Ex Parte Balk

Patent Trials and Appeals Board

Jun 5, 2019

15152615 - (D) (P.T.A.B. Jun. 5, 2019)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
15/152,615 05/12/2016
44088 7590
Kaufhold Dix Patent Law
P. 0. BOX 89626
SIOUX FALLS, SD 57109
06/07/2019
FIRST NAMED INVENTOR
Greg Balk
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
ATTORNEY DOCKET NO. CONFIRMATION NO.
SKl 1833 3935
EXAMINER
ING,MATTHEWW
ART UNIT PAPER NUMBER
3637
NOTIFICATION DATE DELIVERY MODE
06/07/2019 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):
j ason@kaufboldlaw.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte GREG BALK 1
Appeal2018-007704
Application 15/152,615
Technology Center 3600
Before DANIELS. SONG, MICHAEL L. HOELTER, and
NATHAN A. ENGELS, Administrative Patent Judges.
HOELTER, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
This is a Decision on Appeal, under 35 U.S.C. § 134(a), from the
Examiner's final rejection of claims 1, 2, and 5-7. Br. 1, 2. We have
jurisdiction under 35 U.S.C. § 6(b). For the reasons explained below, we
find error in the Examiner's rejections of these claims.
Accordingly, we REVERSE the Examiner's rejections.
1 "The real party in interest is the applicant, Greg Balk." Br. 2. Thus, for
the purposes of this Appeal, we designate Greg Balk as the "Appellant."
Appeal2018-007704
Application 15/152,615
CLAIMED SUBJECT MATTER
The disclosed subject matter "relates to table devices and more
particularly pertains to a new table device." Spec. 2: 1-2. Claims 1 and 7
are independent. Claim 1 is illustrative of the claims on appeal, and is
reproduced below.
1. A portable table assembly being configured to be
removably attached to a chair, said assembly comprising:
a table being configured to support items, said table
having a top surface, a bottom surface and a peripheral edge
extending therebetween, said peripheral edge having a first side
and a second side, said first side having a plurality of slots
extending therethrough, said slots being spaced apart from each
other and being distributed on said first side, each of said slots
being horizontally oriented;
a plurality of fasteners, each of said a fasteners being
movably coupled to said table, each of said fasteners being
configured to be selectively coupled to a chair thereby
facilitating said table to be accessible from the chair, each of
said fasteners being movably coupled to said table wherein said
plurality of fasteners is configured to accommodate a variety of
chair sizes, each of said fasteners comprises a plurality of bolts,
each of said bolts being slidably positioned in an associated one
of said slots such that each of said bolts is positionable a
selected distance apart from each other wherein each of said
bolts is configured to be aligned with an associated one of a
plurality of supports on the chair, said plurality of fasteners
further comprising a plurality of straps, each of said bolts
extending through an associated one of said straps, each of said
straps being matable to themselves, each of said straps being
elongated and positioned parallel to said top surface wherein
said straps are configured to be wrapped around an associated
vertical one of a plurality of supports on the chair;
a first coupler being attached to said table, said first
coupler being configured to engage an item thereby facilitating
said table to be selectively coupled to the item; and
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Appeal2018-007704
Application 15/152,615
a leg being hingedly coupled to said table, said leg being
selectively positioned in a deployed position wherein said leg is
configured to abut a support surface thereby facilitating said
table to be horizontally oriented with respect to the support
surface.
Wilkins
Dunn
Romein
Weir et al.
Moore
REFERENCES
us 3,239,272
us 4,339,061
us 4,943,041
us 5,918,550
US 2012/0048150 Al
THE REJECTIONS ON APPEAL
Mar. 8, 1966
July 13, 1982
July 24, 1990
July 6, 1999
Mar. 1, 2012
Claim 1 is rejected under 35 U.S.C. § 103 as unpatentable over Weir,
Dunn, and Wilkins.
Claim 2 is rejected under 35 U.S.C. § 103 as unpatentable over Weir,
Dunn, Wilkins, and Moore.
Claims 5-7 are rejected under 35 U.S.C. § 103 as unpatentable over
Weir, Dunn, Wilkins, Moore, and Romein.
ANALYSIS
Regarding the rejection of claim 1, the Examiner relies on Weir for
many of the cited limitations, but relies on Dunn for disclosing straps and
slots, which are missing in Weir. 2 See Final Act. 2-3; Ans. 3--4. Appellant
does not dispute Dunn's disclosure that slots can be provided or that these
slots would be horizontally oriented. See Dunn 3:31-36. However,
2 The Examiner also relies on Wilkins for teaching slot 16 (see Final Act. 4),
but Wilkins' slot 16 is oriented vertically (see Wilkins Fig. 3 and 1 :46-51
(for "securing bracket 18 at various heights")) whereas claim 1 states "each
of said slots being horizontally oriented."
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Appeal2018-007704
Application 15/152,615
Appellant argues that claim 1 recites straps that are also horizontally
oriented yet Dunn discloses straps that are vertically oriented, i.e.,
"perpendicular to the claim limitations." Br. 7. This is because Dunn's
straps are configured to fit around "different kinds of arm rests." Dunn 3:36;
see also Br. 7 ("[b ]oth Dunn and Wilkins, as specifically shown, attach to a
horizontal portion of an armrest").
The Examiner agrees with Appellant's asserted relativity of the
orientation between Dunn's slots and straps by addressing Dunn's
"horizontally-oriented slots" and "vertically-extending strap ( 60, 62 of
Dunn)." Ans. 4. However, the Examiner reasons that Dunn's straps are
"capable of being positioned" horizontally (Final Act. 4) and that Dunn's
straps can be rotated so as to "extend[] horizontally instead of vertically."
Ans. 5; see also Final Act. 5 ("mere rearrangement of parts"). Appellant
disagrees stating "[ e ]ven if one were to desire to change the orientation of
the straps ... the only obvious modification would be to change the
orientation of the slots" too. Br. 7.
There is merit to Appellant's contention regarding the rotation of the
one resulting in the like rotation of the other, which is counter to the
Examiner's desire to only rotate Dunn's straps while maintaining the
orientation of Dunn's slots. As indicated above, Dunn's straps are vertically
oriented so as to be able to be wrapped around "different kinds of arm rests."
Dunn 3:35-36; see also Dunn Figs. 2, 5. The Examiner does not explain
how Dunn's straps can be rotated horizontally as suggested and yet still
function to wrap around a horizontal armrest.
The Examiner envisions "two spaced, horizontally-oriented slots."
Ans. 4. However, regardless of how these horizontal slots are oriented (i.e.,
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Appeal2018-007704
Application 15/152,615
whether spaced horizontally in-line with each other, or stacked vertically one
above the other), it is understood that Dunn's straps are still maintained
perpendicular to the slots. See Dunn 3:31-36, Figs. 2, 5. This is because
Dunn teaches that the slots "accommodate lateral movement of the straps
one relative to the other" (Dunn 3:34) which is understood to mean that
while their respective orientations are maintained (as illustrated), the straps
can now move laterally with respect to their perpendicular slot. In other
words (as per Appellant), should Dunn's straps be rotated to be horizontal
(as suggested by the Examiner), one would understand from Dunn's
teachings that the accommodating slots would likewise be rotated, and
would now be vertically oriented. See Br. 7. There is no indication in Dunn
that the rotation of the one should be accomplished without likewise rotating
the other.
Thus, the Examiner does not make clear how the cited art can be
modified such that both the slots and the straps of Dunn are each
horizontally aligned, as recited, in view of such teachings. Instead, there is
merit to Appellant's assertion that "the rejection is equivalent to an
unsupported conclusion because the actual teaching of the references does
not directly address the orientation of the claimed invention." Br. 7.
Furthermore, Dunn is the only reference relied upon by the Examiner
as disclosing a device having straps supported via horizontal slots. See Final
Act. 3; Ans. 4. Yet, as expressed above, the Examiner is suggesting that
Dunn's straps be rotated without also rotating Dunn's slots. See also Ans. 4
(the Examiner's Annotated Figure X). The Examiner explains that this
rotation of the straps (only) can be accomplished by having Wilkins' bolt 14
"extend[] through" Dunn's strap such that Dunn's strap can now be easily
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Application 15/152,615
rotated about Wilkins' bolt. Final Act. 4; Ans. 4--7. The Examiner states
that Dunn's slots and straps would be secured together "by fastening means
[] that pass through both strap and slot." Ans. 6; see also Final Act. 4. In
other words, "it is Dunn's fastening means[] - and not the straps []- that
pass through the horizontal slots." Ans. 6. Appellant disagrees stating that
Dunn's "slots are sized to allow for the passing of the straps through the
slots." Br. 7.
Dunn provides no illustration of the slot/strap interconnectivity. See
Dunn 3:31 (noting that attachment straps 60 and 62 are "not specifically
shown"). On the other hand, claim 1 clearly recites "said bolts extending
through an associated one of said straps." Emphasis added. We have been
instructed by our reviewing court that the Examiner may not "resort to
speculation, unfounded assumptions or hindsight reconstruction to supply
deficiencies in its factual basis." In re Warner, 379 F.2d 1011, 1017 (CCPA
1967).
In addressing this "extending through" limitation, the Examiner is
"replacing each of' Dunn's fasteners 64 and 66 with Wilkins' "bolt (14) and
wingnut (20)," thereby purportedly achieving the limitation of a bolt
"extending through" the strap as recited. Ans. 6, 7. Such piercing of the
straps by the bolts does not arise from either reference because Dunn lacks
bolts and Wilkins lacks straps. Further, the use of bolts to pierce Dunn's
straps appears to be the antithesis, or the exact opposite, of Dunn's
teachings. This is because the hard surfaces of Wilkins bolt/wingnut are
now exposed to the user ( and the wheelchair itself) in place of the cardboard
and fabric straps Dunn presently employs so as to avoid harm. See Dunn
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Application 15/152,615
4:45-55 ("provid[ing] case 40 with a degree of resiliency to reduce injury to
a person striking or being struck by case 40").
Hence, in view of the record presented, we agree with Appellant that
there appears to be some "undue speculation," and perhaps hindsight as well,
in the Examiner's reasoning. Br. 7. Consequently, we are not persuaded the
Examiner has provided articulated reasoning with rational underpinning to
support the legal conclusion of obviousness. We reverse the Examiner's
rejection of claim 1.
Regarding the remaining rejections, the Examiner does not rely on
Moore and/or Romein to cure the above noted defects. See Final Act. 5, 6.
Additionally, Appellant contends, "claims 2 and 5 through 7 are either
dependent on claim 1 or include the same limitations as claim 1 discussed
above." Br. 7. Consequently, the Examiner's rejections of claims 2 and 5-7
are likewise reversed.
DECISION
The Examiner's rejections of claims 1, 2, and 5-7 under 35 U.S.C.
§ 103(a) are reversed.
REVERSED
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