Loubert Suddaby

Patent Trials and Appeals Board

Nov 2, 2021

2021002413 (P.T.A.B. Nov. 2, 2021)

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.
15/883,363 01/30/2018 Loubert S. Suddaby SUDP104FUS 8396
24041 7590 11/02/2021
SIMPSON & SIMPSON, PLLC
5555 MAIN STREET
BUFFALO, NY 14221-5406
EXAMINER
HADEN, SALLY CLINE
ART UNIT PAPER NUMBER
3732
NOTIFICATION DATE DELIVERY MODE
11/02/2021 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):
patentEFS@idealawyers.com
PTOL-90A (Rev. 04/07)

UNITED STATES PATENT AND TRADEMARK OFFICE
__________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
__________

Ex parte LOUBERT S. SUDDABY
__________

Appeal 2021-002413
Application 15/883,363
Technology Center 3700
__________

Before CHARLES N. GREENHUT, MICHAEL L. HOELTER, and
ANNETTE R. REIMERS, Administrative Patent Judges.

REIMERS, 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 14, 16, and 17.2 We have jurisdiction
under 35 U.S.C. § 6(b).

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 Loubert S.
Suddaby. Appeal Brief (“Appeal. Br.”) 3, filed Dec. 4, 2020.
2 The rejection of claims 1, 3, and 5–10 has been withdrawn from
consideration; thus, these claims are not before us for review. See
Examiner’s Answer (“Ans.”) 3, dated Dec. 22, 2020. Claim 13 has been
withdrawn from consideration; thus, this claim is not before us for review.
Appeal 2021-002413
Application 15/883,363

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We REVERSE.
CLAIMED SUBJECT MATTER
The claimed subject matter “relates generally to a protective helmet,
and, more particularly, to a protective helmet having an energy storage
mechanism which absorbs linear and rotational forces and slowly releases
such forces.” Spec. ¶ 2.3
Claim 14, the sole independent claim on appeal, is representative of
the claimed subject matter and recites:
14. A protective helmet having multiple protective zones,
comprising:
an inner shell having a first inner surface and a first outer
surface;
an outer shell having a second inner surface and a second
outer surface, said outer shell functionally attached to said inner
shell;
an elastomeric zone between said first outer surface and
said second inner surface;
a plurality of sinusoidal springs positioned in said
elastomeric zone, each of the plurality of sinusoidal springs
comprising:
a first end; and,
a second end; and,
a transmission device, including:
a sensor arranged to determine a location of the
second end;
a transmitter arranged to transmit a signal indicating
the location; and,
a power source.

Final Office Action (“Final Act.”) 1, dated Oct. 22, 2020. Claims 2, 4, 11,
12, 15, 18, 19, and 20 are indicated as containing allowable subject matter.
Id. at 10.
3 Specification (“Spec.”), filed Jan. 30, 2018.
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THE REJECTION
Claims 14, 16, and 17 stand rejected under 35 U.S.C. § 103(a) as
unpatentable over Bishop (US 5,319,808, issued June 14, 1994) and
Greenwald (US 2005/0177929 A1, published Aug. 18, 2005).
ANALYSIS
As to claim 14, the Examiner finds that Bishop discloses a protective
helmet having a plurality of sinusoidal springs (attenuator bands 36)
positioned in an elastomeric zone in which each of the plurality of sinusoidal
springs comprises a first end a second end. Final Act. 9 (citing Bishop Fig.
1). The Examiner acknowledges that “Bishop does not disclose a
transmission device, including: a sensor arranged to determine a location of
the second end [of the plurality of sinusoidal springs]; a transmitter arranged
to transmit a signal indicating the location; and, a power source.” Id.
However, the Examiner finds that “Greenwald teaches a similar protective
helmet (32) including a transmission device (combination of power
source/[]battery, sensor, and transmitter, all disclosed in the abstract).” Id. at
10. The Examiner concludes that it would have been obvious to an
ordinarily skilled artisan “to have provided Bishop with a transmission
device for the purpose of determining the magnitude of impact.” Id. (citing
Greenwald Abstr.).
Appellant contends that “neither Bishop nor Greenwald discloses a
transmission device including a sensor arranged to determine the location of
the second end of a sinusoidal spring.” Appeal Br. 29. In particular,
Appellant contends that “the sensor disclosed in Greenwald isn’t even for
sensing the impact, but rather it is for turning the electronic device on and
off to save power.” Id. (citing Greenwald Abstr.).
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Appellant’s contention is persuasive. “[R]ejections on obviousness
grounds cannot be sustained by mere conclusory statements; instead, there
must be some articulated reasoning with some rational underpinning to
support the legal conclusion of obviousness.” In re Kahn, 441 F.3d 977, 988
(Fed. Cir. 2006).
Greenwald discloses,
[t]he power management system includes a sensor assembly that
sends a first signal to the electronic device to initiate operation
when the sensor assembly detects the presence of an object. The
sensor assembly sends a second signal to the electronic device to
cease operation when the sensor assembly detects the absence of
the object. . . . . The sensor assembly includes a proximity
sensor, which may be an inductive sensor, a capacitive sensor, a
photoelectric sensor, or an ultrasonic sensor.
Greenwald ¶ 31 (emphases added); see also id. at Abstr., ¶ 121. Based on
the above passage from Greenwald, we agree with Appellant’s assessment
that Greenwald’s proximity sensor is for turning the electronic device on and
off to save power, rather than for determining or measuring the degree of
impact. See id.; see also Appeal Br. 29.
The Examiner responds that Appellant’s contention “is not
commensurate with claim 14 or 17, [as] neither of which require[s] a sensor
for sensing an impact.” Ans. 3.
However, Appellant’s contention is in response to the Examiner’s
rationale for modifying the protective helmet of Bishop, in particular, “for
the purpose of determining the magnitude of impact.” See Final Act. 10; see
also Appeal Br. 29. In this regard, if Greenwald’s proximity sensor is not
for sensing impact, then it is unclear why a skilled artisan would have been
motivated to modify Bishop’s protective helmet to include Greenwald’s
proximity sensor.
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The Examiner also responds that “[e]ven so, Greenwald does teach a
sensor for sensing impact. Greenwald discloses a number of sensors having
different functions including sensors for sensing impact (accelerometers,
Greenwald [¶] 54) and sensors for determining locations (Greenwald
proximity sensor 300).” Ans. 4.
The Examiner’s rationale for adding Greenwald’s proximity sensor
300 to Bishop’s protective helmet lacks rational underpinning for the
reasons discussed above. Additionally, as noted by the Examiner,
Greenwald’s proximity sensor is a separate and different sensor than its
accelerometer, as each sensor has a different function. See id.; see also
Greenwald Abstr., ¶¶ 54, 121. In the Answer, the Examiner appears to
propose modifying Bishop’s protective helmet by adding Greenwald’s
accelerometer; however, the Examiner does not explain why Greenwald’s
accelerometer would be “arranged to determine a location of the second
end” of the plurality of sinusoidal springs of Bishop’s protective helmet, as
required by claim 14.4 See Ans. 3–5. Indeed, it appears that Greenwald’s
accelerometer could be positioned anywhere on Bishop’s protective helmet
and would not be required to be “arranged to determine a location of the
second end” of a sinusoidal spring to operate. As such, the Examiner’s
rejection lacks rational underpinning and appears to be the product of
improper hindsight reconstruction. “The Patent Office has the initial duty of
supplying the factual basis for its rejection. It may not . . . resort to
speculation, unfounded assumptions or hindsight reconstruction to supply

4 This deficiency is equally applicable to the Examiner’s proposed addition
of Greenwald’s proximity sensor 300 to Bishop’s protective helmet. See
Ans. 3–5.
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deficiencies” in the cited references. In re Warner, 379 F.2d 1011, 1017
(CCPA 1967).
For the foregoing reasons, a preponderance of the evidence does not
support the Examiner’s determination that claims 14, 16, and 17 are
unpatentable over Bishop and Greenwald. Accordingly, we do not sustain
the Examiner’s rejection of these claims.

CONCLUSION
In summary:
Claims
Rejected
35 U.S.C.
§
Reference(s)/Basis Affirmed Reversed
14, 16, 17 103(a) Bishop, Greenwald 14, 16, 17

REVERSED