Ex Parte Workman et al

Patent Trial and Appeal Board

Jun 2, 2016

12861665 (P.T.A.B. Jun. 2, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
12/861,665 08/23/2010
116542 7590
MichaelJ. \Vorkrnan
c/o Professional Therapies
PO Box 58518
Salt Lake City, UT 84108
06/02/2016
FIRST NAMED INVENTOR
Michael J. Workman
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.
P002(80376.0003) 2472
EXAMINER
HAWK, NOAH CHANDLER
ART UNIT PAPER NUMBER
3636
MAILDATE DELIVERY MODE
06/02/2016 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 MICHAEL J. WORKMAN and
ERNEST P. ROBISON
Appeal2014-004374
Application 12/861,665
Technology Center 3600
Before MICHAEL L. HOELTER, THOMAS F. SMEGAL, and
ERIC C. JESCHKE, 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 a final
rejection of claims 1-15. Br. 2. Claims 16-22 have been withdrawn. Br. 2.
We have jurisdiction under 35 U.S.C. § 6(b). We AFFIRM-IN-PART.
THE CLAIMED SUBJECT MATTER
The disclosed subject matter "relates to apparatuses, methods, and
attachments for gait training." Spec. i-f 1. Claims 1 and 9 are independent.
Claim 1 is illustrative of the claims on appeal and is reproduced below:
1. A walker attachment for partial weight bearing gait
training, comprising:
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Application 12/861,665
a structure comprising at least substantially rigid
components, the structure sized and configured for attachment
to a walker;
an undampened elastic member configured for
attachment to the structure; and
a harness configured for connection to the undampened
elastic member.
REFERENCES RELIED ON BY THE EXAMINER
Motloch US 4,211,426 July 8, 1980
Anderson US 6,845,736 Bl Jan. 25, 2005
THE REJECTIONS ON APPEAL
Claims 1, 2, and 4--15 are rejected under 35 U.S.C. § 102(b) as
anticipated by Motloch.
Claim 3 is rejected under 35 U.S.C. § 103(a) as unpatentable over
Motloch and Anderson.
ANALYSIS
The rejection of claims 1, 2, and 4-15 as anticipated by Motloch
Appellants present separate arguments for claims 1 and 9 (argued
together), 2, 4, 10, 11, and 12. Br. 8-11. We select claims 1, 2, 4, 10, 11,
and 12 for review with claims 5-9 and 13-15 standing or falling with their
respective claim.
Claim 1
Independent claim 1 includes the limitation of "an undampened elastic
member." Appellants' Specification provides a definition of both "elastic
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member"1 and "undampened."2 Spec. iii! 21, 22. Based on these definitions,
Appellants' Specification states, "Thus, an undampened elastic member is an
elastic member that lacks, for example and without limitation, a
corresponding dashpot or shock absorber." Spec. if 22; see also Br. 7.
The Examiner identifies the combination of line 33 and spring 36 of
Motloch as corresponding to the claimed "undampened elastic member."
Final Act. 2; Ans. 2; see also Motloch Figs. 1, 4--8. The Examiner states,
"On its face, this component (including a 'tension line 33' and 'powerful
springs 36') is explicitly undampened, i.e., there is no dampening element or
force included in the component used to meet the limitation in the claims."
Ans. 3.
Appellants disagree contending, "[t]he assertion that the line 33 and
springs 36 are an 'undampened elastic member' is erroneous at least because
Motloch does not describe that the line 33 and springs 36 are
'undampened. "' Br. 8. Appellants identify cylinder 37 of Motloch, stating
that this device "clearly dampens the springs 36, and thus the springs 36 and
tension line 33 are not 'undampened. "' Br. 8.
Appellants appear to be misreading the teachings of Motloch. Both
line/spring 33/36 and cylinder 37 extend along the same diagonal of
Motloch's parallelogram between pivot points 24 and 20. See Motloch Figs.
1, 4--8. Furthermore, Motloch teaches that both component 33/36 and
cylinder 37 are in tension between these pivot points. Motloch 3 :37--40,
1 "As used herein, the term 'elastic member' means a member that can return
to its original shape after being significantly stretched, expanded, or
elongated." Spec. if 21.
2 "As used herein, the term 'undampened' means lacking a device that is
intended to substantially dampen oscillatory movement." Spec. if 22.
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4:62---65. Hence, the forces applied by 33/36 and 37 work in tandem with
each other and not opposite each other. Additionally, although Motloch
describes cylinder 37 as "a simple dampening cylinder," the dampening
force that is applied counteracts the weight of the patient acting on the
parallelogram during use (Motloch 4:52-57). The dampening force of
cylinder 37 does not counteract or dampen the tension applied by line/spring
33/36. Consequently, we agree with the Examiner's assessment that
cylinder 37 "dampens the motion of the frame (such as between the
positions shown in Motloch Figs. 5---6, below) and not the restorative force
provided by the elastic member formed by component 33/36." Ans. 3.
In view of the above, we are not persuaded the Examiner erred in
correlating line/spring 33/36 to the claimed "undampened elastic member."
Final Act. 2. We are also not persuaded by Appellants' arguments that
simply because "Motloch does not describe that the line 33 and springs 36
are 'undampened"' (Br. 8), they are not, nevertheless, undampened.
Accordingly, and based on the record presented, we sustain the Examiner's
rejection of claims 1, 5-9, and 13-15.
Claim 2
Claim 2 depends from claim 1 and includes the additional limitation
of a "reel," and further that a portion of the "undampened elastic member is
disposed within the reel." The Examiner correlates Motloch' s pulley 3 5 and
slide plate 42 to the claimed "reel." Final Act. 2; see also Ans. 4. The
Examiner explains how "the elastic member (component 33/36) is clearly
disposed within the reel." Ans. 4 (referencing Motloch Fig. 4). Appellants
address only pulley 35 (i.e., and not slide plate 42) stating, "Motloch does
not describe that 'at least a portion of [an] undampened elastic member' is
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Application 12/861,665
disposed within the pulley 35." Br. 9. Further, Appellants contend,
"Motloch describes that the line 33 passes over the pulley 35." Br. 9.
Line 33 of Motloch indeed passes over pulley 35. Motloch Fig. 4.
However, the Examiner explains, "the 'portion of the undampened elastic
member within the reel' [i.e., pulley 35] is retracted or released." Ans. 4.
We understand the Examiner to be explaining that the portion of line 33
being retracted or released from pulley 35 is that portion which is "disposed
within the reel" as claimed. The Examiner notes that there is no claim
requirement that the elastic member be "wound about or collected by the
reel." Ans. 4. Accordingly, we are not persuaded the Examiner erred in
finding that Motloch discloses a member "disposed within the reel" as
recited.
Appellants also contend, "Motloch does not appear to describe the
line 33 as 'elastic,' but describes the line 33 as 'a tension line." Br. 9.
Although this may be correct as far as line 33 goes, the Examiner has found
both line 3 3 and spring 3 6 correlate to the claimed "undampened elastic
member," not just line 33 alone. Final Act. 2; Ans. 2. Appellants are
addressing only one component (i.e., line 33) of the pair relied upon. As
indicated supra, Appellants have defined the claim term "elastic member,"
yet Appellants have not explained how, employing that definition, the
Examiner erred in correlating Motloch's line/spring 33/36 as such a member.
Accordingly, we are not persuaded of Examiner error. We sustain the
Examiner's rejection of claim 2 as being anticipated by Motloch.
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Claim 4
Claim 4 depends from claim 1 and includes the additional limitation
of "at least one support wheel connected to the structure. "3 The Examiner
relies on Motloch's wheel 11 for teaching this limitation. Final Act. 2; see
also Ans. 4--5. Appellants contend, "Motloch does not describe, however, a
separate structure that is 'sized and configured for attachment to' the base
frame 10 that includes 'at least one support wheel' connected thereto." Br.
10.
Claim 4, as written, makes no distinction between wheels directly
connected to the "structure," or wheels indirectly connected to such
"structure." However, it appears that Appellants are arguing the former
while the Examiner is relying on the latter. Br. 1 O; Ans. 5 ("the fact that
wheel 11 is connected in the claimed manner to the elements recited in the
claim must be considered sufficient to meet these limitations in the claim").
As stated by our reviewing court in In re Hiniker Co., 150 F.3d 1362, 1369
(Fed. Cir. 1998), "the name of the game is the claim." Here, Appellants do
not indicate how claim 4 precludes an indirect connection of a wheel to the
claimed structure. In other words, and via an indirect connection, Motloch
discloses, "at least one support wheel connected to the structure" as recited.
Accordingly, we are not persuaded of Examiner error. We sustain the
Examiner's rejection of claim 4 as being anticipated by Motloch.
3 For clarity, the Examiner correlates Motloch's items 17, 18, 19, and 22 to
the claimed 'structure."' Final Act. 2. These are depicted in Motloch as
comprising square tubing. Motloch Figs. 1, 4--8. On the other hand, the
Examiner correlates round tubing 10 and 16 to the claimed "walker." Final
Act. 2; Motloch Fig. 1.
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Claims 10 and 11
Claim 10 depends from claim 9 and includes the additional limitation
of a reel "configured to adjust an unreeled length of the undampened elastic
member." Claim 11 depends from claim 10. Appellants contend, "Motloch
does not describe" this limitation. Br. 10. As above, the Examiner finds that
"Motloch teaches a reel (including 35 and 42)" and that this reel is
"configured to adjust an unreeled length" as claimed. Final Act. 4. The
height of pulley 35 can be adjusted as evidenced by Motloch's arrow 53 (see
also Motloch 6:21-23) and slide plate 42 is employed to shift "the point of
attachment 34 of the tension line 33" (see Motloch 5:33-34). However,
Motloch makes clear that any movement of point 34, such as rearwardly,
"shortens the overall extent of the tension line 33 between its point of
connection 34 and the pulley 35 thereby permitting some collapsing of the
springs 36." Motloch 4:20-26 (emphasis added). Hence, Motloch clearly
states that it is spring 36 that adjusts the "overall extent of the tension line
33." Although changing the position of reel 35/42 may ultimately induce a
change in the length of the spring, the Examiner is silent on this point and
does not elaborate further.
We are instructed by our reviewing court, "it is not enough that the
prior art reference discloses part of the claimed invention, which an ordinary
artisan might supplement to make the whole, or that it includes multiple,
distinct teachings that the artisan might somehow combine to achieve the
claimed invention." Net MoneyIN, Inc. v. Verisign, Inc., 545 F.3d 1359,
1371 (Fed. Cir. 2008) (citing In reArkley, 455 F.2d 586, 587 (CCPA 1972)
("[R]ejections under 35 U.S.C. § 102 are proper only when the claimed
subject matter is identically disclosed or described in the prior art" and also
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"the [prior art] reference must clearly and unequivocally disclose the
claimed [invention].")). Lacking any further explanation or guidance by the
Examiner, we are not persuaded the Examiner has established by a
preponderance of the evidence that Motloch anticipates claim 10.
Accordingly, we reverse the Examiner's rejection of claim 10 (and
dependent claim 11) as being anticipated by Motloch.
Claim 12
Claim 12 depends from claim 9 and includes the additional limitation
of "at least one support wheel operatively coupled to the harness support
base frame." Appellants rely on arguments similar to those presented with
respect to claim 4 supra. Br. 11. The Examiner, similar to the above, states,
"wheel 11 is clearly operatively coupled to the harness support base frame
(15/16) and is sufficient to meet the limitations in the claim." Ans. 5. For
similar reasons previously expressed, we sustain the Examiner's rejection of
claim 12.
The rejection of claim 3 as unpatentable over Motloch and Anderson
Claim 3 depends indirectly from claim 1. The Examiner relies on the
additional reference to Anderson for teaching "a reel having a tension
adjustment device," concluding that it would have been obvious to employ
Anderson's device "in order to provide a more customizable device for
different sized users." Final Act. 5. Appellants do not dispute the disclosure
of a tension adjustment device in Anderson, but instead contend that because
Anderson's usage of such a device (i.e., for animals) is different from
Motloch's usage (an ambulator), "there would have been no motivation" to
combine the two. Br. 12-13.
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It is not disputed that Motloch is directed to a "weight relieving type
ambulator particularly suitable for children." Motloch 1 :57-58. Appellants
do not contend that Motloch is only for one child size; but instead, Motloch
teaches that the ambulator can be used for teaching a variety of "patients,
particularly children, to walk." Motloch 1 :8. Hence, Appellants do not
explain how the Examiner's rationale ("to provide a more customizable
device for different sized users") is unreasonable or faulty. Accordingly, we
are not persuaded the Examiner's rejection based on obviousness lacked
articulated reasoning with rational underpinning. See KSR Int 'l Co. v.
Teleflex Inc., 550 U.S. 398, 418 (2007).
Appellants also contend, "Anderson does not teach or suggest that the
leash or cord 207 is an 'undampened elastic member,' as recited in claim 1."
Br. 13. However, the Examiner correctly notes, "the Anderson reference is
not relied upon to teach the feature of the undampened elastic member,
merely the use of an adjustable locking reel." Ans. 5---6. We agree with the
Examiner's assessment in this matter. See Final Act. 5.
Accordingly, and based on the record presented, we sustain the
Examiner's rejection of claim 3 as being unpatentable over Motloch and
Anderson.
DECISION
The Examiner's rejections of claims 1-9 and 12-15 are affirmed.
The Examiner's rejection of claims 10 and 11 are reversed.
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a)(l)(iv).
AFFIRMED-IN-PART
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