Ex Parte Lindfors et al

Board of Patent Appeals and Interferences

Feb 28, 2012

11658542 (B.P.A.I. Feb. 28, 2012)

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.
11/658,542 01/24/2007 Kristina Lindfors HT-129 6169
7590 02/28/2012
Mark P. Stone
Attorney at Law
400 Columbus Avenue
Valhalla, NY 10595
EXAMINER
CLERKLEY, DANIELLE A
ART UNIT PAPER NUMBER
3643
MAIL DATE DELIVERY MODE
02/28/2012 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 BOARD OF PATENT APPEALS
AND INTERFERENCES
__________

Ex parte KRISTINA LINDFORS and NILS-OLOV LINDFORS
__________

Appeal 2010-010435
Application 11/658,542
Technology Center 3600
__________

Before DEMETRA J. MILLS, ERIC GRIMES, and STEPHEN WALSH,
Administrative Patent Judges.

GRIMES, Administrative Patent Judge.

DECISION ON APPEAL
This is an appeal under 35 U.S.C. § 134 involving claims to a device
for preventing a horse from laying down or rearing up while in a horse
carrier (Spec. 3). The Examiner has rejected the claims as obvious. We
have jurisdiction under 35 U.S.C. § 6(b). We reverse.
STATEMENT OF THE CASE
Claims 2, 4, and 7 are on appeal. Claim 2 is the only independent
claim and reads as follows:
Appeal 2010-010435
Application 11/658,542

2
2. A device for securing a horse in a horse carrier, said device
comprising a harness (25, 26) to be placed around the breast of the horse and
secured around withers and rib cage, safety belts (28 - 31) attached to the
walls of the carrier (14 - 16) on each side of the horse, and connecting
devices (44, 38) for connection of the harness with the safety belts, wherein
each of the safety belts (28-31) are attached to the walls of the carrier (14-
16) adjacent the rib cage of the horse as far forward that the front ends of
each of said safety belts are reachable for a person standing in front of a
cross beam (18) in front of the horse, each of said safety belts being
accessible from a distance no further back from the front half of a horse
within the carrier, and the safety belts (28, 29) pass backwards through
fasteners (32-35) on the walls of said carrier and are anchored in anchoring
means (36, 37) in the back end of the carrier.

The Examiner has rejected claims 2 and 4 under 35 U.S.C. § 103(a) as
obvious based on Birdsong,
1
Böck,
2
and Zemann
3
(Answer 3), and has
rejected claim 7 under 35 U.S.C. § 103(a) as obvious based on Birdsong,
Böck, Zemann, and Patterson
4
(Answer 5). The same issue is dispositive
with respect to both rejections.
The Examiner finds that Birdsong discloses a device for securing a
horse in a horse carrier (id. at 3), and that the device includes a harness,
safety belts, and connection devices (id.). The Examiner also finds that “the
front ends (Fig. 5A: at connection devices 22) of each of the safety belts (19,
20) are reachable for a person standing in front of a crossbeam in front of a
horse” (id. at 4).
Birdsong’s Figure 5A is reproduced below:

1
Birdsong, US 6,612,265 B1, issued Sept. 2, 2003.
2
Böck, DE 100 36 582 A 1, published Feb. 14, 2002.
3
Zemann, DE 100 61 591 A 1, published June 13, 2002.
4
Patterson et al., US 5,867,877, issued Feb. 9, 1999.
Appeal 2010-010435
Application 11/658,542

3

The figure shows a horse fitted with a harness arrangement in which
front (19) and rear (20) tether straps connect the harness to an overhead
support structure (Birdsong, col. 4, ll. 45-51). Birdsong states that the
harness includes a “flexible front girt strap 11 that encircles the front part of
the animal immediately behind its front legs, and a flexible rear girt strap 12
that encircles the rear part of the animal in front of its hind legs” (id. at
col. 5, ll. 4-8). Birdsong discloses that “[w]hen the front and rear tether
straps 19 and 20 are connected between the eye bolts 23A and 23B and the
D-rings 18, and adjusted in length with the animal in a natural standing
position, they extend generally vertically upward from the harness in
laterally opposed and longitudinally spaced relation” (id. at col. 6, ll. 35-40).
Appeal 2010-010435
Application 11/658,542

4
Appellants contend that “[i]t is clear from . . . the Birdsong drawings
that the rear safety belt 12B is mounted to the horse at the rear half of the
horse and would not be accessible to a person standing in front of the horse”
(Appeal Br. 6) and that Böck and Zemann likewise fail to disclose this
limitation (id.). Appellants therefore urge that none of the references
disclose the claimed arrangement in which “each of the safety belts are
attached to the walls of the carrier so that the front ends of each of the safety
belts are reachable by a person standing in front of a cross beam in front of
the horse” (id. at 6-7).
We agree with Appellants that the Examiner has not shown that the
disputed limitation was disclosed or made obvious by the cited references.
Birdsong does not expressly disclose that the front ends of the tether straps
that connect to the rear girt strap can be reached by a person standing in
front of the horse. However, the Examiner reasons that the disputed
limitation “is relative in nature and does not further limit the claimed
structure” (Answer 6). We do not agree that the claim term of “the front
ends of each of said safety belts are reachable for a person standing in front
of a cross beam (18) in front of the horse” does not limit the claims. While
this limitation may be relative – in that reachability depends on the height of
the person, the size of the horse, and the length of the safety belts – it
nonetheless adds a structural requirement to the claims.
The Examiner also reasons that
[b]oth horses and people come in many sizes, of course, and the
claimed device does not fit merely one particular size of horse,
nor is it adapted to be used only by a subset of people of a given
height. With this in mind, the front ends of the safety belts are
considered to be reachable, for example, by a tall person
Appeal 2010-010435
Application 11/658,542

5
standing in front of a cross beam before a colt or other small
horse.
(Answer 6-7.)
“In rejecting claims under 35 U.S.C. § 103, the examiner bears the
initial burden of presenting a prima facie case of obviousness.” In re
Rijckaert, 9 F.3d 1531, 1532 (Fed. Cir. 1993). “The Patent Office has the
initial duty of supplying the factual basis for its rejection. It may not . . .
resort to speculation, unfounded assumptions or hindsight reconstruction to
supply deficiencies” in the cited references. In re Warner, 379 F.2d 1011,
1017 (CCPA 1967).
Here, the Examiner has not provided evidence to show that a person
standing in front of a horse fitted with Birdsong’s device could reach the
tether straps 20 connecting the rear girt strap 12 to the roof of the carrier.
Although the Examiner asserts this to be the case, especially for a tall person
and a small horse, she has not provided evidence or fact-based reasoning
adequate to support that finding. Therefore, the Examiner has not carried
the initial burden of showing prima facie obviousness.
The Examiner cites Böck as providing a reason to modify Birdsong’s
device to attach the safety belts to the walls of the carrier adjacent the
horse’s rib cage (Answer 4); cites Zemann as a basis for including a cross
beam in Birdsong’s device (id. at 5); and cites Patterson as providing a
reason to modify Birdsong’s device to include self-releasing fasteners (id. at
6). Thus, the Examiner has not pointed to anything in Böck, Zemann, or
Patterson that makes up for the deficiency discussed above.
Appeal 2010-010435
Application 11/658,542

6
SUMMARY
We reverse the rejection of claims 2 and 4 based on Birdsong, Böck,
and Zemann, and the rejection of claim 7 based on Birdsong, Böck, Zemann,
and Patterson.

REVERSED

cdc