Ex Parte Krick et al

Patent Trial and Appeal Board

Apr 17, 2017

13484590 (P.T.A.B. Apr. 17, 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.
13/484,590 05/31/2012 Thierry KRICK 86421-115 4538
28291 7590 04/19/2017
SMART & BIGGAR
1000 DE LA GAUCHETIERE ST. W.
SUITE 3300
MONTREAL, QC H3B 4W5
CANADA
EXAMINER
GRACZ, KATHARINE
ART UNIT PAPER NUMBER
3765
NOTIFICATION DATE DELIVERY MODE
04/19/2017 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):
USPTO.MTL@SMART-BIGGAR.CA
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte THIERRY KRICK, DAVID RUDD, and
CHARLES-ANTOINE DESROCHERS
Appeal 2015-006213
Application 13/484,590
Technology Center 3700
Before LYNNE H. BROWNE, JILL D. HILL, and NATHAN A. ENGELS,
Administrative Patent Judges.
BROWNE, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Thierry Krick et al. (Appellants) appeal under 35 U.S.C. § 134 from
the rejection of claims 33—62. We have jurisdiction under 35 U.S.C. § 6(b).
We affirm-in-part.
Appeal 2015-006213
Application 13/484,590
CLAIMED SUBJECT MATTER
Independent claims 33 and 62 are reproduced below:
33. A visor system for a protective sport helmet configured to
be worn on a head of a user, the protective sport helmet
comprising a front configured for facing a front region of the
head, a back configured for facing a back region of the head, a
left side configured for facing a left side region of the head, and
a right side configured for facing a right side region of the head,
the protective sport helmet comprising an outer shell and inner
padding disposed within the outer shell, the visor system
comprising;
a) a visor configured for protecting at least part of a face
of the user, the visor being transparent to allow the user to see
through the visor, the visor comprising an inner surface
configured for facing the user’s face, an outer surface opposite
the inner surface and configured for facing away from the user's
face, a top edge, a bottom edge, a left connector, and a right
connector;
b) a left visor support for connecting the visor on the left
side of the protective sport helmet, the left visor support being
fastenable to the outer shell on the left side of the protective sport
helmet; and
c) a right visor support for connecting the visor on the right
side of the protective sport helmet, the right visor support being
fastenable to the outer shell on the right side of the protective
sport helmet, and the right visor support and the left visor support
being separate from one another;
wherein the left connector of the visor is toollessly
connectable to and toollessly disconnectable from the left visor
support and the right connector of the visor is toollessly
connectable to and toollessly disconnectable from the right visor
support to allow the user to toollessly connect the visor to the
left visor support and the right visor support and toollessly
disconnect the visor from the left visor support and the right visor
support; and
wherein the visor system is configured to define an open
gap forward of the outer shell from the top edge of the visor to
the outer shell when the left visor support and the right visor
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Application 13/484,590
support are connecting the visor on the left side of the protective
sport helmet and the right side of the protective sport helmet.
62. A visor system for a protective sport helmet
configured to be worn on a head of a user, the protective sport
helmet comprising a front configured for facing a front region of
the head, a back configured for facing a back region of the head,
a left side configured fix facing a left side region of the head, and
a right side configured for facing a right side region of the head,
the protective sport helmet comprising an outer shell and inner
padding disposed within the outer shell, the visor system
comprising:
a) a visor configured for protecting at least part of a face
of the user, the visor being transparent to allow the user to see
through the visor, the visor comprising an inner surface
configured for facing the user’s face, an outer surface opposite
the inner surface and configured for facing away from the user’s
face, a top edge, a bottom edge, a left connector, and a right
connector;
b) a left visor support for connecting the visor on the left
side of the protective sport helmet, the left visor support being
fastenable to the outer shell on the left side of the protective sport
helmet; and
c) a right visor support for connecting the visor on the right
side of the protective sport helmet, the right visor support being
fastenable to the outer shell on the right side of the protective
sport helmet, and the right visor support and the left visor support
being separate from one another;
wherein the left connector of the visor is toollessly
connectable to and toollessly disconnectable from the left visor
support and the right connector of the visor is toollessly
connectable to and toollessly disconnectable from the right visor
support to allow the user to toollessly connect the visor to the left
visor support and the right visor support and toollessly
disconnect the visor from the left visor support and the right visor
support;
wherein the visor system is configured such that the
protective sport helmet is free of structure forward of the outer
shell from the top edge of the visor to the outer shell when the
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Application 13/484,590
left visor support and the right visor support are connecting the
visor on the left side of the protective sport helmet and the right
side of the protective sport helmet.
REFERENCES
The prior art relied upon by the Examiner in rejecting the claims on
appeal is:
Galet US 6,389,606 B1 May 21,2002
Goodhand US 7,546,645 B2 June 16,2009
REJECTIONS
I. Claims 33—44, 46—54, and 56—62 stand rejected under 35
U.S.C. § 102(b) as anticipated by Galet.
II. Claims 33, 40, 44, 45, 49, 53, and 55 stand rejected under 35
U.S.C. § 102(b) as anticipated by Goodhand.
DISCUSSION
Rejection I
Claims 33—44, 46—54, and 56—61
Independent claim 33 requires a “visor system is configured to define
an open gap forward of the outer shell from the top edge of the visor to the
outer shell.” Appeal Br. 30. The Examiner finds that Galet discloses this
limitation. Final Act. 4. In support of this finding, the Examiner provides
an annotated copy of Galet’s Figure 2 reproduced below:
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Annotated Figure 2 is a side view of Galet’s helmet marked-up to show what
the Examiner considers to be the required gap. Id. at 11.
Appellants contend that the gap indicated by the Examiner is not
“forward of the outer shell from the top edge of the visor to the outer shell”
as required by claim 33. Appeal Br. 15. Responding to this argument, the
Examiner finds that “[t]he gap of Galet is an open area between forward of
the outer shell and the top edge of the visor.” Ans. 5.
The Examiner misconstrues the limitation at issue which require’s “an
open gap forward of the outer shell from the top edge of the visor to the
outer shell, not an open area between forward of the outer shell and the top
edge of the visor. Appeal Br. 30The gap indicated in annotated Figure 2 is
not forward of the outer shell. Accordingly, the Examiner’s finding is in
error.
For this reason, we do not sustain the Examiner’s decision rejecting
claim 33, and claims 34^44, 46—54, and 56—61, which depend therefrom, as
anticipated by Galet.
Claim 62
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The Examiner finds that Galet discloses each and every limitation of
claim 62. Final Act. 9—12. In particular, the Examiner finds that Galet
discloses a
visor system [that] is configured such that the protective sport
helmet is free of structure (gap, see annotated figure 2) forward
of the outer shell from (the helmet is free of structure from
forward of the outer shell, the tip of the outer shell, in the front,
is forward of the outer shell, and the helmet is free of structure
from the top edge of the visor to the outer shell) the top edge of
the visor to the outer shell when the left visor support and the
right visor support are connecting the visor on the left side of the
protective sport helmet and the right side of the protective sport
helmet.
Id. at 10—11.
Appellants contend that “there are simply no visor system and
transparent visor in Galet.” Appeal Br. 27 (emphasis omitted); see also
Reply Br. 2—3. In support of this contention, Appellants argue that
“[ijndeed, Galet rather discloses a helmet 1 and a removable respiratory
mask 11.” Appeal Br. 27. However, Appellant’s Specification does not
define the claim term visor, nor do Appellants proffer a definition of “visor.”
Accordingly, we construe the claim term “visor” in accordance with the
ordinary and customary meaning of that term applying the broadest
reasonable interpretation of the term in view of the Specification.
“[I]n determining the ordinary and customary meaning of the claim
term as viewed by a person of ordinary skill in the art, it is appropriate to
consult a general dictionary definition of the word for guidance.” Comaper
Corp. v. Antec, Inc., 596 F.3d 1343, 1348 (Fed. Cir. 2010) (citing Phillips v.
AWHCorp., 415 F.3d 1303, 1322—23 (Fed. Cir. 2005) (en banc)). A general
dictionary definition of the word “visor” is “a face mask.” Merriam-
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webster.com, http://www.merriam-webster.com (last accessed April 4,
2017). This definition is consistent with the use of the term “visor” in the
Specification. Accordingly, we adopt this definition as the broadest
reasonable interpretation of the claim term “visor.” Galef s respiratory mask
11 is a face mask, as acknowledged by Appellants. See, e.g., Appeal Br. 17.
Accordingly, the claimed “visor” reads on Galef s respiratory mask 11.
Appellants further argue that “Galet would be irrelevant for a skilled
person in the art of a visor system for a protective sport helmet. . . . Galet
would thus logically not have commended itself to the attention of such a
skilled person in the art of visor systems for protective sport helmets.”
Appeal Br. 27—28 (emphasis omitted); see also Reply Br. 3. In other words,
Appellants argue that Galet is nonanalogous art. However, whether a
reference is analogous art is irrelevant to whether that reference anticipates a
claim. “A reference may be from an entirely different field of endeavor than
that of the claimed invention or may be directed to an entirely different
problem from the one addressed by the inventor, yet the reference will still
anticipate if it explicitly or inherently discloses each and every limitation
recited in the claim.” State Contracting & Eng’g Corp. v. Condotte Am.,
Inc., 346 F.3d 1057, 1068 (Fed. Cir. 2003)(citing In re Schreiber, 128 F.3d
1473, 1478 (Fed.Cir.1997)).
In addition, Appellants contend that “the Examiner’s identified ‘top’
and ‘bottom’ are instead top and bottom portions of the body of the face
mask and the window of the face mask does not therefore comprise a ‘top
edge’ and a ‘bottom edge’ and the top and bottom visor’s edges recited in
claim 62.” Appeal Br. 28 (emphases omitted). However, Appellants’
argument is not commensurate in scope with claim 62. Claim 62 does not
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require top and bottom edges of a window. Thus, Appellants do not apprise
us of error.
Next, Appellants contend that Galet fails to disclose a “visor with left
and right connectors in Galet,” because Galet discloses a face mask not a
visor. Appeal Br. 28. However, as discussed supra, Galet’s face mask falls
within the broadest reasonable construction of the claimed visor. Thus,
Appellants’ argument is unconvincing.
Then, Appellants contend that Galet fails to disclose a helmet that is
“free of structure forward of the outer shell from the top edge of the visor to
the outer shell.” Appeal Br. 29 (emphasis omitted). In support of this
contention, Appellants argue that “what the Examiner appears to consider as
being an ‘open gap’ in Galet is not located forward of the helmet’s shell, but
rather inside the helmet’s shell.” Id. (emphasis omitted). However, as
shown in annotated Figure 2 reproduced supra, there is no structure in Galet
forward of the outer shell from the top edge of the visor to the outer shell.
Moreover, claim 62 does not recite an open gap. Thus, Appellants’
argument is unconvincing.
Finally, Appellants argue that “the Examiner’s rejection is clearly
based on impermissible hindsight.” Appeal Br. 29 (emphasis omitted).
However, impermissible hindsight is not relevant to a rejection based on
anticipation as hindsight addresses concerns regarding obviousness
determinations. Thus, Appellants do not apprise us of error.
For these reasons, we sustain the Examiner’s decision rejecting claim
62 as anticipated by Galet.
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Rejection II
The Examiner finds, inter alia, that Goodhand discloses a “visor
system is configured to define an open gap (23) forward of the outer shell
from (there is an open gap from forward of the outer shell since 23 is a gap
forward of the outer shell from the top edge of the visor to the outer shell)”
as required by claim 33. Final Act 14.
Appellants contend:
because in Goodhand the visor holder 10 entirely occupies the
area from the top edge of the visor 26 to the helmet 18, this
reference does not disclose or suggest any “open gap” “that
extends from the top edge of the visor to the outer shell” as
recited in claim 33.
Appeal Br. 23 (emphasis omitted). Responding to this argument, the
Examiner explains that “[although the gap of Goodhand is an open vent
area (23) between forward of the outer shell and the top edge of the visor, it
still is an open gap between forward of the outer shell and the top edge of
the visor.” Ans. 8.
Goodhand discloses vent holes 23. Goodhand 2:32—36, Fig. 2. As
shown in Goodhand’s Figure 2, vent holes 23 do not extend from the top
edge of the visor to the outer shell. Rather, vent holes 23 are formed in in
holder 10 above visor 26. Id. Accordingly, the Examiner’s finding is in
error.
For this reason, we do not sustain the Examiner’s decision rejecting
claim 33, and claims 40, 44, 45, 49, 53, and 55, which depend therefrom as
anticipated by Goodhand.
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DECISION
The Examiner’s rejection of claims 33—44, 46—54, and 56—61 under
35 U.S.C. § 102(b) as anticipated by Galet is REVERSED.
The Examiner’s rejection of claim 62 under 35 U.S.C. § 102(b) as
anticipated by Galet is AFFIRMED.
The Examiner’s rejection of claims 33, 40, 44, 45, 49, 53, and 55
stand rejected under 35 U.S.C. § 102(b) as anticipated by Goodhand is
REVERSED.
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-IN-PART
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