Ex Parte Fischer et al

Patent Trial and Appeal Board

Mar 29, 2016

11115629 (P.T.A.B. Mar. 29, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
111115,629 0412712005
954 7590 03/31/2016
MSA Technology, LLC
1000 Cranberry Woods Drive
Cranberry Township, PA 16066
FIRST NAMED INVENTOR
Andrew Fischer
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
ATTORNEY DOCKET NO. CONFIRMATION NO.
Fischer 3835
EXAMINER
CHIN-SHUE, AL VIN CONSTANTINE
ART UNIT PAPER NUMBER
3634
NOTIFICATION DATE DELIVERY MODE
03/31/2016 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):
James.Uber@msasafety.com
Barbara.Konopski@msasafety.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte ANDREW FISCHER, JASON B. KOLISCAK,
RICHARD G. REYNOLDS, and TIMOTHY W. ECKER
Appeal2013-009788
Application 11/115,629
Technology Center 3600
Before LINDA E. HORNER, LYNNE H. BROWNE, and
MARK A. GEIER, Administrative Patent Judges.
BROWNE, Administrative Patent Judge.
DECISION ON i\.PPEi\L
STATEMENT OF THE CASE
Andrew Fischer et al. (Appellants) appeal under 35 U.S.C. § 134 from
the Examiner's decision rejecting claims 1-20. We have jurisdiction under
35 U.S.C. § 6(b).
We AFFIRM.
CLAIMED SUBJECT MATTER
The claims are directed to devices, systems and methods for
emergency descent from a height. Claim 1, reproduced below, is illustrative
of the claimed subject matter:
Appeal2013-009788
Application 11/115,629
1. An article to be worn by a user, comprising:
a shock absorbing descender assembly attached to the article,
a support line to support the user during descent,
an anchor connection attached to a first end of the support
line, and
a holding assembly for holding at least a portion of the
support line,
the shock absorbing descender assembly comprising a
descender device and a shock absorbing element, the shock
absorbing element being adapted to absorb energy and thereby
limit energy transmitted to the support line,
the shocking [sic] absorbing element being attached at a first
end thereof to the article and at a second end thereof to the
descender device,
the support line being operatively connected to the descender
device between the anchor connection and the holding assembly
so that the support line can move through the descender during
decent [sic] of the user to lengthen the distance between the
anchor connection and the descender, thereby lowering a height
of the user.
REFERENCES
The prior art relied upon by the Examiner in rejecting the claims on
appeal is:
Olson
Bell
Maina
Lewis
Richardson
Bissett
us 4,618,026
us 5,316,102
US 6,168,539 Bl
US 6,275,994 Bl
US 2004/0140152 Al
US 2007/0107984 Al
REJECTIONS
Oct. 21, 1986
May 31, 1994
Jan.2,2001
Aug. 21, 2001
July 22, 2004
May 17, 2007
I. Claims 1 and 11 stand rejected under 35 U.S.C. § 103(a) as
being unpatentable over Richardson and Bell or Bissett.
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Appeal2013-009788
Application 11/115,629
II. Claims 7-9 stand rejected under 35 U.S.C. § 103(a) as being
unpatentable over Richardson and Bell or Bissett, and Olson.
III. Claim 10 stands rejected under 35 U.S.C. § 103(a) as being
unpatentable over Richardson and Bell or Bissett, Olson, and
Maina.
IV. Claims 2-6 and 12-16 stand rejected under 35 U.S.C. § 103(a)
as being unpatentable over Richardson and Bell or Bissett, and
Lewis.
V. Claims 17-19 stand rejected under 35 U.S.C. § 103(a) as being
unpatentable over Richardson and Bell or Bissett, Lewis, and
Olson.
VI. Claim 20 stands rejected under 35 U.S.C. § 103(a) as being
unpatentable over Richardson and Bell or Bissett, Lewis, Olson,
and Maina.
DISCUSSION
Appellants argue independent claims 1 and 11 together. See Appeal
Br. 7-15. We select claim 1 as the illustrative claim, and claim 11 stands or
falls with claim 1.
Rejection I
Richardson and Bell
The Examiner finds that the combined teachings of Richardson and
Bell disclose or suggest each and every limitation of claim 1. In particular,
the Examiner finds that "Bell shows a shock absorbing element 30 attach[ed]
between a support line connector 26 and his waist strap (article) 34 to absorb
the shock load of a fallen user." Final Act. 2.
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Application 11/115,629
Appellants contend that in the instant invention, "[ u ]nlike Richardson
(and also unlike Bell ... ), a shock absorbing element 112 is not connected in
line or in series with lifeline 120, but is connected between belt 100 (worn
by the user) and descender 110." Appeal Br. 10. In other words, Appellants
construe claim 1 to require a shock absorbing element in a parallel
arrangement with the support line.
Claim 1 requires a "shock[] absorbing element being attached at a first
end thereof to the article and at a second end thereof to the descender
device." Appeal Br. 1 7. Claim 1 does not require a shock absorbing
element in a parallel relationship with the support line and, does not preclude
a shock absorbing element in line or in series with the support line.
Accordingly, Appellants' claim construction is in error and Appellants'
arguments (e.g. Appeal Br. 10, 12; Reply Br. 4, 7) based on this erroneous
claim construction do not apprise us of Examiner error.
Noting that "Richardson discloses that more than one shock absorber
can be used therein," Appellants nevertheless argue that "there is absolutely
no disclosure or suggestion in Richardson of ... a shock absorbing element
[] attached at a first end thereof to the article worn by the user and at a
second end thereof to the descender device." Appeal Br. 10, Reply Br. 4.
The fact that Richardson does not disclose a shock absorbing element
attached at a first end thereof to the article worn by the user is not in dispute.
See Final Act. 2. However, in paragraph 70 Richardson states:
In another embodiment, the rappel line assembly is
converted to a "dynamic" system, by including one or more
shock absorbing components (not shown) to the rappel line
assembly. By including a shock absorbing component, the
assembly is fully or partially converted into a fall arrest system.
For example, in one embodiment, a shock absorbing component
is included between the anchor mechanism (e.g., carabiner 706,
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Appeal2013-009788
Application 11/115,629
FIG. 7) and the descender (e.g., descender 802, FIG. 8). Various
shock absorbing components are known to those of skill in the
art.
Richardson i-f 70. Thus, Richardson expressly suggests the use of a shock
absorbing element at locations "known to those of skill in the art."
Appellants do not explain why Richardson's teaching precludes location of
the shock absorbing element between the article and the descender device.
Thus, Appellants do not apprise us of error.
Appellants further argue that Bell's lanyard 28, as opposed to rope 24,
more accurately corresponds to Richardson's support line 704. See Appeal
Br. 11; see also Reply Br. 5---6. In response to this argument, the Examiner
determines that "both the anchor 22A of Bell and the anchor 706 of
Richardson are fixed to a non-movable supporting structure and support[]
the upper end of their respective supporting lines 24 and 704." Ans. 10.
Based on this determination, the Examiner correctly concludes that Bell's
rope 24 corresponds to Richardson's support line 704, such that Bell
suggests location of a shock absorbing element between an article attached
to the user and the descender device. See Final Act. 2. We note that
although Appellants have identified differences between the subject matter
disclosed in the instant application and the prior art, those differences are not
claimed, as claim 1 does not preclude Bell's rope 24 from fairly being read
as corresponding to the claimed support line. We further note that Bell is
not relied upon to teach the support line, as this feature is taught by
Richardson. Thus, Appellants do not apprise us of error.
Next, Appellants argue that Bells' sliding anchor 26 does not
correspond to Richardson's element 802. See Appeal Br. 11; see also Reply
Br. 7. In response to this argument, the Examiner finds that "the sliding
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Appeal2013-009788
Application 11/115,629
anchor 26 of Bell and the sliding anchor (descender) 802 of Richardson both
move with the attached user on their respective support lines 24 and 704."
Ans. 10. Based on this finding, the Examiner correctly determines that
Bell's sliding anchor "26 and [Richardson's element] 802 are corresponding
elements which are connected to the article worn by the user," such that Bell
suggests location of a shock absorbing element between an article attached
to the user and the descender device. Id.; see also Final Act. 2. Thus,
Appellants' argument is unconvincing.
In addition, Appellants argue that:
Unlike descender 802 of Richardson or other descenders, anchor
member 26 of Bell is not available for control by a user that is
suspended therefrom after a fall. Moreover, release of the
locking connection of anchor member 26 of Bell with anchor line
or rope 24 of Bell after a fall could result in serious injury or
death.
Appeal Br. 11; see also Reply Br. 6.
Appellants' argument is not responsive to the rejection as articulated
by the Examiner. In the rejection the Examiner does not propose
substituting Bell's sliding anchor member 26 for Richardson's element 802.
See Final Act. 2. Rather, Bell is relied upon to show that a shock absorbing
element located between a line connector and an article was known in the
art. Id. Accordingly, Appellants do not apprise us of error.
Appellants conclude their arguments by contending that:
In any attempt to combine the disclosure of Richardson with
Bell, one skilled in the art might, for example, replace or
supplement the anchor mechanism 706 of Richardson with
connector 26 of Bell to enable connection of the system of
Richardson to an anchor system including a vertical anchor line
such as rope 24 of Bell.
Appeal Br. 12; see also Reply Br. 7.
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Appeal2013-009788
Application 11/115,629
The teachings of Bell are not so limited. As the Examiner correctly
finds, "Bell shows a shock absorbing element 30 attach[ ed] between a
support line connector 26 and his waist strap (article) 34 to absorb the shock
load of a fallen user." Final Act. 2. Further, as discussed supra, Richardson
explicitly suggests the inclusion of shock absorbing elements at known
locations. Thus, the combined teachings of Bell and Richardson suggest
placement of a shock absorbing element between the connector and the
article. Appellants have not apprised us of any error in the Examiner's
findings with respect to Bell or presented any persuasive argument that
Bell's teaching is not applicable to Richardson's device as discussed supra.
Moreover, "it is not necessary that the inventions of the references be
physically combinable to render obvious the invention under review." In re
Sneed, 710 F.2d 1544, 1550 (Fed. Cir. 1983) (citation omitted). The
relevant inquiry is whether the claimed subject matter would have been
obvious to those of ordinary skill in the art in light of the combined
, 1 • {',1 f' r1 T T.T 11 fAll"\ T""l I"\ 1 Al-1,.... All"\,- /l"il"i~ A.. reacnzngs or rnose rererences. .)ee 1n re Aeuer, o<+L t< .La <+ 1 j, <+LJ ~LAI!:" A
1981 ). "Combining the teachings of references does not involve an ability
to combine their specific structures." In re Nievelt, 482 F.2d 965, 968
(CCPA 1973).
For these reasons, we sustain the Examiner's decision rejecting claim
1, and claim 11, which falls therewith as unpatentable over Richardson and
Bell.
Richardson and Bissett
Appellants present essentially the same arguments with respect to the
teachings of Bissett, as presented with respect to the teachings of Bell. See
Appeal Br. 12-14; Reply Br. 8-10. These arguments are not persuasive for
the reasons discussed supra. Moreover, we note that Bissett not only
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Appeal2013-009788
Application 11/115,629
explicitly teaches a shock absorbing element 8 "attached at a first end
thereof to [an] article and at a second end thereof to [a] descender device,"
as required by claim 1, Bissett also shows that it was known to use shock
absorbing elements at various locations on the assembly. See Bissett Fig. 2.
Rejections II-VI
Appellants do not present separate arguments for the patentability of
the claims addressed in each of these rejections. Rather, Appellants allege
that the references relied on in these rejections "do not overcome the
deficiencies of Richardson, Bell and/or Bissett." Appeal Br. 16; Reply Br.
11. As we find no deficiency in Rejection I, Appellants' allegation is
unconvmcmg.
We sustain the Examiner's decision in Rejections II-VI.
DECISION
The Examiner's rejections of claims 1-20 are affirmed.
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)(l )(iv).
AFFIRMED
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