Ex Parte HowardDownload PDFPatent Trial and Appeal BoardSep 25, 201814521139 (P.T.A.B. Sep. 25, 2018) Copy Citation 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. 2 Appeal2017-008631 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 3 Appeal2017-008631 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 4 Appeal2017-008631 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. 5 Appeal2017-008631 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 6 Appeal2017-008631 Application 14/521,139 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. 7 Appeal2017-008631 Application 14/521,139 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. 8 Appeal2017-008631 Application 14/521,139 REVERSED 9 Copy with citationCopy as parenthetical citation