Ex Parte Gall

Patent Trial and Appeal Board

Sep 15, 2017

13776480 (P.T.A.B. Sep. 15, 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.
13/776,480 02/25/2013 Timothy Lee Gall 8601
98262 7590
David E. Crites
15900 Rochin Terrace
Los Gatos, CA 95032
09/19/2017 EXAMINER
SIMMS JR, JOHN ELLIOTT
ART UNIT PAPER NUMBER
3711
NOTIFICATION DATE DELIVERY MODE
09/19/2017 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):
critesd@umich.edu
davidcrites @ frontier.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte TIMOTHY LEE GALL
Appeal 2016-004321
Application 13/776,480
Technology Center 3700
Before JENNIFER D. BAHR, EDWARD A. BROWN, and
SEAN P. O’HANLON, Administrative Patent Judges.
BROWN, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Timothy Lee Gall (Appellant)1 appeals under 35 U.S.C. § 134(a) from
the Examiner’s decision rejecting claims 20, 21, 24—26, 29, 32, and 36.2 We
have jurisdiction under 35 U.S.C. § 6(b).
We REVERSE.
1 The Appeal Brief identifies Timothy Lee Gall as the real party in interest.
Appeal Br. 1.
2 Claims 22, 23, 27, 28, 30, 31, 33—35, and 37 are objected to as depending
from a rejected base claim, but indicated to contain allowable subject matter,
Final Act. 6.
Appeal 2016-004321
Application 13/776,480
CLAIMED SUBJECT MATTER
Claims 20, 26, and 32 are independent. Claim 20 illustrates the
claimed subject matter, and reads:
20. A stabilizer for a projectile having a shaft wherein the
projectile is at least one of an arrow, a bolt, a javelin, a dart, and
a spear; the stabilizer comprising:
at least one annular wing; and
a central elongated cylinder that receives the shaft wherein
the cylinder length is longer than the annular wing such that the
cylinder length spaces the annular wing a distance from an end
of the shaft wherein the distance is sufficient to provide clearance
from an archer’s face.
Appeal Br. 13 (Claims App.).
REJECTIONS
1. Claims 26 and 32 are rejected under 35 U.S.C. § 102(b) as
anticipated by Summers (US 5,919,105, issued July 6, 1999).
2. Claims 20 and 21 are rejected under 35 U.S.C. § 103(a) as
unpatentable over Morris (US 2003/0045381 Al, published Mar. 6, 2003)
and Sutherland (US 2005/0178375 Al, published Aug. 18, 2005).
3. Claims 24 and 25 are rejected under 35 U.S.C. § 103(a) as
unpatentable over Morris, Sutherland, and Simo (US 2005/0159256 Al,
published July 21, 2005).
4. Claims 29 and 36 are rejected under 35 U.S.C. § 103(a) as
unpatentable over Summers and Ginder (US 6,123,631, issued Sept. 26,
2000).
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Application 13/776,480
ANALYSIS
Rejection 1: Claims 26 and 32 as anticipated by Summers
Claim 26 recites a “stabilizer” for a projectile. Appeal Br. 13—14
(Claims App.). Claim 32 recites a projectile having a “stabilizer.” Id. at 14.
The Examiner finds that Summers discloses a projectile (arrow) including a
stabilizer 32 comprising a central cylinder that receives a shaft 12, 20. Final
Act. 2 (citing Summers, col. 3,11. 52—53, col. 4,11. 53—55, Fig. 6). The
Examiner determines that “the stabilizer, as claimed, is an element fitted to a
projectile, which has a shaft, such that the stabilizer has a central cylinder
that receives the shaft.” Id. at 6 (emphasis added).
Appellant contends that Summers does not disclose the claimed
“stabilizer.” Appeal Br. 3—5. Rather, Appellant contends, Figures 6 and 7
of Summers show a generic stabilizer on an arrow with the nock system,
making it clear that the nock is distinct from a stabilizer. Id. at 4. Appellant
asserts that the Examiner’s construction of “stabilizer” is unreasonably
broad. Id. at 5.
“During examination, ‘claims . . . are to be given their broadest
reasonable interpretation consistent with the specification, and . . . 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 Am. Acad, of Sci. Tech
Ctr., 367 F.3d 1359, 1364 (Fed. Cir. 2004). Appellant’s Specification
defines the term “fletching” as “a generic term used to describe the fins of an
arrow that guide and stabilize the arrow during flight.” Spec. 2 (emphasis
added). The Specification also describes that a conventional arrow
comprises “a prior art stabilization system comprising a plurality of glued
fins as feathers, veins and or [fletchings]” (Spec. 11,117 (emphasis added)),
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Application 13/776,480
and “[ajrrows typically are fletched on the rear of an arrow shaft to provide
flight stability” (Spec. 4,13 (emphasis added)). Appellant points out that
the Specification also defines a “nock” as “the part of the arrow that secures
the arrow to the string of the bow before launch, typically by surrounding
the bowstring with a notched area.” Appeal Br. 6; Spec. 3,^2
The Specification additionally describes that “[t]he invention is an
annular arrow fletch arrow stabilizer” and “[t]he annular arrow fletch is used
for . . . stabilizing arrow flight.” Spec., Abstr. (emphasis added). The
Specification states that the annular arrow fletch provides “better clearance
and functionality [than] conventional fixed glued tail feathers.” Id. The
Specification also states that “[a]n arrow consistent with the present
invention requires no feathers or traditional fletchings, instead utilizing
affixed annular arrow fletch improves aerodynamic[s] when mounted over
the aft end of the arrow shaft, and is held in place by the arrow nock.” Id. at
6,112; see also Spec. Abstr. (“the annular arrow fletch is affixed at the aft
end of the arrow by an arrow nock prior to launch”). The Specification
describes an annular arrow fletch including a central elongated cylindrical
cylinder structure 102 shown in Figure 1. Id. at 10-11,118. Figure 6
depicts an annular arrow fletch affixed to an arrow shaft 602 and an arrow
nock 601 inserted into center elongated cylindrical cap recess 108 of central
elongated cylindrical cylinder structure 102. Id. at 11,119.
Accordingly, the Specification supports Appellant’s position that the
claimed “stabilizer” provides the function of “stabilizing” flight of a
projectile, such as an arrow. Appeal Br. 6. We also agree that the
Specification “makes clear that the nock is distinct from the stabilizer.” Id.
Indeed, the Examiner appears to acknowledge this. Final Act. 6 (“the
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Application 13/776,480
particulars of the [Specification distinguishing the nock and stabilizer
elements are not directly read into the claims” (emphasis added)).
Appellant also points out that the terms “nock” and “stabilizer” are
described in the cited prior art. Appeal Br. 7. “Prior art references may be
‘indicative of what all those skilled in the art generally believe a certain term
means . . . [and] can often help to demonstrate how a disputed term is used
by those skilled in the art.’” In re Cortright, 165 F.3d 1353, 1358 (Fed. Cir.
1999) (quoting Vitronics Corp. v. Conceptronic, Inc., 90 F.3d 1576 1584
(Fed. Cir. 1996)). “Accordingly, the PTO’s interpretation of claim terms
should not be so broad that it conflicts with the meaning given to identical
terms in other patents from analogous art.” Id. Appellant contends that
Summers and Morris support that the terms “nock” and “stabilizer” are
distinguishable by persons skilled in the art. Appeal Br. 7. Appellant notes
that Summers describes an arrow nock system that “ensures proper
placement of the bowstring with respect to the arrow” {id. (citing Summers,
col. 3,11. 45—46, Figs. 6, 7)), and Morris describes “[a] stabilizer [that] is
used instead of fixed or glued tail feathers, vanes or other fletching as a
means for stabilizing arrow flight” (id. (alterations in original) (citing
Morris, Abstr., || 14, 17)).
The Examiner responds that Summers’ device “connects to a
projectile, in the manner of a stabilizer and inherently has weight, so that it
influences the balance of the projectile.” Ans. 2.
The Examiner’s position appears to be that Summers’ arrow nock falls
within the broadest reasonable interpretation of a “stabilizer.” However, the
Examiner does not provide any evidence to support the position that the
arrow nock would, in fact, stabilize an arrow’s flight. To the contrary, we
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Application 13/776,480
are persuaded by Appellant that Summers’ arrow nock is not a “stabilizer,”
as this term would be construed by one of ordinary skill in the art. Rather, a
skilled artisan would consider the fins or “fletching” shown in Figure 6 of
Summers to be the structure that stabilizes flight of arrow 10. Consequently,
we agree with Appellant that because the Examiner does not identify “some
structure, with the claimed features, which performs the function of
‘stabilizing arrow flight’” in Summers, the Examiner does not establish by a
preponderance of the evidence that Summers anticipates claim 26 or claim
32. Thus, we do not sustain this rejection.
Rejection 2: Claims 20 and 21 as unpatentable over Morris and Sutherland
As to claim 20, the Examiner finds that Morris discloses a stabilizer
200 comprising an annular wing 201 and a central cylinder 203 that receives
the shaft of a projectile. Final Act. 3 (citing Morris 131). The Examiner
finds that Morris does not disclose that cylinder 203 is longer than annular
wing 201, as required by claim 20. Id. The Examiner also finds that
Sutherland discloses an arrow stabilizer including elongated central cylinder
1 having wing 2, where elongated central cylinder 1 is longer than wing 2.
Id. at 4 (citing Sutherland 112, Fig. 3). The Examiner determines that
Sutherland meets the limitation of “the cylinder length spaces the annular
wing a distance from an end of the shaft wherein the distance is sufficient to
provide clearance from an archer’s face.” Id. (citing Sutherland, Fig. 3)
(“cylinder length limitation”). The Examiner concludes that it would have
been obvious
to provide Morris with a cylinder of longer length to facilitate
placement of the stabilizer at a desired location, at a distance
from the end of the shaft and providing clearance from an
archer’s face, as taught by Sutherland, to provide Morris with a
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Application 13/776,480
positioning aligning cylinder to yield the predictable result of
appropriately spacing the stabilizer from the nock end of the
arrow.
Final Act. 4.
Additionally, the Examiner concludes that it would have been an
obvious matter of design choice to select a length for the cylinder and wing
in Morris, with the cylinder being longer than the wing, because such a
modification would have involved “a mere change in size of components,”
where a change in size is generally recognized as being within the level of
ordinary skill in the art. Id. (citing In re Rose, 105 USPQ 237 (CCPA
1955)).
Appellant contends that both Morris and Sutherland fail to teach the
cylinder length limitation. Appeal Br. 8. Appellant also contests the
Examiner’s rationale for modifying Morris. Id. at 10.
Morris describes stabilizer 200 as a “sliding” stabilizer. Morris 128.
Figure 4 shows stabilizer 200 positioned at the leading end of arrow 400
prior to the arrow being propelled; Figure 5 shows stabilizer 200 positioned
along the shaft of arrow 400 in flight, shortly after being propelled, as the
stabilizer travels toward the trailing end of arrow 400; and Figure 6 shows
stabilizer 200 positioned at the trailing end of arrow 400 during its continued
flight, where stabilizer 200 is engaged with stop 300. See id. ]Hf 24—26, 30-
33. Morris explains that:
As FIG. 6 illustrates, the arrow 400 slides forward
through the stabilizer 200 until contact is made with the
stop 300, with which the stabilizer 200 engages, causing
the stabilizer 200 to remain captive at the trailing end of
the arrow 400 for the duration of the flight, thereby
providing controlled stabilization, spin, and/or other flight
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characteristics, e.g., wobble or longitudinal compression
of the arrow.
Id. 133 (emphasis added). Accordingly, the position of stabilizer 200 in
fixed contact with stop 300 shown in Figure 6 is the position that provides
the desired stabilization effects during the flight of arrow 400.
Morris further discloses that “the stabilizer may, alternatively, be
fixed along the shaft at a given location, instead of being slidably disposed
along the shaft.” See id. 137. Morris describes that “[s]uch fixation may
either be permanent (e.g., gluing) or temporary (e.g., engagement with a
stop, as described hereinabove).'” Id. (emphasis added). Morris describes
an exemplary application “wherein the stabilizer can begin flight disposed at
the trailing end of an arrow.” Id. Accordingly, Morris discloses fixing the
stabilizer at the trailing end of an arrow, such as in engagement with the stop
shown in Figure 6.
Figure 3 of Sutherland depicts a fletching positioned on a shaft of
arrow 11. The fletching includes a shrinkable tube 1 and vanes 2 or feathers
3, where the length of tube 1 is longer than the length of vanes 2/feathers 3
along the shaft. Sutherland Fig. 3,112. Figure 3 also shows an arrow nock
on the shaft. Although Sutherland discloses that the shrinkable tube can be
“of any length” {id. at Abstr.), Sutherland does not appear to disclose how
the length of tube 1 would be varied, or the purpose of varying the length.
We agree with Appellant that Sutherland “does not disclose the utility of the
central cylinder length for locating the fletching at ‘a predetermined depth’
from the nock, does not disclose locating the fletching to ‘allow[] for greater
clearance’ from the archer’s cheek, and does not teach the ‘benefit of the
additional clearance.’” Appeal Br. 11 (alteration in original).
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We are persuaded by Appellant’s contentions that the Examiner has
not articulated an adequate reason with a rational underpinning to modify
Morris’ stabilizer such that central annular structure 203 has a length that is
longer than annular wing 201, the length spacing annular wing 201 a
distance from the end of a shaft of an arrow that is sufficient to provide
clearance from an archer’s face, as required by claim 20. Morris teaches that
sliding stabilizer 200 is positioned at the leading end of arrow 400 prior to
propelling arrow 400. See Morris 1 33, Fig. 6. For this embodiment, the
Examiner does not explain adequately why one of ordinary skill in the art
would modify sliding stabilizer 200 in view of Sutherland’s fixed arrow
fletching structure.
As discussed above, Morris also describes that the desired arrow
stabilization effects can, alternatively, be achieved by fixing the stabilizer at
the trailing end of the arrow. The Examiner does not explain adequately
how, or why, one of ordinary skill in the art would have modified Morris’
stabilizer according to the “fixed” embodiments such that central annular
structure 203 has a longer length than annular wing 201, so that the length of
central annular structure 203 spaces annular wing 201 a distance from the
end of a shaft of an arrow that is sufficient to provide clearance from an
archer’s face, as required by claim 20. For example, in embodiments where
the stabilizer is temporarily fixed on the arrow shaft, contact between the
stabilizer and the stop would already provide the desired positioning of the
stabilizer. For embodiments in which the stabilizer is permanently fixed on
the arrow shaft, the Examiner does not explain adequately why one of
ordinary skill in the art would have modified the length of central annular
structure 203 to be longer than annular wing 201, as Morris does not appear
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Application 13/776,480
to require any modification of the length of the central annular structure 203
to permanently fix it to an arrow shaft.
We are also persuaded by Appellant that the Examiner’s obvious
change of size rationale (Final Act. 4) is inadequate to support the proposed
modification of Morris by changing “the length of the central cylinder with
no commensurate change to the other elements.” Appeal Br. 10.
For these reasons, we do not sustain the rejection of claim 20, and
claim 21 depending therefrom, as unpatentable over Morris and Sutherland.
Rejection 3: Claims 24 and 25 over Morris, Sutherland, and Simo
Claims 24 and 25 depend from claim 20. The Examiner’s application
of Simo fails to cure the deficiencies in the rejection of claim 20 discussed
above. Final Act. 4—5. Accordingly, we do not sustain the rejection of
claims 24 and 25 as unpatentable over Morris, Sutherland, and Simo.
Rejection 4: Claims 29 and 36 over Summers and Cinder
Claims 29 and 36 depend from claims 26 and 32. The Examiner’s
application of Ginder fails to cure the deficiencies in the rejection of claims
26 and 32 discussed above. Final Act. 5. Accordingly, we do not sustain the
rejection of claims 29 and 36 as unpatentable over Summers and Ginder.
DECISION
The Examiner’s decision to reject claims 20, 21, 24—26, 29, 32, and
36 is reversed.
REVERSED
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