8. This argument is
not convincing as it is not responsive to the findings articulated by the
Examiner.
Although Appellants agree with the Examiner that McFarland
discloses that part of the collar is able to move (pivot) to accommodate the
shoulders of the wearer, Appellants contend that “such movement is merely
to provide simple adjustments thereof, and cannot reasonably be asserted to
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comprise rotation of a portion of the shoulder harness with respect to the
remainder of the shoulder harness as recited in Claims 2 and 89 and
described in Applicant[s’] specification as filed.” Reply Br. 8; see also Ans.
22, citing McFarland 2:54-3:3. Appellants’ argument is not convincing, as
we decline to limit the claim limitation “rotate” to a particular embodiment
from the Specification, where the language of claims 2 and 89 is broader
than that embodiment.4 As pointed out by the Examiner, the required
rotational movement limitation is met by McFarland, because the shoulder
members 11, 12 are joined via a cross brace 13 using pivot pins 15, to
provide a hinge mechanism, and the shoulder members include slotted
apertures which receive an adjustment screw 18 to lock the hinge
mechanism in place. Ans. 22; see also McFarland, fig. 1A.
For these reasons, we sustain the rejection of claims 2 and 89 as
anticipated by McFarland.
Claims 3 and 93
Appellants do not argue for the separate patentability of claims 3 and
93 apart from arguments raised in connection with claim 1, which we have
previously considered. App. Br. 8. We, therefore, sustain the rejection of
claims 3 and 93.

4 See SuperGuide Corp. v. DirecTV Enters., Inc., 358 F.3d 870, 875 (Fed.
Cir. 2004) (“Though understanding the claim language may be aided by the
explanations contained in the written description, it is important not to
import into a claim limitations that are not a part of the claim. . . . [A]
particular embodiment appearing in the written description may not be read
into a claim when the claim language is broader than the embodiment.”)
(citation omitted).
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Claims 4 and 5
Claims 4 and 5 depend indirectly from claim 2, and further recite a
hinge having at least one locked state, and that the locked state is associated
with a particular degree of angular adjustment. Clms. App’x. Appellants
argue that McFarland discloses adjustment screws 67 which enable tilting of
the jaw support member relative to the rear head support, and a hinge pin 75
that is not locked. App. Br. 8. Appellants maintain that the hinge of claims
4 and 5 provides articulation to the collar member, and that element 15 is
associated with the shoulder harness. Reply Br. 9. Appellants’ arguments
do not convincingly apprise us of error in the Examiner’s explanation of
how the shoulder members 11, 12 are joined via a cross brace 13 using pivot
pins 15, to provide a hinge mechanism, and the shoulder members include
slotted apertures which receive an adjustment screw 18 to lock the hinge
mechanism in place. Ans. 22; see also McFarland, fig. 1A. Moreover,
Appellants do not identity, nor do we discern, a relevant lexicographical
difference that distinguishes the “collar member” of Appellants from the
“shoulder member” of McFarland.
For these reasons, we sustain the rejection of claims 4 and 5 as
anticipated by McFarland.

5. Anticipation: Claims 68, and 71-73 - Baker
Claim 68
Claim 68 is directed to an apparatus for providing traction to a spine
of a user, and includes a first member that rests on a collar of the user, and a
second member having a protrusion adapted to mate with the aperture of the
first member, “such that the second member may freely rotate relative said
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first member along only a first axis,” and the adjustable mating enables
application of a prescribed degree of traction to the user’s spine. Clms.
App’x. The Examiner finds that Baker discloses the limitations of claim 68.
Ans. 6-7. Appellants contend that the Examiner erred, because the degree of
rotation in Baker of the second member relative to the first member is “not
free, but rather is constrained or controlled.” App. Br. 8-9; Reply Br. 9.
According to Appellants, insertions of pins 76, 77 through openings 75 limit
the range of rotation. Id. Appellants do not apprise us of error in the
Examiner’s position that “Baker teaches the possibility of limiting the range
of motion (by inserting the pins)” but when the pins are not inserted, “free
rotation of the second member relative to the first member is enabled.” Ans.
22. We note that while the pins in Baker are used to define a range of
angular rotation, such as up to 210 degrees, the second member remains
freely rotatable with respect to the first member within the defined range of
angular rotation. See Baker 5:31-61.
For these reasons, Appellants do not apprise us of error in the
Examiners findings with respect to claim 68, and we sustain the rejection of
claim 68 as anticipated by Baker.
Claims 71-73
Appellants do not provide a separate argument for claims 71-73,
which depend directly or indirectly from claim 68. App. Br. 9. For the
reasons provided supra, we sustain the rejection of claims 71-73.

6. Anticipation: Claims 82 and 96 – Hankins
Independent claims 82 and 96 are directed to an apparatus for
applying and maintaining traction on a spine, and require that the head brace
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member rotates relative to the collar member around the first axis, yet not
move substantially in a direction longitudinal along the first axis. Clms.
App’x. The Examiner finds that the head brace member 30 is mated to the
adjustable columnar support member 44, “such that the head brace member
(30) can perform rotation (pivot) relative to said collar member (20) around
a first axis, yet not move substantially in a direction longitudinal along said
axis (the placement in the longitudinal direction is held in position until
adjusted by the user).” Ans. 8.
Appellants argue that the Examiner erred because Hankins does not
disclose that “the head brace member can perform rotation relative to the
collar member around a first axis, yet not move substantially in a direction
longitudinal along the axis.” App. Br. 9. Although Hankins discloses that
the head brace member may rotate (pivot) relative to the collar member
around a first axis having a horizontal orientation as the Examiner suggests
(Ans. 23), Hankins does not appear to disclose that, nor has the Examiner
explained how, longitudinal movement of the head brace along this first axis
is precluded in the Hankins device.
For this reason, we do not sustain the rejection of claims 82 and 96 as
anticipated by Hankins.

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7. Obviousness Rejection: Claims 69 and 70 - Baker and Rahman
Appellants do not provide a separate argument in addressing the
obviousness rejection of dependent claims 69 and 70, and rely on the
argument provided with respect to independent claim 68. App. Br. 10. For
the reasons discussed supra with respect to the anticipation rejection of claim
68 over Baker, we likewise sustain the rejection of claims 69 and 70.

8. Obviousness Rejection: Claims 74-81 - Marsh and McFarland
Claim 74
Claim 74 describes an apparatus for providing traction-based therapy
to a user’s spine, and includes a collar member and head member that
rotatably mates with the collar member to rotate around a first axis, with
rotation around a second axis substantially transverse to the first axis being
substantially frustrated. Clms. App’x. The Examiner finds that Marsh
discloses the required limitations of claim 74, except for a head member
adapted to rotatably mate with the collar member, the rotatable mating
comprising rotation around a first axis, with rotation around a second axis
substantially transverse to the first axis being substantially frustrated, and
relies on Marsh for such disclosure. Ans. 10-11. The Examiner reasons it
would have been obvious “to modify the head and collar members taught by
Marsh with the rotatable mating taught by McFarland because this element
is known to permit the patient to comfortably turn his/her head to the left or
to the right while traction forces remain applied to the patient.” Ans. 11.
Appellants do not challenge the Examiner’s findings regarding Marsh.
App. Br. 10. With regards to McFarland, Appellants concur with the
Examiner’s finding that McFarland discloses a head member that rotates
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relative to a collar member around a first axis and a second axis that is
transverse to the first axis. App. Br. 10. However, Appellants argue that the
Examiner erred because McFarland discloses “substantial movement in a
direction longitudinal along the axis of the first movement,” as well as
substantial movement “along a second axis longitudinal to the first axis.” Id.
For the reasons provided supra with regards to the anticipation
rejection of claim 1, Appellants’ argument that McFarland discloses
substantial movement in a direction longitudinal along the first axis is not
convincing. Appellants do not inform or apprise us of error in the
Examiner’s finding that the second spring means of McFarland “supplies a
desired upward tension to the head (which restricts movement in the
longitudinal direction).” Ans. 21. Moreover, Appellants do not inform or
apprise us of error in the Examiner’s reason to modify the head and collar
members of Marsh to include the rotatable mating taught by McFarland,
“because this element is known to permit the patient to comfortably turn
his/her head to the left or to the right while traction forces remain applied to
the patient.” Ans. 11. We note that the Examiner has provided an
explanation with rational underpinnings that supports the conclusion of
obviousness with respect to claim 74.
We sustain the obviousness rejection of claim 74 over Marsh and
McFarland.
Claims 75-81
Appellants do not provide a separate argument for claims 75-81,
which depend directly or indirectly from claim 74. App. Br. 10. For the
reasons provided supra with respect to claim 74, we sustain the rejection of
claims 75-81.
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9. Obviousness Rejection: Claims 83 and 84 - Hankins and McFarland
10. Obviousness Rejection: Claims 85-87- Hankins, McFarland, and Rahman
11. Obviousness Rejection: Claim 88- Hankins, McFarland, and Becerra
Claims 83 – 88 depend directly or indirectly from claim 82. The
Examiner relies on McFarland, Rahman, and Becerra to disclose additional
features of claims 83 - 88, and not to remedy any deficiencies of Hankins.
Ans. 13-17; see also App. Br. 12. Therefore, we do not sustain the
rejections of claims 83-88.

12. Obviousness Rejection: Claim 90 - McFarland and Marsh
13. Obviousness Rejection: Claims 91 and 93-95 - McFarland and Hankins
Appellants do not provide a separate argument in addressing the
obviousness rejection of claims 90, 91, and 93-95 and rely on the arguments
provided with respect to independent claim 89, from which these claims
depend directly or indirectly. App. Br. 12. For the reasons discussed supra
with respect to the anticipation rejection of claim 89 over McFarland, we
likewise sustain the rejection of claims 90, 91, and 93-95.

DECISION
The decision of the Examiner to reject claim 96 under 35 U.S.C.
§ 112, first paragraph, is reversed.
The decision of the Examiner to reject claims 68 and 78 under 35
U.S.C. § 112, second paragraph, is summarily affirmed.
The decision of the Examiner to reject claims 1-5, 68, 71-73, 89, and
92 under 35 U.S.C. § 102(b) is affirmed.
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The decision of the Examiner to reject claims 82 and 96 under 35
U.S.C. § 102(b) is reversed.
The decision of the Examiner to reject claims 69, 70, 74-81, 90, 91,
and 93-95 under 35 U.S.C. § 103(a) is affirmed.
The decision of the Examiner to reject claims 83-88 under 35 U.S.C.
§ 103(a) is reversed.
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) (2011).

AFFIRMED-IN-PART

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