David Bremseth

Patent Trials and Appeals Board

Mar 2, 2022

2021004910 (P.T.A.B. Mar. 2, 2022)

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. 16/074,000 07/30/2018 David L. Bremseth 509132.000004 6520 25764 7590 03/02/2022 FAEGRE DRINKER BIDDLE & REATH LLP PATENT DOCKETING - INTELLECTUAL PROPERTY 2200 WELLS FARGO CENTER 90 SOUTH SEVENTH STREET MINNEAPOLIS, MN 55402-3901 EXAMINER KEENAN, JAMES W ART UNIT PAPER NUMBER 3652 NOTIFICATION DATE DELIVERY MODE 03/02/2022 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): PatentDocketing@FaegreDrinker.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte DAVID L. BREMSETH Appeal 2021-004910 Application 16/074,000 Technology Center 3600 Before DANIEL S. SONG, MICHAEL L. HOELTER, and BRETT C. MARTIN, Administrative Patent Judges. MARTIN, 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 and 4-20. Claims 2 and 3 were canceled during prosecution. 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(a). Appellant identifies the real party in interest as David L. Bremseth. Appeal Br. 2. Appeal 2021-004910 Application 16/074,000 2 CLAIMED SUBJECT MATTER The claims are directed to “devices and methods for assisting with moving a wheelchair into and out of vehicles.” Spec. ¶ 3. Claim 1, reproduced below, is illustrative of the claimed subject matter: 1. An apparatus for removably coupling to a vehicle, the apparatus comprising: a support member having first and second ends; a door member coupled to the support member and positioned on the first end, wherein the door member is sized and shaped to fit over and removably couple to a top side of a vehicle door; a roof member coupled to the support member and positioned on the second end, wherein the roof member is sized and shaped to one of: fit over a vehicle roof rack, rest on a vehicle roof, and couple to a securing structure positioned on a vehicle roof; and a pulley connected to the support member and positioned between the first and second ends. REFERENCES Name Reference Date Anderson US 2012/0222269 Al Sep. 6, 2012 Lynn US 3,656,637 Apr. 18, 1972 Dickens US 4,809,372 Mar. 7, 1989 Hoyer US 2,650,725 Sep. 1, 1953 Larsson US 4,360,307 Nov. 23, 1982 Baravelle US 5,377,888 Jan. 3, 1995 REJECTIONS Claims 1, 4-6, 9-14, 16, and 18-20 stand rejected under 35 U.S.C. § 103 as being unpatentable over Anderson and Lynn. Ans. 3. Appeal 2021-004910 Application 16/074,000 3 Claims 7, 8, 15, and 17 stand rejected under 35 U.S.C. § 103 as being unpatentable over Anderson, Lynn, Dickens, Hoyer, Larsson, and Baravelle. Id. OPINION Anderson and Lynn Appellant argues, in the Appeal Brief, that the Examiner’s rejection is flawed because the combination of Anderson and Lynn would render the device of Anderson inoperable for its intended purpose and/or change the principle of operation of Anderson. Appeal Br. 5-6. In its Reply, “Appellant submits that the Examiner has introduced new assertions in the Answer regarding the rejections.” Reply Br. 1. As the Examiner correctly points out, however, these “new assertions” were made prior to Appellant’s Appeal Brief in the Advisory Action dated November 24, 2020. Given that the Examiner informed Appellant of the change in thrust of the rejection from replacing Anderson’s handle with Lynn’s pulley to adding Lynn’s pulley to Anderson’s device and maintaining the handle, we find this argument unpersuasive. As to the Examiner’s proposed addition of Lynn’s pulley to Anderson’s device, Appellant asserts that “the Examiner has not explained - how one would actually make the proposed modification and how the device would be more useful.” Reply Br. 1. Appellant’s arguments appear to be directed at a bodily incorporation of Lynn’s pulley into Anderson’s device rather than directed at how one of ordinary skill in the art would consider doing so. Lynn discloses a hoist using a pulley and despite any particular problems one might encounter with Lynn’s placement of the pulley vis-à-vis Lynn’s device, we agree with the Examiner that it would have been clear to Appeal 2021-004910 Application 16/074,000 4 one of ordinary skill in the art that a pulley could be added to Anderson’s device without difficulty. Appellant’s claims require only the addition of a pulley and do not require the entirety of Lynn’s hoist mechanism as appears to be asserted by Appellant. As such, we do not see any particular hurdle in adding a simple pulley for hoisting a passenger as proposed by the Examiner and sustain the rejection. Regarding claim 9, Appellant asserts that the Examiner has cited no basis in Anderson for teaching a slip-resistant material. We agree with the Examiner, however, “[t]he term ‘slip-resistant’, as broadly claimed, simply fails to define over the reference’s explicit teaching of a secure gripping structure.” Ans. 5. In looking at, for example, Figure 2, it is clear that Anderson’s fingers are covered with a thin strip of ridged material that covers the entirety of the internal portions of the fingers and wraps around at least partially to the opposite side signifying some level of a pliant material. Given that this is clearly an additional material and it comprises ridges, we agree with the Examiner that this falls within the broad context of something that is slip resistant and sustain the rejection. As to Claim 10, both the Examiner and Appellant agree that Anderson appears to be silent as to the use of rubber on the door support end, but that Anderson discloses use of rubber elsewhere in the device. Appellant asserts that this disclosure of rubber elsewhere, but not on the door affixment end is evidence “that the reference intentionally did not use rubber for the particular alleged ‘door member.’” Appeal Br. 8. The Examiner, however, points out that, as noted above, Anderson “appears to show the fingers 50 and 52 as comprising some type of covering or coating” and that “given the fact that the grips are intended to interact with the vehicle roof and door … Appeal 2021-004910 Application 16/074,000 5 one of ordinary skill in the art would logically conclude that it is highly likely that the material of which such fingers were made would be compliant so as to provide an effective grip without damaging the vehicle paint.” Ans. 6. We further note that the rejection does not assert that Anderson teaches using rubber material at the claimed location, but that it would have been obvious to do so. We find the Examiner’s explanation sufficient for the proposed modification given that a device used to interact with a vehicle would properly be designed so as not to damage the vehicle. Accordingly, we sustain the rejection. Regarding claim 16, Appellant asserts that the Examiner’s invocation of design choice for the proposed addition of a sleeve “is a legally and factually deficient explanation.” Appeal Br. 8. The Examiner asserts that “Anderson alone may show the roof member forming a sleeve surrounding the support member.” Ans. 6. We do not see how Anderson may show such a sleeve. We also agree with Appellant that it is not clear “why one skilled in the art would incorporate Lynn’s alleged sleeve.” Appeal Br. 8. Lynn’s sleeve 53 is part of a cantilever system for supporting the beam 16b and is used for insertion of the beam to hold it in place at the door. Other than the fact that Lynn discloses a sleeve, we do not see any similarity in how the sleeve is utilized when compared to the claimed sleeve. Accordingly, we find the Examiner’s design choice rationale insufficient and do not sustain the Examiner’s rejection. Hoyer Regarding claim 8, Appellant asserts that the Examiner’s proposed combination would be deficient “because Anderson’s alleged support member 12 isn’t shown or described as extending over a roof” and, thus, Appeal 2021-004910 Application 16/074,000 6 does not have a roof-facing surface or side. Appeal Br. 7. We agree with the Examiner, however, that “Anderson is clearly sized and shaped such that it could fit over a vehicle roof rack, rest on a vehicle roof, and/or couple to a securing structure on a vehicle roof.” Ans. 5. Additionally, the rejection is to modify Anderson in accordance with Hoyer so that it does specifically extend over the roof as shown in Hoyer. Thus, we agree with the Examiner that “when modified in the manner indicated such that the bottom-side of the support member had a flat instead of a round surface, such a surface could clearly face the vehicle roof.” Id. Thus, we are not persuaded of error in the Examiner’s rejection. CONCLUSION The Examiner’s rejections are affirmed as to all appealed claims except for claim 16. DECISION SUMMARY In summary: Claims Rejected 35 U.S.C. § Reference(s)/Basis Affirmed Reversed 1, 4-6, 9- 14, 16, 18- 20 103 Anderson, Lynn 1, 4-6, 9- 14, 18-20 16 7, 8, 15, 17 103 Anderson, Lynn, Dickens, Hoyer, Larsson, and Baravelle 7, 8, 15, 17 Overall Outcome 1, 4-15, 17- 20 16 Appeal 2021-004910 Application 16/074,000 7 TIME PERIOD FOR RESPONSE 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-IN-PART