Ex Parte Platts

Patent Trial and Appeal Board

Jun 15, 2016

13065388 (P.T.A.B. Jun. 15, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
13/065,388
77083 7590
Paul M. Denk
763 South New Ballas
Ste. 305
St. Louis, MO 63141
03/21/2011
06/16/2016
FIRST NAMED INVENTOR
Stanley D. Platts
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
ATTORNEY DOCKET NO. CONFIRMATION NO.
7962 4612
EXAMINER
SKURDAL, COREY NELSON
ART UNIT PAPER NUMBER
3782
MAILDATE DELIVERY MODE
06/16/2016 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 STANLEY D. PLATTS
Appeal2014-002448
Application 13/065,388
Technology Center 3700
Before: LINDA E. HORNER, CHARLES N. GREENHUT, and
MICHELLE R. OSINSKI, Administrative Patent Judges.
GREENHUT, Administrative Patent Judge.
STATEMENT OF CASE
Appellant appeals under 35 U.S.C. § 134 from a rejection of claims 2,
3, 6, 8, and 9. We have jurisdiction under 35 U.S.C. § 6(b).
We affirm.
The claims are directed to a versatile shoulder holster strap. Claim 9,
reproduced below, is illustrative of the claimed subject matter:
9. A versatile shoulder holster strap, including a shoulder strap, said
shoulder strap including an upper strap portion that drapes about the
shoulder of the wearer, a base member, said upper strap portion
securing with the base member during usage, a lower strap portion that
connects with said base member, and said lower strap portion
Appeal2014-002448
Application 13/065,388
adjustably connects with the belt or other fastener for securement of the
lower end of the strap to the wearer;
said base member securing with the shoulder holster strap and
the lower strap portion, a retention sleeve, said retention sleeve formed
having at least four comers, said four comers of the retention sleeve are
connected with the base member, said retention sleeve being
contiguous with the base member and providing a plurality of small
gaps between the retention sleeve and said base member to allow the
holster and its clip to locate between said base member and retention
sleeve to connect said holster in either an approximate horizontal or
approximate vertical location upon its wearer;
said upper strap portion includes a pair of inclined short straps,
each of said short straps connecting with said base member of said
holster strap, each of said short straps at their upper ends including a
fastener, and said fastener is capable of securement with said upper
strap portion that drapes about the should [sic] of the wearer; and
said upper strap portion also includes an adjustable clamp to
provide for adjustment in its draping over the shoulder of the wearer to
furnish a reasonably tight fit when installed, and said lower strap
portion being adjustably connected with the base member to provide a
snug fit of the lower strap portion about the belt of its wearer.
REFERENCES
The prior art relied upon by the Examiner in rejecting the claims on
appeal is:
Montalbano
Felts
us 5,775,558
US 2010/0176174 Al
REJECTION
July 7, 1998
July 15, 2010
Claims 2, 3, 6, 8, and 9 are rejected under 35 U.S.C. § 103(a) as being
unpatentable over Montalbano in view of Felts.
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Application 13/065,388
OPINION
The rejection of claims 2, 3, 6, 8, and 9 1 over Montalbano in view of
Felts is argued as a group (App. Br. 10-13), for which claim 9 is
representative. See 37 C.F.R. § 41.37(c)(l)(iv).
There is no dispute that Montalbano teaches the basic structure of the
shoulder holster strap claimed, with the exception of the following:
said retention sleeve formed having at least four comers, said
four comers of the retention sleeve are connected with the base
member, said retention sleeve being contiguous with the base
member and providing a plurality of small gaps between the
retention sleeve and said base member to allow the holster and
its clip to locate between said base member and retention sleeve
to connect said holster in either an approximate horizontal or
approximate vertical location upon its wearer.
The Examiner relies on Felts to demonstrate that it would have been
obvious to one of ordinary skill in the art to modify Montalbano so that the
retention sleeve is capable of connecting a holster to the shoulder strap in
either a horizontal or a vertical position for providing t\'l/O different
orientations based on the user's preference. Ans. 3. This proposed
modification of Montalbano is the main point of dispute on appeal.
First, Appellant contends that Montalbano does not describe two
different orientations and only provides for a vertical orientation. App. Br.
10. Furthermore, Appellant asserts that there appears to be nothing within
Montalbano to suggest that modification of the Montalbano retention sleeve
to provide a different angular direction would even be possible (App. Br.
1 Examiner's Answer stated that claims 1-8 were rejected and being
appealed; however, claims 1, 4, 5, and 7 were cancelled and new claim 9
was added in the reply filed February 4, 2013, prior to the Final Rejection
mailed March 5, 2013. Therefore, the inclusion of the canceled claims must
be a typographical error.
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Application 13/065,388
10), nor is it seen how Felts could be used to provide modification to
Montalbano. App. Br. 11. The Examiner agrees that Montalbano does not
provide for or suggest mounting in an alternative angular
orientation/configuration. Ans. 5. The Examiner instead provides that the
Felts reference teaches that "two pouches or a pouch and an accessory can
be releasably secured together in such a way that pouch/accessory may be
oriented in either a horizontal or vertical manner." Ans. 5 (citing, inter
alia, Felts paragraphs 0027, 0028, and 0031).
The Examiner's motivation for modifying the Montalbano retention
sleeve member with the Felts alternative orientation teaching is based on
providing a selected orientation based on the user's preference. Ans. 3.
Although the motivation does not come explicitly from the Montalbano
reference as Appellant contends it should, the Examiner has found a rational
motivation for the proposed combination within the cited prior art, and we
are persuaded by the Examiner's stated rationale and motivation to combine
the cited references.
Appellant further contends that the re-oriented element (i.e.,
ammunition pouch) cited in Felts is directed to a different purpose and not a
holster as Appellant provides. App. Br. 11. Appellant argues that Felts only
teaches holding multiple ammo pouches together and does not make any
suggestion of a holster to be worn on the chest of a policeman that may be
mounted in multiple orientations. App. Br. 11. In response to this argument,
the Examiner correctly reiterates, that the Felts reference is not provided for
a holster but for the teaching of mounting an accessory to a retention sleeve
in two different orientations (i.e., vertical and horizontal). Ans. 5---6.
Montalbano is cited for the claimed holster shoulder strap including a
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Appeal2014-002448
Application 13/065,388
retention sleeve. Ans. 5-6. Appellant does not refute these findings.
Moreover, it is the combined teaching of the references that yields the
claimed invention, and Appellant's argument pointing out that Felts lacks
the features that Montalbano is relied on for, such as a holster shoulder strap
(App. Br. 11), does not apprise us of error in the Examiner's rejection.
"Non-obviousness cannot be shown by attacking references individually
when the rejection is predicated upon the teachings of a combination of
references." In re Merck & Co., 800 F.2d 1091, 1097 (Fed. Cir. 1986)
(citation omitted).
Appellant also argues that the cited elements of Felts are containers
neither of which hold a holster (App. Br. 11 ), and the cited retention sleeve
and pouch of Montalbano are only provided to clip on a camera or personal
stereo not a holster. App. Br. 10. Functional terminology can render a claim
somewhat broad, by describing what function an element does rather than
what structural elements it is. By its own literal terms a claim employing
such language covers any and all embodiments which perform the recited
function. In re Swinehart, 439 F .2d 210 (CCP A 1971) (emphasis added).
Although understanding the claim language may be aided by explanations
contained in the written description, it is important not to import into a claim
limitations that are not part of the claim. See e.g., MPEP 2111.0l(II).
The Examiner concluded that Appellant's holster element was only
recited as the object of functional claim language. Ans. 5-6. The claims
recite a "shoulder holster strap" and elements which "allow the holster and
its clip .... to locate ... and ... to connect" (Claim 9, emphasis added).
However, Appellant does not recite a "holster" as part of the claimed
"shoulder holster strap" apparatus. Although the holster is not claimed, it is
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Application 13/065,388
used to define what is claimed. However, as provided above, the limitations
involving the holster (i.e., retention sleeve, base member, gaps, etc.) are met
by the Examiner's proposed combination because those elements would
reasonably "allow" an unclaimed hypothetical holster and its clip "to locate
between said base member and retention sleeve to connect said holster in
either an approximate horizontal or approximate vertical location upon its
wearer." Appellant's arguments regarding the "holster" element are based
on limitations not actually required by the express language of the claim.
Therefore, we are not apprised of error in the Examiner's claim construction
and rejection. See Superguide Corp. v. DirecTV Enter., Inc., 358 F.3d 870,
875 (Fed. Cir. 2004) (Particular embodiments appearing in the written
description must not be read into the claim if the claim language is broader
than the embodiment).
Accordingly we affirm the Examiner's rejections.
DECISION
The Examiner's rejection of claims 2, 3, 6, 8, and 9 as being
unpatentable over Montalbano in view of Felts is affirmed.
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
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