Ex Parte Sporn

Patent Trials and Appeals Board

Apr 30, 2019

14254642 - (D) (P.T.A.B. Apr. 30, 2019)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR
14/254,642 04/16/2014 Joseph S. Sporn
23649 7590 05/01/2019
Hanes & Bartels LLC
102 SOUTH TEJON ST.
SUITE 800
COLORADO SPRINGS, CO 80903
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.
1304.042 8369
EXAMINER
VALENTI, ANDREA M
ART UNIT PAPER NUMBER
3643
MAIL DATE DELIVERY MODE
05/01/2019 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 JOSEPH S. SPORN
Appeal2018-005945
Application 14/254,642
Technology Center 3600
Before MICHELLE R. OSINSKI, BRANDON J. WARNER, and
PAUL J. KORNICZKY, Administrative Patent Judges.
WARNER, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Joseph S. Sporn ("Appellant") appeals under 35 U.S.C. § 134(a) from
the Examiner's decision rejecting claims 7, 10, 14, and 15, which are all the
pending claims. See Appeal Br. 1; Advisory Act. 1 ( dated Feb. 1, 2017); see
also Ans. 7 ( confirming same). We have jurisdiction over the appeal under
35 U.S.C. § 6(b).
We AFFIRM-IN-PART.
Appeal2018-005945
Application 14/254,642
CLAIMED SUBJECT MATTER
Appellant's disclosed invention "relates to harnesses for dogs that
restrain and discourage the dog from jumping up with his fore paws on the
body of a person or article." Spec., p. 2 (unnumbered initial paragraph).
Claims 7 and 10, reproduced below with emphasis added, are the only
independent claims and are representative of the subject matter on appeal.
7. A dog harness to deter jumping comprising[:]
anterior and posterior harness portions, the anterior
portion including,
a neck collar,
a brisket cinch, and
a fabric pouch overlying the forechest of the dog and
interconnecting the neck collar and the brisket cinch at a
harness anchor point below the dog's chest.
10. A dog harness to deter jumping comprising[:]
a neck collar,
a brisket cinch, and
at least one fabric panel overlying the forechest of the
dog and interconnecting the neck collar and the brisket cinch at
a harness anchor point below the dog's chest,
a pair of hind leg loops with free ends that respectively
encircle each hind leg of a dog above the stifle,
a connection to merge the free ends to form a single
abdominal connecting link that underlies the belly and abdomen
of a dog, and
a selective connection between the abdominal connecting
link and the harness anchor point.
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Appeal2018-005945
Application 14/254,642
EVIDENCE
The Examiner relied on the following evidence in rejecting the claims
on appeal:
Matuka us 3,817,217 June 18, 1974
Flynt us 3,994,264 Nov. 30, 1976
Holt us 5,915,335 June 29, 1999
Horgan US 7,963,256 Bl June2I,2011
Forbes US 2012/0024239 Al Feb.2,2012
REJECTIONS
The following rejections are before us for review: 1
I. Claims 7, 10, and 14 stand rejected under 35 U.S.C. § 103 as
being unpatentable over Flynt and Holt. Ans. 4---6.
II. Claim 15 stands rejected under 35 U.S.C. § 103 as being
unpatentable over Flynt, Holt, and Matuka, with additional
citations to Horgan and Forbes as evidence of general
knowledge in the art. Id. at 6-7.
We note that the Examiner's Answer includes a section beginning
with a heading for 35 U.S.C. § 112(b) relating to indefiniteness, but we do
not see a rejection of any claim as being indefinite. Ans. 2--4. Instead, the
substance of this section relates to 35 U.S.C. § 112(f), pertaining to
construction of means-plus-function limitations, and identifying such
limitations with reference to claim 17, which has been canceled. See id. We
observe that pending claim 14 includes the same "means for merging"
limitation that the Examiner discusses (see Ans. 2-3; Appeal Br., Claims
App.), and that the Examiner has identified the corresponding structure from
Appellant's Specification for this limitation (Ans. 3).
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Appeal2018-005945
Application 14/254,642
ANALYSIS
Claims 7. 14. and 15
In the rejection of independent claim 7, and associated dependent
claims 14 and 15, the Examiner relies on Flynt for teaching the general
structure of a dog harness, including anterior and posterior portions, where
the anterior portion includes a neck collar. See Ans. 5 ( citing Flynt, Fig.).
The Examiner relies on Holt for teaching that it was known to provide an
anterior portion of a harness with a brisket cinch and a fabric pouch
overlying the forechest of a dog, as recited in the claims. See id. ( citing
Holt, Fig. 2). The Examiner reasons that it would have been obvious, based
on these teachings, to modify the dog harness of Flynt with the additional
structures from Holt "for safe automobile travel," as such a modification "is
merely the application of a known technique to a known device ready for
improvement to yield predictable results." Id.
Appellant argues, and we agree, that the Examiner's rejection is
deficient because Holt does not sufficiently disclose a "fabric pouch" that
would overlie the forechest of the dog and interconnect the neck collar and
the brisket cinch at a harness anchor point below the dog's chest, as recited
in the claims. See Appeal Br. 4--5; Reply Br. 4--5. For the teaching of such
a "fabric pouch," the Examiner takes the position that Holt's "element #40 is
folded over to create a pocket #42," which the Examiner considers to be a
"pouch," sufficient to "satisfy the broad structural limitations of [the] claims
regarding a fabric pouch/fabric panel." Ans. 8. Although we appreciate the
Examiner's observation that there is a "lack of structural definition of the
pouch in the claims" (id. at 9), the recited element must nevertheless be a
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Appeal2018-005945
Application 14/254,642
"pouch," as that term would be understood by one of ordinary skill in the art
( a small bag or an enclosed space).
On this point, we agree with Appellant that Holt does not sufficiently
disclose a "fabric pouch" as claimed. The identified structural elements
from Holt appear to overlie the forechest of a dog and interconnect the neck
collar and the brisket cinch. 2 Ans. 8 ( citing Holt, Fig. 2, and identifying
elements 40, 42, 44, 46, which collectively interconnect collar 20 and
cinch 30). However, from a review of the disclosure of Holt, these structural
elements are chest strap 40, which interconnects collar 20 and cinch 30 via
loops 42, 44 (preferably formed by doubling/folding respective ends of chest
strap 40 back over on themselves), and which may include padded chest
piece 46. Holt, col. 4, 11. 6-28, Fig. 2. Critical to the issue before us, while
these elements include "loops," we discern no structure that would be
considered a "pouch," as claimed.
Accordingly, because the Examiner's rejections of these claims are
premised on a finding that is not supported by a preponderance of the
evidence, we do not sustain the rejections of claims 7, 14, and 15.
Claim 10
In the rejection of independent claim 10, the Examiner relies on Flynt
and Holt in the same manner as discussed above, noting that Flynt ( as
2 We note that we discern no error in the Examiner's interpretation that
the claimed pouch need not overlie "the whole or substantially the whole
forechest," as such details are not recited in the claims, so long as the pouch
overlies (lies on top of) the forechest of a dog. Ans. 9; contra Reply
Br. 5---6.
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Appeal2018-005945
Application 14/254,642
modified by Holt) teaches the additional hind leg loops and connections
recited in claim 10. See Ans. 5---6.
Appellant initially supposes that the Examiner "disregards" the
difference in scope between independent claims 7 and 10, but then notes that
"the argument with respect to the erroneous rejection of claim 7 is also
applicable to claim 1 O." Appeal Br. 6. Specifically, the identified difference
in scope between these claims is that independent claim 10 recites "at least
one fabric panel" ( as opposed to "a fabric pouch") overlying the forechest of
a dog, as emphasized above.
As discussed above with respect to claim 7, Holt is deficient in
disclosing a pouch, but it does sufficiently disclose a panel ( a usually flat
piece of material) in the form of chest strap 40, which interconnects
collar 20 and cinch 30. See Holt, col. 4, 11. 6-28, Fig. 2.
Regarding the recited "connection" forming a "single abdominal
connecting link," Appellant acknowledges that Flynt's ring 33 and strap 21
sufficiently disclose these elements, but urges that Flynt's elements underlie
the chest, rather than the belly and abdomen, of a dog. See Appeal Br. 6;
Reply Br. 6. As to the disputed positioning, we agree with the Examiner that
Flynt's elements, portions of which are in the area between the dog's front
and rear legs, are disposed sufficiently similarly to those depicted in
Appellant's Figures 2A and 2B, which are likewise in the area between the
dog's front and rear legs. See Ans. 5; Flynt, Fig.
With respect to the recited "selective connection," we discern no error
in the Examiner's reliance on Flynt's buckle 37 A as meeting this limitation.
See Ans. 5---6, 10; contra Appeal Br. 7; Reply Br. 7-8. Although we
appreciate Appellant's observation that Flynt's buckle 37 A expressly
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Appeal2018-005945
Application 14/254,642
provides length adjustment, one of skill in the art would readily understand
that the connected straps may also be disconnected from one another by
sliding a free end out from the buckle (much like putting on or taking off a
typical belt), thereby providing a selective connection.
Consequently, because Appellant's arguments do not apprise us of
error in the Examiner's findings or reasoning in support of the conclusion of
obviousness as to this claim, we sustain the rejection of claim 10.
DECISION
We REVERSE the Examiner's decision rejecting claims 7, 14, and
15, as discussed above.
We AFFIRM the Examiner's decision rejecting claim 10, as discussed
above.
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-IN-PART
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