Ex Parte Wolfe

Board of Patent Appeals and Interferences

May 9, 2002

09327922 (B.P.A.I. May. 9, 2002)

1 Claim 4 was amended subsequent to the final rejection in a
paper filed October 17, 2000 (Paper No. 6).
The opinion in support of the decision being entered today was not
written for publication and is not binding precedent of the Board.
Paper No. 14
UNITED STATES PATENT AND TRADEMARK OFFICE
____________
BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
____________
Ex parte RICHARD M. WOLFE
____________
Appeal No. 2001-2112
Application No. 09/327,922
____________
ON BRIEF
____________
Before FRANKFORT, STAAB, and NASE, Administrative Patent Judges.
FRANKFORT, Administrative Patent Judge.
DECISION ON APPEAL
This is a decision on appeal from the examiner's final
rejection of claims 1 through 7, 9 through 12, 14, 16 through 18
and 20 through 22.1 On page 6 of the answer (Paper No. 11) the
examiner has indicated that claims 13 and 15, the only other
claims remaining in the application, contain allowable subject
matter. Claims 8 and 19 have been canceled.
Appeal No. 2001-2112
Application No. 09/327,922
2 While the examiner did not include claim 20 in the
statement of rejection found on page 3 of the answer, we note
that this would appear to be an oversight since the examiner
treats the substance of claim 20 in the body of the rejection and
on page 4 of the answer under the heading "RESPONSE TO ARGUMENT"
indicates that claim 20 is intended to be rejected over the
combination of Huber and Powlus.
2
Appellant's invention relates to a hunting blind for a dog
which is configured as a waterfowl decoy, which blind will
conceal and restrain a dog, permit selective and rapid release of
the dog when desired and otherwise hide the dog and its movements
from the keen-eyed quarry. Independent claims 1, 21 and 22 are
representative of the subject matter on appeal and a copy of
those claims may be found in the Appendix to appellant's brief.
The prior art references of record relied upon by the
examiner in rejecting the claims on appeal are:
Wieber 2,804,083 Aug. 27, 1957
Huber 3,063,414 Nov. 13, 1962
Powlus 4,581,837 Apr. 15, 1986
Hill 6,016,823 Jan. 25, 2000
(filing date Mar. 17, 1998)
Claims 1 through 5, 7, 9 through 11, 14, 16 through 18 and
20 through 22 stand rejected under 35 U.S.C. § 103(a) as being
unpatentable over Huber in view of Powlus.2

Appeal No. 2001-2112
Application No. 09/327,922
3
Claim 6 stands rejected under 35 U.S.C. § 103(a) as being
unpatentable over Huber in view of Powlus as applied to claim 1
above, and further in view of Hill.
Claim 12 stands rejected under 35 U.S.C. § 103(a) as being
unpatentable over Huber in view of Powlus as applied to claim 1
above, and further in view of Wieber.
Rather than reiterate the examiner's specific comments
regarding the above-noted rejections and the conflicting
viewpoints advanced by the examiner and appellant regarding those
rejections, we make reference to the examiner's answer (Paper No.
11, mailed March 27, 2001) for the reasoning in support of the
rejections, and to appellant's brief (Paper No. 10, filed
February 7, 2001) and reply brief (Paper No. 12, filed May 15,
2001) for the arguments thereagainst.
OPINION
In reaching our decision in this appeal, we have given
careful consideration to appellant's specification and claims, to
the applied prior art references, and to the respective positions
Appeal No. 2001-2112
Application No. 09/327,922
4
articulated by appellant and the examiner. As a consequence of
our review, we have made the determination that the examiner's
above-noted rejections under 35 U.S.C. § 103(a) will not be
sustained. Our reasons follow.
In considering the examiner's rejection of claims 1 through
5, 7, 9 through 11, 14, 16 through 18 and 20 through 22 under
35 U.S.C. § 103(a) as being unpatentable over Huber in view of
Powlus, we make the assumption for argument sake that Huber is
analogous prior art. However, after a consideration of the
collective teachings of the applied references, we must agree
with appellant (brief, pages 7-10 and reply brief) that there is
no teaching, suggestion or motivation in either Huber or Powlus
for making the combination asserted by the examiner. Like
appellant, it is our view that the examiner is using the
hindsight benefit of appellant's own disclosure to combine the
animal transportation carrier of Huber with the hunter's blind of
Powlus in an attempt to reconstruct appellant's claimed subject
matter.
Since we have determined that the teachings and suggestions
found in Huber considered together with those of Powlus would not
Appeal No. 2001-2112
Application No. 09/327,922
5
have made the subject matter as a whole of independent claims 1,
21 or 22 on appeal obvious to one of ordinary skill in the art at
the time of appellant's invention, we must refuse to sustain the
examiner's rejection of those claims under 35 U.S.C. § 103(a).
It follows that the examiner's rejection of dependent claims 2
through 5, 7, 9 through 11, 14, 16 through 18 and 20 under
35 U.S.C. § 103(a) based on Huber in view of Powlus also will not
be sustained.
As for the examiner's rejections of claims 6 and 12 under
35 U.S.C. § 103(a), we have reviewed the teachings of both Hill
and Wieber, but find nothing in those references as relied upon
by the examiner which provides for that which we have found
lacking in the basic combination of Huber and Powlus.
Accordingly, the examiner's rejections of dependent claims 6 and
12 under 35 U.S.C. § 103(a) will not be sustained.
In light of the foregoing, the decision of the examiner is
reversed.
In addition, we REMAND this application to the examiner to
consider whether or not the subject matter defined in independent
Appeal No. 2001-2112
Application No. 09/327,922
6
claims 1, 21 and 22 on appeal would have been obvious to one of
ordinary skill in the art within the meaning of 35 U.S.C. § 103
based on the combined teachings of Powlus and Hill. Powlus
discloses a blind that is capable of housing a dog typically used
by a hunter to retrieve fowl shot by the hunter, which blind is
configured as, and has the exterior markings and coloration of, a
waterfowl. The blind of Powlus appears to correspond exactly to
that set forth in appellant's independent claims on appeal,
except for the presence of a door located in the chest region of
the waterfowl configuration as recited in appellant's claims 1,
21 and 22 on appeal. Powlus shows an access door on the back of
the goose decoy therein. However, we note that Hill discloses a
blind that is camouflaged and configured as a cylindrical hay
bale, wherein the blind has an access door (86) on the top of the
bale and access doors (14, 16) at either end of the bale. As
noted in Hill, col.4, lines 9-26, one simply opens either of the
right or left doors (14, 16) to gain access to the blind and once
positioned in the blind secures the doors (14 and/or 16) closed;
when prepared to fire the hunter's movement of beginning to stand
is sufficient effort to cause the spring loaded door (86) to open
upwardly. Thus, it would appear that the combined teachings of
Powlus and Hill would have been suggestive to one of ordinary
Appeal No. 2001-2112
Application No. 09/327,922
7
skill in the art of multiple doors on a blind, with a door at the
top or back of the waterfowl configuration as seen in Powlus, as
well as doors at the ends of the waterfowl configuration (i.e.,
at the chest region and tail area of the shell (11) of Powlus) to
provide greater access possibilities as generally suggested by
Hill.
The individual dependent claims should also again be
reviewed by the examiner for possible rejections. For example,
Powlus teaches screen portions (17, 18) in the doors (appellant's
claim 5), while Hill teaches that the door therein is spring-
loaded to a position (appellant's claim 6), and both Powlus and
Hill teach the use of a floor for the blind (appellant's claim
7). Further, the examiner should consider the patent of record
to Oasheim (U.S. Patent No. 4,829,694) for a teachings of a blind
configured as a waterfowl with retention elements proximate the
lower periphery thereof, wherein said retention elements are in
the form of loops (15, 17, 31, 32) used for securing the blind to
the ground similar to those seen at (34) of appellant's drawings
and set forth in appellant's claims 14 and 15 on appeal.

Appeal No. 2001-2112
Application No. 09/327,922
8
REVERSED and REMANDED
CHARLES E. FRANKFORT )
Administrative Patent Judge )
)
)
)
) BOARD OF PATENT
LAWRENCE J. STAAB ) APPEALS AND
Administrative Patent Judge ) INTERFERENCES
)
)
)
)
JEFFREY V. NASE )
Administrative Patent Judge )
CEF/LBG
Appeal No. 2001-2112
Application No. 09/327,922
9
JOSEPH A. WALKOWSKI
TRASK, BRITT AND ROSSA
P.O. BOX 2550
SALT LAKE CITY, UT 84110
Lesley
Appeal No. 2001-2112
Application No. 09/327,922
APJ FRANKFORT
APJ STAAB
APJ NASE
DECISION: REVERSED and REMANDED

Prepared: September 16, 2003
Draft Final
3 MEM. CONF. Y N
OB/HD GAU 3600
PALM / ACTS 2 / BOOK
DISK (FOIA) / REPORT