Todd Anderson

Patent Trials and Appeals Board

Nov 27, 2019

15411597 - (D) (P.T.A.B. Nov. 27, 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.
15/411,597 01/20/2017 Todd ANDERSON 001466.00002 6275
155942 7590 11/27/2019
Saxton & Stump, LLC
280 Granite Run Drive, Suite 300
Lancaster, PA 17601
EXAMINER
TOPOLSKI, MAGDALENA
ART UNIT PAPER NUMBER
3643
MAIL DATE DELIVERY MODE
11/27/2019 PAPER
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.
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________

Ex parte TODD ANDERSON
____________

Appeal 2018-008965
Application 15/411,597
Technology Center 3600
____________

Before JENNIFER D. BAHR, MICHELLE R. OSINSKI, and
SEAN P. O’HANLON, Administrative Patent Judges.

OSINSKI, Administrative Patent Judge.
DECISION ON APPEAL

STATEMENT OF THE CASE
Appellant1 appeals under 35 U.S.C. § 134(a) from the Examiner’s
decision rejecting claims 1, 2, 4–10, 12–17, 19 and 20.2 We have
jurisdiction over the appeal under 35 U.S.C. § 6(b).
We AFFIRM.

1 We use the term “Appellant” to refer to “applicant” as defined in 37 C.F.R.
§ 1.42.
2 Claims 3, 11, and 18 are cancelled. See Amendment (Nov. 8, 2017).
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THE CLAIMED SUBJECT MATTER
Claims 1 and 16 are independent. Claim 1, reproduced below with
paragraph structure added, is illustrative of the subject matter on appeal.
1. An apparatus for walking a canine, the apparatus comprising
a wearable strap for positioning over a shoulder and across
a torso of a user, the strap having a front portion positioned over
a front of the user and a back portion positioned over a back of
the user;
an attachment device positioned between the front portion
and the back portion, the attachment device positioned at a
bottom of the strap and configured to receive a leash therein;
a first adjustment device positioned proximate the
attachment device, the first adjustment device configured to
allow the attachment device to be adjusted relative to the front
portion to properly position the attachment device at the bottom
of the strap;
a storage pouch releasably attached to the strap, the
storage pouch configured to store and dispense waste bags from
a bottom slot of the storage pouch and for receiving and
containing waste bags filled with waste through a top opening of
the storage pouch;
the strap is configured to rotate around the shoulder of the
user to move from front to back between approximately a 4
o’clock position of the user and an 8 o’clock position of the user,
the strap eliminates direct pressure on the user from the canine
and provides the user with the ability to prepare for the canine’s
movements without a jerking motion, the strap distributes forces
associated with the canine pulling evenly around the torso of the
user, eliminating strain on the shoulder and arms of the user.
Appeal Br. 17 (Claims App.).

EVIDENCE
The Examiner relied on the following evidence in rejecting the claims
on appeal:
Johnson US 4,815,640 Mar. 28, 1989
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Green US 2005/0229867 A1 Oct. 20, 2005
Garcia US 2010/0095903 A1 Apr. 22, 2010
Ekstrum US 2013/0042819 A1 Feb. 21, 2013
Henry US 2013/0126563 A1 May 23, 2013
Clark US 2015/0075448 A1 Mar. 19, 2015
Flaig US 2016/0219838 A1 Aug. 4, 2016
Seuk US 2017/0064928 A1 Mar. 9, 2017
Ehret FR 2522484 Sept. 9, 1983

THE REJECTIONS
I. Claims 1, 4, 5, and 16 stand rejected under 35 U.S.C. § 103 as
unpatentable over Seuk and Flaig. Final Act. 2–6.
II. Claims 2 and 17 stand rejected under 35 U.S.C. § 103 as unpatentable
over Seuk, Flaig, and Johnson. Id. at 6.
III. Claims 6, 7, 9, and 10 stand rejected under 35 U.S.C. § 103 as
unpatentable over Seuk, Flaig, and Clark. Id. at 6–8.
IV. Claim 8 stands rejected under 35 U.S.C. § 103 as unpatentable over
Seuk, Flaig, Clark, and Green. Id. at 8–9.
V. Claim 12 stands rejected under 35 U.S.C. § 103 as unpatentable over
Seuk, Flaig, and Henry. Id. at 9.
VI. Claim 13 stands rejected under 35 U.S.C. § 103 as unpatentable over
Seuk, Flaig, and Ehret. Id. at 9–10.
VII. Claim 14 stands rejected under 35 U.S.C. § 103 as unpatentable over
Seuk, Flaig, and Garcia. Id. at 10–11.
VIII. Claim 15 stands rejected under 35 U.S.C. § 103 as unpatentable over
Seuk, Flaig, and Ekstrum. Id. at 11.
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IX. Claims 19 and 20 stand rejected under 35 U.S.C. § 103 as
unpatentable over Seuk, Flaig, Johnson, and Clark. Id. at 11–12.
OPINION
Rejection I
In contesting the rejection of claims 1, 4, 5, and 16, Appellant presents
arguments for independent claims 1 and 16 together, and does not separately
argue dependent claims 4 and 5. See Appeal Br. 3–12. We select claim 1 as
representative, and claims 4, 5, and 16 stand or fall with claim 1. See
37 C.F.R. § 41.37(c)(1)(iv).
The Examiner finds that Seuk teaches most of the limitations recited
in claim 1, including, in relevant part,
a wearable strap (130) for positioning over a shoulder and
across a torso of a user (see fig. 5, para 0019), . . . wherein the
strap is configured to rotate around the shoulder of the user to
move from front to back between approximately a 4 o’clock
position of the user and an 8 o’clock positions of the user (the
strap of Seuk will rotate as such when placed around the
shoulder of a user, the physics of the motion will be the same),
the strap eliminates direct pressure on the user from the canine
and provides the user with the ability to prepare for the canines’
movements without a jerking motion, the strap distributes
forces associated with the canine pulling evenly around the
torso of the user, eliminating strain on a shoulder and arms of
the user (the strap of Seuk will perform this function when
worn this way with the same results, the physics of the motion
will be the same, Seuk has adjustment slides 138 and can be
worn as tightly or as loosely as desired).
Final Act. 2–3. The Examiner finds that “Seuk is silent about the storage
pouch being releasably attached to the strap, wherein the storage pouch
comprises a bottom slot configured to dispense and store waste bags and a
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top opening for receiving and containing waste filled bags.” Id. at 3.
However, the Examiner finds that
Flaig teaches a waste storage pouch (see abstract and figs. 1–2)
wherein the pouch being releasably attachable to a strap (see
fig. 1, element 17, para 0018, allows for releasable attachment
of the waste pouch to a strap) and wherein storage pouch
comprises a bottom slot (15) configured to dispense and store
waste bags (para 0020) and a top opening (13) for receiving and
containing waste filled bags (can be used to store used bags, see
para 0021).
Id. The Examiner determines that it would have been obvious “to make the
storage pouch of Seuk releasable and containing a slot to dispense waste
bags as well as a top opening, as taught by Flaig, in order to allow a user
easy access to the pouch and to dispense clean bags as well as hold used
waste bags.” Id.
Appellant argues:
The apparatus of Seuk must be retained tightly against
the body of the user. The apparatus of Seuk: does not let the
mount rotate between approximately a 4 o’clock position of the
user and an 8 o’clock position of the user; does not eliminate
direct pressure on the user from the canine; and does not
provide the user with the ability to prepare for the canine’s
movements without a jerking motion. In order to maintain the
type of positive control of the dog, as required by Seuk, the
carabiner must be maintained at a 9 o’clock position, or in the
middle of the user’s torso (as shown in FIG. 5). The apparatus
of Seuk is meant to be worn tight to the body and no movement
or slippage is allowed for it to work.
Appeal Br. 5–6; see also id. at 6 (asserting that, “[a]s the sling of Seuk does
not move, the carabiner is attached to the sling by a piece of webbing,
thereby insuring that the exact positioning of the carabiner relative to the
buckles and the sling is maintained”). Appellant asserts that “Seuk simply
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shows a sling worn tightly around the torso over one shoulder or tightly
around the waist. There is no slack in the strap in any of the embodiments
shown by Seuk.” Reply Br. 3; see also id. (asserting that “Seuk describes
wearing the sling tightly around the torso over one shoulder or tightly
around the waist. All of the illustrations provided by Seuk show the sling
snug against the body and not capable of moving as claimed”).
We are not persuaded by this line of argument because Appellant does
not point to, nor do we find, any disclosure in Seuk to support the position
that shoulder sling 130 must be worn tightly around the torso or that
carabiner 140 must be maintained at the user’s 9 o’clock position for the
apparatus to work. Appellant’s assertions appear to be based upon
speculative assumptions regarding the fit of shoulder sling 130 around the
torso and the position of carabiner 140 as they appear in Seuk’s figures. A
drawing teaches all that it reasonably discloses and suggests to a person of
ordinary skill in the art. In re Aslanian, 590 F.2d 911, 914 (CCPA 1979).
Although Seuk’s drawings reasonably may suggest that Seuk’s shoulder
sling works under the conditions depicted in the drawings, they provide no
reasonable suggestion that Seuk’s shoulder sling would fail to work under
other conditions (e.g., if it was worn more loosely and/or the location of the
carabiner changed during the course of use). In other words, Appellant’s
assertions amount to nothing more than attorney argument unsupported by
evidence and, thus, are entitled to little, if any, weight. In re Geisler, 116
F.3d 1465, 1470 (Fed. Cir. 1997); see also In re Pearson, 494 F.2d 1399,
1405 (CCPA 1974) (An attorney’s arguments in a brief cannot take the place
of evidence.).
Appellant argues that,
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if the apparatus of Seuk is worn over the shoulder and allowed
to be free flowing, . . . the carabiner of Seuk would be loose and
would not stay in the 9 o’clock position, thus not providing the
type of positive control desired by Seuk. In light of the above,
it is clear that the proposed modifications to Seuk, as suggested
by the Examiner, change the principle of operation of [the]
apparatus disclosed in Seuk and, therefore, the rejection of the
claims based on Seuk as the primary reference is not
appropriate.
Appeal Br. 6. Appellant asserts that “[r]edesigning the apparatus of Seuk,
which requires the carabiner to be located as shown in FIG. 5, to a shoulder
strap which can freely rotate between approximately a 4 o’clock position of
the user and an 8 o’clock position of the user is not obvious.” Id. at 7. This
argument is unpersuasive because it is not responsive to a modification
proposed by the Examiner in the rejection. The Examiner does not propose
modifying shoulder sling 130 so as to allow it to rotate around a user’s
shoulder. See Final Act. 3. Rather, the Examiner finds that Seuk’s shoulder
sling 130 would function in the same way as the claimed strap. See id. The
Examiner explains that “the strap of Seuk has applicant’s structure as
claimed. Further, the strap of Seuk includes a size adjustment slide 138,
[and] a user can position Seuk however desired over the shoulder and to
whatever tightness the user desires.” Ans. 5; see also id. at 7 (explaining
that “whether or not Seuk moves on the user[’s] torso depends entirely on
how tight or loose a user fits the strap of Seuk and the force which a dog
exerts on the leash”).
Appellant argues that Seuk “is not capable of performing the
functional elements of the present invention as claimed. The Examiner has
failed to provide sufficient evidence that the cited art is capable of
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performing the same function as the function possessed by the claimed
apparatus.” Appeal Br. 8. Appellant asserts that
the apparatus of Seuk does transmit direct pressure to the user
from the canine and does not provide the user with the ability to
prepare for the canine’s movements without a jerking motion.
The loose fit of the apparatus of the present invention is
imperative to keep the wearer or user safe and in an upright and
stable position, thereby preventing injury to the upper body of
the user. In addition, due to the loose fit of the present
invention, a user can better anticipate when a pulling canine
may present a threat of a fall due to the pulling motion, thereby
allowing the user to react by leaning back or sitting down to
minimize harm to the user.
Id. (emphasis added). In other words, Appellant contends that the functions
of the claimed invention are facilitated by a loose fit of the strap, whereas
Seuk discloses a tight fit. We are not persuaded by this argument because it
is premised upon the unsupported position that Seuk’s apparatus must be
worn tightly such that it could not rotate around the shoulder. As discussed
above, Appellant does not proffer any evidence or persuasive technical
reasoning that Seuk must be worn tightly. See Pearson, 494 F.2d at 1405.
Instead, we agree with the Examiner that Seuk’s shoulder sling could be
worn more loosely by a user such that it could rotate around the torso. See
Final Act. 3; Ans. 7. Seuk teaches that “[t]he length of sling 130 is
adjustable using adjustment slides 138 to accommodate handlers of different
sizes.” Seuk ¶ 19 (boldface omitted). As the Examiner explains, “the
structure required to tighten or loosen the strap of Seuk is the adjustment
mechanism 138.” Ans. 7. In this regard, Appellant does not persuasively
refute the Examiner’s position that the structure of Seuk’s shoulder sling 130
and adjustment slides 138 would allow it to be worn more loosely and
perform the functions recited in the claim. See id. at 10 (explaining that
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“Seuk will perform the functional limitations when a force is exerted on
Seuk. Seuk may be situated loosely over the shoulder of a user, 138 of Seuk
allows for this adjustment”). We note that Appellant has not pointed out any
particular structural element or feature of its physical apparatus (with
Appellant instead focusing on how the apparatus is worn) that is lacking in
Seuk that would prevent Seuk’s apparatus from performing as claimed.
As discussed above, the Examiner proposes modifying Seuk to
include a releasable storage pouch, as taught by Flaig. See Final Act. 3.
Appellant argues that the Examiner’s proposed combination of Seuk and
Flaig is improper because “Flaig teaches away from the present invention.”
Appeal Br. 9. In particular, Appellant asserts that Flaig’s “type of self-
contained device with a retractable leash teaches away from the wearable
strap which is positioned over the shoulder, as described in the present
invention.” Id. These arguments are unconvincing. In order to “teach
away,” a reference must “criticize, discredit, or otherwise discourage the
solution claimed.” In re Fulton, 391 F.3d 1195, 1201 (Fed. Cir. 2004).
Here, Appellant has not identified any passage in Flaig that actually
criticizes, discredits, or discourages the use of a wearable strap positioned
over the shoulder. We note that “[a] reference does not teach away . . . if it
merely expresses a general preference for an alternative invention but does
not ‘criticize, discredit, or otherwise discourage’ investigation into the
invention claimed.” DePuy Spine, Inc. v. Medtronic Sofamor Danek, Inc.,
567 F.3d 1314, 1327 (Fed. Cir. 2009) (quoting Fulton, 391 F.3d at 1201).
Appellant argues that “[c]ombining the teaching of Flaig with the
teaching of Seuk renders the sling of Seuk inoperable.” Appeal Br. 9. In
particular, Appellant asserts that, “[a]s Seuk does not have an end which is
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formed into a loop, the hard shell pet waste collection device cannot be
attached to Seuk as taught by Flaig.” Id.; see also id. (asserting that “[t]he
wearable strap of the present invention, which is positioned over the
shoulder[,] cannot be formed into a loop as required by Flaig”). Appellant
also asserts that
[t]he combination of [the] apparatus of Seuk with the device of
Flaig would yield an apparatus with a pet waste collection
device extending from the carabiner 140 of Seuk which is
maintained at the 9 o’clock position, as was previously
described. The positioning of the pet waste collection device of
Flaig would compromise the connection between the apparatus
of Seuk and the leash.
Id. at 10. According to Appellant, “[i]f the Flaig device were positioned
anywhere else on a rotatable wearable strap, the weight of the Flaig device
would rotate the wearable strap to an improper position.” Id. We are not
persuaded by this line of argument. Flaig teaches a pet waste collection
device 11 comprising container 12 with handle 16 and leash fastener 17.
Flaig ¶¶ 16–18. Flaig teaches that “leash fastener 17 is shown as a
carabiner, however, alternate types of locking fasteners, such as any of
various clips and clasps may be used.” Id. ¶ 18 (boldface omitted).
Although Flaig teaches that pet leash 31 is formed into a loop and secured to
leash fastener 17 (Flaig ¶ 18), Appellant does not persuasively explain why
attaching Flaig to Seuk would require forming Seuk’s shoulder sling 130
into a loop (see Appeal Br. 9). Rather, we agree with the Examiner that “the
clip (17) of Flaig allows the storage container of Flaig to be attached
anywhere on the device of Seuk” (Ans. 12) and would “not inhibit Seuk
from attaching a pet leash to his clip 140” (id. at 11). Appellant also does
not identify error in the Examiner’s position that “[t]he force of the canine
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pulling the belt will cause the device to rotate around the shoulder of a user,
the weight of the waste bag storage apparatus will be negligible when
compared to this.” Id. at 13; see also. id. (explaining that “the weight of a
pet waste container will not have a greater force than the strength of a dog
pulling the device. The force of a small waste bag dispenser is minimal
when compared to the force exerted on a canine handling apparatus when
dog pulls forward”).
Moreover, Appellant does not persuasively refute the Examiner’s
reasoning that the proposed modification would improve Seuk’s apparatus
by “allow[ing] a user of Seuk to store poop bags and . . . provid[ing] for the
additional structure of an additional leash on hand if needed. Or Flaig may
provide a way to store the leash of Seuk when the leash is not in use.” Id. at
11. We note that, “if a technique has been used to improve one device, and a
person of ordinary skill in the art would recognize that it would improve
similar devices in the same way, using the technique is obvious unless its
actual application is beyond his or her skill.” KSR Int’l Co. v. Teleflex Inc.,
550 U.S. 398, 417 (2007); see also id. at 416 (“The combination of familiar
elements according to known methods is likely to be obvious when it does
no more than yield predictable results.”). Appellant has not provided any
factual evidence or persuasive technical reasoning to explain why modifying
Seuk’s apparatus to include a releasable storage pouch, as taught by Flaig, in
an operable manner would yield anything other than a predictable result, or
that doing so would be somehow beyond the level of ordinary skill in the art.
“A person of ordinary skill is also a person of ordinary creativity, not an
automaton.” KSR, 550 U.S. at 421.
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We are also unpersuaded by Appellant’s argument that the
Examiner’s proposed combination of Seuk and Flaig is based upon
impermissible hindsight. See Appeal Br. 9, 11. Appellant does not identify
any knowledge relied upon by the Examiner that was gleaned only from
Appellant’s disclosure and that was not otherwise within the level of
ordinary skill in the art at the time of the invention. See In re McLaughlin,
443 F.2d 1392 (CCPA 1971) (“Any judgment on obviousness is in a sense
necessarily a reconstruction based upon hindsight reasoning, but so long as it
takes into account only knowledge which was within the level of ordinary
skill at the time the claimed invention was made and does not include
knowledge gleaned only from applicant’s disclosure, such a reconstruction is
proper.”).
For the above reasons, Appellant does not apprise us of error in the
Examiner’s conclusion of obviousness with respect to claim 1. Accordingly,
we sustain the rejection of claim 1, and claims 4, 5, and 16 falling therewith,
under 35 U.S.C. § 103 as being unpatentable over Seuk and Flaig.

Rejections II–IX
With respect to the rejections of claims 2, 6–10, 12–15, 17, 19, and 20
Appellant does not set forth any additional substantive arguments separate
from the arguments discussed supra; instead adding only that each of
Johnson, Clark, Green, Henry, Ehret, Garcia, and Ekstrum does not cure the
asserted deficiencies in the combination of Seuk and Flaig, and otherwise
relying on dependency from independent claims 1 and 16. See Appeal
Br. 12–16. Thus, for the same reasons that Appellant’s arguments do not
apprise us of error in the rejection of base claims 1 and 16, Appellant also
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does not apprise us of error in the rejections of claims 2, 6–10, 12–15, 17,
19, and 20.
Accordingly, we likewise sustain the rejections of claims 2, 6–10, 12–
15, 17, 19, and 20 under 35 U.S.C. § 103 as being unpatentable over Seuk,
Flaig, and one or more of Johnson, Clark, Green, Henry, Ehret, Garcia, and
Ekstrum.

CONCLUSION
In summary:
Claims
Rejected 35 U.S.C. § Reference(s)/Basis Affirmed Reversed
1, 4, 5, 16 103 Seuk, Flaig 1, 4, 5, 16
2, 17 103 Seuk, Flaig,
Johnson
2, 17
6, 7, 9, 10 103 Seuk, Flaig, Clark 6, 7, 9, 10
8 103 Seuk, Flaig, Clark,
Green
8
12 103 Seuk, Flaig, Henry 12
13 103 Seuk, Flaig, Ehret 13
14 103 Seuk, Flaig, Garcia 14
15 103 Seuk, Flaig,
Ekstrum
15
19, 20 103 Seuk, Flaig,
Johnson, Clark
19, 20
Overall Outcome 1, 2, 4–10,
12–17, 19, 20

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

AFFIRMED