Ex Parte Sclare et al

Patent Trial and Appeal Board

Sep 29, 2017

14153747 (P.T.A.B. Sep. 29, 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.
14/153,747 01/13/2014 Jacob Sclare 2K08.1-1092 3096
101562 7590 10/03/2017
GARDNER GROFF GREENWALD & VILLANUEVA, PC
2018 POWERS FERRY ROAD
SUITE 800
ATLANTA, GA 30339
EXAMINER
KURILLA, ERIC J
ART UNIT PAPER NUMBER
3673
NOTIFICATION DATE DELIVERY MODE
10/03/2017 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):
patent @ gardnergroff. com
kidsiilegal@kidsii.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte JACOB SCLARE and JOHN MATTHEW THOMSON
Appeal 2016-008715
Application 14/153,747
Technology Center 3600
Before JENNIFER D. BAHR, MICHELLE R. OSINSKI, and
BRANDON J. WARNER, Administrative Patent Judges.
WARNER, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Kids II, Inc. (“Appellant”)1 appeals under 35 U.S.C. § 134(a) from the
Examiner’s decision rejecting claims 1—14, which are all the pending claims.
See Appeal Br. 6—13. We have jurisdiction over the appeal under 35 U.S.C.
§ 6(b).
We REVERSE.
1 Kids II, Inc. is the applicant, as provided in 37 C.F.R. § 1.46, and is
identified as the real party in interest. Appeal Br. 2.
Appeal 2016-008715
Application 14/153,747
CLAIMED SUBJECT MATTER
Appellant’s disclosed invention relates to “children’s motion devices.”
Spec., p. 1,11. 11—12. Claim 1, reproduced below, is the sole independent
claim and is representative of the subject matter on appeal.
1. A children’s motion device comprising:
a frame configured to rest on a support surface; and
a child support operatively connected to the frame and
configured for oscillating about a substantially upright axis of
rotation;
wherein at least a portion of the child support is
configured for supporting the head of a child positioned in the
child support, and wherein the child support is operatively
connected to the frame such that, as the child support oscillates
about the axis of rotation, the portion of the child support
configured for supporting the child’s head remains substantially
aligned with the axis of rotation.
EVIDENCE
The Examiner relied on the following evidence in rejecting the claims
appeal:
Kincaid US 2008/0136236 A1 June 12, 2008
Godiska US 2008/0240483 A1 Oct. 2, 2008
Gilbert US 8,308,578 B2 Nov. 13, 2012
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Appeal 2016-008715
Application 14/153,747
REJECTIONS
The following rejections are before us for review:2
I. Claims 1—3, 5, 6, and 11—13 stand rejected under 35 U.S.C.
§ 102(b) as anticipated by Godiska. Non-Final Act. 2—\.
II. Claim 4 stands rejected under 35 U.S.C. § 103(a) as being
unpatentable over Godiska. Id. at 5.
III. Claims 7—10 stand rejected under 35 U.S.C. § 103(a) as being
unpatentable over Godiska and Gilbert. Id. at 5—7.
IV. Claim 14 stands rejected under 35 U.S.C. § 103(a) as being
unpatentable over Godiska and Kincaid. Id. at 7—8.
ANALYSIS
Independent claim 1 recites, in relevant part, a children’s motion
device in which “the portion of the child support configured for supporting
the child’s head remains substantially aligned with the axis of rotation.”
Appeal Br. 15, Claims App. Appellant argues that Godiska does not
disclose that the axis of rotation is “substantially aligned” with a portion of
the child seat that is configured for supporting the child’s head. See Appeal
Br. 7—13; Reply Br. 2—9. We agree.
In rejecting claim 1, the Examiner found that Godiska discloses that
“the portion of the child support configured for supporting the child’s head
remains substantially aligned with the axis of rotation (see Fig 3 and
2 We note that a rejection of claims 1—14 on the ground of nonstatutory
obviousness-type double patenting has been withdrawn by the Examiner and
thus is not before us for review as part of the instant appeal. Ans. 2; see also
Non-Final Act. 9; Appeal Br. 13.
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Appeal 2016-008715
Application 14/153,747
[0028]).” Non-Final Act. 3. The Examiner explains that “the right hand
side of [seat] 22 in Fig. 3 is substantially aligned with the axis of
rotation (@32).” Ans. 3. According to the Examiner, “[i]f one were to draw
an axis through the middle of driven end 32, the drawn axis would intersect
with the portion of the child support configured for supporting the child’s
head.” Id. at 4; see id. at 5 (the Examiner providing an annotated
reproduction of Figure 3 of Godiska illustrating the purported axis of
rotation intersecting a portion of seat 22).
Appellant persuasively asserts that “the Examiner fails to articulate
how the location or angle of this proposed axis of rotation is supported by
any teachings in Godiska.” Reply Br. 5. Godiska discloses that “support
arm 30 is mounted for pivotal, side-to-side movement about its driven
end 32 through a travel path that is substantially horizontal.” Godiska 128.
Godiska also discloses that support arm 30 “can rotate about an axis of
rotation that can be offset from a vertical reference and that can be offset
from an axis of the post 28,” and, “[alternatively, the axis of rotation can be
aligned with the vertical reference, the axis of the post 28, or both, if
desired.” Id. However, Godiska is silent with regard to whether the axis of
rotation substantially aligns (i.e., coaxially) with any portion of seat 22. In
this regard, the Examiner’s finding with respect to the intersection between
the axis of rotation and a portion of seat 22 appears to be based upon a
speculative assumption regarding the geometry and position of these
elements based on Godiska’s figures. “[I]t is well established that patent
drawings do not define the precise proportions of the elements and may not
be relied on to show particular sizes if the specification is completely silent
on the issue.” Hockerson-Halbertstadt, Inc. v. Avia Group Inti, Inc., 222
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Appeal 2016-008715
Application 14/153,747
F.3d 951, 956 (Fed. Cir. 2000) (internal citations omitted). As noted by
Appellant, Godiska “does not disclose that its drawings are to scale.”
Appeal Br. 10.
Moreover, even assuming arguendo that Godiska’s axis of rotation
were to align with the portion of seat 22 identified by the Examiner in
annotated Figure 3, the Examiner’s finding that this portion of seat 22 is
“configured for supporting the child’s head” lacks adequate evidentiary
support. The Examiner takes the position that “the right edge or right side of
[seat] 22 in Fig. 3 is ‘configured for supporting the child’s head’” because
this structure is capable of supporting a child’s head. Ans. 4. However, this
speculative position is not supported by the disclosure of Godiska, which
does not identify what portion, if any, of seat 22 is specifically configured
for supporting a child’s head.3 In other words, the Examiner does not
identify, nor do we discern, any disclosure in Godiska that the right edge
portion of seat 22 identified by the Examiner represents the area in which a
child’s head would generally lie. Thus, the Examiner has not established a
finding supported by a preponderance of the evidence that Godiska
discloses, either expressly or inherently, that “the portion of the child
support configured for supporting the child’s head remains substantially
aligned with the axis of rotation,” as recited in claim l.4
3 Appellant’s Specification describes such a portion as “the area of the
child support in which a child’s head would generally lie.” Spec., p. 6,
11. 18-19.
4 We note that any consideration of what one of ordinary skill in the art
may deem obvious regarding possible positioning of Godiska’s child support
such that a portion configured for supporting the child’s head would be
aligned with the axis of rotation is immaterial to the anticipation rejection
made here and before us for review. We further note that the Patent Trial
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Appeal 2016-008715
Application 14/153,747
Accordingly, based on the record before us—because an anticipation
rejection requires a finding in a single reference of each and every limitation
as set forth in the claims—we do not sustain the rejection of independent
claim 1, and of dependent claims 2, 3, 5, 6, and 11—13, as anticipated by
Godiska.
Regarding Rejections II—IV under 35 U.S.C. § 103(a), we note that
these rejections are premised on the same purported disclosure from Godiska
discussed above for Rejection I, and that the Examiner relied on Gilbert and
Kincaid for teaching additional features, but not to cure the aforementioned
deficiency of Godiska. See Non-Final Act. 5—8. Consequently, we also do
not sustain the rejections of claims 4, 7—10, and 14 as unpatentable over
Godiska alone or in combination with one of Gilbert and Kincaid.
DECISION
We REVERSE the Examiner’s rejections of claims 1—14.
REVERSED
and Appeal Board is a review body, rather than a place of initial
examination, and we therefore decline to make a determination of what one
of ordinary skill in the art may conclude; rather, we leave it to the Examiner
to determine the appropriateness of any further course of action based on
such a conclusion should there be further prosecution of this application.
See Ex parte Frye, 94 USPQ2d 1072, 1075-77 (BPAI2010) (precedential).
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