Ex Parte Howard

Patent Trial and Appeal Board

Sep 25, 2018

14521139 (P.T.A.B. Sep. 25, 2018)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
14/521,139 10/22/2014
63652 7590 09/27/2018
DISNEY ENTERPRISES, INC.
c/o Marsh Fischmann & Breyfogle LLP
8055 East Tufts A venue
Suite 450
Denver, CO 80237
FIRST NAMED INVENTOR
Derek Howard
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.
14-DIS-225-PR-US-UTL 3676
EXAMINER
MENDIRATTA, VISHU K
ART UNIT PAPER NUMBER
3711
NOTIFICATION DATE DELIVERY MODE
09/27/2018 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):
PTOMail@mfblaw.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte DEREK HOWARD 1
Appeal2017-008631
Application 14/521,139
Technology Center 3700
Before MICHAEL L. HOELTER, JAMES P. CALVE,
and JILL D. HILL, Administrative Patent Judges.
HILL, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Derek Howard ("Appellant") appeals under 35 U.S.C. § 134(a) from
the Examiner's final decision rejecting claims 1-10 and 15-24. We have
jurisdiction under 35 U.S.C. § 6(b).
We REVERSE.
1 Appellant identifies the real party in interest as Disney Enterprises, Inc.
Appeal Br. 1.
Appeal2017-008631
Application 14/521,139
BACKGROUND
Independent claims 1, 15, and 21 are pending. Claim 1, reproduced
below, represents the claimed invention, with certain limitations italicized.
1. A vehicle for use in an amusement park ride with
upright, straddle-type passenger seating, comprising:
a vehicle body with a base and a center pedestal portion
extending upward from an upper surface of the base;
a seat assembly including a seat pan mounted on the
center pedestal portion between a front end and a rear end of
the vehicle body, wherein a passenger seated on the seat pan
straddles the center pedestal portion with a left leg on a left
side of the center pedestal portion and a right leg on a right
side of the center pedestal portion; and
a passenger restraint system comprising a lap bar
assembly and a lap bar pivotal mount element pivotally
supporting the lap bar assembly within the vehicle body to
pivot about a rotation axis passing through the vehicle body
between the seat pan and the front end of the vehicle body,
wherein the lap bar assembly comprises a lap bar, a left
side leg shield coupled to the lap bar pivotal mount element at
a first end and to the lap bar at a second end, and a right side
leg shield coupled to the lap bar pivotal mount element at a
first end and to the lap bar at a second end, and
wherein the lap bar, the left side leg shield, and the right
side leg shield rotate about the rotation axis as a unitary
member.
REJECTI0NS 2
I. Claims 1, 5, 7, 15, and 21 stand rejected under 35 U.S.C.
§ 102(a)(l) as anticipated by Steininger (US 7,677,671 B2, issued Mar. 16,
2010). Final Act. 2.
2 The Examiner withdrew the rejection of claim 1 as anticipated by
Bollinger. Ans. 5. Claim 24 stands objected to under 37 C.F.R. § 1.75
( double patenting) as a duplicate of claim 20. Final Act. 18.
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Application 14/521,139
II. Claims 1, 7-10, 15, 20, and 21 stand rejected under 35 U.S.C.
§ I02(a)(2) as anticipated by Blum (US 2008/0149017 Al, published June
26, 2008). Final Act. 6.
III. Claims 2--4, 6, and 16-19 stand rejected under 35 U.S.C. § 103
as unpatentable over Steininger. Final Act. 9.
IV. Claims 2---6 and 16-19 stand rejected under 35 U.S.C. § 103 as
unpatentable over Blum. Final Act. 12.
V. Claim 1 stands rejected under 35 U.S.C. § 103 as unpatentable
over Kudler (US 5,100,173, issued Mar. 31, 1992) and Duce (US 5,238,265,
issued Aug. 24, 1993). Final Act. 15.
VI. Claims 22 and 23 stand rejected under 35 U.S.C. § 103 as
unpatentable over Steininger. Final Act. 16.
ANALYSIS
Rejection I: Claims 1, 5, 7, 15, and 21 anticipated by Steininger
The Examiner finds that Steininger discloses, inter alia, a lap bar
assembly comprising "a lap bar (33), a left side leg shield (85) coupled to [a]
lap bar pivotal mount element at a first end and to the lap bar at a second
end, and a right side leg shield (84) coupled to the lap bar pivotal mount
element at a first end and to the lap bar at a second end," wherein "the lap
bar (33), the left side leg shield (85), and the right side leg shield (84) rotate
about the rotation axis as a unitary member (Fig.4-7)." Final Act. 2-3
( citing Steininger 7: 50-54 ). The leg shield limitations are recited in each of
independent claims 1, 15, and 21.
Appellant argues, inter alia, that Steininger does not disclose left and
right leg shields that are each coupled at a first end to a lap bar and at a
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Application 14/521,139
second end to a pivotal mount element, such that the leg shields and the lap
bar rotate as a unitary member about a single rotation axis. Appeal Br. 9.
According to Appellant, neither end of Steininger' s element 85 is attached to
its lap bar 33 - its first end is attached to Steininger's arm 40, and its second
end is unattached. Id.
The Examiner responds that the claims do not require left and right
shields being directly connected to the lap bar, and that Steininger' s left and
right shield members "are indirectly coupled to the bar as all elements are
working together. Accordingly Steininger can be treated as having the left
and right [leg] shields coupled to the pivotal mount even through there may
be other articles in between." Ans. 19.
While we agree with the Examiner that independent claims 1, 15, and
21 do not require direct connection of the leg shield to the lap bar and the
mount element, these claims require attachment to a lap bar at one end of
each leg shield and attachment to a pivotal mount element at another end of
each leg shield. It is unclear to us where the Examiner finds these
respectively-attached "ends" in Steininger' s alleged leg shield elements 84,
85. For this reason, we do not sustain the rejection of independent claims 1,
15, and 21. Claims 5 and 7 depend from claim 1, and we do not sustain the
rejection thereof for the same reason.
Rejection II: Claims 1, 7-10, 15, 20, and 21 anticipated by Blum
Independent claim 1 recites, inter alia, a vehicle "with upright,
straddle-type passenger seating, comprising" a vehicle body with a center
pedestal extending upward from a base, and "a seat assembly including a
seat pan mounted on the center pedestal portion," wherein "a passenger
seated on the seat pan straddles the center pedestal portion with a left leg on
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Application 14/521,139
a left side of the center pedestal portion and a right leg on a right side of the
center pedestal portion." Independent claims 15 and 21 similarly recite a
vehicle with upright straddle-type passenger seating. Claim 21 additionally
recites a center pedestal with a seat pan mounted thereon, the center pedestal
supporting an axle about which a lap bar assembly pivots.
Appellant's Specification discloses upright, straddle-type seating, that
it is exemplified by "riding a motorcycle or similar vehicle." Spec. ,r 1, 9.
An upright, straddle-type seat is designated as element 114 in Appellant's
Figure 1. With upright straddle-type seating, "passengers typically have to
step over the straddle-type seat" because it is mounted on the center
pedestal, and if the vehicle also includes deep footwells, passenger loading
and unloading can be more difficult, because "passengers have to step down
into the footwell and swing the leg up and over the seat." Id. at 4--5.
Appellant's Specification discusses upright, straddle-type seating
throughout, addressing concerns with such seating in terms of protecting the
passenger while still allowing fast and easy passenger loading given the
existence of the center pedestal that must be straddled by the passenger.
The Examiner finds that Blum discloses, inter alia, a vehicle with
upright, straddle-type passenger seating, the vehicle having a seat assembly
with a seat pan 16 mounted on "a center pedestal portion (portion below seat
[pan] 16)," wherein "a passenger seated on the seat pan straddles the center
pedestal portion with a left leg on a left side of the center pedestal portion
and a right leg on a right side of the center pedestal portion." Final Act. 6
( citing Blum Figs. 1--4, 6). The Examiner provides the following annotated
portion of Blum's Figure 1 to identify structure found to correspond to the
claimed straddled center pedestal portion.
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Application 14/521,139
Ans. 19.
Appellant argues that Blum discloses conventional vehicle seating
where a passenger's legs extend forward and do not straddling any center
portion, such that "Blum fails to show the combination of the vehicle body
and seat assembly providing upright, straddle-type seating." Appeal Br. 13.
Considering the entirety of the disclosure of Blum, it is unclear
whether the structure indicated by the Examiner in the annotated drawing
above as being the "center pedestal portion" is ( 1) a structure on which
Blum's seat pan 16 is mounted, and/or (2) straddled by a passenger's legs.
For this reason, the Examiner's finding regarding the center pedestal portion
and a passenger's straddling thereof is speculative, and therefore so is the
Examiner's finding that Blum discloses a vehicle with upright, straddle-type
passenger seating as claimed. Although claim 15 only recites such upright,
straddle-type vehicle seating in its preamble, the Examiner is not contending
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that the preamble fails to limit the claim given the facts of this case. See,
e.g., Catalina Mktg. Int'! v. Coolsavings.com, Inc., 289 F.3d 801, 808 (Fed.
Cir. 2002). For these reasons, we do not sustain the rejection of independent
claims 1, 15, and 21, or claims 7-10 and 20 that depend therefrom.
Rejection III and VI: Obviousness over Steininger
Claims 2--4, and 6 depend from independent claim 1, and therefore
contain all of the limitations of claim 1. Claims 16-19 depend from
independent claim 15, and therefore contain all of the limitations of claim
15. Claims 22 and 23 depend from independent claim 21, and therefore
contain all of the limitations of claim 21.
The Examiner does not conclude that the limitations of independent
claims, 1, 15, and 21 that are missing from Steininger would have been
obvious from the disclosure of Steininger. Because Steininger would not
have disclosed, taught or suggested limitations of the claims to one skilled in
the art, prima facie obviousness has not been established. We do not sustain
Rejections III and VI.
Rejection IV: Obviousness over Blum
Claims 2---6 depend from independent claim 1, and therefore contain
all of the limitations of claim 1. Claims 16-19 depend from independent
claim 15, and therefore contain all of the limitations of claim 15.
The Examiner does not conclude that the limitations of independent
claims, 1 and 15 that are missing from Blum would have been obvious from
the disclosure of Blum. Because Blum would not have disclosed, taught or
suggested limitations of the claims to one skilled in the art, prima facie
obviousness has not been established. We do not sustain Rejection IV.
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Rejection V: Claim 1 obvious over Kudler and Duce
The Examiner finds that Kudler discloses a vehicle body with a base
and a center pedestal extending upward from the base, a seat assembly 14
including a seat pan mounted on the center pedestal between front and rear
ends of the vehicle body, "wherein a passenger seated on the seat pan
straddles the center pedestal portion with a left leg on a left side of the center
pedestal portion and a right leg on a right side of the center pedestal portion
(inherently)." Final Act. 16.
Appellant argues that Kudler does not disclose a straddle-type seat
arrangement, and thus employs a "conventional lap bar[]" rather than a
"passenger restraint particularly configured to work with such straddle-type
seating." Appeal Br. 16.
The Examiner finds that Kudler inherently discloses a center pedestal
portion about which the upright, straddle-type seating occurs. The Examiner
has not, however, provided any rationale or evidence tending to show
inherency of a center pedestal portion or the straddling thereof. See, e.g., Ex
parte Levy, 17 USPQ2d 1461, 1464 (BP AI 1990) ("In relying upon the
theory of inherency, the examiner must provide a basis in fact and/ or
technical reasoning to reasonably support the determination that the
allegedly inherent characteristic necessarily flows from the teachings of the
applied prior art."). Lacking such a rationale or evidence, the Examiner has
not established prima facie obviousness, and we do not sustain Rejection V.
DECISION
We REVERSE the pending rejections.
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REVERSED
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