Ex Parte Volker

Patent Trial and Appeal Board

Aug 30, 2018

14061414 (P.T.A.B. Aug. 30, 2018)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO.
14/061,414
72960 7590
Casimir Jones, S.C.
FILING DATE
10/23/2013
09/04/2018
2275 Deming Way Ste 310
Middleton, WI 53562
FIRST NAMED INVENTOR
Monica Ann Volker
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
ATTORNEY DOCKET NO. CONFIRMATION NO.
VOLK-32961/US-2/0RD 5283
EXAMINER
NELSON, KERI JESSICA
ART UNIT PAPER NUMBER
3772
NOTIFICATION DATE DELIVERY MODE
09/04/2018 ELECTRONIC
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.
Notice of the Office communication was sent electronically on above-indicated "Notification Date" to the
following e-mail address(es):
docketing@casimirjones.com
pto .correspondence@casimirjones.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte MONICA ANN VOLKER
Appeal2017-006885
Application 14/061,414
Technology Center 3700
Before JOHN C. KERINS, JAMES P. CALVE, and SEAN P. O'HANLON,
Administrative Patent Judges.
O'HANLON, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Monica Ann Volker ("Appellant") 1 seeks review under 35 U.S.C.
§ 134(a) of the Examiner's decision, as set forth in the Final Office Action
dated March 7, 2016 ("Final Act."), rejecting claims 1, 2, and 8-13. We
have jurisdiction over this appeal under 35 U.S.C. § 6(b). We REVERSE.
1 The Appeal Brief identifies Appellant as the real party in interest. Appeal
Br. 3.
Appeal2017-006885
Application 14/061,414
SUMMARY OF THE INVENTION
Appellant's claimed invention is directed to a knee brace. Spec. 1 :7-
10. Claim 1, the sole independent claim on appeal, 2 is reproduced below
from page 13 (Claims Appendix) of the Appeal Brief:
1. A knee brace comprising:
a) an upper portion that is configured to attach to a
subject's leg above a knee, said upper portion comprising an
adjustable strap;
b) a lower portion that is configured to attach to said
subject's leg below the knee, said lower portion comprising an
adjustable strap;
c) an ankle component sized and positioned to attach to
said subject's leg near an ankle, wherein said ankle component
is connected to said lower portion by an adjustable length bar
with locking mechanism;
d) a ground support component configured to make
contact with the ground and to fit within said subject's
footwear;
e) a first immobilization bar having a top end and a
bottom end, wherein said top end of said first immobilization
bar connects to said upper portion and said bottom end of said
first immobilization bar connects to said lower portion; and
f) a second immobilization bar having a top end and a
bottom end, wherein said top end of said second immobilization
bar connects to said upper portion opposite to said first
immobilization bar and said bottom end of said second
immobilization bar connects to said lower portion opposite to
said first immobilization bar;
wherein said upper portion and lower portion are
connected by a bracing mechanism comprising a torque
controlled hinge and locking component.
2 Although claims 9 and 11 recite a method and a kit, respectively, rather
than a knee brace, each of these claims incorporates the knee brace of
claim 1. Appeal Br. 14 (Claims App.).
2
Appeal2017-006885
Application 14/061,414
REFERENCES
The Examiner relies on the following prior art references in rejecting
the claims on appeal:
Mann
Wycoki
Grim
DeSousa
us 5,626,557
us 6,010,474
US 7,892,195 B2
US 2014/0046234 Al
REJECTIONS
May 6, 1997
Jan.4,2000
Feb. 22, 2011
Feb. 13,2014
I. Claims 1, 2, and 8-12 stand rejected under 35 U.S.C. § I03(a) as
being unpatentable over Wycoki, DeSousa, and Grim.
II. Claim 13 stands rejected under 35 U.S.C. § I03(a) as being
unpatentable over Wycoki, DeSousa, Grim, and Mann.
ANALYSIS
Rejection I
The Examiner finds that Wycoki discloses a knee brace substantially
as recited in claim 1, but relies on DeSousa to teach the use of a brace lower
portion comprising an adjustable strap and Grim to teach the use of first and
second immobilization bars. Final Act. 2--4. The rejection relies on the
Examiner's finding that Wycoki discloses, inter alia:
a lower portion (36) that is configured to attach to the subject's
leg below the knee; an ankle component (30) sized and
positioned near the subject's ankle, wherein the ankle
component is connected to the lower portion by an adjustable
length bar (24) with locking mechanism (31 ); ... wherein the
upper portion and the lower portion are connected by a bracing
mechanism comprising a torque controlled hinge (26) and
locking component.
Id. at 2-3 ( citations omitted).
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Appeal2017-006885
Application 14/061,414
The Examiner relies on Wycoki' s strap 3 6 to correspond to the recited
lower portion. Id. at 2. Wycoki provides the following description for this
strap: "A second strap 36 belo,v the knee joint at the tibial metaphysis (not
shown) can be provided to stabilize the brace 10 from medial or lateral
shifting of the leg or widening of the brace 10." vVycoki 5: 1-4. vVe agree
with Appellant (see Reply Br. 5-6) that the Examiner does not explain
adeouatelv how or whv Grim~s stav members 84 would be connected to
-~ .,/ d d
strap 36. Although the Examiner coffectly notes that Grim discloses that
stay members 84 provide added medial and lateral suppmi (see Final Act. 4;
Grim 10:24--27), the members are "held in place by straps" and "overlie[]
the liner 14" rather than being "attached" to the liner. See Grim 10: 19--21;
see also Spec. 3 :22-26 ( describing how immobilization bars 11 are attached
to upper and lower portions 2, 8).
Additionally, we note that claim 1 requires the recited ankle
component to be "sized and positioned to attach to said subject's leg near an
ankle." Appeal Br. 13 (Claims App.) (emphasis added). The Examiner
relies on Wycoki's hinge 30 to correspond to the recited ankle component.
Final Act. 2. Noticeably absent from the Examiner's rejection is any
explanation as to how Wycoki's hinge 30 is sized and positioned to attach to
the wearer's leg. Indeed, the Examiner omits this requirement altogether
when discussing the alleged teachings of the cited references. Wycoki
explains that "[ e Jach lower strut 24 is fastened to a tang 29 of the heel bridge
16 by a lockable hinge 30 that allows adjustment of the plantarflexion and
dorsiflexion of the ankle joint." Wycoki 4:50-52; see also id. at Fig. 1.
Hinge 30, therefore, connects heel bridge 16 to lower strut 24, but is not
sized and positioned to attach to the user's leg.
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Appeal2017-006885
Application 14/061,414
Claim 1 further requires the ankle component to be "connected to said
lower portion by an adjustable length bar with locking mechanism." Appeal
Br. 13 (Claims App.). The Examiner relies on Wycoki's lower strut 24 to
correspond to the recited adjustable length bar and screws 31 to correspond
to the recited locking mechanism. Final Act. 2. Wycoki explains that "[t]he
lower strut 24 can also be equipped with two sections secured by screws 31
to permit customized adjustment of the length of the lower strut 24."
Wycoki 4:52-55; see also id. at Fig. 1. Thus, contrary to the Examiner's
finding, Wycoki's screws 31 do not connect hinge 30 to lower strut 24.
Claim 1 further requires the "upper portion and lower portion [to be]
connected by a bracing mechanism comprising a torque controlled hinge and
locking component." Appeal Br. 13 (Claims App.). The Examiner relies on
Wycoki's hinge assembly 26 and an undefined "locking component" to
correspond to the recited bracing mechanism components. Final Act. 2-3.
We understand the Examiner to rely on Wycoki's primary hinge 66 to
correspond to the recited torque controlled hinge and sliding block 7 4 to
correspond to the recited locking component-primary hinge 66 and sliding
block 74 are components of hinge assembly 26 (see Wycoki 6:42-7:24, Figs.
6A---6C). Wycoki explains that "[ e Jach strut assembly 20 preferably includes
an upper strut 22 and a lower strut 24 joined by a hinge assembly 26 that
permits pivoting of the upper struts 22 and the lower struts 24 relative to
each other." Id. at 4:41--44; see also id. at Fig. 2. Thus, contrary to the
Examiner's finding, Wycoki's hinge assembly 26 does not connect thigh
cuff 12 ( which the Examiner finds to correspond to the recited upper
portion) and strap 36 (which the Examiner finds to correspond to the recited
lower portion).
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Appeal2017-006885
Application 14/061,414
Accordingly, for the foregoing reasons, we do not sustain the rejection
of claims 1, 2, and 8-12 as being unpatentable over Wycoki, DeSousa, and
Grim.
Rejection II
The Examiner does not rely on Mann in any manner that would
remedy the deficiencies noted above with respect to the rejection of claim 1.
The rejection of claim 13, which depends from claim 1, therefore, is not
sustained.
DECISION
The Examiner's decision to reject claims 1, 2, and 8-13 is reversed.
REVERSED
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