2020006292 (P.T.A.B. Jul. 28, 2021)

Elliott Beaber

Patent Trials and Appeals BoardJul 28, 2021

2020006292 (P.T.A.B. Jul. 28, 2021)

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. 16/526,459 07/30/2019 Elliott Hartman Albrecht Beaber 009098.00002\US 2894 22907 7590 07/28/2021 BANNER & WITCOFF, LTD. 1100 13th STREET, N.W. SUITE 1200 WASHINGTON, DC 20005-4051 EXAMINER LACHICA, ERICSON M ART UNIT PAPER NUMBER 1792 NOTIFICATION DATE DELIVERY MODE 07/28/2021 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): GPD@bannerwitcoff.com eofficeaction@bannerwitcoff.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte ELLIOTT HARTMAN ALBRECHT BEABER Appeal 2020-006292 Application 16/526,459 Technology Center 1700 BeforeKAREN M. HASTINGS, MICHAEL P. COLAIANNI, and JENNIFER R. GUPTA, Administrative Patent Judges. GUPTA, Administrative Patent Judge. DECISION ON APPEAL1 Pursuant to 35 U.S.C. § 134(a), Appellant2 appeals from the Examiner’s decision to reject claims 1, 3, 6, and 9–23. We have jurisdiction under 35 U.S.C. § 6(b). A telephonic hearing was held on July 19, 2021.3 1 In this Decision, we refer to the Specification filed July 30, 2019 (“Spec.”); the Final Office Action dated January 24, 2020 (“Final Act.”); the Appeal Brief filed June 17, 2020 (“Appeal Br.”); the Examiner’s Answer dated July 9, 2020 (“Ans.”). 2 “Appellant” refers to “applicant” as defined in 37 C.F.R. § 1.42(a). Appellant identifies the real party in interest as Elliott Hartman Albrecht Beaber and Jamie B. Beaber Appeal Br. 3. 3 The record will include a transcript of the hearing when it becomes available. Appeal 2020-006292 Application 16/526,459 2 We AFFIRM. CLAIMED SUBJECT MATTER The claims are directed to a wearable candy device. Independent claim 1, reproduced below with emphasis to highlight a key disputed limitation, illustrates the claimed subject matter: 1. A wearable candy device comprising: an accessory article configured to be worn on a body of a user; a support platform attached to the accessory article; a first protrusion located on a top portion of the support platform and centrally located on the top portion of the support platform, wherein the first protrusion supports a confectionery product mounted thereon and comprises a primary building toy attachment point located at a top end of the first protrusion and within the confectionery product; and one or more auxiliary building toy attachment points located on the top portion of the support platform and located circumferentially on the top portion of the support platform, wherein each building toy attachment point, of the primary building toy attachment point and the one or more auxiliary building toy attachment points, comprises one or more protruding studs having a shape adapted to frictionally engage with a recessed receptacle of a building toy. Appeal Br. 18 (Claims App.) (emphasis added). REJECTIONS The Examiner maintains the following rejections on appeal (Ans. 3; Final Act. 3–26): Appeal 2020-006292 Application 16/526,459 3 I. Claims 1, 3, 6, 11–13, and 15–22 are rejected under 35 U.S.C. § 103 over LEGO Valentines 2014,4 Gillmour-Bryant,5 Minifigure6, and Shadduck;7 II. Claims 9 and 10 are rejected under 35 U.S.C. § 103 over LEGO Valentines 2014, Gillmour-Bryant, Minifigure, Shadduck, LEGO FACTS,8 How Do I Center a 2x2 Plate on a 3x3 Plate,9 and DIY Giant Ring Pop;10 III. Claims 14 and 23 are rejected under 35 U.S.C. § 103 over LEGO Valentines 2014, Gillmour-Bryant, Minifigure, Shadduck, and Acheson.11 DISCUSSION Appellant argues the claims as a group, including separately rejected claims 9, 10, 14, and 23. See Appeal Br. 10–16. We select claim 1 as 4 Rachel Le Grand, LEGO Valentines 2014, NEST FULL OF EGGS BLOG (Jan. 15, 2014), https://nestfullofeggs.blogspot.com/2014/01/lego-valentines- 2014.html (“LEGO Valentines 2014”). 5 Gillmour-Bryant et al., US 2005/0153621 A1, published July 14, 2005. 6 Bricklink Catalog, Minifigure, Utensil Bottle, https://www.bricklink.com/v2/catalog/catalogitem.page?P=95228#T=C (April 17, 2011) (“Minifigure”). 7 Shadduck, US 2015/0310785 A1, published Oct. 29, 2015. 8 LEGO FACTS (Aug. 17, 2011), https://www.nationalgeographic.com.au/history/lego-facts.aspx. 9 How Do I Center a 2x2 Plate on a 3x3 Plate?, BRICKS (April 17, 2017), https://bricks.stackexchange.com/questions/8815/how-do-i-center-a-2x2- plate-on-a-3x3-plate. 10 DIY Giant Ring Pop, HEALTHYJUNKFOOD.COM (May 27, 2018), https://www.hellthyjunkfood.com/ring-pop. 11 Shannon Acheson, Homemade Jolly Rancher Ice Ring Pops, HOME MADE LOVELY (April 14, 2018), https://homemadelovely.com/homemade-jolly- rancher-ice-ring-pops. Appeal 2020-006292 Application 16/526,459 4 representative for disposition of this appeal. All claims stand or fall with claim 1. 37 C.F.R. § 41.37(c)(1)(iv) (2019). In rejecting claim 1, the Examiner finds that LEGO Valentines 2014 teaches a ring (corresponding to claim 1’s “wearable device comprising an accessory article”) capable of being worn on a body of a user with a LEGO piece (corresponding to claim 1’s “support platform”) attached to the ring. Final Act. 4 (citing LEGO Valentines 2014, 1). The Examiner finds that LEGO Valentines 2014 also teaches claim 1’s “first protrusion” and “one or more auxiliary building toy attachment point” limitations, but is silent regarding “the first protrusion supporting a confectionary product mounted thereon” and the “primary building toy attachment point located . . . within the confectionary product.” Id. at 4 (citing LEGO Valentines 2014, 1–2). The Examiner finds that Gillmour-Bryant discloses a ring toy (10) capable of being worn on a body of a user that includes a support platform (16) with a first protrusion (26) located on a top portion of the support platform, where the first protrusion (26) supports a consumable (12) (corresponding to claim 1’s “confectionary product”) and includes a “primary building toy attachment point” located at the top end of the first protrusion (26) and within the confectionary product (12). Final Act 5 (citing Gillmour-Bryant ¶¶ 12–14, Fig. 3). Based on Gillmour-Bryant’s teachings, the Examiner determines that it would have been obvious to include a confectionary product on LEGO Valentine 2014’s toy ring so that the primary building toy attachment point on the first protrusion is located within the confectionary product. Final Act. 6–7. Appeal 2020-006292 Application 16/526,459 5 Appellant argues that Gillmour-Bryant “fails to provide sufficient motivation for a skilled artisan to make the inventive leap of combining a confectionary product with LEGO Valentine’s handmade rings.” Appeal Br. 14. More specifically, Appellant argues that LEGO Valentines 2014 and Gillmour-Bryant do not suggest that LEGO Valentine 2014’s LEGO pieces are suitable for supporting a consumable, e.g., candy, described in Gillmour- Bryant. Id. Nor would one of ordinary skill in the art have considered it obvious, based on Gillmour-Bryant’s teachings, to put candy on LEGO Valentine 2014’s LEGO pieces. See id. Appellant argues that impermissible hindsight is the only evidence to arrive at the claimed combination. Id. at 11. Appellant’s arguments do not persuade us of reversible error in the rejection. A combination of familiar elements according to known methods is likely to be obvious when it does no more than yield predictable results. KSR Int’l Co. v. Teleflex Inc., 550 U. S. 298, 414 (2007). As explained in KSR: If a person of ordinary skill can implement a predictable variation, § 103 likely bars its patentability. For the same reason, if a technique has been used to improve one device, and a person of ordinary skill in the art would recognize that it would improve similar devices in the same way, using the technique is obvious unless its actual application is beyond his or her skill. KSR, 550 U.S. at 417. LEGO Valentines 2014 and Gillmour-Bryant teach rings that include a platform that supports a toy. LEGO Valentines 2014, 2; Gillmour-Bryant ¶ 16, Fig. 3. Gillmour-Bryant also teaches that it was known in the art to put candy on a primary building toy attachment point disposed on a toy ring. Gillmour-Bryant ¶¶ 13, 16. Thus, modifying LEGO Valentine 2014 with the Appeal 2020-006292 Application 16/526,459 6 teaching of Gillmour-Bryant would have been no more than the predictable use of a known ingredient, e.g., candy, for its established function to achieve a predictable result. Accordingly, we are not persuaded that the Examiner erred in determining that it would have been obvious to include a confectionary product such as candy on LEGO Valentine 2014’s LEGO ring. On this record, Appellant has not directed us to sufficient evidence that putting candy on LEGO Valentines 2014’s LEGO ring would have been “uniquely challenging or difficult for one of ordinary skill in the art.” Leapfrog Enters., Inc. v. Fisher-Price, Inc., 485 F.3d 1157, 1161 (Fed. Cir. 2007) (citing KSR, 550 U.S. at 416). Because the preponderance of the evidence weighs most heavily in favor of obviousness, we sustain the rejections of claims 1, 3, 6, and 9–23. CONCLUSION The Examiner’s rejections are affirmed. DECISION SUMMARY In summary: Claim(s) Rejected 35 U.S.C. § Reference(s)/Basis Affirmed Reversed 1, 3, 6, 11– 13, 15–22 103(a) LEGO Valentines 2014, Gillmour- Bryant, Minifigure, Shadduck 1, 3, 6, 11– 13, 15–22 9, 10 103(a) LEGO Valentines 2014, Gillmour- Bryant, Minifigure, Shadduck, LEGO FACTS, How Do I Center a 2x2 Plate on a 3x3 Plate, 9, 10 Appeal 2020-006292 Application 16/526,459 7 DIY Giant Ring Pop 14, 23 103(a) LEGO Valentines 2014, Gillmour- Bryant, Minifigure, Shadduck, Acheson 14, 23 Overall Outcome 1, 3, 6, 9–23 TIME PERIOD FOR RESPONSE 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