Ex Parte Westrup

Patent Trial and Appeal Board

May 8, 2015

13012720 (P.T.A.B. May. 8, 2015)

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.
13/012,720 01/24/2011 Joseph Westrup 7771.0046-001 7340
152 7590 05/08/2015
CHERNOFF, VILHAUER, MCCLUNG & STENZEL, LLP
601 SW Second Avenue
Suite 1600
PORTLAND, OR 97204-3157
EXAMINER
ORTIZ, RAFAEL ALFREDO
ART UNIT PAPER NUMBER
3728
MAIL DATE DELIVERY MODE
05/08/2015 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 JOSEPH WESTRUP
________________

Appeal 2013-002970
Application 13/012,720
Technology Center 3700
________________

Before STEFAN STAICOVICI, MICHAEL L. HOELTER,
and LEE L. STEPINA, Administrative Patent Judges.

STEPINA, Administrative Patent Judge.

DECISION ON APPEAL

STATEMENT OF THE CASE

Joseph Westrup (Appellant) seeks our review under 35 U.S.C. § 134
from the Examiner’s decision rejecting claims 1–12. We have jurisdiction
over the appeal under 35 U.S.C. § 6(b).
We AFFIRM-IN-PART.

THE CLAIMED SUBJECT MATTER
The claimed invention is directed to a protector for portable electronic
devices. Spec. ¶ 3. Claim 1 is illustrative of the claims on appeal and is
reproduced below:
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1. A protector for generally rectangular electronic devices
comprising:
(a) a four-legged frame;
(b) the four legs of said frame oriented in an X-shaped
configuration relative to each other; and
(c) resilient corner-engaging arcuate lugs integral with
each of said four legs.
Appeal Br. 7.

REFERENCES RELIED ON BY THE EXAMINER

Austin US 549,890 Nov. 19, 1895
Moser US 2007/0119735 Al May 31, 2007
Patterson US 2008/0237432 A1 Oct. 2, 2008
Le Gette US 2010/0072334 A1 Mar. 25, 2010

THE REJECTIONS ON APPEAL
Claims 1–7 are rejected under 35 U.S.C. § 103(a) as unpatentable over
Patterson and Le Gette.
Claim 8 is rejected under 35 U.S.C. § 103(a) as unpatentable over
Patterson, Le Gette, and Moser.
Claims 9–12 are rejected under 35 U.S.C. § 103(a) as unpatentable
over Patterson, Le Gette, Moser, and Austin.

ANALYSIS
The rejection of claims 1–7 as unpatentable over Patterson and Le Gette
Appellant asserts that the Examiner erred in finding that Patterson
discloses four legs oriented in an “X-shaped” configuration. Appeal Br. 4.
Referring to an annotated version of Figure 2 of Patterson, Appellant states,
“at best, perhaps C1 and C2 could be characterized as ‘legs.’ The Examiner
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further asserts that the four corners C1, C2, C3 and C4 are oriented in an X-
shape. . . This is submitted to be an even more implausible interpretation.”
Id. We reproduce the above-noted annotated version Figure 2 of Patterson
below.

Figure 2 of Patterson depicts a carrying case 3 with a cover 15, spine
18, base 10, and an attachment mechanism 6 configured to hold an
electronic device such as a tablet PC. Patterson, ¶¶ 39–42. Reference
designations C1–C4 are added by annotation by Appellant.
Regarding whether Patterson discloses four legs in the recited X-
shape, the Examiner states, “each of the corners (c1-c4) of attachment
mechanism (6) constitute a leg and the legs are oriented in X-shaped
configuration, as shown in figure 1 of Patterson, since the attachment
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mechanism (6) has a cutout in every single side of the attachment
mechanism giving an X-shape to the frame structure of the attachment
mechanism (6).”
1
Ans. 6.
We are not apprised of Examiner error on this issue. Appellant does
not persuasively explain why the corners designated C1–C4 in the annotated
version of Figure 2 of Patterson are not “legs” as recited in claim 1. Further,
as is evident from Figure 2 of Patterson, the various legs are disposed on
corners of the attachment mechanism 6. As pointed out by the Examiner
(Ans. 6), certain portions of the attachment mechanism 6 are curved inward
(via a “cutout”). Considering the effect of the cutout(s) in Figure 2, the
overall appearance of the legs in Patterson is that they are oriented in an X-
shaped configuration relative to each other as recited in claim 1.
Appellant further argues that the Examiner erred in finding that Le
Gette discloses resilient engaging lugs. Appeal Br. 5. Appellant states, “the
definition for ‘resilience’ is ‘the property of a material that enables it to
regain its original shape or position after being bent, stretched or
compressed.’” Id. Appellant argues that clamps 14 of Le Gette, cited by the
Examiner for the resilient lugs (Final Act. 2
2
), are not resilient because “they
are a molded integral part of a ‘hard’ case 10.” Id.
The Examiner finds that in Le Gette, the grippers 16 and the claims 14
are formed of a single piece of material. Ans. 6. The Examiner finds that
the grippers 16 are resilient. Id. (citing Le Gette, ¶ 92). The Examiner finds

1
Patterson states that the difference between figures 1 and 2 is that the
“attachment mechanism is rotated 90 degrees for landscape viewing.”
Patterson ¶¶ 25, 26.
2
Mailed on July 19, 2012.
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that, because the grippers 16 are resilient, the clamps 14 “have to be resilient
since both parts are of the same material.” Id. The Examiner explains, “it is
clear from simple mechanics that corner clamps (14) necessarily be resilient
in order to permit entry of an electronic device and then tightly hold the
electronic device as shown in figure 2 of the [Le Gette] reference.” Id.
Le Gette states, “[t]he grippers 16 may be integrally molded and
impart a resilient sidelong bias against the device 70, working in conjunction
with the corner-positioned clamps 14 to securely seat the device 70 and
clamp it in place within the backplate 10.” Le Gette, ¶ 92. We reproduce
Figure 2 of Le Gette below.

Figure 2 of Le Gette is a perspective view of a hard case 2 holding an
electronic device 70 via clamps 14 and grippers 16. Le Gette, ¶¶ 90–92.
The preponderance of the evidence supports the Examiner’s finding
that corner clamps 14 are resilient, even under the definition submitted by
Appellant. Specifically, the clamps 14 and grippers 16 are part of the same
hard case 2. The descriptor “hard” before the word “case” does not require
an absence of resilience in all portions of the hard case 2. As is clear from
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paragraph 92 of Le Gette, the integrally molded grippers 16 are resilient
(inasmuch as they “impart a resilient sidelong bias”). Further, Figure 2
supports the Examiner’s finding that clamps 14 are resilient because it must
be possible to place the electronic device 70 into the hard case 2, which
implies that the clamps 14 move to allow the placement of the electronic
device 70. Accordingly, we sustain the Examiner’s rejection of claim 1 as
unpatentable over Patterson and Le Gette.
Claims 2–7
Appellant does not make separate arguments for dependent claims 2,
6, or 7. Appellant paraphrases the language of each of claims 3–5 and states
that neither Patterson nor Le Gette discloses these features. Appeal Br. 5.
Such statements do not constitute a separate argument for patentability of
claims 3–5 pursuant to 37 C.F.R. § 41.37(c)(1)(iv)(2012). See In re Lovin,
652 F.3d 1349, 1357 (Fed. Cir. 2011) (holding that the Board had reasonably
interpreted the same language in the prior rule under 37 C.F.R.
§ 41.37(c)(1)(vii)(2004) as requiring “more substantive arguments in an
appeal brief than a mere recitation of the claim elements and a naked
assertion that the corresponding elements were not found in the prior art”).
Accordingly, we sustain the rejection of claims 2–7 as unpatentable over
Patterson and Le Gette.
The rejection of claim 8 as unpatentable over Patterson, Le Gette, and
Moser
Appellant relies on the arguments for claim 1 discussed above for
dependent claim 8. Appeal Br. 5. Accordingly, we sustain the rejection of
claim 8 as unpatentable over Patterson, Le Gette, and Moser.
The rejection of claims 9–12 as unpatentable over Patterson, Le
Gette, Moser, and Austin
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Dependent claim 9 recites, “[t]he protector of claim 8 further
comprising reversible elastic straps secured to the corners of said top.”
Appeal Br. 7.
Appellant argues that the Examiner erred in finding that Austin
discloses reversible straps. Reply Br. 1. The Examiner finds “Austin
discloses elastic [loops] (4) capable of being reversed and secured to the
back part of the cover.” Ans. 7 (citing Austin, col. 1, ll. 31–35).
Austin states, “[t]he loops 4 are preferably made of elastic material
permanently secured at one end and having their opposite ends adjustable
along the edge of the cover by means of a slot and button arrangement 5, as
illustrated.” Col. 1, ll. 31–36 (emphasis added). Accordingly, although the
cited portion of Austin discloses that the loops 4 are adjustable, the
Examiner does not identify any persuasive evidence that the loops 4 are
reversible as required by claim 9. In other words, the Examiner’s
determination that Austin’s adjustable loops 4 are also reversible requires
speculation on the Examiner’s part. Accordingly, we do not sustain the
rejection of claim 9 or of claims 10–12 depending therefrom.

DECISION
We affirm the Examiner’s rejection of claims 1–7 under 35 U.S.C.
§ 103(a) as unpatentable over Patterson and Le Gette.
We affirm the Examiner’s rejection of claim 8 under 35 U.S.C.
§ 103(a) as unpatentable over Patterson, Le Gette, and Moser.
We reverse the Examiner’s rejection of claims 9–12 under 35 U.S.C.
§ 103(a) as unpatentable over Patterson, Le Gette, Moser, and Austin.
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No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a)(1)(iv).

AFFIRMED-IN-PART
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