Ex Parte WeitzenDownload PDFPatent Trial and Appeal BoardSep 18, 201412079554 (P.T.A.B. Sep. 18, 2014) Copy Citation 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 hh Copy with citationCopy as parenthetical citation