Ex Parte Weitzen

Patent Trial and Appeal Board

Sep 18, 2014

12079554 (P.T.A.B. Sep. 18, 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.
12/079,554 03/28/2008 Juli A. Weitzen 1522P 1916
7590 09/19/2014
Zachary T. Wobensmith, III
7746 101st Court
Vero Beach, FL 32967-2871
EXAMINER
HICKS, VICTORIA J
ART UNIT PAPER NUMBER
3772
MAIL DATE DELIVERY MODE
09/19/2014 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 JULI A. WEITZEN
____________

Appeal 2012-001872
Application 12/079,5541
Technology Center 3700
____________

Before JAMES T. MOORE, JOHN C. KERINS, and ANNETTE R.
REIMERS, Administrative Patent Judges.

MOORE, Administrative Patent Judge.

DECISION ON APPEAL
Appellant appeals under 35 U.S.C. § 134(a) from a final rejection of
claims 1–11, which constitute all the claims pending in this application. We
have jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM.

STATEMENT OF THE CASE
Introduction
The Appellant's invention is directed to a foot/ankle wrap, and method
of applying a wrap to a foot or ankle to control various foot or ankle

1 According to Appellant, the real party in interest is Juli A. Weitzen, the
inventor. (Appeal Br. 1).
App
App

disor
App

below
Spec

eal 2012-0
lication 12
ders, appl
eal Br. 2–3
Claim 1
1.
or ankle
a
connecte
biomech

The Spe
) and 1B
One em
consists
12 of w
well kno
12 for
“Fabrifo
Pa.,1934

. 5.

Figure 1
01872
/079,554
y a neutral
, Spec. 1.
is illustrat
A foo
of a perso
first strap t
d together
anical issu
cification n
, (not show
bodiment
of a long
ell-known
wn materi
engageme
am”, ava
1, being p
A is a seri
force to th
ive and rea
t/ankle wr
n which co
o be woun
by clip m
es of the p
otes, in re
n) that:
of a foot/
length stra
type. The
al, which
nt and f
ilable fro
articularly
es of persp

2
e foot or
ds as follo
ap for app
mprises:
d around
eans in a m
erson's fo
ference to
ankle wrap
p 11 and a
long strap
is compati
astening
m Fabri
suitable.
ective vie
ankle, and
ws:
lying a fo
said foot/a
anner to
ot or ankle
Figures 1
l0 is illu
plurality
11 is co
ble with t
of the s
foam Pr
ws of a foo
for arch s
rce to the
nkle and
correct
.
A (shown
strated, w
of Velcro
mposed of
he Velcro
trap 11,
oducts, E
t/ankle w
upport.
foot
hich
clips
any
clips
with
xton
rap.
Appeal 2012-001872
Application 12/079,554

3
Rejections
Claims 1–3 and 7 stand rejected under 35 U.S.C. § 102(b) as
anticipated by Selner (US 5,755,679; issued May 26, 1998).
Claims 4 and 5 stand rejected under 35 U.S.C. § 102(b) as being
anticipated by Talbot (US 7,166,760 B1; issued Jan. 23, 2007).
Claim 6 stands rejected under 35 U.S.C. § 102(b) as being
anticipated by Ritchie (US 6,447,469 B1; issued Sept. 10, 2002).
Claims 8 and 10 stand rejected under 35 U.S.C. § 102(b) as
being anticipated by Cooper (US 5,050,620; issued Sept. 24, 1991).
Claim 9 stands rejected under 35 U.S.C. § 103(a) as being
unpatentable over Johnson, (US 6,322,530 B1; issued Nov. 27, 2001) and
Cooper.
Claim 11 stands rejected under 35 U.S.C. § 103(a) as being
unpatentable over Selner and Hubbard (US 5,944,678; issued Aug. 31,
1999).
ANALYSIS
I. The rejection of claims 1–3 and 7 under 35 U.S.C. § 102(b) as
anticipated by Selner

The Examiner found Figures 1, 2, and 5 of Selner describe a first
strap (14) to be wound around a foot/ankle and connected together by clip
means (44) in a manner to correct biomechanical issues of the person's foot
or ankle. Final Act. 2.

App
App

stabi
wrap
sleev
whil
supin
of th
treat

treat
to th

evid
claim
conn
issue
eal 2012-0
lication 12
Selner F
Figure 2
The App
lizing gait
ped aroun
e around t
e the appa
ation, and
e prior art
ing both th
The Exa
ment of th
e foot or a
We find
ence of rec
limitatio
ected toge
s of the pe
01872
/079,554
igure 2 is r
of Selner
ellant urg
, wherein
d the foot
he arch an
ratus says
enhances
in that the
e foot and
miner obs
e foot and
nkle.” An
ourselves
ord establ
ns of “a fir
ther by cli
rson's foo
eproduced
is a perspe
es that Sel
a sheet and
in a prescr
d instep o
it controls
retrograde
apparatus
ankle. Ap
erves that
ankle, but
s. 10.
in agreem
ishes that
st strap to
p means in
t or ankle.
4
below:
ctive view
ner is direc
a strap of
ibed mann
f the foot.
excessive
stability,
does not o
peal Br. 1
the claims
rather use
ent with th
the Selner
be wound
a manner
” Appeal
of a foot/
ted to an
limited el
er, so that
Accordin
pronation
it suffers
perate sep
5.
do not req
the term “
e Examin
ankle/foot
around sa
to correct
Br. i. We
ankle wra
apparatus
asticities a
the sheet
g to the Ap
, assists in
from the li
arately as
uire separ
for applyi
er’s positio
wrap mee
id foot/ank
biomecha
are presen
p.
for
re
forms a
pellant,

mitations
regards
ate
ng a force
n. The
ts the
le and
nical
ted with

Appeal 2012-001872
Application 12/079,554

5
no persuasive argument of error. Accordingly, we affirm this first rejection
as it pertains to claim 1.
Claim 2 requires “a second strap is provided of a shorter length than
said first strap, which is also wound around said foot/ankle and connected by
clip means to said first strap in a manner to correct biomechanical issues of
the person's foot, or ankle.” Appeal Br. i.
To the extent that the Appellant has stated that the claims do not stand
or fall together (Appeal Br. 9) and separately argued claim 2, we are
presented with the following argument only. Claim 2 “is not anticipated by
or obvious in view of the prior art cited by the Examiner, and defines novel
and patentable subject matter.” Id. Similar arguments are presented for
claims 3 and 7. Id. at 9–10, 11–12.
As we have been presented with no persuasive argument of error as
regards claim 1 or these dependent claims, we affirm this rejection as it
relates to claims 2, 3, and 7.
II. The rejection of claims 4–5 under 35 U.S.C. § 102(b) as
anticipated by Talbot

Claim 4 is a method claim reciting
4. A method of treating infirmities or abnormalities of
the foot or ankle of a person wherein it is desired to treat
pronation2, which comprises:
applying a force of supination to said foot or ankle by
wrapping a first strap of fabric around said foot starting on the
dorsal mid foot, then directly laterally and plantarly in a circular
direction to dorsally overlap the starting position; continuing to

2 Foot pronation is eversion and abduction of the foot, causing a lowering of
the medial (internal) edge. Stedman’s, supra, p. 1148.
Appeal 2012-001872
Application 12/079,554

6
wrap the foot to encompass the lateral malleolus[3] and then
directed posteriorly, to encompass the medial malleolus, and
then to cross the anterior ankle, and applying at least one clip
means to fasten said strap together.

Appeal Br. i–ii.
The Examiner has found that Talbot describes in Figures 1 and 2, and
column 3, lines 15–28 a method of applying a force of supination to a foot or
ankle by wrapping a first strap of fabric around the foot starting on the
dorsal mid foot (inside of the ankle), then directed laterally and plantarly
(crosses over the medial arch, loops below the foot in front of the heel) in a
circular direction to dorsally overlap the starting position (crosses over itself
above the medial arch). Ans. 6.
The Examiner has further found that Talbot describes continuing to
wrap the foot to encompass the lateral malleolus and then directed
posteriorly, to encompass the medial malleolus (loops around the back of the
ankle), and then to cross the anterior ankle, and applying at least one clip
means (30) to fasten said strap together (fastens to itself at the beginning
point at the inside of the ankle). Ans. 6–7.
Finally, the Examiner has found that the strap wrapped around the
foot applies a force of supination at points. Ans. 6.

3 A malleolus is a bony prominence found on each side of the ankle. A
lateral malleolus is external to the ankle, while a medial malleolus is internal
to the ankle. Stedman’s Medical Dictionary 829 (24th Ed., ©1982, Williams
and Wilkins, Baltimore, MD).
App
App

Talb

to be
non-
once
arou
heel,
and e

Acco
not p
the f
Br. 1
eal 2012-0
lication 12
ot Figure

Talbot F
The App
directed t
adhesive m
about the
nd the bac
and the st
ye fastene
Talbot is
rding to th
ermit the
oot and an
7–18.
01872
/079,554
1 is reprod
igure 1 is
ellant pres
o an ankle
aterial to
ankle and
k of the an
rap crossin
rs. Appea
said to em
e Appella
structure t
kle as doe
uced below
a perspect
ents us wi
brace of a
be wrappe
foot, with
kle, one lo
g above t
l Br. 17.
phasize th
nt, the act
o perform
s that of A
7
:
ive view o
th the foll
single str
d in a figu
one loop o
op passin
he foot. T
at the stra
ion of the
different f
ppellant w
f an ankle
owing arg
ap of inela
re-eight c
f the figu
g under th
he strap is
p material
Talbot des
unctions a
ith its elas
wrap.
ument. Ta
stic and fl
onfiguratio
re-eight pa
e foot in fr
fastened b
is inelasti
cribed bra
t the same
tic materi
lbot is sai
exible,
n at least
ssing
ont of the
y hook
c.
ce would
time for
al. Appea
d
l
Appeal 2012-001872
Application 12/079,554

8
This argument likewise does not convince us of reversible error. The
claim does not require the strap to be elastic, nor are we presented with
persuasive evidence that an inelastic strap cannot support the foot or ankle.
Claim 5, a similar method claim, is argued separately only as follows.
Claim 5 “is not anticipated by, or obvious in view of the prior art cited by
the Examiner, and defines novel and patentable subject matter.” Appeal Br.
11.
This argument also does not persuade us of reversible error.
Accordingly, we affirm this rejection.
III. The rejection of claim 6 under 35 U.S.C. § 102(b) as
anticipated by Ritchie

Claim 6 is likewise a method claim, and recites as follows:
6. A method of treating infirmities or abnormalities of the
foot or ankle of a person wherein it is desired to treat foot
pronation[], and ankle valgus[4] which comprises[:]
applying a force of supination to said foot or ankle by
wrapping said foot with a first strap,
applying a force of ankle varus[5] by attaching a second
strap to said first strap on the lateral side of said foot by a clip
means;
wrapping said second strap laterally and inferior to the
arch of the foot, and directed supromedially to cross the anterior
ankle and,
applying a clip means to said first strap and said second
strap at the top of the anterior aspect of said first strap.

4 Ankle valgus is a deformity when the ankle is twisted outwardly.
Stedman’s, supra at 1530.

5 Bent or twisted inwards. Stedman’s, supra at 1534.
App
App

App

colum
said
first
apply
strap

seco
supr
the f
the f

supp
App
both
eal 2012-0
lication 12
eal Br. ii–i
The Exa
n 2, lines
foot or ank
strap 12.
ing a forc
12 on the
The Exa
nd strap 14
omedially
irst strap 1
irst strap 1
Ritchie F
Ritchie F
The App
ort for the
ellant, and
the foot an
01872
/079,554
ii.
miner has
16–19, 3
le by wra
The Exam
e of ankle
lateral sid
miner has
laterally
to cross th
2 and the
2. Ans. 7
igure 1 is
igure 1 is
ellant urg
ankle, “it
can't be u
d ankle.”
found that
9–43, and
pping said
iner has ad
varus by a
e of said f
further fou
and inferio
e anterior
second stra
.
reproduce
a side vie
es that whi
is of entire
sed with d
Appeal B
9
Ritchie d
64–66 app
foot (bend
ditionally
ttaching a
oot by a cl
nd that Ri
r to the ar
ankle, and
p 14 at th
d below:
w of an an
le Ritchie
ly differen
ifferent ind
r. 19.
escribes in
lying a for
ing aroun
found tha
second st
ip (adhesi
tchie desc
ch of the f
applying
e top of th
kle brace o
’s apparatu
t construc
ependent
Figures 1
ce of supi
d the foot)
t Ritchie d
rap 14 to s
ve) means
ribes wrap
oot, and d
a clip mea
e anterior
n a foot.
s may pro
tion than
results on
and 3 and
nation to
with a
escribes
aid first
. Ans. 7.
ping 20 a
irected
ns 24 to
aspect of
vide
that of

Appeal 2012-001872
Application 12/079,554

10
We are unpersuaded of error by this argument. The Examiner points
out that the Appellant has not pointed to any structural differences between
the claim and the Ritchie reference, and that the Ritchie apparatus appears to
fulfil all of the claimed method steps. Ans. 11.
Accordingly, we affirm this rejection.
IV. The rejection of claims 8 and 10 under 35 U.S.C. § 102(b)as
being anticipated by Cooper

Claims 8 and 10 are also method claims. Claim 8 is illustrative, and
reproduced below:
8. A method of treating infirmities and abnormalities of
the foot or ankle of a person, wherein it is desired to apply a
neutral force to the ankle of said person which comprises[:]
applying a first strap to said foot/ankle, and
applying the center a second strap to the center of the
plantar arch of said foot;
applying equal tension to the ends of said second strap
and;
applying a clip means to each end of said second strap
which is directed towards the front of the ankle.

Appeal Br. iii.
The Examiner has found that Cooper describes, in Figures 1–4,
column 2, lines 25–28, column 3, lines 38–51 and column 4, lines 37–43,
and 60–66, the steps of applying a first strap 12 to said foot/ankle, and
applying the center of a second strap 16, 18 to the center of the plantar arch
of the foot (at midpoint 36). Ans. 7.
The Examiner has also found that Cooper describes applying equal
tension to the ends of said second strap 16, 18, and applying a clip means
App
App

42 at
front

torsi
or op
21.
eal 2012-0
lication 12
each end
of the ank
Cooper F
Cooper F
The App
on to it. A
posing fo
01872
/079,554
of said sec
le. Ans. 7
igures 1–
igures 1–
ellant urg
ccording t
rces to the
ond strap
.
4 are repro
4 illustrate
es that Coo
o the App
foot and t
11
(16, 18) w
duced bel
perspecti
per suppo
ellant, Coo
he ankle, a
hich is dir
ow:
ve views o
rts the ank
per “does
t the same
ected towa
f an ankle
le withou
not provid
time.” A
rds the
brace.
t applying
e differen
ppeal Br.
t
Appeal 2012-001872
Application 12/079,554

12
We observe that the evidence of record does not support this position.
Cooper expressly states that the brace may “bias the foot to a neutral
position by placing equal tension on both medi[]al and lateral straps for
treatment of eversion sprain.” Cooper 2:26–27.
Claim 10 is not argued separately, other than the Appellant asserting
that “[c]laim 10 is not anticipated by or obvious in view of the prior art cited
by the Examiner, and defines novel and patentable subject matter.” Appeal
Br. 13.
Accordingly, we affirm this rejection as it relates to claims 8 and 10.

V. The rejection of claim 9 under 35 U.S.C. § 103(a) as unpatentable
over Johnson and Cooper

Claim 9 is a method claim, and reproduced below:
9. A method of treating infirmities or abnormalities of the
foot/ankle of a person wherein it is desired to apply a neutral
force to said foot/ankle, which comprises[:]
applying a first strap to said foot/ankle;
applying a second strap to said ankle at the Achilles, with
equal tension applied to both ends of said second strap
anteriorly and slightly superiorly along the ankle ligaments and
toward the anterior ankle, and
applying at least one clip means to said second strap to
fasten it together.

Appeal Br. iv.
The Examiner has found that Johnson describes in Figures 1 and 2 and
column 6, lines 45–60 applying a first strap 12 to a foot/ankle, and applying
(securing) a second strap 24 to the ankle centered at the Achilles. Final Act.
6. The Examiner has further found that there is tension applied to both ends
App
App

of sa
ligam
to sa
is ap
colum
appl
obvi
mod
tensi
neutr

wrap
eal 2012-0
lication 12
id second
ents and
id second
The Exa
plied to bo
n 2, lines
ied to the s
ous to one
ify the me
on to the s
al force o
Johnson

Figures
The App
, which is
01872
/079,554
strap 24 an
toward the
strap 24 to
miner obs
th ends of
25–27 an
trap. The
having or
thod taugh
trap taugh
n the Achi
Figures 1
1 and 2 are
ellant urg
urged to b
teriorly an
anterior a
fasten (se
erves that
the secon
analogou
Examiner
dinary skil
t by Johns
t by Coop
lles. Final
and 2 are
perspecti
es that Joh
e quite dif
13
d slightly
nkle, and a
cure) it to
Johnson do
d strap, bu
s method i
concludes
l in the art
on with th
er because
Act. 6.
reproduced
ve views o
nson is dir
ferent from
superiorly
clip mea
gether. Id
es not tea
t finds tha
n which eq
that it wo
at the tim
e step of a
this step i
below:
f an ankle
ected to a
that of A
along the
ns 28, 34 i
.
ch that equ
t Cooper t
ual tensio
uld have b
e of inven
pplying eq
s known to
wrap.
pneumatic
ppellant.
ankle
s applied
al tension
eaches in
n is
een
tion to
ual
provide
Achilles
However,

Appeal 2012-001872
Application 12/079,554

14
we note that the Appellant observes that the “arch cell is fabricated from a
flexible material” and the “tendon cell is also fabricated from a flexible
material.” Appeal Br. 24; See also Spec. 5, 7; Johnson 3:7–9 (emphasis
added) (“Both the tendon cell and the arch cell are fabricated from a flexible
material defining pockets containing open-cell foam pads.”). The instant
claim does not exclude pneumatic materials.
The Appellant urges that there is no suggestion in either of the patents
cited by the Examiner for their combination, and the invention of Appellant
is not obvious in view of these patents. Appeal Br. 24. However, the
Examiner has provided a rational basis for making the combination, i.e., to
provide neutral force on the Achilles tendon.
Accordingly, we are unpersuaded of error and affirm this rejection.
VI. The rejection of claim 11 under 35 U.S.C. § 103(a) as being
unpatentable over Selner and Hubbard

Claim 11, an apparatus claim, depends from claim 2, and recites as
follows.
11. A foot/ankle wrap for treating abnormalities of the
foot or ankle of a person as defined in claim 2 in which at least
one thermal moldable insert means is inserted between one or
both straps and the foot or ankle of the person being treated.

Appeal Br. iv.
The Examiner has found that Selner describes the apparatus of claims
1 and 2 as discussed above. The Examiner has further found that Selner
does not teach a thermal moldable insert means inserted between one or both
straps and the foot or ankle of the person being treated. Final Act. 7.
Appeal 2012-001872
Application 12/079,554

15
The Examiner has also found that Hubbard describes in Figure 10 and
column 7, lines 33–36 an analogous method in which at least one thermal
moldable insert means (92) is inserted between one or both straps (90) and
the foot (toe, heel) or ankle of the person being treated. Final Act. 7.
The Examiner thus concludes it would have been obvious to one
having ordinary skill in the art at the time of invention to modify the method
taught by Selner with the step of inserting at least one thermal moldable
insert means between one or both straps and the foot or ankle of the person
being treated taught by Hubbard. The Examiner reasons that this step is
known to form an exoskeleton around the foot that maintains form and
restricts displacement of the foot within the wrap, as Hubbard described in
column 3, lines 42–58. Final Act. 7. This proposed combination is seen as
yielding the claimed device.
The Appellant urges that Hubbard describes an ankle brace which is
“an entirely different structure than that of Appellant, and in neither it [nor]
Selner et al is there any suggestion that they may be combined. If combined
they would not provide the variety of treatment options for the foot and
ankle as does the structure of Appellant.” Appeal Br. 26.
As noted above, the Examiner has provided a rational basis for
making the combination. KSR Int’l Co. v. Teleflex, Inc., 550 U.S. 398, 418
(2007). We are not provided with persuasive reasoning as to why the
Examiner’s findings of fact are in error, nor a reason to dispute that the
Examiner has articulated sufficient rationale for the combination.
Accordingly, this rejection as well is affirmed.

Appeal 2012-001872
Application 12/079,554

16
DECISION
The Examiner’s decision to reject claims 1–11 is affirmed.
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a). See 37 C.F.R.
1.136(a)(1)(iv).
AFFIRMED

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