Ex Parte VolkerDownload PDFPatent Trial and Appeal BoardAug 30, 201814061414 (P.T.A.B. Aug. 30, 2018) Copy Citation 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). 3 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. 4 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). 5 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 6 Copy with citationCopy as parenthetical citation