Ex Parte Stewart et alDownload PDFPatent Trial and Appeal BoardApr 17, 201311211978 (P.T.A.B. Apr. 17, 2013) 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. 11/211,978 08/25/2005 Roger Stewart 4431 6467 7590 04/18/2013 Floyd B. Carothers CAROTHERS AND CAROTHERS Suite 200 445 Fort Pitt Blvd. Pittsburgh, PA 15219 EXAMINER STERLING, AMY JO ART UNIT PAPER NUMBER 3631 MAIL DATE DELIVERY MODE 04/18/2013 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 ROGER STEWART and RICHARD STEWART ____________________ Appeal 2012-007269 Application 11/211,978 Technology Center 3600 ____________________ Before: JENNIFER D. BAHR, JOHN C. KERINS, and GAY ANN SPAHN, Administrative Patent Judges. BAHR, Administrative Patent Judge. DECISION ON APPEAL Appeal 2012-007269 Application 11/211,978 2 STATEMENT OF THE CASE Roger Stewart and Richard Stewart (Appellants) appeal under 35 U.S.C. § 134 from the Examiner’s decision rejecting claims 1 and 3-6.1 We have jurisdiction under 35 U.S.C. § 6(b). We AFFIRM. The Claimed Subject Matter Claim 1, reproduced below, is illustrative of the claimed subject matter. 1 An arm support for ergonomically supporting the arms of a computer operator, the support comprising: a block support dimensioned and contoured to be supported on and to span the lap of a computer operator while seated in an upright manner and to also sufficiently circumvent the stomach portion of the operator and of a specific height to thereby continuously support the arms of the operator proximal to the elbows. Evidence The Examiner relied on the following evidence in rejecting the claims on appeal: Drieling US 5,081,936 Jan. 21, 1992 Martin Blanchard US 5,732,910 US 6,173,656 B1 Mar. 31, 1998 Jan. 16, 2001 Rejections Appellants request our review of the following rejections by the Examiner: I. Claims 1 and 3-5 under 35 U.S.C. § 103(a) as unpatentable over Drieling and Blanchard; and 1 Our review of the image file wrapper of the present application reveals that the USPTO received a Notice of Appeal on December 23, 2011. See Reply Br. 2; contra Ans. 3. Appeal 2012-007269 Application 11/211,978 3 II. Claim 6 under 35 U.S.C. § 103(a) as unpatentable over Drieling, Blanchard, and Martin. OPINION Rejection I Appellants do not present any separate arguments for claims 3-5 apart from claim 1. Thus, we decide the appeal of rejection I on the basis of claim 1. We adopt the Examiner’s findings and reasoning set forth on pages 4 and 5 of the Answer. Appellants do not dispute these findings or take issue with the Examiner’s reasoning. The issues raised in the appeal of this rejection are: (1) Does the phrase “while seated in an upright manner” in claim 1 modify the claim limitation “of a specific height to thereby continuously support the arms of the operator proximal to the elbows,” such that claim 1 requires the block support to be of a specific height to support the arms of the operator proximal to the elbows while the computer operator is seated in an upright manner? (2) Even assuming that claim 1 requires the block support to be of a specific height to support the arms of the operator proximal to the elbows while the computer operator is seated in an upright manner, do the combined teachings of Drieling and Blanchard render obvious a block support of such a height? We begin with the first issue, i.e., claim construction. Appellants argue that “claim 1 specifies that the support be ‘of a specific height to thereby continuously support the arms of the operator proximal to the Appeal 2012-007269 Application 11/211,978 4 elbows’, in other words the elbows, while the computer operator is ‘seated in an upright manner’.”2 App. Br. 6. The Examiner, on the other hand, construes the phrase “in an upright manner” as modifying only the manner in which the block support is dimensioned and contoured to span the lap of an operator, and not as modifying the arm supporting limitation. Ans. 7. It is well settled that the United States Patent and Trademark Office (PTO) is obligated to give claim terms their broadest reasonable interpretation, taking into account any enlightenment by way of definitions or otherwise found in the specification. In re ICON Health and Fitness, Inc., 496 F.3d 1374, 1379 (Fed. Cir. 2007) (“[T]he PTO must give claims their broadest reasonable construction consistent with the specification . . . . Therefore, we look to the specification to see if it provides a definition for claim terms, but otherwise apply a broad interpretation.”). Claim 1 recites two distinct limitations for the block support. The first limitation is that the block support be “dimensioned and contoured to be supported on and to span the lap of a computer operator while seated in an upright manner and to also sufficiently circumvent the stomach portion of the operator.” The second limitation is that the block have “a specific height to thereby continuously support the arms of the operator proximal to the elbows.” Claim 1 does not explicitly specify that the claimed specific height adapt the block to support the arms of the operator proximal to the elbows while the operator is seated in an upright manner. Appellants do not point us to, and we do not find, any disclosure in Appellants’ Specification or drawings specifying that the arm support of 2 Appellants argue that claim 1 establishes “a specific height of the block support above one’s lap to thereby induce proper posture of the computer operator.” App. Br. 8. Claim 1 contains no such limitation. Appeal 2012-007269 Application 11/211,978 5 Appellants’ invention supports the operator while the operator is seated in an upright manner. Indeed, we do not find the term “upright” in Appellants’ application, outside of the claims. Accordingly, Appellants’ Specification does not support Appellants’ asserted construction of claim 1. Specifically, Appellants’ Specification states [t]he arm support of the present invention is provided for ergonomically supporting the arms of a computer operator and the support is comprised of a block support dimensioned and contoured to be supported on and to span the lap of the computer operator while seated, and to further support upper portions of the lower arms proximal to the elbows. Spec., p. 2, ll. 7-10; see also id. at p. 3, l. 15 – p. 4, l. 5 (referring to “a computer operator while seated” and to “the seated computer operator”). Appellants’ Specification also discloses that the arm support “provides the most support possible with the greatest flexibility of movement to decrease upper body muscle stress while working at a computer station.” Id. at p. 2, ll. 10-12. Additionally, Appellants’ Specification discloses that “while seated any individual, no matter what height, has a distance or variable of one inch or less between the elbow and thigh when the arms are in the position of working at a computer keyboard that is positioned on a standard desk work area.” Id. at p. 2, ll. 14-16; see also Stewart Declaration, p. 1, para. 2 (averring that “[i]t is absolute that for the human anatomy, the distance from ones elbows to the top of ones lap varies less than an inch no matter the person’s size”). The drawings of Appellants’ Specification do not depict the computer operator, and thus are not enlightening as to whether support of the arms of a computer operator while seated in an upright position was contemplated. Appeal 2012-007269 Application 11/211,978 6 Thus, reading claim 1 in light of the disclosure in Appellants’ Specification and drawings, we conclude that the Examiner did not err in construing the “upright manner” language of claim 1 as modifying (i.e., defining) how the block support is dimensioned and contoured to span the lap of the user but not modifying (i.e., defining) the manner in which the arms of the operator proximal to the elbows are supported. See Ans. 7. Consequently, Appellants’ arguments that Drieling and Blanchard do not render obvious an arm support with a block support having a height to provide such support (App. Br. 6-7) are not commensurate with the scope of claim 1, and thus do not apprise us of error in the rejection. Moreover, even applying Appellants’ asserted construction of claim 1 as requiring that the block support have a height to support the operator’s arms proximal to the elbows while seated in an upright manner, Appellants do not identify any flaw in the Examiner’s findings and reasoning (Ans. 7, ll. 12-18) explaining why Blanchard’s teachings would have suggested such an arrangement to a person of ordinary skill in the art. Appellants assert that Blanchard’s figure 1 clearly shows that the child depicted therein may support her arms and elbows on the lobes “only by bending or hunching over.” App. Br. 7. Our review of Blanchard’s figure 1 does not lead us to the same conclusion. The child’s head is pointed downwardly at the lap table surface, but the child appears to be sitting with her torso in an upright manner. As depicted in Blanchard’s figure 1, the child does not appear to have her arms positioned so that they are supported proximal to their elbows by the lap table. However, we find no indication in the figure 1 depiction that the child would have to hunch over to have her arms supported in such a Appeal 2012-007269 Application 11/211,978 7 manner by Blanchard’s lap table. See Ans. 7 (stating “there is just no evidence that the child must hunch over to use the Blanchard device”). Appellants appear to argue that the supported forearms or elbows of Appellants’ device would not permit the free arm movement necessary for drawing or writing on the support itself and that, consequently, the disclosed use of Blanchard’s and Drieling’s lap supports as desks for drawing or writing necessarily renders them incapable of supporting the user’s arms as claimed without hunching over. See App. Br. 7; Reply Br. 3. This amounts to unsupported attorney argument. Appellants present no evidence that a lap desk height suitable to support the user’s arms proximal to the elbows is incongruous with use of the desk for drawing or writing. For the above reasons, Appellants do not apprise us of error in the Examiner’s rejection of claim 1. We thus sustain the rejection of claims 1 and 3-5 as unpatentable over Drieling and Blanchard. Rejection II In contesting the rejection of dependent claim 6, Appellants rely on their arguments asserted for claim 1. App. Br. 9. For the reasons discussed above, Appellants’ arguments fail to apprise us of error in the Examiner’s rejection of claim 1, and thus likewise fail to apprise us of error in the Examiner’s rejection of claim 6. We therefore sustain the rejection of claim 6 as unpatentable over Drieling, Blanchard, and Martin. Appeal 2012-007269 Application 11/211,978 8 DECISION The Examiner’s decision rejecting claims 1 and 3-6 is affirmed. No time period for taking any subsequent action in connection with this appeal may be extended under 37 C.F.R. § 1.136(a). See 37 C.F.R. § 1.136(a)(1)(iv). AFFIRMED hh Copy with citationCopy as parenthetical citation