Ex Parte Westra et al

Patent Trials and Appeals Board

May 24, 2019

12877800 - (D) (P.T.A.B. May. 24, 2019)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR
12/877,800 09/08/2010
93613 7590 05/24/2019
SCHERRER PATENT & TRADEMARK LAW P.C.
17 E. CRYSTAL LAKE AVE
CRYSTAL LAKE, IL 60014
Luke Westra
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.
UAD-10002-P-US 3860
EXAMINER
VANTERPOOL, LESTER L
ART UNIT PAPER NUMBER
3734
MAIL DATE DELIVERY MODE
05/24/2019 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 LUKE WESTRA and BRENT BARIBEAU1
Appeal2018-008200
Application 12/877,800
Technology Center 3700
Before MICHAEL L. HOELTER, ANNETTE R. REIMERS, and
LISA M. GUIJT, Administrative Patent Judges.
HOELTER, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
This is a decision on appeal, under 35 U.S.C. § 134(a), from the
Examiner's final rejection of claims 1, 3-5, 7-14, 21, 22, 24--26, and 28
which constitute all the claims pending in this application. App. Br. 1. We
have jurisdiction under 35 U.S.C. § 6(b ). For the reasons explained below,
we do not find error in the Examiner's rejections of these claims under
1 "The real parties in interest in the present appeal of the above-referenced
U.S. patent application are Luke Westra and Brent Baribeau as co-
inventors." App. Br. 1. Accordingly, we proceed on the basis that, for the
purposes of this appeal, Luke Westra and Brent Baribeau are the
"Appellants."
Appeal2018-008200
Application 12/877,800
35 U.S.C. § 103(a). Accordingly, we AFFIRM the Examiner's rejections of
claims 1, 3-5, 7-14, 21, 22, 24--26, and 28.
CLAIMED SUBJECT MATTER
The disclosed subject matter "relates to an apparatus for holding items
and methods of using and making the same" in which "[t]he apparatus may
serve as a universal non-slip handle allowing users to hold and manipulate
various sizes and shapes of objects, including, for example, beverage
containers ... and other like items that may be difficult to grasp." Spec. ,r 2.
Apparatus claims 1 and 28, and method claim 11, are independent.
Claim 1 is illustrative of the claims on appeal and is reproduced below.
1. An apparatus for holding an object comprising:
a handle, wherein the handle has a first leg, a second leg
and a junction between the first leg and the second leg, and a
rigid bend having an acute angle at the junction between the first
leg and the second leg, the bend running from a top end of the
first leg to a top end of the second leg without an intervening
horizontal portion between the first leg and the second leg,
wherein the first leg and the second leg are disposed substantially
vertical downwardly with the bend at the top of the handle when
the handle is in use, and further wherein the first leg comprises a
first face on a first side thereof and a second face on a second
opposite side thereof, and first and second slots forming first and
second passages between the first side and the second side and a
rib between the first slot and the second slot;
a flexible strap disposed through the first and second slots
of the first leg, said strap having a length, a first side, a second
side, and attachment means for forming a loop with the strap
having a perimeter, wherein the first side of the strap forms an
inside surface of the loop and further wherein the first side of the
strap comprises at least a portion having a sufficiently high
coefficient of friction to provide a secure grip on the object,
wherein the perimeter of the loop conforms to a shape of an
object when the object is disposed within the loop without
2
Appeal2018-008200
Application 12/877,800
retaining a memory of the shape of the object when the object is
removed from the loop; and
without a bottom support beneath the flexible strap to
allow the object to freely suspend when supported by the flexible
strap,
wherein when a user places his hand in the handle such
that the user's hand is disposed beneath the bend and between
the first leg and the second leg, and said first and second legs
disposed substantially vertical downwardly, the user can lift the
apparatus and the object therein for use thereof without gripping
the handle.
REFERENCES RELIED ON BY THE EXAMINER
Guarrera et al.
Romero et al.
Tepper
Smith
US Des. 358,303
us 6,079,758
US 2008/0296325 Al
US 8,499,990 B2
THE REJECTIONS ON APPEAL
May 16, 1995
June 27, 2000
Dec. 4, 2008
Aug. 6, 2013
Claims 1, 11, and 28 are rejected under 35 U.S.C. § 112, second
paragraph, as being indefinite. Final Act. 2.
Claims 1, 3-5, 7-10, 21, and 22 2 are rejected under 35 U.S.C.
§ I03(a) as being unpatentable over Guarrera, Romero, Smith, and Tepper.
Final Act. 3.
Claims 11-14, 24--26, and 28 are rejected under 35 U.S.C. § I03(a) as
being unpatentable over Guarrera, Romero, and Tepper. Final Act. 10.
2 As Appellants recognize, claims 21 and 22 depend from claim 1, and the
Examiner inadvertently lists claims 21 and 22 under the rejection of
Guarrera, Romero, and Tepper, rather than under this rejection. See App.
Br. 8, fn 1. As both rejections rely on at least the combination of Guarrera,
Romero, and Tepper, we determine this inadvertence as harmless error.
3
Appeal2018-008200
Application 12/877,800
ANALYSIS
The rejection of claims 1, 11, and 28
as indefinite
The Examiner finds that, "[t]he term 'substantially' in claims 1, 11 &
28 is a relative term which renders the claim indefinite."3 Final Act. 2; Ans.
4. The Examiner states, "[t]he term 'substantially' is not defined by the
claim[ s and] the specification does not provide a standard for ascertaining
the requisite degree ... [ such that] one of ordinary skill in the art would not
be reasonably apprised of the scope of the invention." Final Act. 2; see also
Ans. 4 (addressing Spec. ,r,r 51, 58, 61 ).
Appellants explain that "relative terms are not necessarily indefinite"
( citations omitted) and that the phrase "substantially vertical downwardly"
"relate[ s] to apparatuses where the legs are disposed downwardly in [a]
vertical fashion." App. Br. 7; Reply Br. 2. Appellants reference their
figures 1---6B concluding that one skilled in the art "would understand what
is claimed." App. Br. 7; Reply Br. 3.
A claim is properly rejected as being indefinite under 35 U.S.C. § 112
second paragraph if, after applying the broadest reasonable interpretation in
light of the specification, the metes and bounds of a claim are not clear
because the claim "contains words or phrases whose meaning is unclear." In
re Packard, 751 F.3d 1307, 1310 (Fed Cir. 2014).
The Examiner addresses Appellants' Specification, and replicates a
portion thereof, stating, "[P]aragraph 0051 on page 11 recites; '[t]he handle
(10) is generally U-shaped to fit over a user's hands, as illustrated in FIGS. 3
3 Claims 1, 11, and 28 each recite legs that "are disposed substantially
vertical downwardly."
4
Appeal2018-008200
Application 12/877,800
and 4."' Ans. 4. More specifically, Paragraph 58 of Appellants'
Specification states, "[a]s noted above, the handle 10 may be constructed in
the shape of an upside-down U (when in use) ... allowing a user to hang the
handle 10 from the user's hand." See also Ans. 4; Appellants' Figures 1--4.
Regardless, the Examiner concludes, "the relative term 'substantially'
renders the claim indefinite." Ans. 5.
Because Appellants' Specification discloses that handle 10 is
generally U-shaped, and because Appellants' Figures 1---6B depict the first
and second legs,for the most part, 4 extending vertical downwardly from the
bend at the junction (but not showing each leg absolutely parallel in a
vertical downwardly position relative to the other leg), we agree with
Appellants that the phrase at issue is clear and that this phrase would have
been understood by one skilled in the art as "for the most part vertical
downwardly." Further, because the legs are defined in claim 1 as having a
junction between them, claim 1 implies that the legs are disposed
"substantially vertical downwardly" from that junction. App. Br. 7; Reply
Br. 3. Accordingly, we do not sustain the Examiner's rejection of claims 1,
11, and 28 as being indefinite.
4 An ordinary definition of the claim term "substantially," consistent with
the Specification (i.e., Figures 1---6B), is "for the most part; essentially."
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