Ex Parte Carcamo et al

Patent Trial and Appeal Board

Oct 31, 2017

12122476 (P.T.A.B. Oct. 31, 2017)

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.
12/122,476 05/16/2008 Joseph Carcamo KIGEM.78678 8919
24201 7590 11/02/2017
FULWIDER PATTON LLP
HOWARD HUGHES CENTER
6100 CENTER DRIVE, SUITE 1200
LOS ANGELES, CA 90045
EXAMINER
NEW AY, BLAINE GIRMA
ART UNIT PAPER NUMBER
3788
NOTIFICATION DATE DELIVERY MODE
11/02/2017 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):
docketla @ fulpat. com
eOfficeAction @ fulpat. com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte JOSEPH CARCAMO and MICHAEL W. KIGER
Appeal 2016-001590
Application 12/122,476
Technology Center 3700
Before JENNIFER D. BAHR, STEVEN D.A. McCARTHY, and
MICHAEL L. HOELTER, Administrative Patent Judges.
McCARTHY, Administrative Patent Judge.
DECISION ON APPEAL
1 STATEMENT OF THE CASE
2 The Appellants1 appeal under 35 U.S.C. § 134(a) from the Examiner’s
3 decision finally rejecting claims 23—29. We have jurisdiction under 35
4 U.S.C. § 6(b).
5 We AFFIRM the rejection of claims 23, 24 and 26—29 under pre-AIA
6 35 U.S.C. § 103(a) as being unpatentable over Lu (US 2006/0016842 Al,
7 publ. Jan. 26, 2006), Murchie (GB 2 389 096 B, issued May 5, 2004) and
8 Frey (US 4,801,213, issued Jan. 31, 1989). (See Final Office Action, mailed
i The Appellants identify themselves as the real parties in interest.
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April 23, 2015 (“Final Act.”), at 3—9). We REVERSE the rejection of claim
25 under § 103(a) as unpatentable over those references.
THE CLAIMED SUBJECT MATTER
The claims are directed to “surfboard covers for protecting surfaces
such as are found on the top, bottom and side rail sections of a surfboard.”
(Spec., para. 1). Claims 23 and 26 are independent. Claim 23 recites:
23. A combination inflatable protective surfboard cover
device comprising:
a surfboard having top and bottom surfaces and curved
lateral opposite rails;
top and bottom cover bodies for covering the top and
bottom surfaces of the surfboard and configured to complement
the shape of the surfboard, the bodies being flexibly connected
together along a first lateral side and formed with respective free
second lateral sides so the top and bottom cover bodies may be
shifted to a closed position with the bodies disposed on the
respective top and bottom surfaces of the surfboard;
the top and bottom cover bodies constructed of respective
sets of elongated inflatable body tubes with adjacent tubes
abutted against one another along their lengths and affixed to one
another to be, when inflated, self-supporting and cause the
bottom body to form a bed for the surfboard and to, when the
bodies are disposed in the closed positions on the surfboard, be
disposed in protective positions against the top and bottom
surfaces;
at least one of the bodies including an inflatable rail tube
device configured to be, when inflated and the bodies [are] in the
closed position, disposed in a protective relationship against at
least the laterally opposite rails of the surfboard;
a fastener to hold the bodies in the closed position with the
rail tube abutted against the respective rails.
(“Appeal Brief,” dated July 16, 2015 (“App. Br.”), at 19).
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Application 12/122,476
ISSUE
The Appellants argue claims 23—29 separately. We will take up each
claim in turn, addressing in each case whether the subject matter would have
been obvious from the combined teachings of Lu, Murchie and Frey.
FINDINGS OF FACT
The record supports the following findings of fact (“FF”) by a
preponderance of the evidence.
Lu
1. Fu describes a protective shoulder bag A for a surfboard B.
(See Fu, para. 19). Figures 1 and 2 depict the surfboard B partially enclosed
in the bag A. (See Fu, paras. 15 & 16).
2. The surfboard B, as depicted in Figure 2 of Fu, is generally
lenticular in cross section so as to define top and bottom surfaces separated
by curved lateral opposite rails (that is, lateral side portions of relatively
small radii of curvature).
3. The protective shoulder bag A includes a middle bag 10 and
two sub-triangular end bags 20. (See Fu, para. 19 & Fig. 3). Fu teaches that
the tri-sectional construction makes it easier to pack the surfboard B into the
protective shoulder bag A or to remove the surfboard from the bag. (See Fu,
para. 26).
4. Fu describes at least the middle bag 10 as having a “clam-like
structure” (see Fu, para. 21 & Fig. 2), indicating that the middle bag defines
“top and bottom cover bodies for covering the top and bottom surfaces of the
surfboard . . ., the bodies being flexibly connected together along a first
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lateral side and formed with respective free second lateral sides,” as recited
in claim 23. Lu further teaches the use of hook-and-loop material to bind
together edges of the top and bottom bodies (see id.), “so the top and bottom
cover bodies may be shifted to a closed position with the bodies disposed on
the respective top and bottom surfaces of the surfboard,” as recited in claim
23. The hook-and-loop material serves as “a fastener to hold the bodies in
the closed position with the rail tube abutted against the respective rails.”
5. The cover bodies of Lu’s middle bag 10 are fabricated from a
light film material. (See Lu, para. 20). Lu teaches adding air-inflated ribs
103 to the middle bag 10 for “a protective effect for the surfboard B, even if
stacked among luggage.” (Lu, para. 25; see also id., paras. 19 & 20). As
depicted in Figure 3, the air-inflated ribs are positioned on the exterior
surface of Lu’s middle bag 10.
6. The air-inflated ribs 103, as depicted in Figure 2 of Lu, include
an air-inflated rib disposed in a protective relationship against at least one
rail of the surfboard B. The two sub-triangular end bags 20, as depicted in
Figure 3, include air-inflated ribs 203 disposed in a protective relationship
against both laterally opposite rails of the surfboard B.
Murchie
7. Murchie describes an inflatable protective surfboard cover
device for covering a surfboard. More specifically, Murchie discloses an
envelope 100 that includes upper and lower leaves 101,102 that are joined
along the majority of one long edge so that the envelope opens out in the
manner of a book. (See Murchie 3,11. 4—7 & Fig. 2).
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8. Murchie’s device covers and protects an entire surfboard and
not simply a middle portion, as does Lu’s middle bag. The device thereby
provides, in the words of claim 23:
top and bottom cover bodies for covering the top and bottom
surfaces of the surfboard and configured to complement the
shape of the surfboard, the bodies being flexibly connected
together along a first lateral side and formed with respective free
second lateral sides so the top and bottom cover bodies may be
shifted to a closed position with the bodies disposed on the
respective top and bottom surfaces of the surfboard.
Frey
9. Frey describes an inflatable insert 10 for a suitcase 20 for
cushioning and protecting articles in the case against breakage. The insert
10 includes an inflatable wall portion 12, an inflatable top flap portion 14
and an inflatable bottom flap portion 16. (See Frey, col. 3,11. 20-31 & Fig.
1).
10. The inflatable wall portion 12 of Frey’s insert 10 includes front,
rear and end portions 42, 44, 46, 48 capable of encompassing the interior of
the suitcase 20. (See Frey, col. 3,11. 57—62). Figure 1 depicts each of the
portions 42, 44, 46, 48 as substantially planar. Each of the portions 42, 44,
46, 48 includes “a plurality of inflatable segments 52 which are separated by
seams 54 for preventing the wall portion 12 from bulging excessively
inwardly into the interior of the suitcase 20 when [the insert 10] is inflated.”
(See Frey, col. 4,11. 6—14). The inflatable segments 52, as depicted in
Figures 1 and 4, are elongated and abut adjacent segments along their
lengths.
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ANALYSIS
Independent Claims 23 and 26; and Dependent Claim 29
Claim Construction
Claims undergoing examination are given their broadest reasonable
interpretation consistent with the specification. See In re Morris, 111 F.3d
1048, 1054 (Fed. Cir. 1977). That is, “claim language should be read in
light of the specification as it would be interpreted by one of ordinary skill in
the art.” In re Bond, 910 F.2d 831, 833 (Fed. Cir. 1990) (internal quotations
and citation omitted). Nevertheless, features described in the specification
are not to be imported into the claims unless the claims themselves recite
those limitations; or unless the specification itself makes clear that the
claimed subject matter is limited to those features. See In re American Acad.
ofSci. Tech Ctr., 367 F.3d 1359, 1369 (Fed. Cir. 2004). When interpreting
claims, the Patent and Trademark Office “look[s] to the specification to see
if it provides a definition for claim terms, but otherwise apply a broad
interpretation.” In re ICON Health & Fitness, Inc., 496 F.3d 1374, 1379
(Fed. Cir. 2007). Stated differently, “[ajbsent an express definition in their
specification, the fact that appellants can point to definitions or usages that
conform to their interpretation does not make the PTO’s definition
unreasonable when the PTO can point to other sources that support its
interpretation.” Morris, 127 F.3d at 1056.
The Appellants challenge the Examiner’s interpretation of the term
“top and bottom cover bodies” as used in claim 23. (See App. Br. 11;
“Reply Brief,” dated November 23, 2015 (“Reply Br.”), at 2 & 3). The
Appellants do not appear to point out where the term “cover body” or “cover
bodies” appears in the Specification. Instead, in the “Summary of the
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Invention,” the Specification discloses the invention as including “[a] pair
of elongated top and bottom sections formed by a plurality of coextensive
inflatable tubes, the sections being connected together along one side to
form a hinge for opening the opposite sides along the longitudinal length of
the cover.” (Spec., para. 12). A comparison between this passage and the
corresponding limitation of independent claim 23 indicates that the
Specification used the word “sections” as a substitute or synonym for “cover
bodies.” This usage is carried forward consistently through the
Specification. (See, e.g., Spec., paras. 15, 18, 27, 35, 42 & 45). The word
“sections” defines the structure in terms of its relationship to the inflatable
protective surfboard cover device as a whole, and not in terms of material
durability or capacity to protect a surfboard contained in the device.
Nevertheless, the Appellants seek to define the term “cover bodies” in
terms of properties or characteristics of the materials making up the sections.
(See App. Br. 11). As support for this narrow interpretation, the Appellants
cite paragraphs 30 and 31 of the Specification. (See App. Br. 9 & 10; Reply
Br. 8). Neither paragraph 30 nor paragraph 31 refers to “cover bodies.”
Therefore, an objective reader would not have reason to believe that the
Appellants intend the use of the term “cover bodies” to invoke those
paragraphs as claim limitations. Furthermore, paragraph 30 of the
Specification opens with the phrase, “[i]n one preferred embodiment.”
These words would indicate to an objective reader that the Appellants do not
intend the disclosure of paragraphs 30 and 31 to limit the scope of their
claims. Hence, the term “cover bodies” is properly defined in terms of its
relationship to the inflatable protective surfboard device as a whole rather
than in terms of material characteristics or properties. (See Ans. 3).
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We adopt the Appellants’ proposed interpretation of the limitation, “at
least one of the bodies including an inflatable rail tube device configured to
be, when inflated and the bodies [are] in the closed position, disposed in a
protective relationship against at least the laterally opposite rails of the
surfboard,” as limited to “one or more inflatable tubes, positioned relative to
the bodies[, so that] the body tubes and the one or more inflatable tubes[,
when] inflated[, are] positioned against at least the laterally opposite edges
of the surfboard.” (See App. Br. 11).
Level of Ordinary Skill in the Art
The Appellants argue that the Examiner has not made adequate
findings regarding the level of ordinary skill in the art. (See App. Br. 11
& 12; Reply Br. 9). An Examiner need not make explicit findings regarding
the level of ordinary skill in the art if the prior art reflects an appropriate
level of skill; and if the Appellants do not present evidence or persuasive
argument contrary to that level. See Okajima v. Bourdeau, 261 F.3d 1350,
1355 (Fed. Cir. 2001). In the present case, Lu and Murchie, the two
references of record that expressly disclose protective containers for
surfboards, indicate that one of ordinary skill in the art had facility with the
design of carriers. In particular, the prior art indicates that one of ordinary
skill in the art had sufficient familiarity with fabric and polymeric materials
for use in the fabrication of durable carriers that the authors did not see a
need to provide measures of the durability or flexibility of preferred
materials. Furthermore, we find by a preponderance of the evidence, based
on a comparison of the disclosures, that the level of skill in the art indicated
by the teachings of Fu, Murchie and Frey was sufficient to produce abutting,
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elongated inflatable tubes of Frey’s insert 10 having configurations similar
to Frey’s elongate tubes.
Obviousness
Our decision sustaining the rejections of claims 23, 24 and 26—29 does
not rely on the holding of either Howard v. Detroit Stove Works, 150 U.S.
164 (1893), or St. Regis Paper Co. v. Bemis Co., 549 F.2d 833 (7th Cir.
1977). {See App. Br. 13, 15 & 16).
Lu describes a protective shoulder bag A for a surfboard B. The
Examiner correctly finds that a middle bag 10 of the should bag A satisfies
each limitation of independent claim 23 except that the top and bottom cover
bodies cover the entire top and bottom surfaces of the surfboard; and that:
the top and bottom cover bodies [are] constructed of respective
sets of elongated inflatable body tubes with adjacent tubes
abutted against one another along their lengths and affixed to one
another to be, when inflated, self-supporting and cause the
bottom body to form a bed for the surfboard and to, when the
bodies are disposed in the closed positions on the surfboard, be
disposed in protective positions against the top and bottom
surfaces.
{See Final Act. 3 & 4; FF 1—6).
Murchie teaches covering an entire surfboard by means of a protective
surfboard cover device including upper and lower leaves 101,102 joined
along the majority of one long edge so as to open out in the manner of a
book. {See FF 7 & 8). Lu teaches that the division of its protective shoulder
bag A into a middle bag 10 and two sub-triangular end bags 20 made it
easier to pack or unpack the surfboard B. {See FF 3). Despite this teaching,
one familiar with the combined teachings of Lu and Murchie would have
had reason to combine Lu’s middle bag 10 and two sub-triangular end bags
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20 into a single bag including upper and lower leaves 101,102 joined along
the majority of one long edge, to yield the “predictable result of easily
accessing the content and stor[age of] the cover as a one piece [bag] to
prevent loss of pieces.” (Final Act. 4). The resulting bag would have
covered the entire top and bottom surfaces of a surfboard.
Lu teaches the use of inflatable ribs 103 to protect portions of a
surfboard B contained in a bag A from damage while the board is being
carried; or else while the bag is stored among other luggage during a trip.
(See FF 5). Frey teaches the use of an insert 10 formed from wall portions
42, 44, 46, 48 made up of elongated, abutting inflatable tubes 52 to cushion
and protect articles carried in a suitcase 20. (See FF 9 & 10). One familiar
with the combined teachings of Lu, Murchie and Frey would have had
reason to fabricate the leaves or wall portions of a protective shoulder bag as
taught by Lu and Murchie so as to construct the leaves or wall portions “of
respective sets of elongated inflatable body tubes with adjacent tubes abutted
against one another along their lengths and affixed to one another,” as
recited in claim 23. Such a modification, performed for “the predictable
result of providing better cushioning and protection^] and for preventing the
[tubes] from bulging excessively when they are inflated” (Final Act. 4; Ans.
2; see also FF 10), would have met all of the limitations of claims 23 and 26.
The Appellants argue in connection with claim 23 that one of ordinary
skill in the art would not have had reason to substitute hinged cover bodies
formed from abutting, elongated inflatable tubes as taught by Frey for the
sides of the middle bag 10 as described by Lu because Frey’s insert 10 is
designed to be received in a suitcase rather than to be exposed during use.
(See, e.g., App. Br. 12; Reply Br. 4). We agree with the Examiner that claim
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23 is not limited to inflatable protective surfboard cover devices including
elongated inflatable body tubes having any particular material characteristics
or properties such as resistance to ripping or puncture. Furthermore, the
Examiner has articulated a persuasive reason for combining the teachings of
Lu, Murchie and Frey. Even were we to have construed the term “cover
bodies” as limited to bodies resistant to ripping or puncture, Lu teaches
providing air-inflatable ribs on the exterior of a protective shoulder bag in
order to protect an encompassed surfboard from damage while the board is
being carried or while it is stored with other luggage. (See FF 5). Lu’s
description of these air-inflatable ribs without specifying a preferred material
for fabricating the ribs indicates that one capable of reading Lu with
understanding could have selected a material sufficiently capable of
withstanding ripping or puncture.
The Appellants make a related argument concerning dependent claim
29. Claim 29 recites the “combination of the inflatable protective surfboard
cover device of claim 26 wherein: the bed consists only of body tubes.”
The Appellants argue that “Frey, in fact, teaches a liner but, absent
[Appellants’] disclosure, there is no teaching of how that liner would be
reconstructed and configured to act as durable cover bodies constructed only
of adjacent tubes.” (App. Br. 16). Frey describes an insert 10 having
substantially planar front, rear, and end portions 42, 44, 46, 48 consisting
entirely of abutting, elongated inflatable tubes. (See FF 10). Frey’s
disclosure would have provided one familiar with the teachings of Lu,
Murchie and Frey sufficient guidance to substitute a bed consisting of
abutting, elongated inflatable tubes for the two sides of Lu’s middle bag 10,
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as extended in view of the teachings of Murchie’s top to cover the entire
surfboard.
Furthermore, one familiar with the teachings of Lu, Murchie and Frey
would have had reason to modify Lu’s middle bag 10 such that “at least one
of the bodies include [ed] an inflatable rail tube device configured to be,
when inflated and the bodies [were] in the closed position, disposed in a
protective relationship against at least the laterally opposite rails of the
surfboard,” as recited in claim 23. Figure 2 of Lu depicts the middle bag 10
as including an air-inflated rib 103 disposed in a protective relationship
against at least one rail of the surfboard B. Figure 3 of Lu depicts the two
sub-triangular end bags 20 as including air-inflated ribs 203 disposed in a
protective relationship against both laterally opposite rails of the surfboard
B. (See FF 6). These teachings would have provided one familiar with the
disclosures of Lu, Murchie and Frey reason, when extending Lu’s middle
bag to cover the entire surfboard in accordance with the teachings of
Murchie, to provide similar air-inflatable ribs positioned against the laterally
opposite edges of the surfboard.
We conclude that one familiar with the teachings of Lu, Murchie and
Frey would have had both sufficient skill and sufficient guidance from the
teachings of the references to have combined those teachings as recited in
claim 23. We also reject the similar arguments presented by the Appellants
in connection with claim 26. (See App. Br. 15 & 16; Reply Br. 12 & 13).
We sustain the rejection of claims 23, 26 and 29 under § 103(a) as being
unpatentable over Lu, Murchie and Frey.
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Dependent Claim 24
Claim 24 recites, in part:
24. The inflatable protective surfboard cover device of
claim 23 wherein:
the body tubes of at least one of the bodies terminating in
respective forward ends defining the body tubes as progressively
longer starting from the opposite lateral sides inwardly toward
the longitudinal center and cooperating to from2 respective
outlines curving inwardly and forwardly from opposite lateral
sides toward one another in predetermined curves ....
The Examiner concludes that this limitation would have been obvious
“because the shape of the device of Lu is the same as the shape of the device
of the invention.” (See Final Act. 5).
The Appellants argue that the shape of the device of Lu is not the
same as the shape of the claimed device. (Reply Br. 12). The weakness in
the Appellants’ argument is that it fails to take into account the combined
teachings of Lu and Murchie, and what guidance the teachings of Murchie
would have provided one of ordinary skill in the art. As noted earlier,
Murchie would have suggested combining Lu’s middle bag 10 and two sub-
triangular end bags 20 into a single bag including upper and lower leaves
101,102 joined along the majority of one long edge, to yield the
“predictable result of easily accessing the content and stor[age of] the cover
as a one piece [bag] to prevent loss of pieces.” (Final Act. 4). When
combined, Lu’s middle bag 10 and two sub-triangular end bags 20, as
depicted in Figure 3, conform to the curved shape of the outline of a
2 It appears that the word “form” is intended here. In the event that
prosecution of this application is renewed, the Appellants may wish to
correct this apparent typographical error.
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surfboard. Likewise, Murchie’s bag 100 as depicted in Figure 1 conforms to
the outline of a surfboard to be carried in the bag. One familiar with the
teachings of Lu and Murchie, having determined to combining Lu’s middle
bag 10 and two sub-triangular end bags 20 into a single bag, would have had
reason to conform the bag to the shape of the surfboard. As a consequence,
the shape of the bag yielded had one of ordinary skill in the art followed the
combined teachings of Lu and Murchie would have been that of the device
taught in the Appellants’ Specification and recited in claim 24.
Figures 1 and 3 of Lu depict bags having inflatable ribs 103,203
extending from inflatable ribs surrounding the rails of the surfboard. Aware
of that construction, one familiar with the teachings of Lu, Murchie and
Frey, seeking to substitute hinged cover bodies formed from abutting,
elongated inflatable tubes as taught by Frey, would have had reason to
configure the body tubes as recited in claim 24 in order to conform to the
outline of the surfboard rails. We sustain the rejection of claim 24 under
§ 103(a) as being unpatentable over Lu, Murchie and Frey.
Dependent Claim 25
The Appellants correctly point out that the Examiner’s explanation in
the Final Office Action as to why claim 25 would have been obvious is
conclusory. (See App. Br. 15). The explanation provided merely repeats the
language of claim 25 and fails to cite any evidence, or provide any technical
argument, explaining why the claimed subject matter would have been
obvious. We do not sustain the rejection of claim 24 under § 103(a) as being
unpatentable over Lu, Murchie and Frey.
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Dependent Claims 27 and 28
The Appellants fail to argue claims 27 and 28 separately in the Appeal
Brief; and argues in the Reply Brief only that “the Examiner fails to cite
evidence to support the rejection of claim 27.” (Reply Br. 13). The
Examiner cites Figure 2 of Lu and, in particular, ribs 103, 203 depicted in
that drawing Figure, as evidence supporting the rejection. (See Final Act. 8).
The Appellants’ argument is unpersuasive. We sustain the rejection of
claims 27 and 28 under § 103(a) as being unpatentable over Fu, Murchie,
and Frey.
DECISION
We AFFIRM the Examiner’s decision rejecting claims 23, 24 and 26—
29.
We REVERSE the Examiner’s decision rejecting claim 25.
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).
AFFIRMED-IN-PART
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