Ex Parte Walterscheid

Patent Trial and Appeal Board

Sep 28, 2017

13902964 (P.T.A.B. Sep. 28, 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.
13/902,964 05/27/2013 Steve Walterscheid KMA-30 3120
32132 7590 10/02/2017
LAMORTE & ASSOCIATES P.C.
P.O. BOX 434
YARDLEY, PA 19067
EXAMINER
VANDERVEEN, JEFFREY S
ART UNIT PAPER NUMBER
3711
NOTIFICATION DATE DELIVERY MODE
10/02/2017 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):
uspatlawl @ verizon.net
mail@uspatlaw.com
malamorte@verizon.net
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte STEVE WALTERSCHEID
Appeal 2016-008402
Application 13/902,964
Technology Center 3700
Before STEVEN D.A. McCARTHY, BRETT C. MARTIN and
LISA M. GUIJT, Administrative Patent Judges.
McCARTHY, Administrative Patent Judge.
DECISION ON APPEAL
1 STATEMENT OF THE CASE
2 The Appellant1 appeals under 35 U.S.C. § 134(a) from the Examiner’s
3 decision finally rejecting claims 1, 2, 4—8 and 11—16 under pre-AIA 35
4 U.S.C. § 103(a) as being unpatentable over Goldfarb (US 3,501,861, issued
5 Mar. 24, 1970) and Walterscheid (US 7,806,746 B2, issued Oct. 5, 2010).
6 Claims 3, 9 and 10 are cancelled. We have jurisdiction under 35 U.S.C.
7 § 6(b).
8 We AFFIRM.
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1 The Appellant identifies KMA Concepts Limited as the real party in
interest.
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Appeal 2016-008402
Application 12/902,964
THE CLAIMED SUBJECT MATTER
The claims on appeal relate to a pop-up toy, that is, one of “a class of
toys that pop up after having been manually depressed.” (Spec. 1,11. 15—
17). More specifically, the claims relate to an improvement on a pop-up toy
described in Walterscheid. The pop-up toy described in Walterscheid used a
braided sleeve rather than a coil spring to provide the force to cause the toy
to pop up after manual depression. (See Spec. 2,1. 16 — 3,1. 2; Walterscheid,
col. 1,11. 53—64 & Figs. 1, 3 & 4). The Specification teaches that the pop-up
toy described in Walterscheid may suffer disadvantages, such as uneven
vertical compression and invagination of the sleeve during compression.
(See Spec. 3,11. 6 & 7; & Spec. 4,11. 3—5). The Appellant addresses these
disadvantages by combining the braided sleeve with a cup-like head defining
an interior compartment, so as to limit the compression of the sleeve; and
confine the sleeve in a manner so as to prevent twisting or asymmetric
bulging. (See Spec. 9,11. 11-19; 11,11. 6-22; 12,1. 15-13,1. 4; & Figs. 1-
5).
Claims 1, 7 and 16 are independent. Claim 1 recites:
E A pop-up toy assembly that pops up after being
compressed against an underlying surface, said assembly
comprising:
a head having a top surface, a peripheral wall that extends
from said top surface, wherein said peripheral wall terminates at
a bottom surface, and wherein said peripheral wall defines an
internal compartment, disposed in said head, that is open at said
bottom surface;
a braided sleeve of interwoven plastic strands having a top
end and a bottom end, said braided sleeve being selectively
compressible between an uncompressed state and a shorter
compressed state, wherein when in said compressed state said
braided sleeve is compressed between said head and the
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Appeal 2016-008402
Application 12/902,964
underlying surface until said bottom surface of said peripheral
wall presses against the underlying surface, wherein said top end
of said braided sleeve is attached to said head within said internal
compartment, and wherein said braided sleeve extends beyond
said bottom surface of said head when in said uncompressed
state, and wherein said braided sleeve completely fits within said
internal compartment in said compressed state.
ISSUES
The sole issue in this appeal is:
Would the subject matter of independent claims 1, 7 and 16 have been
obvious from the combined teachings of Goldfarb and Walterscheid?
FINDINGS OF FACT
The record supports the following findings of fact (“FF”) by a
preponderance of the evidence.
Goldfarb
1. Goldfarb describes a pop-up toy 10 including a moveable base
12 having an integrally formed center post or stud 28; a coil compression
spring 14 secured to the center post 28; a suction cup element 16 including a
tubular sleeve portion 36 defining a recess 40 press fit over the upper end of
the spring 14; and a dome-shaped body 18 having an integrally formed,
downwardly extending tubular receptacle 48 press fit over the tubular sleeve
portion 36 of the suction cup element 16. (See Goldfarb, col. 2,11. 37-44;
col. 2,1. 71 - col. 3,1. 4; col. 4,11. 19-23, 33^19 & 57-72; & Figs. 1-3).
2. Downward pressure on the body 18 compresses the spring 14
and causes flared lower portion 34 of the suction cup element 16 to flatten
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Appeal 2016-008402
Application 12/902,964
against the upper surface 24 of the base 12. The flattening of the lower
portion 34 of the suction cup element 16 against the surface 24 creates a low
pressure that maintains the spring 14 in compression for a period of time
after the downward pressure on the body 18 is released. After a period of
time, pressure equalization between the suction cup element 16 and the
surface 24 allows the spring 14 to launch the pop-up toy 10 into the air. (See
generally Goldfarb, col. 4,11. 11—59).
Walterscheid
3. Walterscheid teaches that drawbacks to the use of coil
compression springs in pop-up toys include the risk that the spring may
come loose from the remainder of the toy, exposing a user to potential harm
from the sharp ends of the spring; the risk that the user’s skin may be caught
in the coils of the spring; and the risk that the spring may be entangled in the
user’s hair. (See Walterscheid, col. 1,11. 22—31).
4. Walterscheid addresses these drawbacks by means of a popper
toy assembly 10 including a head section 12 coupled to a body section 14
primarily in the form of a ffusto-conically shaped, braided sleeve wider in its
lower portion than in its upper portion. (Walterscheid, col. 2,11. 31—35, 51,
52 & 65-67; & Fig. 1).
5. Downward pressure on the head section 12 compresses the
braided sleeve 20, causing the braided sleeve to shorten and widen as it
stores energy. When the downward pressure is released, the braided sleeve
returns to its original shape, thereby launching the pop-up toy 10 into the air.
(See Walterscheid, col. 3,11. 4—9 & 28—33; Figs. 3 & 4).
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Appeal 2016-008402
Application 12/902,964
ANALYSIS
Independent claim 1 recites a pop-up toy assembly including a head
having a peripheral wall defining an internal compartment,
wherein when in said compressed state said braided sleeve is
compressed between said head and the underlying surface until
said bottom surface of said peripheral wall presses against the
underlying surface, wherein said top end of said braided sleeve
is attached to said head within said internal compartment, and
wherein said braided sleeve extends beyond said bottom surface
of said head when in said uncompressed state, and wherein said
braided sleeve completely fits within said internal compartment
in said compressed state.
Independent claim 7 recites a pop-up toy assembly including a head and an
internal compartment disposed in the head, “wherein said braided sleeve fits
inside said internal compartment in said compressed state when said braided
sleeve is compressed between said head and the underlying surface until said
bottom surface of said head contacts the underlying surface.” The Examiner
finds that either Goldfarb’s suction cup element 16 (see Final Office Action,
mailed August 14, 2015, at 3) or the combination of the suction cup element
with Goldfarb’s body 18 (see “Appeal Brief of Applicant,” dated January 14,
2016 (“App. Br.”), at 9 & 10), constitutes the recited head.
The Appellant argues that Goldfarb’s body 18, and not the suction cup
element 16, constitutes the “head” of Goldfarb’s pop-up toy 10. (See App.
Br. 9—11, 13 & 14). Where the specification indicates that the Appellant
intended to use a term in a particular way in the claims, the claims must be
interpreted in accordance with that intent. See ICON Health & Fitness, Inc.,
496 F.3d 1374, 1379 (Fed. Cir. 2007) (when seeking the broadest reasonable
interpretation of a claim, one must “look to the specification to see if [the
specification] provides a definition for claim terms.”). The Appellant’s
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Appeal 2016-008402
Application 12/902,964
Specification says that the “term ‘head’ is intended to include any molded
object that rests upon the braided sleeve 14 and should not necessarily be
considered only the head of a figure having facial features.” (Spec. 12). The
passage indicates that the Appellant intended to use the term “head” broadly
to refer to “any molded object that rests upon the braided sleeve.” Although
the passage specifically disavows any limitation of the term to an
anthropomorphically representative head, the Appellant’s intent that the term
be interpreted broadly is explicit. Given the explicit statement, there is no
need to rely on extrinsic evidence such as general purpose dictionary
definitions to interpret the term “head.”
Goldfarb taught a pop-up toy 10 including a suction cup element 16
(or the combination of a body 18 press fit over a portion of the suction cup
element) resting upon a coil compression spring 14. (See FF 1).
Walterscheid identified drawbacks related to the safety of using a coil
compression spring in a pop-up toy (see FF 3); and taught substituting a
braided sleeve for such a coil compression spring to address those
drawbacks (see FF 4). It would have been obvious to substitute a braided
sleeve for Goldfarb’s coil compression spring 14 to address the drawbacks
identified in Goldfarb. In order to implement the substitution, one of
ordinary skill in the art would have had to modify the width of the tubular
sleeve portion 36 of Goldfarb’s suction cup element 16 in order to
accommodate the shortening and broadening of the braided sleeve as the
braided sleeve compressed (see FF 5). Once the substitution had been made,
the suction cup element 16 (or the combination of a body 18 press fit over a
portion of the suction cup element) would have rested upon the braided
sleeve. As such, the suction cup element 16 (or the combination of a body
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Appeal 2016-008402
Application 12/902,964
18 press fit over a portion of the suction cup element) would have been a
“head” of the pop-up toy within the meaning of that term in the claims.
The Appellant also argues that Goldfarb fails to teach or suggest a
head that contacts an underlying surface when the braided sleeve is
compressed. (See App. Br. 11, 12, 13 & 14; “Reply Brief of Applicant,”
dated September 7, 2016, at 2). The Appellant’s argument is based on its
contention that Goldfarb’s body 18, and not the suction cup element 16,
constitutes the “head.” When the term “head” is read onto Goldfarb’s
suction cup element 16 (or the combination of a body 18 press fit over a
portion of the suction cup element), in the manner proposed by the
Examiner, the head does contact the underlying surface when the braided
sleeve is compressed. (See FF 2).
We sustain the rejection of claims 1, 2, 4—8 and 11—15 under § 103(a)
as being unpatentable over the combined teachings of Goldfarb and
Walterscheid.
With respect to claim 16, the Appellant argues that Goldfarb “fails to
disclose a pop-up toy with a head that receives a spring internally, thereby
enabling the head to contact the surface against which the spring is being
compressed.” (App. Br. 14 & 15). Although this argument is not
commensurate with the scope of claim 1, which does not recite contact
between the head and the underlying surface, the discussion relating to the
subject matter of claim 1 and 7 above addresses it. We sustain the rejection
of claim 16 under § 103(a) as being unpatentable over the combined
teachings of Goldfarb and Walterscheid.
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Appeal 2016-008402
Application 12/902,964
1 DECISION
2 We AFFIRM the Examiner’s decision rejecting claims 1, 2, 4—8 and
3 11-16.
4 No time period for taking any subsequent action in connection with
5 this appeal may be extended under 37 C.F.R. § 1.136(a). See 37 C.F.R.
6 § 1.136(a).
AFFIRMED
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