Ex Parte Tucker et al

Patent Trial and Appeal Board

Nov 8, 2017

13550991 (P.T.A.B. Nov. 8, 2017)

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.
13/550,991 07/17/2012 Richard B.C. Tucker JR. 016169.091068 1163
61494 7590 11/08/2017
Baker Donelson Bearman, Caldwell & Berkowitz, PC
100 Light Street
BALTIMORE, MD 21202
EXAMINER
KIM, EUGENE LEE
ART UNIT PAPER NUMBER
3711
MAIL DATE DELIVERY MODE
11/08/2017 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 RICHARD B.C. TUCKER JR. and
CHRISTOPHER SATURNIO
Appeal 2015-006476
Application 13/550,991
Technology Center 3700
Before CHARLES N. GREENHUT, NATHAN A. ENGELS, and
GORDON D. KINDER, Administrative Patent Judges.
KINDER, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Appellants1 appeal under 35 U.S.C. § 134 from a rejection of claims
16—26. We have jurisdiction under 35 U.S.C. § 6(b).
We affirm and designate our affirmance as a new ground of rejection
pursuant to our authority under 37 C.F.R. § 41.50(b).
1 We are informed that the real parties in interest are Wm. T. Burnett IP,
LLC, and STX, LLC. Appeal Br. 2 (Feb. 5, 2015).
Appeal 2015-006476
Application 13/550,991
CLAIMED SUBJECT MATTER
The claims are directed to lacrosse stick handles. Spec. 13. Claim 16
is the only independent claim and is reproduced below to illustrate the
claimed subject matter.
16. A lacrosse stick handle formed as a monolithic tubular
member having an overall length in an x-direction of an x-y
plane, the handle comprising a first portion extending along one
end of said handle in said x-direction having a uniform cross-
section along said entire first portion, a second portion extending
from another end of said handle along at least one-third of said
handle in said x-direction having a non-uniform undulating
cross-section long said entire second portion providing a surface
texture for enhanced grip, and a smooth transition portion
continuously joining said first portion and second portion.
REFERENCES
The prior art relied upon by the Examiner in rejecting the claims on
appeal is:
Brine et al. (Brine)
Friel et al. (Friel)
Morrow
Gait
Tousey
Cowdery
Saffell
US 1,418,039 May 30, 1922
US 1,670,531 May 22, 1928
US 123,490 Nov. 12, 1940
US 6,752,730 B1 June 22, 2004
US D519,815 May 2, 2006
US 2007/0184923 Al Aug. 9, 2007
Non Patent Literature 2004
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REJECTIONS2
I. Claims 16 and 17 are rejected under 35 U.S.C. § 103(a) as being
unpatentable over Gait and established case law.
II. Claims 16 and 17 are rejected under 35 U.S.C. § 103(a) as being
unpatentable over Gait in view of Morrow, Brine and established case law.
III. Claims 18—24 are rejected under 35 U.S.C. § 103(a) as being
unpatentable over Gait in view of Morrow, Brine, established case law, and
either Saffell or Friel.
IV. Claims 25 and 26 are rejected as unpatentable under 35 U.S.C.
§ 103(a) as being unpatentable over Gait in view of Morrow, Brine,
established case law, and either Saffell or Friel and further in view of
Obeshaw.
V. Claims 16—24 are rejected under 35 U.S.C. § 103(a) as being
unpatentable over Gait in view of Cowdery.
VI. Claims 16—18 are rejected under 35 U.S.C. § 103(a) as being
unpatentable over Gait in view of Tousey.
2 Rejection of claims 20 and 22 under 35 U.S.C. § 112, second paragraph,
has been withdrawn. Ans. 10.
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ANALYSIS
Rejection I
Claims 16 and 17 obvious over Gait and established case law
The Examiner finds that Gait renders obvious every claimed feature of
claims 16 and 17 except that the gripping portion of Gait is not disclosed to
be at least one third the length of the handle. Final Act. 4—5. Gait discloses
a lacrosse stick handle made with a metal core and a composite molded onto
the outside of the metal core. Gait 2. Further, Gait discloses that the “grip
sections can be varied to fit the individual needs of a player .... Molding
various shapes into Carbon/Kevlar wrapped sections” and “Composite
wrapped upper section with longitudinal ridges. . . lower wrapped section
with horizontal ridges.” Id. The figures in Gait show various textures for
the top and bottom grips. Id. The Examiner relies on case law for the
proposition that that it is obvious to make unitary what was previously
formed of plural parts to conclude it would have been obvious to make
Gait’s handle out of a single material. Final Act. 4.
The “Monolithic ” Limitation
The Examiner finds that it is obvious to make a handle as shown in
Gait out of a single material instead of out of a fiber reinforced composite
molded onto a metal core in view of established case law holding that
making integral what was once made of plural parts is obvious. Final Act. 4;
Ans. 12. Appellants contend that in this case it is not obvious to make
unitary what was formerly made of several parts. Appeal Br. 7—8.
Appellants posit that Gait discloses a fabric tape wrapped around a metal
core. Id. We find this argument unpersuasive because Gait does not
mention tape at all. Gait 1—2. If tape is used during the manufacturing
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process of Gait, one of ordinary skill in the art would appreciate it to be
carbon fiber or Kevlar fiber tape that is wrapped around the metal core prior
to the curing of resin; once the resin/fiber combination is cured, it forms
what Gait terms a composite. See Ans. App. A. Accordingly, we are not
persuaded that the disadvantages of conventional tape are present in the Gait
disclosure.
Appellants also argue that conventional molding techniques cannot
make Appellants’ structures and that hydroforming can be used to create
variable cross-sections and canted and curved configurations “contrary to the
understandings and expectations of the art.” Appeal Br. 8, Reply 3^4. We
find this argument unpersuasive, not only because it is not commensurate in
scope with claims 16 and 17, see In re Self, 671 F.2d 1344, 1348 (CCPA
1982) (limitations not appearing in the claims cannot be relied upon for
patentability), but also because the prior art clearly shows that hydroforming
lacrosse stick handles is a well-known technique. Morrow 139.
Citing a dictionary definition, Appellants also argue the Examiner
erred in the interpretation of the claim term “monolithic,” but Appellants do
not give full effect to the definitions of monolithic that they append to their
brief. Merriam-Webster identifies “a monolithic concrete wall” as an
example of “monolithic.” Appeal Br. 30. We take judicial notice that
concrete includes cement (such as Portland cement) mixed with aggregates,
and that a concrete wall also likely includes reinforcing rods. Accordingly, a
concrete wall (with or without reinforcing rods) is not homogeneous;
nevertheless, when cast and cured, Appellants’ cited dictionary definitions
suggest that concrete meets the definition of “monolithic.” Just so in Gait,
once the fibers are applied and the binding resin is cured, the resulting
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composite handle is without joints or seams and is cast as a single piece; it is
monolithic. In view of the foregoing, we find that Gait discloses a
monolithic handle.
The length of undulations
Appellants challenge the Examiner’s finding that the length of the
undulation section being at least one third of the handle length is an obvious
design choice. Appeal Br. 8—12. Appellants also argue the Examiner’s
design choice finding lacks a necessary convincing line of argument or
evidence from the Examiner and that the absence of an unexpected or
surprising result is not enough to sustain the rejection. Id.
The Examiner responds that Appellants are assuming stupidity rather
than skill for one of ordinary skill in the art. Answer 12. Gait discloses a
handle with spaced apart undulating grips that “allows hands to move freely
between grip sections” (Gait 2) thus disclosing grip sections long enough to
accommodate both hands of a player. Morrow discloses changing
dimensions of a lacrosse stick cross section to provide tactile indications for
a player’s hand placement. Morrow 31—38. The Final Action includes
photographs showing lacrosse sticks and many different patterns of
conventional tape applied to them. Final Act. 2. At least some of these
taping styles appear to cover at least one third of the handle length, while
others are shorter.
Appellants argue that the dimension of the undulating section
“provide[s] the handle with structural and tactile features that correspond to
the way in which a player moves his hands along the handle and grips the
handle” and “must be long enough to accommodate both [] hands.” Appeal
Br. 10, citing Spec. 1 57. Although Appellants assert that these results are
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“superior” (Appeal Br. 10), we have not been directed to a problem solved
by the claimed proportion, a change in function, or an unexpected result.
Nor do we see why Gait, with a pair of grips that a player’s hands can move
between, does not achieve the same superior result. We agree with the
Examiner that the length of the undulating section is a variable, the selection
of which is within the ordinary skill in the art. As the photographs included
in the Final Action attest, those who play lacrosse are adept at adjusting the
grips on their handles to their personal taste. Gait suggests as much: “These
grip sections can be varied to fit the individual needs of a player.” Gait 2.
In light of Gait’s suggestion to vary the grips (Gait 2), Gait’s teaching
that a grip can be long enough to accommodate both hands {id.), and the
photographs showing variations in the length of conventional tape applied to
lacrosse sticks, we agree with the Examiner that it is uninventive to make the
undulating grip section extend at least one third the handle length as claimed
in claim 16.
Appellants also argue that experimentation with the grip length does
not establish obviousness because the Examiner has not explained “why the
artisan would have found the claimed invention to have been obvious in
light of the teachings of the references.'1'’ Appeal Br. 9, quoting Ex parte
Clapp, 227 USPQ 972, 973 (Bd. of Pat. App. & Int. 1985). However, this
argument is foreclosed by KSR Int’l Co. v. Teleflex Inc., 550 U.S. 398, 402
(2007), in which the Court rejected the rigid requirement of a teaching,
suggestion, or motivation to combine known elements in order to show
obviousness. Id. at 415. Thus, “if a technique has been used to improve one
device, and a person of ordinary skill in the art would recognize that it would
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improve similar devices in the same way, using the technique is obvious
unless its actual application is beyond his or her skill.” Id. at 417.
Nor are we persuaded by Appellants’ argument that Gait teaches away
simply because Gait shows two spaced apart grips on a lacrosse handle.
Appeal Br. 10-11. Appellants are arguing limitations that do not appear in
claim 16. Claim 16 does not preclude two separate grips.
Appellants further argue that the claimed minimum grip length of at
least one third of the handle length is an optimized result-effective variable.
Appeal Br. 11; see also In re Alter, 220 F.2d 454, 456 (CCPA 1955). In
KSR International Co. v. Teleflex Inc., 550 U.S. 398, 400, 402 (2007), the
Supreme Court held that “obvious to try” was a valid rationale for an
obviousness finding, for example, when there is a “design need” or “market
demand” and there are a “finite number” of solutions. 550 U.S. at 421
(alteration in original) (“The same constricted analysis led the Court of
Appeals to conclude, in error, that a patent claim cannot be proved obvious
merely by showing that the combination of elements was ‘ [ojbvious to
try. ’. . . When there is a design need or market pressure to solve a problem
and there are a finite number of identified, predictable solutions, a person of
ordinary skill has good reason to pursue the known options within his or her
technical grasp. If this leads to the anticipated success, it is likely the product
not of innovation but of ordinary skill and common sense. In that instance
the fact that a combination was obvious to try might show that it was
obvious under §103.”). Thus, contrary to Appellants’ arguments, after KSR,
the presence of a known result-effective variable would be a motivation for a
personal of ordinary skill in the art to experiment to reach another workable
product. As noted above, Gait recognizes that the grip may be varied (Gait
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2) as do the photographs cited by the Examiner (Final Act. 2), and
accordingly ordinary experimentation will optimize the grip length.
In view of the foregoing, we find the art the Examiner relied on
establishes a prima facie case that claim 16 is obvious, and we have not been
shown that this conclusion is in error. However, because we relied on a
different understanding of “monolithic”, our rationale in support of the
rejection somewhat differs from that set forth by the Examiner, and we
designate our affirmance of the rejection as a new ground of rejection
pursuant to 37 C.F.R. § 41.50(b).
Claim 17
Claim 17 requires, in pertinent part, a “smooth transition portion
continuously joining said first portion and said second portion.” Appeal Br.
26 (Claims App.). Appellants argue that Gait’s undulations are the result of
wound tape and so cannot form a smooth transition portion. Appeal Br. 12.
The Examiner responds that Gait discloses a composite molded handle in
which “the liquid epoxy binder would naturally surround the Carbon/Kevlar
material. . . [to] let the epoxy binder fill any voids in the hand grip the same
way the molding process for composite carbon fiber material produces a
smooth complex finish when making lacrosse heads.” Ans. 13. In their
Reply, Appellants argue that the Kevlar tape in Gait is applied as a
secondary operation and therefore the handle is not cast as a single piece.
Appellants state that this is “explicitly clear from Gait’s disclosure” (Reply
2), but Appellants provide no citation to or quotation from Gait to support
that argument.
We agree with the Examiner that Gait’s composite molded handle
would have a seamless exterior surface (Ans. 13) and that such a surface
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would be smooth when transitioning from a grip to a non-grip portion of the
handle. On this record we have not been shown error in the rejection of
claim 17.
Rejection II
Claims 16 and 17 obvious in view of Gait and Morrow or Brine
Appellants next address the Examiner’s finding that it would have
been obvious to use Morrow or Brine for their teachings of a monolithic
tubular member when making the handle of Gait. Appeal Br. 13—14.
Appellants argue that combining Gait with either of the other two references
would still leave a fiber tape wrapped around the shaft prior to molding and
that the resulting shaft would not be monolithic because of the embedded
fiber tape. Appeal Br. 13. In view of our finding, above, that Gait discloses
a handle that is monolithic, changing the material of the tubular member
does not change our rationale or conclusion. Accordingly, we are not
persuaded the Examiner erred in finding that Gait alone and/or Gait and
either Morrow or Brine meet claim 16’s “monolithic” limitation.
Rejection III
Claims 18—24 obvious in view of Gait, Morrow, Brine, established
case law, and either Saffell or Friel
Claim 18 requires, in pertinent part, that the second portion of the
handle be “sinusoidal in said x-direction.” Appeal Br. 26 (Claims App.).
The Examiner adds one of Saffell and Friel to the rejection of claims 16 and
17 to support his conclusion that claims 18—24 are obvious and therefore not
patentable. Saffell and Friel are design patents showing handles for knife
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sharpeners. Appellants argue that knife sharpener handles are not
reasonably pertinent to the design of a handle for a lacrosse stick. Appeal
Br. 14—15. The Examiner finds one of ordinary skill in the art “would be
aware of various handle designs and would have selected any one of several
equivalent designs.” Ans. 17. We agree with the Examiner that designs
providing a good grip on a knife sharpener are pertinent to providing a good
grip on a lacrosse handle, and that the knife sharpener handles would have
commended themselves to an inventor’s attention in considering the problem
of enhancing a player’s grip on a lacrosse handle. A handle is a handle.
Appellants also argue that Saffell and Friel are inapplicable because
they are design patents and therefore “non-functional, ornamental designs.”
Appeal Br. 15. While it is true that Saffell and Friel have patented the
ornamental design of their handles, they nevertheless disclose handles which
have a self-evident utilitarian purpose. We see no defect in the Examiner’s
reliance on the disclosures found in design patents. In re Aslanian, 590 F. 2d
911 (CCPA 1979) (“[W]e can find no reason for excluding design patents
from the classes of prior art properly citable in a rejection under 35 U.S.C. §
103.”).
In view of the foregoing we have not been persuaded that the
Examiner erred in rejecting claim 18.
Claims 19 and 20
Claims 19 and 20 require, in pertinent part, that the undulating cross-
section “comprises a plurality of ramped-step undulations in said x-
direction.” Appeal Br. 26 (Claims App.). Appellants assert this feature is
not shown by Saffell, as the Examiner found, because the steps in Saffell are
rectangular. Appeal Br. 15—16. Our examination of Saffell shows curved
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bottoms leading to side walls and flat tops. The curved bottoms form ramps.
Accordingly, we have not been shown error in the Examiner’s rejection of
claims 19 and 20.
Claims 21 and 22
Appellants’ arguments in connection with claims 21 and 22 amount to
a mere denial that the subject matter of these claims is disclosed in the prior
art. Appeal Br. 16. Simply denying the Examiner’s finding, Appeal Br. 16
(“Contrary to the Examiner’s position . . .”), and asserting an advantage (the
“cross-sectional area . . . advantageously mimics [the prior art]”) does not
demonstrate error in the Examiner’s finding. 37 C.F.R. § 41.37(c)(l)(iv).
Claims 23 and 24
In connection with claims 23 and 24, Appellants argue that “Morrow
does not teach a method of hydro forming a lacrosse stick having a variable
cross section such as the claimed handle.” Appeal Br. 16. This argument is
not persuasive because the Examiner relied on Morrow for its teaching of
hydroforming, and relied on the combination of Morrow and Gait to render
subject matter of claims 23 and 24 obvious. Ans. 17. An argument that
attacks the references separately is not persuasive when the rejection is
based on a combination of references. See In re Keller, 642 F.2d 413, 426
(CCPA 1981); In re Merck & Co., 800 F.2d 1091, 1097 (Fed. Cir. 1986).
Rejection IV
Claims 25 and 26 obvious in view of Gait, Morrow, Brine, established
case law, either Saffell or Friel (as in Rejection III) and further in view of
Obeshaw
Claim 25 depends from claim 17 adding in pertinent part that the
handle is made by bladder molding a preformed tubular blank. Appeal Br.
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26 (Claims App.). The Examiner relies on the same combination of prior art
references used to reject claim 17 and adds Obeshaw for its teaching of
bladder hydro forming forming articles, citing Obeshaw Figures 1—24 and
paragraphs 84—101. Final Act. 7. Appellants argue that Obeshaw’s
teaching, “expressly intended for automotive and other industrial
applications, would not enter a lacrosse stick artisan’s universe of
influences.” Appeal Br. 17. Appellants further argue that the Examiner has
failed to show why one manufacturing a lacrosse stick would be motivated
to utilize Obeshaw’s bladder molding technique. Id.
The Examiner finds a relatively high level of skill in the art
(“‘intelligent’ and not ‘stupid’”) (Ans. 18) and cites Morrow 139, for its
nonexclusive listing of multiple different manufacturing processes that may
be used to manufacture a lacrosse stick. We agree with the Examiner that,
following the suggestion of Morrow, one of ordinary skill in the art would
look to any of the well-established manufacturing techniques, including
bladder molding and hydroforming as taught by Obeshaw 1 84. See KSR,
550 U.S. at 421. Accordingly, we have not been shown that the Examiner
erred in rejecting claims 25 and 26.
Rejection V
Claims 16—24 obvious in view of Gait and Cowdery
The rejection of claims 16—24 as obvious in view of Gait and
Cowdery depends upon the Examiner’s finding that Cowdery discloses an
undulating cross-section. Final Act. 7; Ans. 19-20. Cowdery discloses a
golf club with a shaft that steps down in diameter from the grip to the head,
with each successive section being smaller in diameter than the one that
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preceded it. See Cowdery Figs. 1, 2. The Examiner cites the gradual
damping of a wave caused by a stone tossed into a still pool of water as
having the same oscillation that Cowdery discloses. Ans. 19—20.
Appellants argue that Cowdery’s stepped configuration does not undulate,
citing a dictionary definition that requires a “wavy surface.” Appeal Br. 33.
We agree with Appellants that the one-way step down in diameter in
Cowdery does not “undulate” and is not “wavy.” Both terms require a
change in direction, a rise and a fall, an increase and a decrease. Cowdery
does not show this aspect, and so we do not sustain the rejection of claims
16—24 as obvious in view of Gait and Cowdery.
Claims 20—22
As with claim 16, the Examiner relies on Cowdery for its stepwise
diameter changes to meet the oscillatory limitation in claims 20—22. Final
Act. 7—8. The Examiner adds Saffell as teaching “a taped handle in a
stepwise direction.” Id. at 8. Saffell does not cure the deficiency of
Cowdery, and for the reasons stated above we do not sustain the rejection of
claims 20-22 based on the combination of Gait, Cowdery, and Saffell.
Rejection VI
Claims 16—18 obvious in view of Gait and Tousey
Claims 16—18 are rejected under 35 U.S.C. § 103(a) as being
unpatentable over Gait in view of Tousey. Final Act. 8. Tousey discloses a
golf club shaft with a series of rings that reduce or eliminate the sound of the
golf club rapidly moving through air. Tousey 1:36-44. The Examiner finds
that Gait discloses all the limitations of claims 16—18 except for a monolithic
tubular member. Final Act. 8. The Examiner further finds that Tousey
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discloses an undulating shaft, and this, combined with Gait, the Examiner
finds renders claims 16—18 obvious. Final Act. 8. Appellants correctly
point out that the Examiner has failed to find a monolithic shaft. Appeal Br.
20. The Examiner replies that Tousey states that the ridges “may be formed
on the shaft or may be applied thereto in any suitable manner and of any
suitable material” (quoting Tousey 1:30-32), and the Examiner concludes
that this “would tend to indicate that they were formed on the shaft during
the manufacturing process and not added at a later date.” Ans. 22. We
agree that Tousey suggests that the circular ridges are integral with the shaft,
and Appellants do not address Tousey’s “may be formed on the shaft”
disclosure, focusing instead on the alternative of “or may be applied
thereto.” Appeal Br. 20. Because Appellants do not address the Examiner’s
finding that Tousey suggests undulations that are integral with the shaft, we
are not persuaded that the Examiner erred in his conclusion that it would
have been obvious to combine the ridges of Tousey with the lacrosse stick
handle of Gait.
Appellants also argue that Tousey is not analogous art because the
performance criteria for golf clubs and lacrosse sticks are wholly unrelated.
We find the design of golf club shafts to be reasonably related to that of
lacrosse stick handles, and so are not persuaded that it was improper for the
Examiner to combine the teachings of Tousey with those of Gait.
For the foregoing reasons the Examiner’s rejection of claims 16—18 as
obvious in view of Gait and Tousey is sustained.
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DECISION
We affirm the Examiner’s rejection of claims 16—26 except on the
grounds specifically reversed above. See 37 C.F.R. § 41.50(a). We designate
our affirmance as including a new ground of rejection under 37 C.F.R. §
41.50(b).
This decision contains a new ground of rejection pursuant to
37 C.F.R. § 41.50(b). Section 41.50(b) provides “[a] new ground of rejection
pursuant to this paragraph shall not be considered final for judicial review.”
Section 41.50(b) also provides:
When the Board enters such a non-final decision, the appellant,
within two months from the date of the decision, must exercise
one of the following two options with respect to the new ground
of rejection to avoid termination of the appeal as to the rejected
claims:
(1) Reopen prosecution. Submit an appropriate
amendment of the claims so rejected or new Evidence relating to
the claims so rejected, or both, and have the matter reconsidered
by the examiner, in which event the prosecution will be
remanded to the examiner. The new ground of rejection is
binding upon the examiner unless an amendment or new
Evidence not previously of Record is made which, in the opinion
of the examiner, overcomes the new ground of rejection
designated in the decision. Should the examiner reject the claims,
appellant may again appeal to the Board pursuant to this subpart.
(2) Request rehearing. Request that the proceeding be
reheard under § 41.52 by the Board upon the same Record. The
request for rehearing must address any new ground of rejection
and state with particularity the points believed to have been
misapprehended or overlooked in entering the new ground of
rejection and also state all other grounds upon which rehearing
is sought.
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Further guidance on responding to a new ground of rejection can be
found in the Manual of Patent Examining Procedure § 1214.01.
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). See 37 C.F.R. §§
41.50(f), 41.52(b).
AFFIRMED; 37 C.F.R, $ 41.50(b)
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