Larry HAYNES

Patent Trials and Appeals Board

Aug 11, 2020

2020005069 (P.T.A.B. Aug. 11, 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.
13/948,008 07/22/2013 Larry HAYNES 86133-20001.01 6020
25225 7590 08/11/2020
MORRISON & FOERSTER LLP
12531 HIGH BLUFF DRIVE
SUITE 100
SAN DIEGO, CA 92130-2040
EXAMINER
SZAFRAN, BRIEANNA TARAH LARELL
ART UNIT PAPER NUMBER
3732
NOTIFICATION DATE DELIVERY MODE
08/11/2020 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):
EOfficeSD@mofo.com
PatentDocket@mofo.com
pair_mofo@firsttofile.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________

Ex parte LARRY HAYNES
____________

Appeal 2020-005069
Application 13/948,008
Technology Center 3700
____________

Before EDWARD A. BROWN, BENJAMIN D. M. WOOD, and
BRETT C. MARTIN, Administrative Patent Judges.

BROWN, Administrative Patent Judge.

DECISION ON APPEAL

STATEMENT OF THE CASE
Appellant1 seeks review under 35 U.S.C. § 134(a) of the Examiner’s
decision rejecting claims 1–5, 7, 9, 13–15, and 17–19.2 We have jurisdiction
under 35 U.S.C. § 6(b).
We AFFIRM-IN-PART.

1 We use the word “Appellant” to refer to “applicant” as defined in 37
C.F.R. § 1.42. Appellant identifies Larry Haynes as the real party in interest.
Appeal Br. (dated Dec. 10, 2019) 1.
2 Claims 6, 8, 10–12, 16, and 20–25 have been cancelled. Appeal Br.
(Claims App.); Advisory Act. (dated Sept. 26, 2019).
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CLAIMED SUBJECT MATTER
Appellant’s disclosure “relates generally to a wearable garment that
functions as a carrier for miscellaneous items, and more particularly to an X-
shaped utility vest or utility garment referred to herein as a strapvest.” Spec.
¶ 2.
Claims 1 and 9 are independent claims. Claim 1 illustrates the
claimed subject matter and is reproduced below with reference letters added
in brackets.
1. A strapvest comprising:
[A] a first and a second main strap, wherein
[B] the first main strap is adapted to run up over a right
shoulder of a wearer, down a portion of a right side of a front
torso of the wearer, around a right side of a body of the wearer,
and up a right side of a back of the wearer, wherein
[C] the second main strap is adapted to run up over a left
shoulder of the wearer, down a portion of a left side of the front
torso of the wearer, around a left side of the body of the wearer,
and up a left side of the back of the wearer, wherein
[D] at least one main strap is adapted to permit
receptacles to be detachably attached to portions of a surface of
the main straps facing outward from a body of the wearer on
segments of the main straps that are on a side and a front of the
wearer when the strapvest is worn,
wherein
[E] at least one of the first and second main straps
comprises a first layer and a second layer along at least a
portion of its length, the first layer and second layer of the main
strap connected along at least a first edge and a second edge to
form a compartment between the first and second layers, where
the second edge is opposite the first edge, wherein
[F] the first and second layers are connected together
across a width of the main strap, wherein
[G] the first and second layers are connected along the
first edge to create a first seam and partially along the second
edge to create a second seam, wherein
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[H] the first seam and second seam form the
compartment between the first and second layers, and wherein
[I] an open portion of the second edge, opposite the first
edge, provides access to an interior of the compartment; and
[J] a juncture releasably connecting a portion of the first
main strap to a portion of the second main strap, wherein the
portion of the first main strap is adapted to run down the right
side of the wearer’s front torso, and wherein the portion of the
second main strap is adapted to run down the left side of the
wearer’s front torso.
Appeal Br. 19 (Claims App.).

REJECTIONS ON APPEAL
Claims 1–5, 7, and 19 are rejected under 35 U.S.C. § 103(a) as
unpatentable over Cook (US 5,816,460, issued Oct. 6, 1998) and Frankhouse
(US 4,634,031, issued Jan. 6, 1987).
Claims 9–13, 15, 17, and 18 are rejected under 35 U.S.C. § 103(a) as
unpatentable over Cook and Elliot (US 6,345,751 B1, issued Feb. 12, 2002).
Claim 14 is rejected under 35 U.S.C. § 103(a) as unpatentable over
Cook, Elliot, and Frankhouse.

ANALYSIS
Claims 1–5, 7, and 19 over Cook and Frankhouse
As to claim 1, the Examiner finds that Cook discloses a strapvest that
comprises limitations A–D and J, but not limitations E–I. Final Act. 11–12.
The Examiner relies on Frankhouse as teaching a strapvest that comprises
missing limitations E–I. Id. at 12–13. Particularly, the Examiner finds that
Frankhouse discloses a first layer (side member 12a) and a second layer
(side member 12b) connected along a first edge (“side of 12a-12b opposite
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of 12c-12d”) to create a first seam and partially along a second edge (“side
of 12a-b at 12c with 14”) to create a second seam (“via 14”), wherein the
first seam and second seam form a compartment (“via 12”) between the first
and second layers, and an open portion (“via 14, when opened”) of the
second edge, opposite the first edge, provides access to an interior of the
compartment. Id. (citing Frankhouse, Fig. 4). The Examiner concludes that
it would have been obvious to one of ordinary skill in the art to provide
limitations E–I taught by Frankhouse in Cook “so that a plurality of pocket
members can be a part of the strap member in a continuous fashion so that
the strap member can carry various articles therein.” Id. at 13–14.
Appellant notes that Frankhouse discloses that “[i]mmediately
adjacent the zipper 14, and extending the entire length of the corresponding
pocket member 12, the side members 12a and 12b are joined together to
provide a continuous opening or passageway 12c.” Appeal Br. 6–7;
Frankhouse, col. 2, ll. 52–56 (emphasis added). Appellant contends that
zippered opening 14 is not at an edge of the article carrier, and thus, is not
“an open portion of the second edge,” as claimed. Appeal Br. 7. Appellant
provides an annotated Figure 5 of Frankhouse that shows the “[p]osition of
[z]ippered [o]pening 14” relative to the positions of fastening means 12d and
opening 12c, and the position of the “[s]eam at [e]dge of [l]ayers” 12a and
12b. Id. Appellant asserts, “zippered opening 14 cannot be at an edge
because it is adjacent passageway 12c, which is closer to the edge than
zippered opening 14.” Id. at 7–8. Appellant also contends that the position
of zippered opening 14, as displaced from the edge, is shown in Figure 4 of
Frankhouse. Id. at 8.
Appellant also disagrees that Frankhouse discloses “the first and
second layers are connected . . . partially along the second edge to create a
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second seam,” as claimed. Appeal Br. 8. Appellant contends that zipper 14
is not a second seam that connects two layers 12a, 12b; rather, zipper 14
connects just layer 12a. Id. at 8–9 (“zipper 14 connects two pieces of layer
12a”).
In response, the Examiner states, “the second edge is (via the side of
12a-b at 12c with 14, see Figure 4) [considered] to create a second seam (via
14).” Ans. 6–7. The Examiner “note[s] that 12d, the joining seam of the
layers 12a and 12b, would be a part of if not right up against/along 14-hence,
the making of a seam at an edge partially along an open portion which
provides access into an interior compartment (via the zippered opening of
14).” Id. at 7.
We understand the Examiner’s position is that: opening 12c and
zipper 14 shown in Figure 4 correspond to the claimed “second edge”;
zipper 14 corresponds to the claimed “second seam”; and fastening means
12d is “a part of” or “right up against” zipper 14. Figure 5 of Frankhouse
shows the location of opening 12c relative to the left-most surface, which
corresponds to the bottom-most surface in Figure 4. As Figure 4 shows a
zipper 14 disposed above opening 12c, although not shown in Figure 5,
zipper 14 would be located spaced from the left-most surface.
Claim 1 does not recite “a seam at an edge partially along an open
portion which provides access into an interior compartment,” as the
Examiner seems to determine. Ans. 7. As recited, the first and second
layers are connected partially along the second edge to create the second
seam. That is, the second seam is created where the first and second layers
are connected along the second edge. The claimed second seam also has an
open portion. Claim 1 also does not recite that the second seam is created at
the second edge partially along the open portion. As for Frankhouse, even if
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fastening means 12d is considered to connect side members 12a and 12b
along an edge to create a seam, the Examiner has not established that zipper
14 is also at that edge, or connects side members 12a and 12b. Accordingly,
the Examiner has not established that zipper 14 creates a seam along that
edge by such connection, as required by claim 1. We also agree with
Appellant that zipper 14 is not located “opposite the first edge” in
Frankhouse as identified by the Examiner, as also required by claim 1.
Reply Br. 4.
Thus, we do not sustain the rejection of claim 1, and claims 2–5, 7,
and 19 depending therefrom, as unpatentable over Cook and Frankhouse.
Claims 9–13, 15, 17, and 18 as unpatentable over Cook and Elliot
Appellant argues claims 9–13, 15, 17, and 18 together. Appeal Br.
14–16. We select claim 9 to decide the appeal as to this rejection, and
claims 10–13, 15, 17, and 18 stand or fall with claim 9. See 37 C.F.R.
§ 41.37(c)(1)(iv).
For claim 9, the Examiner finds that Cook discloses a strapvest
comprising, inter alia, a first main strap (loop 16) and a second main strap
(loop 17). Final Act. 15. The Examiner concedes that Cook does not
disclose that “each main strap has a width between 2 and 6 inches along an
entirety of its length.”3 Id. at 16 (emphasis added). The Examiner relies on
Elliot as teaching a strapvest including main straps (shoulder straps 125)
each having a width between 2 and 6 inches along an entirety of its length.
Id. (citing Elliot, col. 6, ll. 27–30, Fig. 3). The Examiner determines that it

3 We note that claim 9 recites that “at least one main strap has a width
between 2 and 6 inches along an entirety of its length.” Appeal Br. 20
(Claims App.) (emphasis added).
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would have been obvious to one of ordinary skill in the art to provide each
main strap of Cook with a width between 2 and 6 inches along an entirety of
its length, as taught by Elliot, because “Elliot teaches that 2 inches provides
increased comfort to the shoulders of the user when the strap vest is worn.”
Id.
Appellant contends that a two-inch strap width in Cook would reduce
wearer comfort because of the way strap members 16 and 17 encircle the
shoulders of the wearer. Appeal Br. 15. According to Appellant,
[i]ncreasing the strap width of Cook would cause the edges of
the straps to impinge on the underarm regions and the neck of
the wearer, leading the straps to overly constrict the wearer’s
shoulders and range of motion and to abrade the skin of the
underarm regions and the neck of the wearer.
Id. Further, Appellant contends, the modification would “compromise
Cook’s complimentary aesthetic appeal.” Id. at 16. Regarding “unaesthetic
change,” Appellant contends that a skilled artisan would not modify Cook to
make the straps two inches wide because “a two-inch width would be
markedly wider than even the widest of the commonly used handbag strap
widths.” Id. Appellant also asserts, “[i]f the width of Cook’s straps were
modified to be two inches along their entirety, the straps would stand out
and frustrate the purpose of coordinating, complementing, or accenting other
articles of clothing.” Id.
These contentions are unpersuasive. First, Cook does not describe
that the width of the strap members is specifically limited. As such,
Appellant does not show persuasively that the modification would require an
increase in the width of either strap member beyond Cook’s teachings.
Second, Cook discloses that “the shoulder strap 1 of the present
invention is not limited to carrying a purse. That is, other articles such as
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small radios, pouches, etc. could be slidingly attached to the tether 11 for
easy access by the wearer.” See, e.g., Cook, col. 4, ll. 8–11 (bold face
omitted, emphasis added). Accordingly, Appellant’s contentions focusing
on the “unaesthetic change” of the appearance of Cook’s strap width(s)
specifically for purse carrying are unpersuasive.
Third, Cook discloses, for example, that the strap members 2, 3 can be
made of “any suitable non-rigid material” and mentions “a light fiber such as
cloth.” Col. 3, ll. 33–38. Appellant does not show persuasively that strap
members made of these exemplary materials, and having a width of about 2
inches, would cause “the straps to overly constrict the wearer’s shoulders
and range of motion and to abrade the skin of the underarm regions and the
neck of the wearer.” Appeal Br. 15.
Fourth, where the only difference between the prior art and a claim is
a recitation of relative dimensions of the claimed device and a device having
the claimed relative dimensions would not perform differently than the prior
art device, the claimed device is not patentably distinct from the prior art
device. Gardner v. TEC Syst., Inc., 725 F.2d 1338, 1349 (Fed. Cir. 1984).
Here, even if the proposed modification of Cook might affect aesthetic
appeal, or “frustrate the purpose of coordinating, complementing, or
accenting other articles of clothing,” we are not persuaded that the
modification would cause the resulting shoulder strap to perform differently.
Indeed, the Examiner points out that the Specification “provides no
criticality for these claimed width measurements.” Ans. 12 (citing Spec.
¶ 53). Absent evidence to the contrary, we are unpersuaded that the claimed
main strain width provides a patentable distinction from the applied art.
Thus, we sustain the rejection of claim 9, and claims 10–13, 15, 17,
and 18 falling with claim 9, as unpatentable over Cook and Elliot.
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Claim 14 as unpatentable over Cook, Elliot, and Frankhouse
Claim 14 depends from claim 9 and recites limitations corresponding
to limitations E–I in claim 1. Appeal Br. 21 (Claim App.). The Examiner
again relies on Frankhouse for teaching these limitations in claim 14. Final
Act. 17–18. The Examiner determines that it would have been obvious to
further modify Cook to incorporate these limitations. Id. at 18–19.
Appellant contends that one of ordinary skill in the art would not have
modified Cook in view of Frankhouse. Appeal Br. 17. For the same reasons
discussed above for claim 1, we agree, and thus, do not sustain the rejection
of claim 14 as unpatentable over Cook, Elliot, and Frankhouse.

DECISION SUMMARY
In summary:
Claim(s)
Rejected
35 U.S.C. § Reference(s)/Basis Affirmed Reversed
1–5, 7, 19 103(a) Cook, Frankhouse 1–5, 7, 19
9–13, 15, 17,
18
103(a) Cook, Elliot 9–13, 15,
17, 18

14 103(a) Cook, Elliot,
Frankhouse
14
Overall
Outcome
9–13, 15,
17, 18
1–5, 7, 14,
19

No time period for taking any subsequent action in connection with
this appeal may be extended. See 37 C.F.R. § 1.136(a)(1)(iv).

AFFIRMED-IN-PART