Ex Parte Zikria

Board of Patent Appeals and Interferences

Dec 20, 2007

10737885 (B.P.A.I. Dec. 20, 2007)

UNITED STATES PATENT AND TRADEMARK OFFICE
__________

BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
__________

Ex parte BASHIR ZIKRIA
__________

Appeal 2007-4108
Application 10/737,885
Technology Center 3700
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Decided: December 20, 2007
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Before, TONI R. SCHEINER, DONALD E. ADAMS, and DEMETRA J.
MILLS, Administrative Patent Judges.

MILLS, Administrative Patent Judge.

DECISION ON APPEAL
This is an appeal under 35 U.S.C. § 134. The Examiner has rejected
the claims for anticipation and obviousness. We have jurisdiction under 35
U.S.C. § 6(b).
Claim 1 is representative.
1. Method for treating neck, shoulder and back pain, which comprises
applying securely around and under the neck of a subject in need of such
treatment a pain-relieving device comprising
a) shaped body having therein a chin brace;
Appeal 2007-4108
Application 10/737,885

b) attached to each lateral end of said shaped body, a strap, said straps
having connecting means effective to secure said chin brace in said
shaped body under the wearer's chin so as to restrain the wearer's neck
in a position that is extended substantially as much as possible without
discomforting said wearer and without substantially restricting the
lateral motion of the wearer's head.

2. Method according to claim 1 wherein said pain-relieving device
has a plurality of windows.

Cited References
Gaylord, Jr. US 4,205,667 Jun. 3, 1980
Burns US RE. 34,714 Aug. 30, 1994
Mainiero US 6,231,535 B1 May 15, 2001

Grounds of Rejection
Claim 1 stands rejected under 35 U.S.C. § 102(b) as anticipated by
Gaylord.
Claim 1 stands rejected under 35 U.S.C. § 102(b) as anticipated by
Mainiero.
Claim 2 stands rejected under 35 U.S.C. § 103(a) as obvious over
Gaylord in view of Burns.
Claim 2 stands rejected under 35 U.S.C. § 103(a) as obvious over
Mainiero in view of Burns.

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Application 10/737,885

DISCUSSION
Background
The present invention relates, in general, to neck collars and,
particularly, neck collars that reduce neck, shoulder and back pains, such as
cervical osteoarthritic neck pains, cervical “pinched nerve syndrome” and
shoulder and interscapular pains, by maintaining the head of the user in an
almost erect position to relieve the muscular and spinal stresses.
(Specification 1.) More particularly the invention relates to a method for
relieving neck, shoulder and back pain by having the subject having such
pain wear a neck collar which is held securely around the neck and under the
wearer's chin which permits lateral head motion but prevents downward
flexion of the head. (Specification 1.)

Anticipation I
Claim 1 stands rejected under 35 U.S.C. § 102 as anticipated by
Gaylord.
The Examiner contends that
[r]egarding claim 1, Gaylord, Jr. discloses a pain-
relieving device comprising:
a) a shaped body (12) having a chin brace (18) therein;
b) each lateral end of said shaped body (12) having a strap (26)
attached thereto, said straps having connecting means (28)
effective to secure said chin brace (18) in said shaped body (12)
under the wearer's chin (see Figure 2) so as to restrain the
wearer's neck in a position that is extended substantially as
much as possible without discomforting said wearer and
without substantially restricting lateral motion of the wearer's
head. The method of using the device involves applying the
disclosed device to a user to relieve neck pain. As seen in
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Application 10/737,885

Figures 1 and 2, the device is applied around and under the
neck.

(Answer 3-4.)

Appellant argues that the claimed device allows free side to side
movements of the head, i.e., unrestricted lateral head motion, while
preventing downward flexion of the head onto the user’s chest. (Br.
4.) Appellants argue that in Gaylord “as constructed the collar
surrounds the neck of the wearer and provides firm support, about the
entire circumference of the wearer’s head and neck.” (Br. 4.)
We do not find the Examiner has established a prima facie case of
anticipation. In particular, we agree with Appellant that the cervical collar
of Gaylord would substantially restrict the lateral motion of the wearer's
head. For example, the front body member of Gaylord “extends between the
chin and sternum of the wearer.” (Gaylord, col. 2, ll. 60-64.) The extension
of the front body member to the sternum would prevent the wearer from
moving the head from side to side or laterally. Furthermore, claim 1 of
Gaylord indicates that the cervical collar is “adapted to encircle the wearer’s
head and neck to immobilize the same.” Emphasis added. Thus Gaylord
does not describe the claimed requirement of not “substantially restricting
the lateral motion of the wearer's head.”
The anticipation rejection is reversed.

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Application 10/737,885

Anticipation II

Claim 1 stands rejected under 35 U.S.C. § 102(b) as anticipated by
Mainiero.
The Examiner finds that

Mainiero et al. disclose a pain-relieving device comprising:
a) a shaped body (16) having a chin brace (33) therein;
b) each lateral end of said shaped body (16) having a strap (46)
attached thereto, said straps having connecting means (48)
effective to secure said chin brace (33) in said shaped body
(16) under the wearer's chin (see Figure 1) so as to restrain the
wearer's neck in a position that is extended substantially as
much as possible without discomforting said wearer and
without substantially restricting lateral motion of the wearer's
head. The method of using the device involves applying the
disclosed device to a user to relieve neck pain. As seen in
Figure 1, the device is applied around and under the neck.

(Answer 4.)

We agree with the Examiner’s reasoning and analysis and find that the
Examiner has established a prima facie case of anticipation on the evidence
before us. We do not find the Specification defines what is meant by the
phrase the chin is “extended substantially as much as possible without
discomforting said wearer.” The Specification does however indicate that
the “device of the present invention prevents downward flexion of the head
onto the user’s chest” (Specification 6) and that the device “restrain[s]
forward cervical vertebral flexion” (Specification 9).
Mainiero’s support for maintaining the head erect restrains the
wearer’s neck in a position that extends the neck to prevent downward
flexion of the head of the user onto the chest. (Mainiero, Fig. 1.) Thus we
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find that the support of Mainiero restrains the wearer's neck in a position that
is extended substantially as much as possible without discomforting said
wearer. Further, because the device of Mainiero has no back of the head
restraint we find that it does not substantially restrict the lateral motion of
the wearer's head.
Appellant argues the device of Mainiero does not restrain the head, as
is the case in the present invention. Appellant argues that if the wearer of
the Mainiero device were to stand up or shift the position of the head, the
head would no longer be maintained in the desired position. (Br. 5.)
In response to Appellant’s argument, while the device of Mainero is
for use when the user is in a sitting position, the pending claims do not
require use of the device in a standing position and thus do not exclude the
device’s use in a sitting position.
In view of the above, the anticipation rejection is affirmed.

Obviousness I
Claim 2 stands rejected under 35 U.S.C. § 103(a) as obvious over
Gaylord in view of Burns.
The Examiner relies on Burns for the disclosure of

a pain-relieving device comprising for treating neck pain, which
is worn around and under the neck of the user. Burns et al.
specify that the body of the device include a plurality of
windows, to allow ventilation to the wearer's neck.

(Answer 5.)

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Application 10/737,885

As we have found that Gaylord teaches a cervical collar for
immobilizing the head, it does not teach a device which does not
substantially restrict the lateral motion of the head. Burns does not
overcome the deficiencies of Gaylord. Thus the obviousness rejection is
reversed.

Obviousness II
Claim 2 stands rejected under 35 U.S.C. § 103(a) as obvious over
Mainiero in view of Burns.
The Examiner acknowledges that “Mainiero et al. do not
specify that the device have a plurality of windows.” (Answer 5.) The
Examiner relies on Burns for the disclosure of a
a pain-relieving device comprising for treating neck pain, which
is worn around and under the neck of the user. Burns et al.
specify that the body of the device include a plurality of
windows, to allow ventilation to the wearer's neck.

(Answer 5.)

The Examiner finds that

[i]t would have been obvious to one skilled in the art at the time
the invention was made to have applied the pain-relieving
device disclosed by Mainiero et al., with a plurality of
windows, as taught by Bums et al., to allow ventilation to the
wearer's neck.

(Answer 5.)
We agree with the Examiner’s reasoning and analysis in support of a
prima facie case of obviousness. In particular, we have found above that
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Mainiero teaches a support meeting the requirements of claim 1. Burns
suggests the addition of windows or airholes in a cervical collar to allow
ventilation to the wearer’s neck. (Burns, col. 4, ll. 14-23.) “[W]hen the
question is whether a patent claiming the combination of elements of prior
art is obvious” the relevant question is “whether the improvement is more
than the predictable use of prior art elements according to their established
functions.” KSR Int’l Co. v. Teleflex Inc., 127 Ct. 1727, 1740, (2007). Thus
Burns provides a reason or suggestion to modify the support of Mainiero to
include windows or airholes to allow ventilation of the wearer’s neck
according to their established function.
In view of the above, the rejection of claim 2 for obviousness is
affirmed.

SUMMARY
The rejection of claim 1 under 35 U.S.C. § 102(b) as anticipated by
Gaylord is reversed.
The rejection of claim 1 under 35 U.S.C. § 102(b) as anticipated by
Mainiero is affirmed.
The rejection of claim 2 under 35 U.S.C. § 103(a) as obvious over
Gaylord in view of Burns is reversed.
The rejection of claim 2 under 35 U.S.C. § 103(a) as obvious over
Mainiero in view of Burns is affirmed.

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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).

AFFIRMED

Ssc:

EVELYN M. SOMMER
570 LEXINGTON AVENUE, 17TH FLOOR
NEW YORK, NY 10022

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