Ex Parte Rudd et al

Patent Trial and Appeal Board

Jul 14, 2016

13611538 (P.T.A.B. Jul. 14, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
13/611,538 09/12/2012
28291 7590 07118/2016
SMART & BIGGAR
1000 DE LA GAUCHETIERE ST. W.
SUITE 3300
MONTREAL, QC H3B 4W5
CANADA
FIRST NAMED INVENTOR
David H. RUDD
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.
86421-92C 7892
EXAMINER
ANNIS, KHALED
ART UNIT PAPER NUMBER
3765
NOTIFICATION DATE DELIVERY MODE
07/18/2016 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):
USPTO.MTL@SMART-BIGGAR.CA
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte DAVID H. RUDD and THIERRY KRICK
Appeal2014-005622
Application 13/611,538
Technology Center 3700
Before LYNNE H. BROWNE, THOMAS F. SMEGAL, and
ERIC C. JESCHKE, Administrative Patent Judges.
BROWNE, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
David H. Rudd and Thierry Krick (Appellants) appeal under 35
U.S.C. § 134 from the rejection of claims 1-15 and 20. We have jurisdiction
under 35 U.S.C. § 6(b).
We REVERSE.
Appeal2014-005622
Application 13/611,538
CLAIMED SUBJECT MATTER
The claims are directed to a helmet for a hockey or lacrosse player.
Claim 1, reproduced below, is illustrative of the claimed subject matter:
1. A helmet for receiving the head of a hockey or lacrosse
player, said helmet extending along a longitudinal axis and
compnsmg:
(a) an outer shell for covering at least a portion of the head,
said outer shell having an inner surface and an outer surface;
(b) a skeleton mounted within said outer shell, said skeleton
being made of a semi-rigid material and having an inner surface
and an outer surface, said skeleton comprising a plurality of
members, said plurality of members comprising at least one
member having first and second projecting walls, a bottom wall
extending between said first and second projecting wall, and an
elongated channel defined between said first and second
projecting walls and extending along said first and second
projecting walls and said bottom wall, each of said first and
second projecting walls extending upwardly from said bottom
wall at an angle higher than 90° relative to said bottom wall and
towards said inner surface of said outer shell such that, in use,
said first and second projecting walls are adapted to deflect upon
an impact to said outer shell; and
( c) an inner lining at least partially covering said inner surface
of said skeleton, said inner lining having an inner surface for
contacting a substantial portion of the player's head.
REFERENCES
The prior art relied upon by the Examiner in rejecting the claims on
appeal is:
Lovell
Cantwell
Durocher
us 4,307,471
us 4,766,614
US 6,981,284 B2
2
Dec. 29, 1981
Aug.30, 1988
Jan.3,2006
Appeal2014-005622
Application 13/611,538
REJECTIONS 1
I. Claims 1--4, 12, and 20 stand rejected under 35 U.S.C. § 102(b)
as anticipated by Cantwell.
II. Claims 7, 9--11, and 13-15 stand rejected under 35 U.S.C.
§ 103(a) as unpatentable over Cantwell.
III. Claims 5 and 6 stand rejected under 35 U.S.C. § 103(a) as
unpatentable over Cantwell and Lovell.
IV. Claim 8 stands rejected under 35 U.S.C. § 103(a) as
unpatentable over Cantwell and Durocher.
DISCUSSION
Rejection I
The Examiner determines that Cantwell discloses each and every
limitation of independent claim 1. See Final Act. 4--7. In particular, the
Examiner finds that Cantwell discloses "first and second projecting walls
and said bottom wall defining a channel (See Fig. A)." Id. at 7.
Appellants argue that"[ w ]hile the Examiner identifies an 'elongated
channel' in Figure A reproduced above, the Examiner's identified channel is
rather a space between two separate and distinct cones and such a space
cannot be construed as an 'elongated channel'." Appeal Br. 19. In support
of this argument, Appellants note "that the word 'channel' is defined as 'a
long gutter, groove, or furrow' and the claimed 'elongated channel' cannot
therefore simply be a 'space' as the one identified by the Examiner on
1Drawing objections are petitionable, not appealable matters not within our
jurisdiction. See MPEP §§ 1002 and 1201. Accordingly, we do not consider
Appellants' arguments pertaining to the drawing objection.
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Appeal2014-005622
Application 13/611,538
Figure A." Id. (citing Merriam-Webster.com, http://www.merriam-
webster.com).
Appellants are correct. The ordinary and customary meanings of the
claim term channel are:
1 a : the bed where a natural stream of water runs
b : the deeper part of a river, harbor, or strait
c : a strait or narrow sea between two close landmasses
d : a means of communication or expression: as (1 ): a
path along which information (as data or music) in the form of
an electrical signal passes (2) plural: a fixed or official course of
communication
e : a way, course, or direction of thought or action
f : a band of frequencies of sufficient width for a single
radio or television communication
g : CHANNELER
2 a : a usually tubular enclosed passage: CONDUIT
b : a passage created in a selectively permeable cell
membrane by a conformational change in membrane proteins;
also: the proteins of such a passage - compare ION CHANNEL
3 : a long gutter, groove, or furrow
4 : a metal bar of flattened U-shaped section
Merriam-Webster.com, http://www.merriam-
webster.com/dictionary/channel (last accessed July 8, 2016). The space
between Cantwell' s elastomeric members 22 cannot fairly be read on the
claimed channels. Thus, the Examiner's finding is in error.
For this reason, we do not sustain the Examiner's decision rejecting
claim 1, and claims 2--4 and 12, which depend therefrom. Independent
claim 20, similarly requires "an elongated channel defined between said first
and second projecting walls." Appeal Br. 27. Accordingly, we do not
sustain the Examiner's decision rejecting claim 20 for the same reason.
Re} ections II-IV
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Appeal2014-005622
Application 13/611,538
Rejections II-IV rely on the same erroneous finding as Rejection I.
Therefore, we do not sustain the Examiner's decisions rejecting claims 7, 9-
11, and 13-15 as unpatentable over Cantwell, the Examiner's decision
rejecting claims 5 and 6 as unpatentable over Cantwell and Lovell, and the
Examiner's decision rejecting claim 8 as unpatentable over Cantwell and
Durocher, for the same reason.
DECISION
The Examiner's rejections of claims 1-15 and 20 are REVERSED.
REVERSED
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