Ex Parte Lumpiesz

Patent Trial and Appeal Board

Apr 29, 2013

11558968 (P.T.A.B. Apr. 29, 2013)

UNITED STATES PATENT AND TRADEMARK OFFICE
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BEFORE THE PATENT TRIAL AND APPEAL BOARD
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Ex parte LANCE LUMPIESZ
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Appeal 2011-003081
Application 11/558,968
Technology Center 3700
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Before PHILLIP J. KAUFFMAN, BARRY L. GROSSMAN, and
BART A. GERSTENBLITH, Administrative Patent Judges.

GROSSMAN, Administrative Patent Judge.

DECISION ON APPEAL

Appeal 2011-003081
Application 11/558,968

2
STATEMENT OF THE CASE
Appellant appeals under 35 U.S.C. § 134 from the Examiner’s
decision finally rejecting claims 5 and 6. We have jurisdiction over the
appeal under 35 U.S.C. § 6(b).
We REVERSE.
CLAIMED SUBJECT MATTER
Claim 5, the sole independent claim on appeal, is representative of the
subject matter on appeal, and recites:
5. A pair of golf gloves for aiding in the proper grip of a
golf club shaft, said golf gloves comprising:
indicia in the form of a line on one of said golf gloves
which extends substantially parallel to the golf club shaft when
the hand of the golfer is properly positioned on said golf club
shaft to achieve a conventional grip of said golf club shaft;
said indicia including a line on the other of said gloves
with the major portion of said line extending substantially co-
axially with said first mentioned line when the other hand of the
golfer is properly positioned on said golf club shaft to achieve a
conventional grip of said golf club shaft;
a second indicia on said first mentioned glove in the form
of a line extending from said first mentioned line with a portion
co-axial with said first mentioned line and a second portion
offset from said first portion; and
said second mentioned glove having a second line
intersecting the offset portion of the second line of said first
mentioned glove to form a single line when the hands of the
golfer are properly positioned on said golf club shaft to achieve
a natural grip of said golf club shaft.

REFERENCES
The Examiner relied upon the following prior art references:

Harvanek US 5,542,126 Aug. 6, 1996
Goldwitz US 2004/0107476 A1 Jun. 10, 2004
Appeal 2011-003081
Application 11/558,968

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REJECTIONS
Appellant seeks review of the following rejections:
1. Claim 5 rejected under 35 U.S.C. § 102(b) as anticipated by
Harvanek; and
2. Claim 6 rejected under 35 U.S.C. § 103(a) as unpatentable based
on Harvanek and Goldwitz.
ANALYSIS
Claim 5
The Examiner found that Harvanek anticipates claim 5 because it
discloses each and every element of the claims. Ans. 3-4.1 Specifically, the
Examiner found that Harvanek disclosed indicia or lines 42, 44, and 62 that
are aligned to indicate when the golfer has a proper “conventional grip” or a
proper “natural grip.” Id.
Appellant argues in relevant part that Harvanek does not disclose
“four different lines” as called for in claim 5. App. Br. 9.2 Appellant
identifies these lines as lines 30 and 34 on one glove, and lines 40 and 44 on
the other glove. Id. The two sets of indicia or lines on each glove are shown
in Figures 2, 3, and 4 of the application and are described in the
Specification, e.g., Spec., pg. 3, ll. 10-16; pg. 4, ll. 3-13.
A determination that a claim is anticipated under 35 U.S.C. § 102(b)
involves two analytical steps. First, we interpret the claim language, where
necessary, giving the claims their broadest reasonable interpretation in light
of the Specification. In re Crish, 393 F.3d 1253, 1256 (Fed. Cir. 2004).

1 Citations to “Ans. ___” are to the indicated page in the Examiner’s Answer
mailed June 10, 2010.
2 Citations to “App. Br. ___” are to the indicated page in the Appeal Brief
filed May 18, 2010.
Appeal 2011-003081
Application 11/558,968

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Second, we compare the construed claim to a prior art reference and make
factual findings to determine whether “each and every limitation is found
either expressly or inherently in [that] single prior art reference.” Id.
(citation omitted). An Examiner’s factual finding regarding what a reference
discloses must be supported by a preponderance of the evidence. See In re
Caveney, 761 F.2d 671, 674 (Fed. Cir. 1985) (“preponderance of the
evidence is the standard that must be met by the PTO in making rejections”);
see also In re Oetiker, 977 F.2d 1443, 1449 (Fed. Cir. 1992) (Plager, J.,
concurring) (“In rejecting an application, factual determinations by the PTO
must be based on a preponderance of the evidence, and legal conclusions
must be correct.”) (citation omitted).
In responding to Appellant’s arguments, the Examiner stated that “the
first and second gloves have second lines, capable of intersection by
manipulating the hands of the wearer to form a predetermined grip,” but the
Examiner did not identify these “second lines.” Ans. 5. Moreover, the
Examiner repeated and made clear his position on the indicia elements in
Harvanek, “[t]he device of Harvanek uses indicia elements (42, 44, 62)
which are lines to properly line the hands on the golf club.” Ans. 6. Thus,
the Examiner found that Harvanek discloses three indicia lines, whereas
claim 5 calls for four indicia lines. The Examiner has not identified by a
preponderance of the evidence where Harvanek discloses two distinct sets of
indicia on each glove, as called for by claim 5. Accordingly, we cannot
sustain the rejection of claim 5 under Section 102 as anticipated by
Harvanek.
Appeal 2011-003081
Application 11/558,968

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The Examiner made no findings or conclusions regarding whether
claim 5 would have been obvious under Section 103 in view of Harvanek.
Thus, that issue is not before us.
Claim 6
The Examiner found that claim 6 would have been obvious under
Section 103 based on Harvanek and Goldwitz. Ans. 4. The Examiner cited
and applied Goldwitz for the disclosure of first and second line indicia each
having a separate color. Id. However, Goldwitz does not compensate for
the fundamental deficiencies in Harvanek discussed above. Accordingly, we
cannot sustain the rejection of claim 6 under Section 103.
DECISION
Upon consideration of the record as a whole in light of Appellant’s
contentions and the preponderance of relevant evidence, we REVERSE the
rejection of claims 5 and 6.

REVERSED

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