2019006657 (P.T.A.B. Jun. 24, 2020)

Jacob Schlangen

Patent Trials and Appeals BoardJun 24, 2020

2019006657 (P.T.A.B. Jun. 24, 2020)

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. 15/837,228 12/11/2017 Jacob Schlangen A127.2B-17154-US01 5375 490 7590 06/24/2020 VIDAS, ARRETT & STEINKRAUS, P.A. Richard A. Arrett 8050 Washington Ave. S. SUITE 100 Eden Prairie, MN 55344 EXAMINER NICONOVICH, ALEXANDER R ART UNIT PAPER NUMBER 3711 NOTIFICATION DATE DELIVERY MODE 06/24/2020 ELECTRONIC 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. Notice of the Office communication was sent electronically on above-indicated "Notification Date" to the following e-mail address(es): mail@vaslaw.com rarrett@vaslaw.com rleaf@vaslaw.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE ____________ BEFORE THE PATENT TRIAL AND APPEAL BOARD ____________ Ex parte JACOB SCHLANGEN Appeal 2019-006657 Application 15/837,228 Technology Center 3700 ____________ Before JOHN C. KERINS, MICHAEL L. HOELTER, and LEE L. STEPINA, Administrative Patent Judges. HOELTER, Administrative Patent Judge. DECISION ON APPEAL STATEMENT OF THE CASE Pursuant to 35 U.S.C. § 134(a), Appellant1 appeals from the Examiner’s decision to reject claims 1–16, which constitute all the claims pending in this application. We have jurisdiction under 35 U.S.C. § 6(b). We REVERSE. 1 We use the word “Appellant” to refer to “applicant” as defined in 37 C.F.R. § 1.42. Appellant identifies the real party in interest as “Jacob Schlangen.” Appeal Br. 3. Appeal 2019-006657 Application 15/837,228 2 CLAIMED SUBJECT MATTER The disclosed subject matter “relates to a stabilizer, and more specifically a stabilizer having three or more wires which can be adjustably tightened or loosened to control the stiffness, flex, spine and flex direction of the stabilizer.” Spec. ¶ 1. Apparatus claim 1 is the sole independent claim, is illustrative of the claims on appeal, and is reproduced below. 1. An archery stabilizer comprising: a rod having first and second ends; first and second end caps connected to the first and second ends of the rod; at least three stiffening members extending between the first and second end caps, and spaced apart from each other, and each of the at least three stiffening members being constructed and arranged to selectively change a tension between the first and second end caps. EVIDENCE Name Reference Date Hoyt, Jr. US 4,054,121 Oct. 18, 1977 Harwath et al. (“Harwath”) US 6,186,135 B1 Feb. 13, 2001 Leven US 7,318,430 B2 Jan. 15, 2008 Bomar US 9,038,618 B1 May 26, 2015 REJECTIONS Claims 1, 3–12, and 15 are rejected under 35 U.S.C. § 103(a) as unpatentable over Bomar and Leven. Claims 2 and 16 are rejected under 35 U.S.C. § 103(a) as unpatentable over Bomar, Leven, and Harwath. Claims 13 and 14 are rejected under 35 U.S.C. § 103(a) as unpatentable over Bomar, Leven, and Hoyt, Jr. Appeal 2019-006657 Application 15/837,228 3 ANALYSIS The rejection of claims 1, 3–12, and 15 as unpatentable over Bomar and Leven Sole independent claim 1 recites a rod, first and second end caps connected to the ends of the rod, and at least three stiffening members extending between these end caps. Claim 1 further specifies that “each of the at least three stiffening members being constructed and arranged to selectively change a tension between the first and second end caps.” The Examiner primarily relies on Bomar for teaching the recited apparatus, but acknowledges that Bomar does not “specifically teach” the “at least three stiffening members” limitation.2 See Final Act. 3. The Examiner relies on Leven for such explicit teaching (i.e., triplicate stiffening members 4), and references Figure 1 thereof as support. See Final Act. 3. The Examiner concludes that it would have been obvious to modify Bomar “to have included at least three stiffening members as using multiple rods (at least three) in stabilizers is well-known and commonly used in the art.”3 Final Act. 3 (referencing Leven 3:1–8, 3:54–55, 4:23–27. Appellant points out that Leven is silent about selectively changing the tension of each stiffening member between the end caps as recited. See Appeal Br. 9. More specifically, “[t]he Examiner is also completely 2 The Examiner addresses Bomar’s disclosure which describes a variety of structures that may be used in place of Bomar’s axial load member 120, such as string, “piano wire, rods, and other columnar or cylindrical structures.” See Final Act. 2 (referencing Bomar 3:58–4:8). 3 In the Examiner’s Answer, the Examiner emphasizes that “[t]he Leven reference as discussed in the rejection is not being used to substitute the stiffening members of Leven into the device of Bomar, it is only used to show that using an arrangement of three stiffening members in a stabilizer is a well-known and commonly used arrangement.” Ans. 10 (emphasis added). Appeal 2019-006657 Application 15/837,228 4 ignoring the ‘selectively change a tension’ limitation of claim 1.” Reply Br. 4. On this point, the Examiner acknowledges that Bomar “teaches a string individually adjustable” and concludes that it would have been obvious to arrange multiple “stiffening members in this manner so that multiple spaced apart strings may be selectively adjustably secured between the two ends.” Ans. 10. However, it is not simply a matter of replicating Bomar’s stiffening members the requisite number of times, as indicated by the Examiner above. This is because claim 1 further requires that the at least three stiffening members “extend[] between the first and second end caps.”4 The Examiner does not explain how this grouping can extend between the same end caps when each replicated component has its own pair of end caps that are instrumental in the tensioning of that stiffening member.5 In other words, replicating Bomar’s stiffening members would result in each stiffening member having its own pair of end caps 114, 116 in order for that stiffening member to be individually adjustable. The Examiner does not make clear how each stiffening member can be thusly separately adjustable as claimed while, at the same time, the “at least three stiffening members” extend between the same two end caps. See Final Act. 2. In other words, by replicating Bomar’s device, it is understood how each stiffening member extends between its own pair of end caps, but not how they also extend 4 The Examiner correlates items 114 and 116 of Bomar to the recited “end caps” and also the “ends of the rod.” Final Act. 2; see also Bomar Fig. 3. 5 Bomar teaches that the tension applied to axial load member 120 is accomplished by rotating a nut on end cap 116 (end cap 114 remains stationary), thereby twisting or untwisting axial load member 120 secured thereto. See Bomar 4:46–51. Appeal 2019-006657 Application 15/837,228 5 between the end caps of any other stiffening member. If instead the Examiner’s proposed modification is to group three stiffening members to extend between the sole pair of end caps 114 and 116, the Examiner does not explain how the resulting structure would allow each of the stiffening members to be separately tensioned. For this reason, we are not persuaded the Examiner has established by a preponderance of the evidence that the combination of Bomar and Leven renders claim 1, and hence dependent claims 3–12 and 15, obvious. Accordingly, we do not sustain the Examiner’s rejection of claims 1, 3–12, and 15 as being obvious over Bomar and Leven. The rejection of (a) claims 2 and 16 as unpatentable over Bomar, Leven, and Harwath, and (b) claims 13 and 14 as unpatentable over Bomar, Leven, and Hoyt, Jr. In each of these rejections, the Examiner relies on the teachings of Bomar and Leven as outlined above. See Final Act. 6, 7. Further, the Examiner does not rely on the newly cited references to Harwath or Hoyt, Jr. in a manner that might cure the above noted defect in the Examiner’s combination of Bomar and Leven. See Final Act. 6, 7. Accordingly, we likewise reverse the Examiner’s rejection of these claims in view of our discussion of the principal combination of Bomar and Leven above. CONCLUSION In summary: Claims Rejected 35 U.S.C. § Reference(s)/Basis Affirmed Reversed 1, 3–12, 15 103(a) Bomar, Leven 1, 3–12, 15 2, 16 103(a) Bomar, Leven, Harwath 2, 16 Appeal 2019-006657 Application 15/837,228 6 Claims Rejected 35 U.S.C. § Reference(s)/Basis Affirmed Reversed 13, 14 103(a) Bomar, Leven, Hoyt, Jr. 13, 14 Overall Outcome 1–16 REVERSED