nullDownload PDFPatent Trials and Appeals BoardNov 29, 201914417246 - (D) (P.T.A.B. Nov. 29, 2019) Copy Citation 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. 14/417,246 01/26/2015 Anton Pfanner 385634-00006 5701 158472 7590 11/29/2019 Shakir Law PLLC 1345 Ave. of the Americas 33rd Floor New York, NY 10105 EXAMINER KOZAK, ANNE M ART UNIT PAPER NUMBER 3732 NOTIFICATION DATE DELIVERY MODE 11/29/2019 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): hasdocketing@gmail.com hassan.shakir@shakirlaw.com uspto@dockettrak.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE __________ BEFORE THE PATENT TRIAL AND APPEAL BOARD __________ Ex parte ANTON PFANNER __________ Appeal 2019-003357 Application 14/417,246 Technology Center 3700 __________ Before MICHAEL L. HOELTER, ANNETTE R. REIMERS, and LISA M. GUIJT, 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, 3–6, and 9–20. Claims 2, 7, and 8 have been canceled. See Appeal Br. 2. We have jurisdiction under 35 U.S.C. § 6(b). For the reasons explained below, we do not find error in the Examiner’s rejections. We AFFIRM. 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 “PFANNER SCHUTZBEKLEIDUNG GMBH.” Appeal Br. 1. Appeal 2019-003357 Application 14/417,246 2 CLAIMED SUBJECT MATTER The disclosed subject matter “relates to a visor for a protective helmet” wherein the visor is pivotable “between two end positions which correspond to an operating position, in which the visor is folded down and rests on a front edge of the helmet shell, and a parking position, in which the visor is folded up and disposed on the outer surface of the helmet shell.” Spec. 1:10–15. Claims 1, 9, and 15 are independent. Claim 1 is illustrative of the claims on appeal and is reproduced below. 1. A helmet for protecting a face of a user, the helmet comprising: a helmet shell having a downsloping shape in a front region of the helmet, the front region having a front edge protruding away from the helmet shell relative to the downsloping shape; a visor comprising a face protector movable between two end positions; two retaining arms; two bearing devices, each bearing device being attached to the helmet shell of the helmet, each bearing device associated with a respective retaining arm for pivoting the face protector between the two end positions, the end positions being an operating position and a parking position, the operating position being where the face protector is folded down and rests on the front edge and the parking position being where the face protector is folded up and disposed at an outer surface of the helmet shell; and a soft lip disposed at an upper edge of the face protector, the lip when in the parking position sealing the face protector to the outer surface of the helmet shell to prevent water from migrating to the face of the user; Appeal 2019-003357 Application 14/417,246 3 wherein at least one bearing device of the two bearing devices comprises a spring-biased end position lock, the lock for locking the retaining arm in each end position by frictional force, wherein, when a pivot motion of the face protector out of one end position is manually initiated, the lock accelerates the face protector toward the other end position until the lip touches the helmet shell substantially without a rebound. REFERENCES RELIED ON BY THE EXAMINER Name Reference Date Nava US 4,397,047 Aug. 9, 1983 Lane US 4,766,609 Aug. 30, 1988 Brace et al. (“Brace ’595”) US 2011/0016595 A1 Jan. 27, 2011 Brace (“Brace ’152”) US 8,056,152 B2 Nov. 15, 2011 THE REJECTIONS ON APPEAL Claims 1, 9, 14, 15, and 20 are rejected under 35 U.S.C. § 103(a) as unpatentable over Brace ’152, Lane, and Nava. Final Act. 2. Claims 3–6, 10–13, and 16–19 are rejected under 35 U.S.C. § 103(a) as unpatentable over Brace ’152, Lane, Nava, and Brace ’595. Final Act. 13. ANALYSIS The rejection of claims 1, 9, 14, 15, and 20 as obvious over Brace ’152, Lane, and Nava Appellant argues claims 1, 9, 14, 15, and 20 together. See Appeal Br. 10–16. We select claim 1 for review, with claims 9, 14, 15, and 20 standing or falling therewith. See 37 C.F.R. § 41.37(c)(1)(iv). Regarding claim 1, the Examiner finds that Brace ’152 discloses a helmet (headgear 100) for protecting a face of a user comprising the various Appeal 2019-003357 Application 14/417,246 4 components as claimed including: a visor (shield 104) having a face protector (lens 122) pivotable to a parking position where the face protector is folded up and disposed at an outer surface of a helmet shell (headtop 102); and a soft lip (seal 124) disposed at an upper edge of the face protector. Final Act. 2–4 (referencing Brace ’152 Fig. 1). The Examiner acknowledges that Brace ’152 does not disclose “sealing the face protector to the outer shell when in the parking position.” Final Act. 4. The Examiner, however, finds that Nava discloses a helmet having a face protector in a parking position (position B’) that allows sealing the face protector to an outer shell “to prevent water from migrating to the face of the user” because “the top part of the visor is adherent to the helmet.” Final Act. 5 (citing Nava Abstr., 2:41–44, Fig. 1); see also Ans. 5. The Examiner reasons that it would have been obvious to modify the helmet of Brace ’152 to “include Nava’s teaching of a parking position of a face protector sealing an outer surface of the helmet since doing so would place the face protector in a stable and safe position against the helmet during inclement weather that may be encountered while wearing the helmet.” Final Act. 5 (referencing Nava 2:56–57). The Examiner notes that “[i]n the instant case, the device of the combined references has met the structural limitations of the claim, and would therefore be expected to be capable of performing the intended use claimed, e.g. . . . to prevent water from migrating to the face of the user.” Final Act. 5–6; see also Ans. 5.2 2 The Examiner relies on Lane for disclosing limitations other than those discussed above. Final Act. 4. Appeal 2019-003357 Application 14/417,246 5 Appellant contends that Nava is a non-enabling disclosure. See Appeal Br. 12–15. Appellant argues that although Nava discloses that the top part of its visor “is adherent” to the outer surface of its helmet, that “does not necessarily mean that it adheres to form a watertight sealing of the top part of the visor against the helmet shell.” Appeal Br. 13 (quoting Nava 2:43–44). Instead, Appellant submits that Nava discloses bringing its “visor close to the surface of the helmet” (thereby permitting a gap therebetween) because “if Nava were to teach a seal[,] . . . it would be a highly disadvantageous situation.” Appeal Br. 14 (referencing Nava 2:53–57); see also Reply Br. 3. Appellant contends that “[a]s the motorcyclist moves forward, the raised visor acts as a catch for air” and thus, “an airflow through [a] . . . gap between the visor and the helmet has to be possible to prevent neck strain and potential loss of vehicle control.” Appeal Br. 14; see also Reply Br. 3. In other words, air entering the space “between the helmet and the visor has to leave [via a] . . . gap at the top part of the visor – exactly at the spot that the rejection calls for the seal to be adherent to the shell.” Appeal Br. 14; see also id. at 15. Accordingly, Appellant argues that Nava is not enabling on its face because Nava does not disclose the limitation, “the lip when in the parking position sealing the face protector to the outer surface of the helmet shell to prevent water from migrating to the face of the user.” Appeal Br. 18. First, prior art references are presumed enabled. See In re Antor Media Corp., 689 F.3d 1282, 1289 (Fed. Cir. 2012). Second, it should be noted that the Examiner relies on Brace ’152, rather than Nava, for disclosing a parking position where the face protector is folded up and disposed at an outer surface of a helmet shell. See Final Act. 3, Ans. 6–7. Appeal 2019-003357 Application 14/417,246 6 Third, Nava provides three descriptions of the relationship between the visor and the helmet shell: (1) the visor’s “top edge may approach and fit tightly over the surface of helmet A” (Nava Abstr.); (2) the visor’s “top part is adherent to the outer surface of said helmet A” (id. at 2:44–45); and (3) an “upward lift” would “bring the top edge of the visor close to the surface of the helmet” (id. at 2:53–56). Emphasis added. Appellant’s contentions above focus on the “close to” position while spurning and/or disparaging the other two equally described positions––the “fit tightly” and the “adherent to” positions. See supra. Further, Nava teaches additional visor locations other than the recited “operating position” and “parking position.” More specifically, Nava states that a gear and pinion assembly (“C”) interconnecting visor (“B”) and helmet (“A”) may also be provided with “means to hold visor B at any intermediate point between the two limit positions.” Nava 2:58–60. These intermediate visor locations, i.e., the visor spaced some distance from the helmet unlike the close, tight, or adhered proximity Nava describes with respect to the parked position, would address the airflow issues Appellant is concerned with above. Thus, based on Nava’s disclosures that the visor’s “top edge may approach and fit tightly over the surface of helmet A” and the visor’s “top part is adherent to the outer surface of said helmet A” (Nava Abstract; 2:44– 45), a preponderance of the evidence supports the Examiner’s finding that Nava discloses “sealing . . . [a] face protector to . . . [an] outer surface of . . . [a] helmet shell to prevent water from migrating to the face of the user,” as claimed. See Final Act. 5; Ans. 5. Concerning Appellant’s contention that “[the] wind thrust is what causes the visor to act to stay close the helmet shell and not the structure of Appeal 2019-003357 Application 14/417,246 7 Nava,” this contention is not well-taken. Appeal Br. 14; see also Reply Br. 3 (it is “the wind thrust . . . and not a bearing assembly”). First, claim 1 does not preclude wind thrust from assisting in maintaining the position of the visor or the face protector. Moreover, as noted above, Nava specifically discloses gear and pinion structure (“C”) for maintaining the position of the visor vis-a-vis the helmet, rather than relying solely on wind thrust as Appellant alleges. See Nava 1:58–62; 2:58–60. Appellant further contends that Nava teaches away from the claimed invention because an ordinary artisan “would not be able to combine Brace [’152] and Nava in the manner cited in the rejection.” Appeal Br. 16; see also Reply Br. 3. The Examiner correctly responds that Nava “does not preclude the visor and helmet from having air flow elsewhere” and further, “[a] person could also be stopped or traveling slowly on a motorcycle such that concerns regarding extreme air flow to the visor are irrelevant.” Ans. 6. Further, as our reviewing court has instructed, “[w]e will not read into a reference a teaching away from a process where no such language exists.” DyStar Textilfarben GmbH v. C.H. Patrick Co., 464 F.3d 1356, 1364 (Fed. Cir. 2006). Additionally, “Applicant is respectfully reminded that a recitation of the intended use of the claimed invention must result in a structural difference between the claimed invention and the prior art in order to patentably distinguish the claimed invention from the prior art.” Final Act. 5. Thus, “[i]f the prior art structure is capable of performing the intended use, then it meets the claim.” Final Act. 5. “In the instant case, the device of the combined references has met the structural limitations of the claim, and would therefore be expected to be capable of performing the intended Appeal 2019-003357 Application 14/417,246 8 use claimed.” Final Act. 5–6. Appellant does not apprise us of Examiner error in this regard. Appellant further addresses the Examiner statement, “it is unclear that the reference of Nava does not teach the claim as recited.” Appeal Br. 15; see Final Act. 20. Appellant contends that this is not the proper standard for a rejection. Appeal Br. 15. The Examiner explains that “this statement was intended to mean that [the] feature of having an adhered and tightly fit top of the visor upon the helmet (as taught by Nava) does not preclude the visor and helmet from having air flow elsewhere.” Ans. 6. Further, “regardless of whether or not air flow is present elsewhere, the helmet still teaches ‘sealing’ as claimed.” Ans. 6. Appellant also contends that “placing a lip as taught by Brace [’152] would not be possible since the lip seals off the air passage” of Nava. Appeal Br. 16; see also Reply Br. 3. The Examiner, however, explains that “the helmet of Nava has not been modified to include features of the helmet of Brace [’152]. Rather, the helmet, as taught by Brace [’152], has been modified to include features of another helmet, as taught by Nava.” Final Act. 22. Thus, Appellant’s contention does not apprise us of error. In the Reply Brief, Appellant takes issue with the Examiner referencing In re De Blauwe.3 Reply Br. 2; Ans. 3–4. Appellant submits that De Blauwe “is completely silent on inoperability of a reference or a non- enabling disclosure.” Reply Br. 2. We note, however, that in the Answer, the Examiner states that “objective evidence [] must be factually supported by an appropriate affidavit or declaration to be of probative value.” Ans. 3. 3 In re De Blauwe, 736 F.2d 699 (Fed Cir. 1984). Appeal 2019-003357 Application 14/417,246 9 The Examiner does not rely on De Blauwe for the proposition that evidence of inoperability of a reference or a non-enabling disclosure can only be shown via an affidavit or a declaration. Instead, the Examiner is pointing out that an “[a]ttorney’s argument in a brief cannot take the place of evidence.” In re Pearson, 494 F.2d 1399, 1405 (CCPA 1974). Accordingly, and based on the record presented, the rejection of claims 1, 9, 14, 15, and 20 as being obvious over Brace ’152, Lane, and Nava is sustained. The rejection of claims 3–6, 10–13, and 16–19 as being obvious over Brace ’152, Lane, Nava, and Brace ’595 Claims 3–6, 10–13, and 16–19 either depend directly or indirectly from claims 1, 9, and 15, respectively. Appeal Br. 18–21 (Claims App.). Appellant does not present arguments for these claims and instead relies on arguments presented with respect to claim 1. See Appeal Br. 10–17. As we do not find error in the rejection of claim 1, the rejection of claims 3–6, 10– 13, and 16–19 as being obvious over Brace ’152, Lane, Nava, and Brace ’595 is sustained for the same reasons discussed above. CONCLUSION In summary: Claims Rejected 35 U.S.C. § Reference(s)/Basis Affirmed Reversed 1, 9, 14, 15, 20 103(a) Brace ’152, Lane, Nava 1, 9, 14, 15, 20 3–6, 10– 13, 16–19 103(a) Brace ’152, Lane, Nava, Brace ’595 3–6, 10– 13, 16–19 Overall Outcome 1, 3–6, 9– 20 Appeal 2019-003357 Application 14/417,246 10 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 Copy with citationCopy as parenthetical citation