Ex Parte Refsum

Patent Trial and Appeal Board

Nov 7, 2012

10483918 (P.T.A.B. Nov. 7, 2012)

UNITED STATES PATENT AND TRADEMARK OFFICE
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BEFORE THE PATENT TRIAL AND APPEAL BOARD
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Ex parte BJORN REFSUM
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Appeal 2010-010864
Application 10/483,918
Technology Center 3700
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Before: LINDA E. HORNER, SCOTT E. KAMHOLZ, and
MITCHELL G. WEATHERLY, Administrative Patent Judges
WEATHERLY, Administrative Patent Judge.
DECISION ON APPEAL

Appeal 2010-010864
Application 10/483,918
2
STATEMENT OF CASE
Appellant appeals under 35 U.S.C. § 134 from the decision of the
Examiner rejecting claims 1-3 and 5-9. Claim 4 is canceled. We have
jurisdiction under 35 U.S.C. § 6(b).
We reverse.
The claims are directed to a harness for a child. Claim 1, reproduced
below, is illustrative of the claimed subject matter:
1. A harness (1) for a child, comprising a
unitary yoke (2) having a back portion (3), a front
portion (4) and two side portions (7), where the
side portions (7) extend from the back portion (3)
and are connected with the front portion (4) by
length adjustable side straps (8), so that the
mentioned parts constitute a seat element, with
length adjustable shoulder straps (11), from the
upper back part of the back portion (3) to the front
portion (4), wherein the back portion (3) also has
fastening devices (13) in the side extremities on
the outer area, which makes fastening of a carrying
strap or fastening to seats for children possible.
App. Br., Claims Appx.
REFERENCES
The prior art relied upon by the Examiner in rejecting the claims on
appeal is:
Huber
Nunemacher
Schultz
US 3,027,058
US 4,149,687
US 6,397,389 B1
Mar. 27, 1962
Apr. 17, 1979
Jun. 4, 2002
Appeal 2010-010864
Application 10/483,918
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REJECTIONS
Appellant seeks our review of the following rejections:
1. Claims 1 and 5 stand rejected under 35 U.S.C § 102(b) as being
anticipated by Nunemacher. Ans. 3.
2. Claims 1-3 and 5-7 stand rejected under 35 U.S.C § 103(a) as being
unpatentable over Schultz and Nunemacher. Ans. 5.
3. Claims 8 and 9 stand rejected under 35 U.S.C § 103(a) as being
unpatentable over Schultz, Nunemacher, and Huber. Ans. 7.
OPINION
Anticipation of claims 1 and 5
The Examiner rejects claims 1 and 5 as anticipated under § 102(b) by
Nunemacher. Ans. 3-5. The Examiner equates the following structures
from Nunemacher to the structures of independent claim 1:
Nunemacher Claimed Structure
Front panel 13 Back portion
Back panel 11 Front portion
Extensions 19 and 20 on front
panel 13
Side portions with length adjustable
side straps
Shoulder straps 25 Shoulder straps
Couplers 62, 64 Fastening devices
Ans. 3-4. In use, Nunemacher’s extensions 19 and 20 wrap around an infant
and fasten to each other via buttons 22 on extension 20 that mate with button
holes 21 on extension 19. Ans. 3-4 (citing Nunemacher col. 4, ll. 38-47).
The Examiner asserts that the plurality of buttons 22 and button holes 21 on
Appeal 2010-010864
Application 10/483,918
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extensions 19 and 20 render the extensions “length adjustable.” See Ans. 3
(citing Nunemacher col. 4, ll. 38-47). The Examiner also asserts that
Nunemacher’s extensions 19 and 20 are “connected with” Nunemacher’s
back panel 11 because Nunemacher’s front panel 13, back panel 11, and
extensions 19 and 20 are constructed as a “unitary yoke” in which all three
structures are “connected.” Ans. 10.
Appellant contends that the Examiner erred in finding that
Nunemacher describes the claimed “side portions” that are “connected with
the front portion … by length adjustable side straps.” App. Br. 14. More
specifically, Appellant contends that Nunemacher fails to teach the claimed
side portions because Nunemacher’s extensions connect to each other
without connecting to Nunemacher’s back panel or any other structure. Id.
We agree with the Examiner that Nunemacher’s side portions are
connected to its front portion in a sense. Namely, the identified side and
front portions are part of a unitary yoke. However, the claim requires that
the side portions be “connected with the front portion by length adjustable
side straps.” While Nunemacher’s extensions 19 and 20 are straps and
“length adjustable,” they are not the means by which the side portions
connect to the front portion as required by claim 1. We also note that claim
1 recites a “unitary yoke” of which the claimed back, front, and side portions
are a part. Thus, the inherent “connection” among these portions is distinct
from the later-recited requirement that the “side portions” are connected
with the front portion … by length adjustable side straps.” Therefore, we
reverse the Examiner’s rejection of independent claim 1 and dependent
claim 5 under § 102(b).
Appeal 2010-010864
Application 10/483,918
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Obviousness of claims 1-3 and 5-9
The Examiner rejects claims 1-3 and 5-7 as unpatentable in light of
the combination of Schultz and Nunemacher. Ans. 5-7. Claims 8 and 9 are
rejected as obvious over Schultz, Nunemacher, and Huber. The Examiner
finds that Schultz does not teach the “back portion having fastening devices
in the side extremities on the outer area, which makes fastening of a carrying
strap or fastening to seat for children possible” of claim 1. Ans. 5-6. The
Examiner asserts that a skilled artisan would have found it obvious to
modify Schultz by adding Nunemacher’s couplers 62, 64 to make it possible
to fasten a carrying strap or a seat restraint to the harness. Ans. 6. The
Examiner contends that a skilled artisan would have been motivated to
modify Schultz “to enhance security and allow the infant to be carried when
not walking.” Id.
Appellant argues that Schultz’s harness cannot function as a carrier
because its snaps and hook-and-loop fasteners would not securely hold a
child who is large enough to walk with little or no assistance. App. Br. 21.
Appellant also contends that a skilled artisan would not be motivated to add
Nunemacher’s fastening devices to Schultz because Schultz’s harness does
not need “additional security to prevent a child from coming free of the
harness, as it is intended solely for use with a walking child.” App. Br. 23.
Finally, Appellant argues that adding Nunemacher’s couplers 62, 64 to
Schultz’s harness would render it less secure as a carrier because it would
add load to Schultz’s hook-and-loop fasteners 52, making them more likely
to disengage. App. Br. 24.
We find that the Examiner has not adequately articulated why a
skilled artisan would have been led to add fastening devices to enhance
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Application 10/483,918
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security in Schultz’s walking harness which included holding loops to
support a child if the child stumbled. Schultz, Figs. 2 and 6. We further find
that the Examiner has failed to adequately explain what would have led a
skilled artisan to modify Schultz’s walking harness to be used as a carrier.
“A factfinder should be aware, of course, of the distortion caused by
hindsight bias and must be cautious of arguments reliant upon ex post
reasoning.” KSR Int’l Co. v. Teleflex Inc., 550 U.S. 398, 421 (2007).
Schultz teaches a structure used as a walking harness with quick release
openings that are closed by relatively insecure snaps in the crotch and hook-
and-loop fasteners on the side extensions. Such structures do not readily
lend themselves to use as a carrier. Schultz never mentions using its harness
to carry children; it is designed to aid children who are learning to walk.
Schultz, col. 1, ll. 8-23. By contrast, Nunemacher’s baby pouch is designed
to carry younger children from six to eight weeks old until the time at which
they begin to walk. Nunemacher, col. 6, ll. 45-49. Absent hindsight, we fail
to see a reason, and the Examiner has not adequately articulated a reason,
that would have led one of ordinary skill in the art to modify Schultz’s
walking harness to render it capable of being used as a carrier. We therefore
reverse the Examiner’s rejection of claims 1-3 and 5-9 under § 103(a).
DECISION
For foregoing reasons, we reverse the Examiner’s rejections of claims
1-3 and 5-9.
REVERSED

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