Ex parte Neustater

Board of Patent Appeals and Interferences

Sep 22, 1998

08451281 (B.P.A.I. Sep. 22, 1998)

Application for patent filed May 26, 1995.1
1
THIS OPINION WAS NOT WRITTEN FOR PUBLICATION
The opinion in support of the decision being entered today (1)
was not written for publication in a law journal and (2) is
not binding precedent of the Board.
Paper No. 17
UNITED STATES PATENT AND TRADEMARK OFFICE
_____________
BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
_____________
Ex parte CRAIG W. NEUSTATER, HENRY DOWDING
and PATRICK A. DOWSON
_____________
Appeal No. 97-4242
Application 08/451,2811
______________
ON BRIEF
_______________
Before COHEN, MEISTER and STAAB, Administrative Patent Judges.
COHEN, Administrative Patent Judge.
DECISION ON APPEAL
This is an appeal from the final rejection of claim 1.
Claims 3 through 9, 11 through 17, 21 and 22, the only other
claims remaining in the application, stand allowed.
Appeal No. 97-4242
Application 08/451,281
2
Appellants’ invention pertains to a fall protection
safety suit. An understanding of the invention can be derived
from a reading of claim 1, a copy of which appears in the
“APPENDIX” to the brief (Paper No. 15).
As evidence of anticipation, the examiner has applied the
document specified below:
Hoagland et al 2,979,153 Apr.
11, 1961
(Hoagland)
The following rejection is before us for review.
Claim 1 stands rejected under 35 U.S.C. § 102(b) as being
anticipated by Hoagland.
The full text of the examiner's rejection and response to
the argument presented by appellants appears in the final
rejection and answer (Paper Nos. 11 and 16), while the
complete statement of appellants’ argument can be found in the
brief (Paper No. 15).
OPINION
Appeal No. 97-4242
Application 08/451,281
In our evaluation of the applied patent, we have considered all of the2
disclosure thereof for what it would have fairly taught one of ordinary skill
in the art. See In re Boe, 355 F.2d 961, 965, 148 USPQ 507, 510 (CCPA 1966).
Additionally, this panel of the board has taken into account not only the
specific teachings, but also the inferences which one skilled in the art would
reasonably have been expected to draw from the disclosure. See In re Preda
401 F.2d 825, 826, 159 USPQ 342, 344 (CCPA 1968).
3
In reaching our conclusion on the anticipation issue
raised in this appeal, this panel of the board has carefully
considered
appellants’ specification and claim 1, the applied patent,2
and the respective viewpoints of appellants and the examiner.
As a consequence of our review, we make the determination
which follows.
We affirm the examiner’s rejection of claim 1 under 35
U.S.C. § 102(b).
Anticipation under 35 U.S.C. 102(b) is established only
when a single prior art reference discloses, either expressly
or under principles of inherency, each and every element of a
claimed invention. See In re Paulsen, 30 F.3d 1475, 1478-
Appeal No. 97-4242
Application 08/451,281
4
1479, 31 USPQ2d 1671, 1675 (Fed. Cir. 1994), In re Spada, 911
F.2d 705, 708, 15 USPQ2d 1655, 1657 (Fed. Cir. 1990), and RCA
Corp. v. Applied Digital Data Systems, Inc., 730 F.2d 1440,
1444, 221 USPQ 385, 388 (Fed. Cir. 1984). However, the law of
anticipation does not require that the reference teach
specifically what an appellant
has disclosed and is claiming but only that the claims on
appeal "read on" something disclosed in the reference, i.e.,
all limitations of the claim are found in the reference. See
Kalman v. Kimberly Clark Corp., 713 F.2d 760, 772, 218 USPQ
781, 789 (Fed. Cir. 1983); cert. denied, 465 U.S. 1026 (1984).
Claim 1 is drawn to a fall protection safety suit
compris-ing, inter alia, a coverall and a strap assembly, with
the strap assembly being configured for automatic adjustment
from a first loose fitting position to a second fall-protect
position about a wearer responsive to a fall-arresting force,
and with the strap assembly in the second position being
tight-fitting about the wearer and positioned to distribute
Appeal No. 97-4242
Application 08/451,281
5
fall-arresting forces to shoulders, pelvis, thighs and
vertically along the chest of the wearer.
Hoagland explicitly teaches (column 1, line 69 to column
2, line 2) a safety suit having a plurality of body embracing
strap means cooperatively associated to effect a concurrent
embracing support of a plurality of different body portions
precluding injurious pressure from being applied to the body
and assuring a
safe hoisting thereof. The safety suit or coverall garment of
Hoagland includes means for guiding strap means into a tight,
body embracing, annular configuration during a hoisting
thereof.
More specifically, inside the garment, adjacent the juncture
of arms and legs with the body portion thereof, is a plurality
of annularly extending straps defining body embracing nooses
(column 2, lines 31 through 34). During a hoisting of the
body, the nooses are tightened to firmly embrace the body
portions encircled thereby (column 2, lines 43 through 45).
Appeal No. 97-4242
Application 08/451,281
6
The garment assures an automatic dispositioning of the straps
during tightening thereof around the desired body portions
(column 2, lines 49 through 51). The upper nooses 15, 16, for
example, effect a firm embracing support of the person’s upper
torso over his shoulders and around has side below the armpits
(column 4, line 74 through column 5, line 2). The noose 15 is
urged about a portion of the person’s torso rather than around
his arm and, thus, the shoulder torso portion is firmly
embraced whereby a safe, non-injurious support is obtained
(column 3, lines 70 through 74). The garment configuration
permits the body to extend generally longitudinally in
alignment with the hoisting
line during hoisting operation (column 2, lines 67 through
69). Thus, if the body is being lifted from directly overhead,
the body assumes a substantially vertical position with its
arms and legs hanging freely (column 5, lines 11 through 13).
The suit or garment is intended to overcome the problems of
earlier structure which did not properly support the body but,
rather, permitted injurious pressures to be applied to
Appeal No. 97-4242
Application 08/451,281
7
different body portions such as areas adjoining the crotch,
neck, and shoulders (column 1, lines 41 through 51).
In light of the above-noted Hoagland disclosure, we find
ourselves in accord with the examiner’s understanding that the
content of claim 1 is anticipated by the Hoagland teaching.
With the suit about a wearer, and with a suitable safety
line attached thereto, it is apparent to us that the strap
assembly in the safety suit of Hoagland would be quite capable
of automatically adjusting to a fall-protect position should
the wearer fall. Further, it is evident to us that in the
second position, the strap assembly of Hoagland, that is
specifically intended to effect firm embracing support of a
person’s upper
torso portion would, with a falling wearer, distribute fall-
arresting forces to shoulders and vertically along the chest
of the wearer. In light of the above, in particular, we
conclude that the subject matter of claim 1 is anticipated by
the Hoagland patent.
Appeal No. 97-4242
Application 08/451,281
8
The argument of appellants (brief, pages 3 through 5)
simply does not convince this panel of the board of error on
the part of the examiner in rejecting claim 1 as being
anticipated by the Hoagland document.
Like the examiner (answer, page 3), we recognize that the
fall protection safety suit set forth in claim 1 does not
address vertical free fall, as argued (brief, page 3). As we
explained, infra, the Hoagland safety suit is clearly capable
of fall protection. Appellant has not come forward with any
evidence to the contrary. We view the argument (brief, page
4), that the Hoagland suit would not prevent injury to the
wearer who falls from a certain height, as simply unsupported
attorney argument. We note that claim 1 only broadly addresses
fall protection. The circumstance that the patentee discusses
protection from injuries
incident to hoisting, as focused upon in the brief (page 4),
does not detract from our assessment of the safety suit of
Hoagland as being capable of fall protection.
Appeal No. 97-4242
Application 08/451,281
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It is also appellants’ view that Hoagland does not show
or teach chest support (brief, pages 4 and 5). As should be
apparent from our earlier discussion, we do not share this
viewpoint. Once again, we refer to the breadth of claim 1,
particularly with respect to the recitation of the strap
assembly being “positioned to distribute fall-arresting
forces” to shoulders and vertically along the chest of the
wearer. As we see it, the document fairly informs a reader
thereof that firm embracing support is provided to the upper
torso portion of a person (the arms hanging freely). This
indicates to us that, in the above noted circumstance when a
safety line is attached and a wearer falls, the strap assembly
of Hoagland is positioned about the wearer so as to be capable
of distributing fall-arresting forces vertically along the
chest (part of the upper torso portion) of the wearer, as now
broadly claimed. Once again, we point out that appellants
have not come forward with any evidence to the contrary.
In summary, this panel of the board has affirmed the
rejection of claim 1 under 35 U.S.C. § 102(b).
Appeal No. 97-4242
Application 08/451,281
10
The decision of the examiner is affirmed.
No time period for taking any subsequent action in
connection with this appeal may be extended under 37 CFR
§ 1.136(a).
AFFIRMED
)
IRWIN CHARLES COHEN )
Administrative Patent Judge )
)
)
) BOARD OF PATENT
JAMES M. MEISTER )
Administrative Patent Judge ) APPEALS AND
)
) INTERFERENCES
)
LAWRENCE J. STAAB )
Administrative Patent Judge )
vsh
Appeal No. 97-4242
Application 08/451,281
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Marina F. Cunningham
Otis Elevator Company
Intellectual Property Department
10 Farm Springs
Farmington, CT 06032-2568