Ex Parte PaquetteDownload PDFPatent Trial and Appeal BoardJun 19, 201710554210 (P.T.A.B. Jun. 19, 2017) Copy Citation 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. 6461-04 8260 EXAMINER BRADFORD, CANDACE L ART UNIT PAPER NUMBER 3634 MAIL DATE DELIVERY MODE 10/554,210 10/24/2005 58388 7590 Ridout & Maybee LLP 2000 Argentia Road Plaza 1, Suite 301 Mississauga, ON L5N-1P7 CANADA 06/19/2017 Denis Paquette 06/19/2017 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 DENIS PAQUETTE Appeal 2016-0000771 Application 10/554,2102 Technology Center 3600 Before MICHAEL C. ASTORINO, KENNETH G. SCHOPFER, and ALYSSA A. FINAMORE, Administrative Patent Judges. FINAMORE, Administrative Patent Judge. DECISION ON APPEAL STATEMENT OF THE CASE Appellant appeals under 35 U.S.C. § 134 from a rejection of claims 5—8, 15, and 17—20. We have jurisdiction under 35 U.S.C. § 6(b). We AFFIRM. 1 Our Decision considers Appellant’s Appeal Brief (“Br.,” filed Jan. 28, 2015), as well as the Examiner’s Final Office Action (“Final Act.,” mailed May 29, 2014) and Answer (“Ans.,” mailed July 17, 2015). 2 Appellant identifies Denis Paquette as the real party in interest. Br. 2. Appeal 2016-000077 Application 10/554,210 CLAIMED SUBJECT MATTER The claimed invention “relates to the field of safety restraint systems, and in particular, relates to fall arrest systems for use in framing operations.” Spec. 1:2—3. Claim 17, reproduced below, is illustrative of the claimed subject matter: 17. A safety restraint device comprising: a base rod having a fixed C-shaped or V-shaped attachment bracket attached to said base rod, a threaded locking rod which is essentially parallel to said base rod, and which is operatively connected to a moveable C-shaped or V-shaped attachment bracket, and a crank connected to one end of said locking rod, so that turning of the crank results in relative movement of said moveable attachment bracket towards, or away from, said fixed attachment bracket, and thereby grasp or release an I-beam frame member within said C-shaped or V- shaped attachment brackets and thus, temporarily affix said base rod to a frame member; and at least one opening in said base rod having a threaded section into which an accessory can be threaded, or an opening into which a locking pin can be inserted to hold an accessory in place in said opening, and thereby act as a first mounting device which first mounting devices receives and releaseably attaches said accessory, wherein said accessory selected from the group consisting of a winch, a ladder, a light, a sign, a radio, a platform, and a suspended platform and wherein each of said assemblies is fitted with a threaded end for threading into said first mounting device, or an opening through which a locking pin can be inserted through after said accessory after it has been inserted into said first mounting device, and thereby by use of said threaded end, or said locking pin, said accessory is releasably held in said first mounting device. 2 Appeal 2016-000077 Application 10/554,210 REFERENCES The Examiner relies on the following prior art in rejecting the claims on appeal: Shuman, Jr. et al. US 5,522,472 June 4, 1996 (“Shuman”) Henderson US 5,529,144 June 25, 1996 REJECTIONS Claims 5—8, 15, and 17—20 are rejected under 35 U.S.C. § 112, second paragraph, as indefinite.3 Claims 5—8, 15, and 17—20 are rejected under 35 U.S.C. § 103(a) as unpatentable over Henderson and Shuman. ANALYSIS Indefiniteness The Examiner determines that several limitations render the claims indefinite. Final Act. 2—3. The test for definiteness under 35 U.S.C. § 112, second paragraph, is whether “those skilled in the art would understand what is claimed when the claim is read in light of the specification.” Orthokinetics, Inc. v. Safety Travel Chairs, Inc., 806 F.2d 1565, 1576 (Fed. Cir. 1986) (citations omitted). With this standard in mind, we individually review the disputed limitations. 3 The Examiner’s rejection discusses only claims 17—19. Final Act. 2—3. Claims 5—8, 15, and 20, however, would likewise be indefinite due to their dependency from at least one of claims 17—19. As such, we treat this rejection as including claims 5—8, 15, and 17—20. 3 Appeal 2016-000077 Application 10/554,210 Beginning with the phrase “attachment brackets” in claim 17, the Examiner determines that this phrase is unclear because only one bracket, namely a C-shaped or V-shaped bracket, is being claimed. Final Act. 3. Appellant disagrees because claim 17 recites “a fixed C-shaped or V-shaped attachment bracket” and “a moveable C-shaped or V-shaped attachment bracket.” Br. 10; see also id. at Claims App. Appellant’s argument is persuasive. A person of ordinary skill in the art would understand that the phrase “attachments brackets” refers to both the fixed attachment bracket and the moveable attachment bracket together. The Examiner also determines that the term “crank” in claim 18 renders the claim indefinite because it is unclear whether the claim requires a single crank operated by both restraint devices or the respective crank of each restraint device. Final Act. 3. Appellant argues it is clear that claim 18 requires the respective crank of each restraint device. Br. 10. We agree with Appellant. As Appellant points out, claim 17 defines a restraint device having a crank to move the attachment brackets relative to each other to secure the restraint device to an I-beam frame member. Id.; see also id. at Claims App. Given that claim 18 recites attaching first and second restraint devices and “affixing said base rods of each safety restraint devices [sic] to said vertical frame members by cranking said crank” {id. at Claims App. (emphasis added)), a person of ordinary skill in the art would understand that the claim requires “cranking” the respective crank of each restraint device. The Examiner further determines that there is insufficient antecedent basis for the limitation “said assemblies” in claim 17 so as to render the claim indefinite. Final Act. 2. Appellant acknowledges that the limitation “said assemblies” should be “said accessories,” but contends that it is clear 4 Appeal 2016-000077 Application 10/554,210 that “said assemblies” refers to the accessories previously described in the claim. Br. 8—9. Appellant’s argument is not persuasive. The terms “assemblies” and “accessories” are different, and we fail to see why a person of ordinary skill in the art would understand that the limitation “said assemblies” refers to accessories. In this matter, we are also guided by our reviewing court which has stated “during patent prosecution when claims can be amended, ambiguities should be recognized, scope and breadth of language explored, and clarification imposed. . . . [T]his way . . . uncertainties of claim scope [can] be removed, as much as possible, during the administrative process.” In re Zletz, 893 F.2d 319, 321—22 (Fed. Cir. 1989). Thus, even if one may understand that the claimed “assemblies” was intended to refer to “accessories,” the claim should be amended during prosecution to clarity any possible ambiguity in the use of the term “assemblies.” The Examiner additionally determines that the limitations “it” and “and thereby act as a first mounting device which first mounting devices receives and releasably attaches said accessory” render claim 17 indefinite and that the limitation “can be” in claims 17 and 19 renders claims 17 and 19 indefinite. Final Act. 3. Appellant does not dispute the Examiner’s determinations with respect to these limitations and instead proposes amendments to the claims. Br. 9—10. Appellant’s proposal to amend the claims is not persuasive of error in the Examiner’s determinations that these limitations render the claims indefinite. In view of the foregoing, Appellant has persuaded us that the Examiner erred in determining the limitations “attachment brackets” in claim 17 and “crank” in claim 18 render the claims indefinite. Appellant, 5 Appeal 2016-000077 Application 10/554,210 however, has not persuaded us that the Examiner erred in determining that claim 17 is indefinite for including the limitations “said assemblies,” “it,” and “and thereby act as a first mounting device which first mounting devices receives and releasably attaches said accessory,” nor has Appellant persuaded us that the Examiner erred in determining that the limitation “can be” in claims 17 and 19 renders the claims indefinite. Accordingly, we sustain the Examiner’s rejection of claims 17 and 19, as well as the rejection of claims 5—8, 15, 18, and 20 based thereon. Obviousness Appellant argues that the Examiner’s proposed combination of the teachings of Henderson and Shuman would not have resulted in a safety restraint device having a releasably attached accessory, as recited in independent claim 17. Br. 6. This argument is persuasive. Claim 17 recites a first mounting device for releasably attaching an accessory to the first mounting device. Br., Claims App. More specifically, claim 17 recites: at least one opening in said base rod having a threaded section into which an accessory can be threaded, or an opening into which a locking pin can be inserted to hold an accessory in place in said opening, and thereby act as a first mounting device which . . . releaseably attaches said accessory. Id. Claim 17 further recites an accessory “fitted with a threaded end for threading into said first mounting device, or an opening through which a locking pin can be inserted through . . . and thereby by use of said threaded end, or said locking pin, said accessory is releasably held in said first mounting device.” Id. 6 Appeal 2016-000077 Application 10/554,210 To teach the claimed first mounting device, the Examiner relies on Henderson’s opening 58 formed in frame 20 for receiving eye bolt 30. Final Act. 4; Ans. 6—7. To teach the claimed accessory, the Examiner relies on Shuman’s winch, and, in particular, finds that Shuman teaches winch 45 fitted with aperture 54 through which a locking pin can be inserted to releasably hold the winch in the first mounting device. Final Act. 4. At the outset, we note that Shuman appears to be silent with respect to how winch 45 is attached to cable attachment assembly 15. More specifically, Shuman does not explicitly teach that winch 45 is fitted with an opening. Rather, Shuman teaches that aperture 54 is formed in flange 55 of cable attachment assembly 15. Shuman 7:23—26, Fig. 4. Even if we set aside whether Shuman teaches the claimed accessory having a threaded end or opening through which a locking pin can be inserted to releasably hold the accessory in the first mounting device, we fail to see how the Examiner’s proposed combination of the teachings of Henderson and Shuman would have resulted in an accessory releasably attached to the first mounting device as claimed. The Examiner finds that cable 130 of Shuman can be inserted into eye bolt 30 of Henderson to hold Shuman’s winch 45 in place (Ans. 6) and that Shuman teaches the utility of connecting Shuman’s winch to Henderson’s device via a cable inserted through the opening in the locking pin, i.e., eye bolt (id. at 7—8). The Examiner, however, does not explain how or why a person of ordinary skill in the art would attach a winch to a first mounting device by inserting a locking pin through openings in the base rod and winch or by the use of threaded parts, as recited in claim 17. 7 Appeal 2016-000077 Application 10/554,210 In view of the foregoing, we do not sustain the rejection of claim 17 under 35 U.S.C. § 103(a). The Examiner’s rejection of claims 5—8, 15, and 18—20 suffers from the same deficiency as the rejection of claim 17, and we similarly do not sustain the rejection of claims 5—8, 15, and 18—20. DECISION The Examiner’s decision to reject claims 5—8, 15, and 17—20 under 35 U.S.C. § 112, second paragraph, is affirmed. The Examiner’s decision to reject claims 5—8, 15, and 17—20 under 35 U.S.C. § 103(a) is reversed. No time period for taking any subsequent action in connection with this appeal may be extended under 37 C.F.R. § 1.136(a). 37 C.F.R. § 1.136(a)(l)(iv). AFFIRMED 8 Copy with citationCopy as parenthetical citation