Ex Parte Parsons et al

Patent Trial and Appeal Board

Jul 24, 2018

14072261 (P.T.A.B. Jul. 24, 2018)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
14/072,261 11/05/2013
132052 7590 07/26/2018
Hahn Loeser & Parks, LLP - Chicago
125 South Wacker Drive
Suite 2900
Chicago, IL 60606
FIRST NAMED INVENTOR
Kevin Parsons
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.
8342/117044 3763
EXAMINER
MCNURLEN, SCOTT THOMAS
ART UNIT PAPER NUMBER
3782
NOTIFICATION DATE DELIVERY MODE
07/26/2018 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):
patents@hahnlaw.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte KEVIN PARSONS and SIU NGAI WANG
Appeal2017-011405 1
Application 14/072,261 2
Technology Center 3700
Before HUBERT C. LORIN, NINA L. MEDLOCK, and
BRADLEY B. BAY AT, Administrative Patent Judges.
BAY AT, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Appellants appeal under 35 U.S.C. § 134(a) from the Examiner's final
rejection of claims 1-15. 3 We have jurisdiction under 35 U.S.C. § 6(b).
We REVERSE.
1 Our Decision references Appellants' Appeal Brief ("App. Br.," filed
August 3, 2015) and Reply Brief ("Reply Br.," filed January 6, 2016), the
Examiner's Answer ("Ans.," mailed November 6, 2015), and Final Office
Action ("Final Act.," mailed May 28, 2015).
2 Appellants identify Armament Systems and Procedures, Inc. as the real
party in interest. App. Br. 2.
3 Claims 16--20 are canceled. See Amendment filed January 6, 2016 and
entered by the Examiner in the Advisory Action mailed February 3, 2016.
Appeal2017-011405
Application 14/072,261
THE INVENTION
Independent claim 1, reproduced below with added emphasis, is
illustrative of the subject matter on appeal.
1. An apparatus comprising
an elongated backer plate having a plurality of mutually
parallel slots spaced-apart along a longitude of the backer plate
from a midpoint towards one of the ends, each extending across
the backer plate transverse to the longitudinal axis and having a
constant cross section in longitude with a root end relatively
wider than an opposing, open end;
an elongated cover plate;
a hinge that pivotally connects a first end of the backer
plate to a first end of the cover plate;
a resilient lock that releasably connects a second end of
the backer plate to the second of the cover plate;
an adjustable spacer located between the backer plate and
cover plate, the adjustable spacer having a slot engaging portion
extending from the adjustable spacer that is complementary to
the cross section of each of the plurality of slots wherein a
space between the backer plate, the cover plate, the hinge and
resilient lock is adapted to accept a range of different sizes of
belts worn by a human user and wherein the adjustable spacer
may be inserted into any of the plurality of slots to
accommodate the different sizes of belts; and
a police or military holster rotatably attached to the
backer plate.
App. Br. 20 (Claims Appendix.).
THE REJECTIONS
I. Claims 1, 3, 6-8, 12, and 14 are rejected under 35 U.S.C. § I03(a) as
unpatentable over Parsons (US 2007/0235481 Al, pub. Oct. 11, 2007)
2
Appeal2017-011405
Application 14/072,261
("Parsons '481") and Clifton, JR. (US 2010/0264177 Al, pub. Oct. 21,
2010) ("Clifton '177").
II. Claims 2 and 15 are rejected under 35 U.S.C. § I03(a) as unpatentable
over Parsons '481, Clifton '177, and Kamiya (US 6,443,343 B2, iss. Sept. 3,
2002).
III. Claim 4 is rejected under 35 U.S.C. § I03(a) as unpatentable over
Parsons '481, Clifton '177, and Braun (US 4,773,578, iss. Sept. 27, 1988).
IV. Claims 5, 9, and 10 are rejected under 35 U.S.C. § I03(a) as
unpatentable over Parsons '481, Clifton '177, and Dunstan et al. (US
5,839,630, iss. Nov. 24, 1998) ("Dunstan").
V. Claim 11 is rejected under 35 U.S.C. § I03(a) as unpatentable over
Parsons '481, Clifton '177, Dunstan, Huang (US 2003/0141329 Al, pub.
July 31, 2003), Morgan et al. (US 2012/0074184 Al, pub. March 29, 2012),
and Parsons (US 5,217,151, iss. June 8, 1993) ("Parsons '151 ").
VI. Claim 13 is rejected under 35 U.S.C. § I03(a) as unpatentable over
Parsons '481, Clifton '177, and Clifton, JR. (US 2007/0226958 Al, pub.
Oct. 4, 2007) ("Clifton '958").
VII. Claims 5, 9, and 10 are rejected under 35 U.S.C. § I03(a) as
unpatentable over Parsons '481, Clifton '177, Huang, and Parsons '151.
ANALYSIS
Rejection I
Independent claim 1 requires, in part, "a hinge that pivotally connects
a first end of the backer plate to a first end of the cover plate." See App.
Br. 20 (Claims Appendix.).
3
Appeal2017-011405
Application 14/072,261
The Examiner acknowledges that Parsons '481 does not disclose a
"hinge" as claimed, and relies on Clifton '177 to remedy this deficiency in
Parsons '481. In particular, the Examiner finds that body 112 shown in
Figure 26 of Clifton '177 meets the claimed "hinge." (Final Act. 3). The
Examiner's position is that "[b ]ecause no special definition has been
provided, the normal meaning of the term hinge is being used in applying
the prior art, namely a section about which one portion of an assembly
pivots with respect to another portion of the assembly." (Id. at 10).
Applying this interpretation, the Examiner finds that Clifton '177 discloses,
in Figure 26, that:
the lead line for element 112 points to a section that forms a
hinge, as one portion of the clip (the bottom portion of the clip
in Fig. 26) pivots about the section labeled 112 (the hinge) with
respect to another portion of the clip (the top portion of the clip
in Fig. 26) during opening and closing of the clip.
(id. at 10-11 ). Responding to Appellants' arguments in the Answer, the
Examiner maintains that "[s]imilar to an integral or 'living' hinge, which
uses the flexibility of the material to facilitate pivoting, the hinge in Clifton
(see Annotated Fig. 26 below) allows for the claimed pivoting." (Ans. 11 ).
To illustrate this point, the Examiner provides an annotated version of
Figure 26 of Clifton '177, reproduced below.
4
Appeal2017-011405
Application 14/072,261
Clifton, Aonotat&d flg,. 26
(Id. at 12).
Appellants argue that the Examiner's interpretation is unreasonable
and that Clifton '177 does not disclose a "hinge" as claimed. (App.
Br. 10-13 ). Appellants contend that even if body 112 of Clifton '177 can be
considered a "hinge," it does not pivotally connect two portions of the clip
as required by claim L (Id.; see also, Reply Br. 2--4). According to
Appellants, "[ r ]equiring a pivotal connection modifies 'hinge' such that a
rotational connection is required." (Reply Br. 3).
We agree with Appellants.
Claim 1 requires "a hinge that pivotally connects a first end of the
backer plate to a first end of the cover plate." The Examiner's position that
body 112 of Clifton '1 77 ''uses the flexibility of the material to facilitate
pivoting" (Ans. 11) is based on an unreasonably broad interpretation of the
claim phrase "pivotally connects." The Examiner's position is inconsistent
with Appellants' Drawings, which consistently show that hinge 24 includes
a cylindrical central rod or pin about which hinge 24 pivots or rotates. See
Appellants' Figures 1, 2, and 5. In particular, Appellants' Figure 2 clearly
shows that hinge 24 rotates when opening or closing (in the direction of the
arc-shaped arrow in Figure 2).
5
Appeal2017-011405
Application 14/072,261
The Examiner's interpretation is also inconsistent with the plain and
ordinary meaning of the claim term "pivotally connects." See, e.g., "Pivot."
("1: a shaft or pin on which something turns" 4); "Pivot." ("1. A short rod or
shaft on which a related part rotates or swings."; "3. The act of turning on a
. 5) pivot. .
In view of our determination that the Examiner's interpretation of "a
hinge that pivotally connects" is unreasonably broad, we conclude that the
Examiner's finding that Clifton '177 discloses a "hinge" as called for by
claim 1 is deficient. Clifton '177 discloses that body 112 "flexes" when a
wearer applies pressure (Clifton '177 ,r 68), but there is no disclosure that
any part of body 112 rotates around a rod or shaft or that any two portions of
body 112 are otherwise pivotally connected as required by claim 1.
We note that the Examiner relied on Figure 24 of Clifton '958 as
disclosing a substantially similar "hinge" limitation of independent claim 16
(Final Act. 7-8; Ans. 7-9). Clifton '958 appears to disclose a hinge 12 that
pivots around a pin 20. See Clifton '958, Figure 17 and ,r 44 ("The belt
clamp 11 consists of two members: a base member 13 and a cover member
or clamp plate 14 pivotally connected via cooperating fasteners in the form
of a pin hinge shown generally at 12."). However, Appellants elected to
cancel claims 16-20 after the filing of the Appeal Brief. See Reply Br. 1.
Therefore, the Examiner's rejections of claims 16-20 are not before us.
4 Merriam-Webster.com, accessed July 17, 2018.
5 The American Heritage (R) dictionary of the English language (6th ed.),
https :// search. credoreference. com/ content/ entry /hmdictenglang/pi vot,
accessed July 17, 2018.
6
Appeal2017-011405
Application 14/072,261
Accordingly, we do not sustain the rejection of independent claim 1,
and independent claim 8, which contains a substantially similar limitation.
For the same reasons, we also do not sustain the rejection of dependent
claims 3, 6, 7, 12, and 14. Cf In re Fritch, 972 F.2d 1260, 1266 (Fed. Cir.
1992) ("dependent claims are nonobvious if the independent claims from
which they depend are nonobvious").
Rejections II-VII
Although Appellants do not argue the rejections of claims 2, 4, 5, 9,
10, 11, 13, and 15, these claims are also nonobvious because the respective
independent claims from which they depend are nonobvious, and the
Examiner does not rely on any of the additional cited references to cure the
deficiency regarding the disclosure of Clifton '177. See Final Act. 4--7.
Thus, we do not sustain the rejections of claims 2, 4, 5, 9, 10, 11, 13, and 15.
DECISION
The Examiner's rejections of claims 1-15 under 35 U.S.C. § 103(a)
are reversed.
REVERSED
7