Shawn L. Stewart

Patent Trials and Appeals Board

Oct 11, 2019

14696779 - (D) (P.T.A.B. Oct. 11, 2019)

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.
14/696,779 04/27/2015 Shawn L. Stewart SS422421 2811
92269 7590 10/11/2019
Global Intellectual Property Agency, LLC
P.O. Box 382
Swedesboro, NJ 08085
EXAMINER
DEMIE, TIGIST S
ART UNIT PAPER NUMBER
3794
NOTIFICATION DATE DELIVERY MODE
10/11/2019 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):
eofficeaction@appcoll.com
info@globalipa.com
notifications@globalipa.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
____________________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________________

Ex parte SHAWN L. STEWART
____________________

Appeal 2018-009021
Application 14/696,7791
Technology Center 3700
______________________

Before MURRIEL E. CRAWFORD, PHILIP J. HOFFMANN, and
BRADLEY B. BAYAT, Administrative Patent Judges.

HOFFMANN, Administrative Patent Judge.

DECISION ON APPEAL

STATEMENT OF THE CASE
Appellant appeals under 35 U.S.C. § 134(a) from the final rejection of
claims 1–7. We have jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM.
According to Appellant, the invention “relates to a body suit for
providing heat therapy to a user.” Spec. ¶ 2. Claim 1 is the only

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 Shawn L.
Stewart. Br. 3.
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Application 14/696,779

2
independent claim on appeal. Below, we reproduce claim 1 as illustrative of
the appealed claims.
1. A thermal body suit that provides heat therapy,
comprising:
a unitary body suit comprising an outer layer and an inner
layer, wherein an insulation layer is disposed between the outer
layer and the inner layer;
a plurality of FIR coils disposed in the insulation layer, the
plurality of FIR coils sandwiched between the outer layer and the
inner layer wherein said FIR coils are adapted to produce heat;
a controller adapted to control the plurality of FIR coils,
wherein the controller includes an input device to facilitate entry
of a desired temperature; and
a universal serial bus port disposed on the outer layer of
the unitary body suit, wherein the universal serial bus port is in
electrical communication with the FIR infrared coils.

REJECTION AND PRIOR ART
The Examiner rejects claims 1–7 under 35 U.S.C. § 103 as
unpatentable over Faghri (US 5,269,369, iss. Dec. 14, 1993), Besner
(US 2009/0312822 A1, pub. Dec. 17, 2009), and Li et al.
(US 2010/0004720 A1, pub. Jan. 7, 2010) (hereinafter “Li”).

ANALYSIS
With respect to independent claim 1, according to the Examiner it
“would have been obvious to one of ordinary skill in the art at the time the
invention was made to modify the device as taught by Faghri with the
frequency generating [device] that produce[s] far infrared radiation [(FIR
coils)] as taught by Besner.” Final Act. 4. Appellant argues that this is error
on the Examiner’s part because “this suggested combination of references
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Application 14/696,779

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would require a substantial reconstruction and redesign of the elements
shown in Faghri as well as a change in the basic principles under which the
Faghri construction was designed to operate.” Br. 11. According to
Appellant, this is because “modifying/changing the temperature regulation
system for the body of Faghri with the FIR elements of Besner would
necessarily alter the principle operation of temperature regulation system of
Faghri,” and “the proposed modification . . . [that uses] FIR elements would
eliminate significant structural elements of Faghri that provide desired
benefits sought.” Br. 12.
In response, the Examiner explains
that the modification is not to replace the heat pipe of Faghri with
FIR coils of Besner. The Examiner also stated clearly in the
interview summery mailed on [May 5, 2018,] that the [O]ffice
[A]ction does[] [not] . . . replac[e] the heat exchange system of
Faghri with FIR coils of Besner. The modification is to add
additional heat generating mechanism, FIR coils of Besner, to
Fagh[]ri’s device.
Answer 3 (emphases added).
Appellant did not file a Reply Brief addressing the Examiner’s
statement above. As a result, Appellant does not present any arguments
against the Examiner’s rejection proposing to add Besner’s FIR coils to
Faghri’s device, when Faghri’s device retains its heating system. As a
result, Appellant does not persuade us that the Examiner’s proposal is in
error. Appellant could have responded in a Reply Brief, and, therefore,
“[A]ppellant[] ha[s] had a fair opportunity to react to the thrust of the
rejection.” In re Kronig, 539 F.2d 1300, 1302–03 (CCPA 1976). Appellant,
however, did not act on that opportunity, and as such has waived this
argument. See 37 C.F.R. § 41.37(c)(iv) (“[A]ny arguments or authorities not
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Application 14/696,779

4
included in the [A]ppeal [B]rief will be refused consideration by the Board
for purposes of the present appeal.”).
Thus, based on the foregoing, we sustain the Examiner’s obviousness
rejection of claims 1–7.

CONCLUSION
We AFFIRM the Examiner’s obviousness rejection of claims 1–7.
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a)(1)(iv).
In summary:
Claims
Rejected
35 U.S.C. § Basis Affirmed Reversed
1–7 103 Faghri,
Besner, Li
1–7
Overall
Outcome
1–7

AFFIRMED