Ex Parte Duperron

Patent Trial and Appeal Board

Oct 4, 2017

14247569 (P.T.A.B. Oct. 4, 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.
14/247,569 04/08/2014 Harold Duperron DUPERRON-P0001 2604
103460 7590 10/06/2017
Endurance Law Group, PLC
180 West Michigan Avenue
Suite 801
JACKSON, MI 49201
EXAMINER
MARSH, STEVEN M
ART UNIT PAPER NUMBER
3632
NOTIFICATION DATE DELIVERY MODE
10/06/2017 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):
eofficeaction @ appcoll.com
Docketing @ endurancelaw .com
j shack @ endurancelaw .com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte HAROLD DUPERRON
Appeal 2017-003495
Application 14/247,569
Technology Center 3600
Before JOSEPH L. DIXON, ERIC S. FRAHM, and
KARA L. SZPONDOWSKI, Administrative Patent Judges.
DIXON, Administrative Patent Judge.
DECISION ON APPEAL
Appeal 2017-003495
Application 14/247,569
STATEMENT OF THE CASE
Appellant1 appeals under 35 U.S.C. § 134(a) from a rejection of
claims 1 and 3—12. Claim 2 has been cancelled. We have jurisdiction under
35 U.S.C. § 6(b).
We affirm.
The claims are directed to a retaining apparatus. Claim 1, reproduced
below, is illustrative of the claimed subject matter:
1. A retaining apparatus comprising:
at least one magnetized bar;
a frame; and
a tripod having a plurality of legs and engaged with said at
least one magnetized bar, wherein said at least one magnetized
bar is disposed above said plurality of legs, said frame operably
disposed between said at least one magnetized bar and said tripod
to elevate and space said at least one magnetized bar from said
plurality of legs.
REFERENCES
The prior art relied upon by the Examiner in rejecting the claims on
appeal is:
Brent US 3,776,387
Sassmannshausen et al. US 5,509,629
Pulliam US 2001/0045554 Al
Serpa US 2007/0026750 Al
Dec. 4, 1973
Apr. 23, 1996
Nov. 29, 2001
Feb. 1,2007
1 Appellant indicates that Harold Duperron is the real party in interest. (App.
Br. 1).
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Application 14/247,569
REJECTIONS
The Examiner made the following rejections:
Claims 1,3,5, 6, 8, and 9 stand rejected under 35 U.S.C. § 103 as
being unpatentable over Brent in view of Sassmannshausen.
Claims 4 and 7 stand rejected under 35 U.S.C. § 103 as being
unpatentable over Brent in view of Sassmannshausen and in further view of
Serpa.
Claim 10 stands rejected under 35 U.S.C. § 103 as being unpatentable
over Brent in view of Sassmannshausen and in further view of Pulliam.
Claim 11 stands rejected under 35 U.S.C. § 103 as being unpatentable
over Brent in view of Sassmannshausen in further view of Pulliam, and in
further view of Official Notice provided by the Examiner.
Claim 12 stands rejected under 35 U.S.C. § 103 as being unpatentable
over Brent in view of Sassmannshausen and in further view of Pulliam.
ANALYSIS
With respect to claims 1,3,5, 6, 8, and 9, and independent claims 11
and 12, Appellant relies upon the same arguments to the combination of the
Brent and Sassmannshausen references. (App. Br. 5). We select
independent claim 1 as the representative claim for the group and will
address Appellant’s arguments thereto. 37 C.F.R. § 41.37(c)(l)(iv).
Appellant contends that the Examiner’s motivation for the
combination stated in the Final Office Action was a conclusion and not
supported by evidence and the Appellant could not then test the rational
underpinning thereof. (App. Br. 6—7).
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Application 14/247,569
The Examiner maintains that the use of a tripod base would be useful
to mount the retaining apparatus to the floor rather than to a gurney. (Ans.
3) . We agree with the Examiner and note that the use of a tripod was
notoriously well-known to stand anything securely without wobbling with
three points of contact. (Note: music stands, cameras, stools, lights, hat
trees, etc.). We further find the Brent reference “concerns a novel, portable,
surgical instrument stand adapted to be removably installed on an operating
cart in emergency-room treatment situations or on a veterinary surgical table
and having removable, sterilizable magnetic means for holding the surgical
instruments conveniently oriented relative to the operating surgeon.” (Brent,
col. 1:7—13). The Examiner maintains:
one of ordinary skill in the art would know to modify the
retaining apparatus taught by Brent, by providing a tripod base
to mount the retaining apparatus on a floor surface as taught by
Sassmannshausen et al. One of ordinary skill in the art would
know that adapting the apparatus to mount to a floor rather than
a gurney, would allow the surgical tools to be located at various
locations in a room. For example, sterilized tools would need to
be stored securely for simple access. A tripod allowing the stand
to mount to a floor would achieve that goal.
(Ans. 7). We agree with the Examiner.
We find this teaching in Brent to clearly teach and suggest a varied
implementation in a veterinary scenario where greater flexibility would be
desirable (outside of a traditional surgery room) rather than a rigid
implementation as proffered by Appellant in the Reply Brief. (Reply Br. 2—
4) .
Appellant further contends:
The Applicant respectfully submits that the person of
ordinary skill in the art, confronted with the need to adequately
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Application 14/247,569
support a variable number of surgical tools in an operating room,
would form the bars of Brent to be as long as necessary to support
all of the instruments needed for any operation. This would allow
the instruments to be positioned proximate to the doctor and the
patient and to be supported rigidly on the gurney. This would be
the only reasonable and sensible approach to the problem of storing
a sufficient number of surgical instruments in an operating room.
(Reply Br. 4). We find Appellant’s argument to be speculative and
unpersuasive of error. We further note that the language of independent claim
1 is directed to merely “[a] retaining apparatus” with no specific field of
endeavor.2
Claims 4 and 7
With respect to dependent claims 4 and 7, Appellant argues the claims
together. As a result, we select dependent claim 7 as the representative
claim for the group and address Appellant’s arguments thereto. We find that
dependent claim 7 merely requires a single reflective strip on a single
magnetized bar. Appellant relies upon the base argument that “no
motivation is provided for the combination of Brent in view of
Sassmannshausen as set forth above with respect to Argument 1.” (App. Br.
7).
Appellant further argues:
The Applicant submits that the motivation proposed by the
Examiner is based on beliefs that are without evidentiary support
in the record and therefore not rational. The problem that the
Examiner alleges to exist as a basis for the combination is the
positioning of surgical instruments in a field surgical hospital
2 Additionally, we find the language of independent claim 1 to be broad
enough to read upon a music stand with a tripod and a magnet used to hold
the music in place on the shelf.
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Appeal 2017-003495
Application 14/247,569
with poor lighting conditions. Further, for reasons the Examiner
does not make clear, the problem must arise because the surgical
instruments would not be positioned within the field of light
generated by the lights in the field hospital. It assumed that
surgery would not be performed without some light and therefore
it is unclear why the surgical instruments would not be positioned
proximate to the doctor and the patient, who would be in the field
of available light.
It is noted that the device of Brent, unmodified, would
fully address the problem suggested by the Examiner. The
person of ordinary skill would find in the Brent device a means
to position surgical tools proximate to the patient and the doctor
in a field surgical hospital, within the field of available light. A
reflective strip would not be needed since the doctor or nurse
would be within an arm’s length of the surgical instruments, as
the Brent device is mounted on the gurney supporting the patient.
Thus, the alleged problem that leads to the motivation proposed
by the Examiner does not exist. Therefore, the underpinning of
the motivation is not rational.
(Reply Br. 5).
Again, we find Appellant’s arguments to be speculative and
unpersuasive of error. Moreover, we find Appellant’s arguments do not
consider what the prior art as a whole would have suggested to one of
ordinary skill in the art at the time of the invention. We further agree with
the Examiner that placement of a reflective material on a portion of the
combination would have been readily apparent to one of ordinary skill in the
art at the time of the invention. Moreover, we find the reflective strip
provides no structural differentiation between the claimed combination, but
merely provides additional ability for recognition of the apparatus by a user
for safety, but does not change the structural operability of the claimed
“retaining apparatus” to differentiate the claimed invention. As a result,
Appellant’s argument does not show error in the Examiner’s factual findings
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Application 14/247,569
or the conclusion of obviousness of representative dependent claim 7 and
dependent claim 4 which has not been separately argued.
Claim 10
With respect to dependent claim 10, Appellant contends that “the
motivation submitted by the Examiner is based on beliefs that are without
evidentiary support in the record.” (Reply Br. 6). We disagree with
Appellant and find that Figure 2 of the Pulliam reference teaches the use of a
tripod with stakes to secure the tripod to the ground in an outdoor
environment. We find it to be well within the level of skill of the art that
with the use of tripods or outdoor equipment that stakes are generally useful
to secure items to the ground to prevent tipping and enhance use thereof.
CONCLUSION
The Examiner did not err in rejecting claims 1 and 3—12 based upon
obviousness under 35 U.S.C. § 103.
DECISION
For the above reasons, we sustain the Examiner’s rejections of claims
1 and 3—12 based upon obviousness under 35 U.S.C. § 103.
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a)(l)(iv).
AFFIRMED
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