Ex Parte Wolner et alDownload PDFPatent Trial and Appeal BoardMar 31, 201712400208 (P.T.A.B. Mar. 31, 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. 12/400,208 03/09/2009 J. Thomas Wolner D5121.252.101 3621 25281 7590 DICKE, BILLIG & CZAJA FIFTH STREET TOWERS 100 SOUTH FIFTH STREET, SUITE 2250 MINNEAPOLIS, MN 55402 EXAMINER BRADFORD, CANDACE L ART UNIT PAPER NUMBER 3634 NOTIFICATION DATE DELIVERY MODE 04/04/2017 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.PATENTS @dbclaw.com dmorris@dbclaw.com DBCLAW-Docket@dbclaw.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte J. THOMAS WOLNER, SCOTT C. CASEBOLT, GABRIEL GRANT GAMACHE, and MATTHEW J. BLACKFORD Appeal 2015-004062 Application 12/400,208 Technology Center 3600 Before MICHAEL L. HOELTER, MICHELLE R. OSINSKI, and JEFFREY A. STEPHENS, Administrative Patent Judges. STEPHENS, Administrative Patent Judge. DECISION ON APPEAL STATEMENT OF THE CASE Appellants1 seek our review under 35 U.S.C. § 134(a) from the Examiner’s Final Office Action (“Final Act.”) rejecting claims 1—12 and 17— 19, which are all the claims pending in the application. We have jurisdiction under 35 U.S.C. § 6(b). We reverse. 1 The real party in interest is identified as D B Industries, LLC. App. Br. 3. Appeal 2015-004062 Application 12/400,208 Claimed Subject Matter Claim 1,11, and 17 are independent. Claims 1 and 17, reproduced below, illustrate the claimed subject matter. 1. A safety device with fall arrest and descending modes, comprising: a housing; a drum rotatably operatively connected to the housing; a lifeline having an intermediate portion interconnecting a first end and a second end, the first end being operatively connected to the drum; a first brake assembly operatively connected to the drum, the first brake assembly configured and arranged to fictionally control a pay out of the lifeline based solely on the weight of a user during a decent [sic]; a second brake assembly operatively connected to the drum, the second brake assembly configured and arranged to be used during a fall event; and a control operatively connected to the first and second brake assemblies and having a first position and a second position, the first position selectively engaging the first brake assembly and the second position selectively engaging the second brake assembly. 17. A method of using a safety device having fall arrest and descending modes, the device comprising a housing, a drum rotatably operatively connected to the housing, a lifeline having an intermediate portion interconnecting a first end and a second end, the first end being operatively connected to the drum, a first brake assembly and a second brake assembly operatively connected to the drum, a shaft interconnecting the first and second brake assemblies, and a control operatively connected to the shaft and having a first position and a second position, the first position allowing the shaft to rotate and selectively engaging the first brake assembly in a descending mode, the second position locking the shaft and selectively engaging the second brake assembly in a fall arrest mode, comprising: 2 Appeal 2015-004062 Application 12/400,208 positioning the control in the second position thereby locking the shaft relative to a housing and activating the second brake assembly in the fall arrest mode. Rejections 1. Claims 1—4 and 7 stand rejected under 35 U.S.C. § 102(b) as anticipated by Feathers (US 5,447,280, issued Sept. 5, 1995). Final Act. 2— 3. 2. Claims 5 and 6 stand rejected under 35 U.S.C. § 103(a) as unpatentable over Feathers and Ostrobrod (US 5,343,976, issued Sept. 6, 1994). Final Act. 3—4. 3. Claims 8—10 stand rejected under 35 U.S.C. § 103(a) as unpatentable over Feathers and Tsuda (US 3,946,989, issued Mar. 30, 1976). Final Act. 4—5. 4. Claims 11, 12, and 17—19 stand rejected under 35 U.S.C. § 103(a) as unpatentable over Feathers, Ostrobrod, and Tsuda. Final Act. 5— 6. ANALYSIS Rejection 1: Claims 1—4 and 7 Appellants argue Feathers does not disclose “a control operatively connected to the first and second brake assemblies and having a first position and a second position, the first position selectively engaging the first brake assembly and the second position selectively engaging the second brake assembly,” as recited in claim 1. App. Br. 9. For the reasons that follow, we agree with Appellants that the control identified by the Examiner 3 Appeal 2015-004062 Application 12/400,208 does not “selectively engage[] the first brake assembly” in a first position and “selectively engage[] the second brake assembly” in a second position. We interpret the “selectively engaging” limitations of claim 1 to be mutually exclusive: the second brake assembly (to be used during a fall event) is disengaged when the control is in the first position, and the first brake assembly (to frictionally control a payout when descending) is disengaged when the control is in the second position. As described in Appellants’ Specification, in the descending mode (control in first position), the control knob 148 is not locked relative to the housing, which allows pinion gear 172 to rotate, which allows gear assembly 180 to rotate, and the second brake assembly (to be used during a fall event) cannot operate properly. Spec. 14:5—14. “This allows the first brake assembly to operate.” Spec. 14:12. Conversely, “[i]n the fall arrest mode, the pinion gear 172 does not rotate because the knob 148 is locked relative to the housing 146.” Spec. 14:29-15:1. “[BJecause the pinion gear 172 cannot rotate, the gear assembly 180 cannot rotate, and the second brake assembly can operate properly.” Spec. 15:9—10. The table below summarizes our interpretation of the control positions corresponding to engagement or disengagement of each brake assembly according to claim 1: First position (descending mode) Second position (fall arrest mode) First brake assembly (frictionally controlled descent) Engaged Disengaged Second brake assembly (fall event) Disengaged Engaged 4 Appeal 2015-004062 Application 12/400,208 The Examiner finds Feathers’ winch handle 48 corresponds to the claimed “control.” Final Act. 2. Handle 48 has an “inoperative position which it occupies when the winch mechanism is not required for use.” Feathers col. 6,11. 54—56. The Examiner interprets handle 48’s “inoperative position” as the second position of the control because “[t]he winch mechanism has an associated brake mechanism” (Feathers col. 6,1. 69—col. 7,1. 1) that is disengaged when the winch is inoperative and engages when the winch is operative. Final Act. 2 (citing Feathers col. 6,11. 54—56, col. 6, 1. 69-col. 7,1. 8, col. 7,11. 25—29). Where Feathers falls short, however, is in disclosing that the first position of the control selectively engages the first brake assembly, which is used during a fall event. As Appellants argue, “[t]he cable drum brake mechanism 41, 41a, 43 and 44 in the Feathers reference is independent of the operation of the winch handle 48.” Reply Br. 3. Appellants’ understanding is supported by Feathers, which discloses operation of a cable drum brake during a fall event (col. 5,11. 10-18), and also states that when the winch is operated to lower a person “the stepwise unwinding motion of the drum takes place against the combined resistances of the cable drum brake and the winch brake” (col. 7,11. 36—38). Thus, moving Feathers’ winch handle 48 to the operative position does not disengage the fall arrest brake, which would be necessary for the Examiner’s mapping of claim 1 to fit our interpretation of the “selectively engaging” limitations described above. In view of the foregoing, we do not sustain the rejection of claim 1 under 35 U.S.C. § 102(b) as anticipated by Feathers. We also do not sustain 5 Appeal 2015-004062 Application 12/400,208 the anticipation rejections of claims 2-4 and 7, which depend from claim 1 and were rejected on the same ground.2 Rejections 2 and 3: Claims 5, 6, and 8—10 The Examiner’s rejections of dependent claims 5, 6, and 8—10 rely on the same unsupported finding discussed above, and the Ostrobrod and Tsuda references are not used to remedy the deficiency. Final Act. 3—A. Thus, we do not sustain the rejections under § 103(a) of claims 5, 6, and 8—10. Rejection 4: Claims 11, 12, and 17—19 Independent claim 11 recites a control with a first position and a second position, the first position “selectively engaging the first brake assembly in a descending mode,” and the second position “selectively engaging the second brake assembly in a fall arrest mode,” similar to claim 1 except with additional limitations. Independent claim 17 is a method claim, but its preamble similarly recites a control with a first position and a second position that “selectively engage[]” the first and second brake assemblies as recited in claim 11. Appellants argue the rejection of these claims is in error for similar reasons relating to claim 1 discussed above. App. Br. 13—15; Reply Br. 4. For the same reasons as claim 1, we do not sustain the rejection of claims 11 and 17 or dependent claims 12, 18, and 19 under § 103(a). DECISION We reverse the Examiner’s decision to reject claims 1—12 and 17—19. REVERSED 2 Because this issue is dispositive as to claim 1 and its dependents, we need not reach additional issues raised by Appellants’ arguments as to claims 1 and 7. 6 Copy with citationCopy as parenthetical citation