Ex Parte Honeycutt

Patent Trials and Appeals Board

Mar 22, 2019

14092636 - (D) (P.T.A.B. Mar. 22, 2019)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
14/092,636 11/27/2013
28960 7590 03/22/2019
HAVERSTOCK & OWENS LLP
162 NORTH WOLFE ROAD
SUNNYVALE, CA 94086
FIRST NAMED INVENTOR
Rob Honeycutt
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.
HCUTT-00111 5681
EXAMINER
SULLIVAN, MATTHEW J
ART UNIT PAPER NUMBER
3677
MAIL DATE DELIVERY MODE
03/22/2019 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 ROB HONEYCUTT
Appeal2017-010443
Application 14/092,636
Technology Center 3600
Before JAMES P. CALVE, ARTHUR M. PESLAK, and
SEAN P. O'HANLON, Administrative Patent Judges.
PESLAK, 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 27-29, 36-38, 41, 42, and 44--46. We have
jurisdiction under 35 U.S.C. § 6(b ).
We AFFIRM.
1 Snik LLC is the Applicant and identified as the real party in interest.
Appeal Br. 2.
Appeal2017-010443
Application 14/092,636
THE CLAIMED SUBJECT MATTER
Appellant's invention "relates to a cord holder used to affix a headset
cord to clothing and bags." Spec. 1:10. Claim 27, reproduced below with
italics added, is illustrative of the claimed subject matter.
27. A headset cord holder comprising:
a body coupled to at least one article from the group of
articles consisting of a bag and an item of clothing, the body
comprising an outside surface, wherein the body is part of a
closure mechanism that releasably couples a first portion of the
at least one article to a second portion of the at least one article;
and
a first groove integrally molded within the outside
surface of the body that directly receives and releasably secures
a headset cord, the first groove comprising a first groove wall, a
second groove wall and a groove entry space, both the first
groove wall and the second groove wall extending into the body
below the outside swface to form the first groove, such that
when the headset cord is secured within the first groove, at least
a portion of the headset cord is held within the body and below
the outside surface.
REJECTIONS
1) Claims 27, 29, 36, 38, 41, 42, 44, and 46 are rejected under 35
U.S.C. § I02(b) as anticipated by or, in the alternative, under 35
U.S.C. § I03(a) as unpatentable over Yang (US 7,559,123 Bl,
issued July 14, 2009). 2
2) Claims 28, 37, and 45 are rejected under 35 U.S.C. § I03(a) as
unpatentable over Yang and Nasu (US 6,526,635 B2, issued Mar.
4, 2003).
2 Although independent claim 44 is not listed in the heading, it is addressed
in the body of the rejection. Final Act. 3, 6.
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Application 14/092,636
DISCUSSION
Rejection 1
The Examiner finds that "element 3" of Yang corresponds to the
"body" recited in claim 27. Final Act. 4 ( citing Yang, Fig. 2). Further, the
"Examiner interprets the outside surface as constituting all the exterior
surfaces of the device of Yang which do not contact the tube/cord when the
tube/cord is placed within the groove." Id. In support of the rejection, the
Examiner submits an annotated drawing of Yang's element 3. Id. at 6.
The primary thrust of Appellant's contentions is that the Examiner's
interpretation of "body" "is different [from] the teachings and illustrations of
Yang." Appeal Br. 7. In support of this contention, Appellant argues that
"Yang teaches that 'the coupling device 32 is a substantially U-shaped
resilient plate member formed integral with the top wall of the mounting
base 31." Id. at 7-8. (citing Yang, 4:16-18). According to Appellant, "the
groove walls [ ofJ Yang rise above the body" and, thus, the "grooved walls of
Yang do not extend into the body" as required by claim 27. Id.
The Examiner responds that "[ n ]either applicant's specification nor
his claims provide significant limitations or disclosure as to the details of the
claimed 'body."' Ans. 3. The Examiner also notes that "Yang does not
disclose any particular structure as constituting a 'body'. In fact the term
'body' does not appear anywhere within the disclosure of Yang." Id. For
the following reasons, we sustain the rejection of claim 27.
Appellant's Figure IA illustrates an embodiment of the claimed
"headset cord holder 100 having a groove 120 molded into the body 110 of a
shirt button." Spec. 4:14--15; Fig. IA. The Specification further describes
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Application 14/092,636
that "body 110 is configured to be coupled to a shirt ... in place of a
standard button." Id. 4:18-19. Further, "one or more apertures 115 are
formed in body 11 O" for sewing body 110 to an item of clothing. Id. 4: 19-
21. Appellant's Figure ID is reproduced below:
Figure ID illustrates that groove 120 extends outward from the "button"
which is described as body 110. See Fig. ID.
Yang discloses that "adapter member 3 comprises a mounting base 31
and a coupling device 32 fixedly provided at the top side of mounting base
31." Yang 3: 15-17. A portion of Yang's Fig. 2 is reproduced below:
Yang's Figure 2 illustrates that coupling device 32 comprises two walls that
extend outward from base 31 and form a groove.
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Application 14/092,636
Appellant does not adequately explain why "the groove walls of Yang
rise above the body" and, "do not extend into the body" (Appeal Br. 7) but
groove 120 in Appellant's Figure ID extends into body 110 and does not
rise above body 110. The bottom of groove 120 ends near the top of the
button structure, body 110, and Yang's groove walls similarly end near the
joint between the groove and base 31. Consequently, Appellant's contention
does not apprise us of error in the Examiner's finding that Yang anticipates
claim 27.
Appellant also argues that Yang does not disclose a headset cord
holder but rather "a side release buckle that is used to hold a suction tube of
a water bottle." Appeal Br. 7 (citing Yang, 4:41-50, Fig. 9). We note that
"headset cord holder" is recited in the preamble of claim 27. Id. at 14
(Claims App.). As discussed above, Appellant does not direct us to any
structural distinction between the body of claim 27 and Yang. In the
absence of a structural distinction in the body of the claims, we are not
apprised of Examiner error because Appellant is merely attempting to claim
a new intended use of an old product. In re Schreiber, 128 F. 3d 1473, 1477
(Fed. Cir. 1997), citing In re Spada, 911 F.2d 705, 708 (Fed. Cir. 1990).
For all the foregoing reasons, we are not apprised of Examiner error in
the anticipation rejection of claim 27 and sustain the rejection of claim 27
and claim 29, which depends from claim 27, as anticipated by Yang.
Appellant relies on the same argument for independent claims 36 and 44.
Appeal Br. 10-12. We sustain the anticipation rejection of claims 36 and 44
as well as dependent claims 38, 41, 42, and 46 for the same reasons.
The Examiner alternately rejected the claims as unpatentable over
Yang. Final Act. 3--4. In the alternate rejection, the Examiner determines
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Application 14/092,636
that, if Appellant's interpretation of Yang is correct and mounting base 31
corresponds to the recited body, it would have been obvious to one of
ordinary skill in the art "to extend surface 314 up around walls 3 2 of Yang
because this would buttress and strengthen the walls against breakage and a
change in shape is generally considered obvious." Id. at 4. Appellant failed
to provide arguments in response to the obviousness rejection. See Appeal
Br. 6-12. Consequently, we summarily sustain the rejection of claims 27,
29, 36, 38, 41, 42, 44, and 46 as unpatentable over Yang.
Rejection 2
Claims 28, 37, and 45 depend from claims 27, 36, and 44,
respectively. Appeal Br. 14--16 (Claims App.). In the Appeal Brief,
Appellant argues that these claims are patentable based on the same
arguments raised in connection with claims 27, 36, and 44. Id. at 12. We
sustain the rejection of these claims for the same reasons stated above.
DECISION
The Examiner's decision rejecting claims 27-29, 36-38, 41, 42, and
44--46 is affirmed.
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)(l )(iv).
AFFIRMED
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