Ex Parte Kuhnert

Patent Trial and Appeal Board

Mar 23, 2015

12148976 (P.T.A.B. Mar. 23, 2015)

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.
12/148,976 04/24/2008 Bradley A. Kuhnert BRAD-01 5067
7590 03/23/2015
Bradley A. Kuhnert
9817 E Hwy 13
Poplar, WI 54864
EXAMINER
BRADFORD, CANDACE L
ART UNIT PAPER NUMBER
3634
MAIL DATE DELIVERY MODE
03/23/2015 PAPER
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.
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________

Ex parte BRADLEY A. KUHNERT
____________

Appeal 2013-001052
Application 12/148,976
1

Technology Center 3600
____________

Before STEFAN STAICOVICI, THOMAS F. SMEGAL and
LEE L. STEPINA, Administrative Patent Judges.

SMEGAL, Administrative Patent Judge.

DECISION ON APPEAL

STATEMENT OF THE CASE

Bradley A. Kuhnert (Appellant) seeks our review under 35 U.S.C.
§ 134 of the Examiner’s final rejection of claims 1−20, the only claims
pending in the application on appeal. We have jurisdiction under 35 U.S.C.
§ 6(b).

We AFFIRM−IN−PART.

1
According to Appellant, the real party in interest is the inventor,
Bradley A. Kuhnert. Appeal Br. 3.
Appeal 2013-001052
Application 12/148,976

2
CLAIMED SUBJECT MATTER
Claims 1 and 16 are independent. An understanding of the invention
can be derived from a reading of independent claims 1 and 16, which are
reproduced below.
1. A safety harness comprising:
a user member (1) for connecting to the user,
an anchor strap (2) for attachment to a tree or pole and
a connecting member (3) which cooperatively connects the user
member and anchor strap, wherein said anchor strap (2)
contains a round or substantially round shaped ring (4) sewn to
the anchor strap material such that it can only slide a minimal
distance along said anchor strap, this round ring cooperatively
connects user member and anchor member, and a D-ring (13) is
sewn to said anchor strap so that it cannot slide along said
anchor strap, and wherein said connecting member (3)
additionally cooperatively connects the user member to said D-
ring (13) or to said round or substantially round shaped ring(4).

Appeal Br. 14, Claims App.

16. An anchor member for use with safety harness, said anchor strap
(2) containing a round or substantially round shaped ring (4) sewn
into the anchor strap material such that it cannot slide along said
anchor strap, wherein said round or substantially round shaped ring
(4) is employed to cooperatively connect the anchor member to the
user member safety harness.

Appeal Br. 16, Claims App.
REJECTIONS ON APPEAL
The following Examiner’s rejections are before us for review.
2

2
The Final Office Action contains objections to the claims and to the
drawings. Such issues either relate to petitionable matters and/or are not
appealable matters. See In re Schneider, 481 F.2d 1350, 135657 (CCPA

Appeal 2013-001052
Application 12/148,976

3
1. Claims 18, 11, and 1620 are rejected under 35 U.S.C. § 103(a) as
unpatentable over Diggle (US 6,981,571 B2, iss. Jan. 3, 2006).
2. Claims 9, 10, and 1315 are rejected under 35 U.S.C. § 103(a) as
unpatentable over Diggle and Nolz (US 6,223,854 B1, iss. May 1, 2001).
3. Claim 12 is rejected under 35 U.S.C. § 103(a) as unpatentable over
Diggle and McDonald (US 4,343,056, iss. Aug. 10, 1982).

ANALYSIS
Obviousness of claims 18, 11, and 1620 over Diggle
Claims 1−8 and 11
Appellant argues claims 1−8 and 11 as a group and presents separate
arguments only for claim 1. Appeal Br. 8−10. We select claim 1 as the
representative claim for this group and the remaining claims stand or fall
with claim 1. 37 C.F.R. § 41.37 (c)(1)(vii) ( 2011).
We have considered Appellant’s arguments but do not find them
persuasive to demonstrate error in the Examiner’s rejection of claim 1 as
being obvious over Diggle.
The Examiner finds that:
Diggle discloses a user member 622, for connecting to the user,
an anchor strap 620 as best seen in Figure 6, for attachment to a
tree or pole and a connecting member [D−ring 624], which
cooperatively connects the user member and anchor strap[,
wherein said anchor strap contains a round or substantially

1973) and In re Mindick, 371 F.2d 892, 894 (CCPA 1967). See also the
MPEP § 1002.02(c), item 3(a) and § 1201. Thus, the relief sought by
Appellant should be presented by a petition to the Commissioner under 37
C.F.R. § 1.181 instead of by appeal to this Board. Accordingly, we do not
further consider these issues.
Appeal 2013-001052
Application 12/148,976

4
round shaped ring 626, coupled to the anchor member material
[,] this round ring [626] cooperatively connects user member
[622] and anchor [strap 620], and a[nother connecting member]
D-ring 624, is coupled to said anchor [strap], as recited in
column 5, lines 43-50, so that it cannot slide along said anchor
member and wherein said connecting member[s] additionally
cooperatively connect[] the user member [622] to said D-ring
[626] or to said round or substantially round shaped ring [626],
as best seen in Figure 7.
3

Final Act. 4 (emphasis added).
We give claims “their broadest reasonable interpretation consistent
with the specification” and “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) (citations omitted). It is the
Appellant’s burden to precisely define the invention, not the United States
Patent and Trademark Office (PTO)’s. In re Morris, 127 F.3d 1048, 1056
(Fed. Cir. 1997). Here, Appellant does not point to any lexicographic
definition of the term “connecting member” in the Specification, or identify
any other disclosure therein, to preclude the Examiner finding that the side
locking members shown as D-rings 624 are connecting members between
body belt 622 and attachment members 626 on safety strap 620, as disclosed
in Diggle at column 5, lines 43 to 61. See Final Act. 4.
While acknowledging that Diggle “fails to disclose the round [ring]
and D-ring being sewn to the anchor strap and a round shape ring which can

3
Diggle discloses body belt 622 that includes a pair of side locking members
(D-rings 624) that engage corresponding attachment members 626 (also
shown as D-rings) on the ends of safety strap 620. See Diggle, col.5, ll.
43−57.
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Application 12/148,976

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slide a minimal distance along the anchor strap,” the Examiner “takes
OFFICIAL NOTICE that the use of [sewing] components of a harness strap
is commonly used in the art to provide [a] sturdy and lightweight
connection.” Final Act. 4−5.
The Examiner also finds that:
The Diggle reference teaches the utility of a ring 650 which is
permitted to slide along body belt to allow for adjustment of the
position of the strap. Therefore, it would have been obvious to
replace the stationary ring 626 of Diggle with the sliding ring
650 as taught by Diggle so as to allow for the position of the
anchor strap to be adjusted.

Id. at 5.

While acknowledging that Diggle teaches that “user member (622) is
a waste belt that goes around the user and user member (620) is a belt that
goes around anchor member (630),” Appellant first incorrectly argues that
both user members 620, 622 of Diggle “wrap entirely around the tree or pole
(630).” Appeal Br. 8. We are not persuaded by Appellant’s argument
because it is not commensurate with the Examiner’s rejection in which
Diggle’s body belt 622 corresponds to the claimed user member and safety
strap 620 corresponds to the claimed anchor member. See Final Act. 4. As
is clearly illustrated in Figure 7 of Diggle, body belt 622 only wraps around
the user, while safety strap 620 extends around pole 630. See Diggle, Figure
7. Furthermore, Appellant’s argument is not commensurate with claim 1
which does not limit the claim to how the user member (waste belt) is
connected to the user, but merely recites “a user member (1) for connecting
to the user.” Appeal Br. 14, Claims App.
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Appellant also contends that Diggle’s sliding ring 650 is attached the
user belt 622 while “round ring (4) of present claim 1 is not attached to the
user belt, rather it is attached to the anchor strap (2) that goes around the
tree.” Appeal Br. 8. Once more, Appellant’s argument is not commensurate
with the Examiner’s rejection. “[W]hen a patent claims a structure already
known in the prior art that is altered by the mere substitution of one element
for another known in the field, the combination must do more than yield a
predictable result.” KSR Int’l Co. v. Teleflex Inc., 550 U.S. 398, 416 (2007)
(citation omitted). Here, the Examiner’s rejection is based on substituting
sliding ring 650 for stationary ring 626 at the end of safety strap 620 that
goes around pole 630. See Answer 7.
Appellant continues the argument by contending that “as evident from
the design of the claimed safety harness, the user member should pass
through a round ring attached to the anchor strap (as opposed to the user
member).” Appeal Br. 9. Here again, Appellant’s argument is unavailing as
it is not commensurate with claim 1, which as we pointed out earlier, merely
recites “a user member (1) for connecting to the user.” As we are instructed
by our reviewing court, “limitations are not to be read into the claims from
the specification.” In re Van Geuns, 988 F.2d 1181, 1184 (Fed. Cir. 1993)
(citing In re Zletz, 893 F.2d 319, 321 (Fed. Cir. 1989)).
For the foregoing reasons, we sustain the Examiner’s rejection of
claims 1−8 and 11 as unpatentable over Diggle.
Claims 16 and 18−20
Appellant argues claims 16 and 18−20 as a group and presents
separate arguments only for claim 16. Appeal Br. 1011. We select claim
16 as the representative claim for this group and the remaining claims stand
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Application 12/148,976

7
or fall with claim 16. The Examiner finds that Dingle discloses an anchor
strap 620 connected to a user member by a “round or substantially round
shaped ring 626, coupled to the anchor strap material such that it cannot
slide along said anchor strap . . . as best seen in Figure 6.” Final Act. 9−10.
Appellant contends that “Diggle’s main strap (620) and secondary
strap (110) go all the way around the anchor member (which is the tree or
pole in Diggle)” and that “[i]t is the anchor strap of the claimed invention
that is then attached to said tree or pole.” Appeal Br. 10. However
Appellant’s contention is not responsive to the Examiner’s rejection which
does not rely on secondary strap (110).
4
Furthermore we find Appellant’s
arguments unavailing as we agree with the Examiner that “all of the
structural limitations of the claim [have] been met” by Diggle. See Answer
16.
For the foregoing reasons, we sustain the Examiner’s rejection of
claims 16 and 18−20 as unpatentable over Diggle.

Claim 17
The Examiner finds that “Diggle discloses the anchor member of
claim 16 which additionally comprises a round metal grommet or D-ring
624, attached to said anchor member . . . approximately 4 inches from the
round or substantially round ring, as best seen in Figure 7.” Final Act. 10,
12.

4
In an appeal under 35 U.S.C. § 134(a), it is the Examiner’s final rejection
that we review. See In re Webb, 916 F.2d 1553, 1556 (Fed. Cir. 1990).
Appeal 2013-001052
Application 12/148,976

8
Appellant contends that “Diggle’s D-rings (624) are sewn to the side
of user belt (622)” while “D-ring (13) [] is a separate D-ring that is sewn into
the anchor strap (2) that is attached to the tree or pole (not the user)” and
“[a]dditionally, the D-ring of the present invention is not used in the same
manner as Diggle’s D-rings 624.” Appeal Br. 10. We agree with Appellant
that the Examiner’s rejection relies on the attachment of ring 624 being via
attachment to ring 626 rather than by attachment to anchor member 620, as
recited by claim 17.
Thus we agree that the Examiner’s rationale does do not address the
limitation of claim 17. Accordingly, we do not sustain the Examiner’s
rejection of claim 17 as unpatentable over Diggle.

Obviousness of claims 9, 10, and 1315 over Diggle and Nolz
While reincorporating the prior arguments for patentability of claim 1
over Diggle, as set forth above, in asserting the patentability of claims 9, 10,
and 13−15 at pages 11–12 of the Appeal Brief, Appellant first acknowledges
that “Nolz . . . does not alleviate the deficiencies of Diggle.” See also Reply
Br. 3.
Claims 9 and 10
Appellant argues that “claim 9 [and 10] is distinguishable [from Nolz]
in that it has separate legs straps that adjust.” Appeal Br. 11. Once more,
Appellant’s argument is not commensurate with claims 9 and 10 which are
not limited to “separate legs straps that adjust.” Claim 9 recites “a sling or
set attachment” while claim 10 includes two leg straps without limiting that
they “adjust.” As we noted previously, we are instructed by our reviewing
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Application 12/148,976

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court that “limitations are not to be read into the claims from the
specification.” In re Van Geuns, 988 F.2d at 1184.
Claims 13−15
The Examiner relies on Nolz for disclosing “the harness of claim 1
wherein said user member 10, optionally comprises shoulder straps 36,
along with a long tether and also comprises a second shorter tether attached
to said user member, as seen in Figure 1.” Final Act. 11. We agree with the
Examiner that “[t]he tether system that Appellant is referring to is not [] a
required element.” Ans. 17. Moreover, Appellant acknowledge[s] that the
shoulder straps and tethers recited by claims 13−15 are optional features that
“Appellant is not relying on [] to distinguish the claimed invention over
Diggle in view of Nolz.” Reply Br. 3.
Therefore, for the same reasons as already addressed in sustaining the
rejection of claim 1 over Diggle, we sustain the rejections under 35 U.S.C. §
103 of claims 9, 10, and 1315 over Diggle and Nolz.
Obviousness of claim 12 over Diggle and McDonald
While reincorporating the prior arguments for patentability of claim 1
over Diggle, as set forth above, in asserting the patentability of claim 12 at
pages 12–13 of the Appeal Brief, Appellant contends that “McDonald does
not alleviate the deficiencies of Diggle.” Appeal Br. 12. More particularly,
Appellant contends that
[t]he invention of claim 12 requires that “user member (3) runs
between the legs and is attached to user member (4) round ring
or O-ring (13) which are attached to user member (2) which is
attached to an anchor member. Claim 12 demonstrates that if a
user becomes disengaged from the anchor member that the user
could grab a rope (18) and pull them self up by means of a
pulley system attached to a round ring (4). This would prevent
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Application 12/148,976

10
the user from dying of suspension trauma. Diggle clearly does
not disclose or suggest anything like this.

Id. at 12−13.
Once more, Appellant’s argument is not commensurate with claim 12
which does not require that “user member (3) runs between the legs”
Claim 12 does not recite user members (3) or (4) or a location for any other
user member. As we noted previously, we are instructed by our reviewing
court that “limitations are not to be read into the claims from the
specification.” In re Van Geuns, 988 F.2d at 1184.
Therefore, for the same reasons as already addressed in sustaining the
rejection of claim 1, we sustain the rejection under 35 U.S.C. § 103 of claim
12 over Diggle and McDonald.
DECISION
We AFFIRM the Examiner’s decision to reject claims 1−16 and
18−20.
We REVERSE the Examiner’s decision to reject claim 17.
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)(1)(iv).

AFFIRMED−IN−PART

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