Mary Braun. Leibold

Patent Trials and Appeals Board

Jun 9, 2020

13092426 - (D) (P.T.A.B. Jun. 9, 2020)

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.
13/092,426 04/22/2011 Mary Braun Leibold MABLP0101USA 6535
7590 06/09/2020
Jonathan A. Platt
Renner, Otto, Boisselle & Sklar, LLP
19th Floor
1621 Euclid Ave.
Cleveland, OH 44115
EXAMINER
HICKS, VICTORIA J
ART UNIT PAPER NUMBER
3786
MAIL DATE DELIVERY MODE
06/09/2020 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 MARY BRAUN LEIBOLD
Appeal 2019-002576
Application 13/092,426
Technology Center 3700

Before MICHAEL L. HOELTER, BRETT C. MARTIN, and
LEE L. STEPINA, Administrative Patent Judges.

MARTIN, Administrative Patent Judge.

DECISION ON APPEAL
STATEMENT OF THE CASE
Pursuant to 35 U.S.C. § 134(a), Appellant1 appeals from the
Examiner’s decision to reject claims 1–4, 9, 10, 12, 14–20, and 24–27.
Claims 5–8 were withdrawn and claims 11, 13, and 21–23 were canceled
during prosecution. Appeal Br. 50–53. We have jurisdiction under
35 U.S.C. § 6(b).
We REVERSE.

1 We use the word Appellant to refer to “applicant” as defined in 37 C.F.R.
§ 1.42. Appellant identifies the real party in interest as Mary Braun Leibold.
Appeal Br. 2.
Appeal 2019-002576
Application 13/092,426
2
CLAIMED SUBJECT MATTER
The claims are directed “to a support for the ligaments and tendons of
a joint.” Spec. ¶ 2. Claim 1, reproduced below, is illustrative of the claimed
subject matter:
1. An animal joint support for a horse's leg, comprising:
an elastic sleeve including:
a top end around a top opening; a bottom end around a
bottom opening; and
a central portion connecting the top end and the bottom
end;
wherein the bottom end includes a reduced elastic strength
region around the bottom opening, the reduced elastic strength
region having a lower elastic strength than the central portion;
wherein the central portion has a constant diameter; and
wherein the central portion has a length that is at least 75%
of an overall length of the elastic sleeve.
REFERENCES
The prior art relied upon by the Examiner is:
Name Reference Date
Bulley
Cropper
Witzel
US 4,926,851
US 5,735,807
US 5,769,809
May 22, 1990
Apr. 7, 1998
June 23, 1998
Schlomski
Petterson
US 2010/0106070 A1
US 2010/0154366 A1
Apr. 29, 2010
June 24, 2010

REJECTIONS
Claims 1, 2, 9, 12, 14, 15, 19, and 24–26 stand rejected under 35
U.S.C. § 103(a) as being unpatentable over Petterson and Witzel. Ans. 3.
Claims 3, 4, 10, and 20 stand rejected under 35 U.S.C. § 103(a) as
being unpatentable over Petterson, Witzel, and Schlomski. Ans. 10.
Claims 16–18 stand rejected under 35 U.S.C. § 103(a) as being
unpatentable over Petterson, Witzel, and Bulley. Ans. 15.
Appeal 2019-002576
Application 13/092,426
3
Claim 27 stands rejected under 35 U.S.C. § 103(a) as being
unpatentable over Petterson, Witzel, and Cropper. Ans. 18.

OPINION
Obviousness
All of the Examiner’s rejections rely on the combination of Petterson
and Witzel, either alone or in combination with other references. According
to the Examiner, Petterson teaches all of the elements of claim 1 except for
“wherein the bottom end includes a reduced elastic strength region around
the bottom opening, the reduced elastic strength region having a lower
elastic strength than the central portion.” Ans. 3. The Examiner then relies
on Witzel for teaching this feature. Ans. 4.
Appellant argues, inter alia, that Petterson teaches a lower cuff 18 that
expands to pass over the horse’s hoof, but then contracts again to tightly fit
pastern 42 so as to prevent main body 16 from slipping over walls 38, toe
36, and heel 40. Reply Br. 7 (citing Petterson ¶¶ 10 and 25–27). Appellant
further argues that the Examiner’s combination would “have an impact on
the ability of the central portion of Petterson to bunch together since the
lower cuff 18, by being less elastic than the loosely fit central portion 16,
would no longer be able to hold the sock 10 in place or prevent the bunched
together main body 16 portion from slipping downward.” Id. We agree
with Appellant that the Examiner’s modification would, thus, render
Petterson’s horse sock inoperative for its intended purpose. Petterson’s
central portion already has little to zero compression as it is meant to bunch
loosely around the leg, and a less elastic lower cuff (as recited) would result
in a sock that drapes down over the entire leg and hoof such that it would no
longer sit properly on the horse’s leg. Because all of the rejections rely on
Appeal 2019-002576
Application 13/092,426
4
this improper combination, we do not sustain any of the Examiner’s
obviousness rejections.
We further note that the Examiner’s handling of the Leibold
Declaration is in error. The Examiner merely makes a conclusory statement
that the Declaration fails to provide evidence that the combination is not
reasonable without providing any analysis of the contents thereof. Ans. 24.
The Declaration itself is the evidence and we agree with Appellant that
“[t]he Examiner has not explained why this evidence is insufficient.” Reply
Br. 8.
CONCLUSION
The Examiner’s rejections are REVERSED.
More specifically,
DECISION SUMMARY
Claims
Rejected
35 U.S.C. § Reference(s)/Basis Affirmed Reversed
1, 2, 9, 12,
14, 15, 19,
24–26
103 Petterson, Witzel 1, 2, 9, 12,
14, 15, 19,
24–26
3, 4, 10, 20 103 Petterson, Witzel,
Schlomski
3, 4, 10,
20
16–18 103 Petterson, Witzel, Bulley 16–18
27 103 Petterson, Witzel,
Cropper
27
Overall
Outcome
1–4, 9, 10,
12, 14–20,
24–27

REVERSED