Ex Parte WestrupDownload PDFPatent Trial and Appeal BoardMay 8, 201513012720 (P.T.A.B. May. 8, 2015) 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. 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: Appeal 2013-002970 Application 13/012,720 2 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 Appeal 2013-002970 Application 13/012,720 3 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 Appeal 2013-002970 Application 13/012,720 4 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. Appeal 2013-002970 Application 13/012,720 5 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 Appeal 2013-002970 Application 13/012,720 6 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 Appeal 2013-002970 Application 13/012,720 7 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. Appeal 2013-002970 Application 13/012,720 8 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 llw Copy with citationCopy as parenthetical citation