Ex Parte Stevens

Patent Trial and Appeal Board

Nov 25, 2013

11291631 (P.T.A.B. Nov. 25, 2013)

UNITED STATES PATENT AND TRADEMARK OFFICE
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BEFORE THE PATENT TRIAL AND APPEAL BOARD
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Ex parte VICTOR STEVENS
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Appeal 2011-013667
Application 11/291,631
Technology Center 3700
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Before: STEFAN STAICOVICI, PHILLIP J. KAUFFMAN, and
JEREMY M. PLENZLER, Administrative Patent Judges.

KAUFFMAN, Administrative Patent Judge.

DECISION ON APPEAL

Appeal 2011-013667
Application 11/291,631

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STATEMENT OF THE CASE
Appellant seeks review of the Examiner’s decision to reject claims
10-19 under 35 U.S.C. § 103(a) as unpatentable over Nichols and Seldeen.1
We have jurisdiction under 35 U.S.C. § 6(b).
We reverse.

The Invention
Appellant’s claimed invention relates to a method of carrying and
using a self-loading pistol. App. Br. Claims App’x, Claim 10; Spec. 1:18-
2:2. Claim 10, reproduced below, is the sole independent claim on appeal
(emphases added):
10. A method to carry and use a self-loading pistol,
comprising the steps of:
providing a holster comprising a base; a barrel housing
assembly fixedly attached to said base, and a moveable trigger
housing mechanism slidably disposed on said base, wherein
said trigger housing mechanism can be slidingly moved
bidirectionally between a first position and a second position,
wherein said moveable trigger housing mechanism is disposed
in said first position;
providing a self-loading pistol comprising a trigger, a
barrel, a firing chamber, a moveable slide mechanism, a grip,
and one or more rounds disposed in said grip, wherein said
moveable slide mechanism can be slidingly moved between a
first position and a second position, wherein said slide
mechanism is disposed in said first position, and wherein one of
said one or more rounds is loaded into said firing chamber
when said moveable slide mechanism is moved to said second
position;

1 Nichols (U.S. 5,284,281; iss. Feb. 8, 1994); Seldeen (U.S. 4,298,150; iss.
Nov. 3, 1981).
Appeal 2011-013667
Application 11/291,631

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removeably disposing said self-loading pistol in said
holster such that said trigger is removeably inserted into said
moveable trigger housing mechanism, and such that said barrel
is removeably inserted into said barrel housing assembly,
wherein said self-loading pistol does not have a round in the
firing chamber, and wherein said self-loading pistol without a
round in the firing chamber can be removed from said holster
without moving said moveable trigger housing mechanism;
sliding said moveable trigger housing mechanism from
said first position to said second position thereby moving said
moveable slide mechanism from said first position to said
second position;
loading one of said one or more rounds into said firing
chamber;
removing said self-loading pistol from said holster.

ISSUE
The dispositive issue in this case is whether the proposed combination
discloses the step of removeably disposing the self-loading pistol in the
holster such that the trigger is removeably inserted into the moveable trigger
housing mechanism as called for in independent claim 10.

OPINION
The Examiner concluded that it would have been obvious to modify
Nichols’s holster by adding a barrel housing assembly as taught by Seldeen,
and to utilize Seldeen’s self-loading pistol in Nichols’s holster so that the
pistol may be loaded while inside the holster. Ans. 5.
This conclusion is based in part on the Examiner’s determination that
the proposed combination discloses the claimed step of removeably
disposing the self-loading pistol in the holster so that the trigger is
removeably inserted into the moveable trigger housing mechanism when
Appeal 2011-013667
Application 11/291,631

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Seldeen’s self-loading pistol (pistol 12) is placed in the modified holster as
shown in Nichols’s Figure 5. Ans. 5. Specifically, according to the
Examiner, when the pistol is inserted into the modified holster, Nichols’s
trigger housing mechanism (flexible fingers 68 of the trigger guard gripping
device 64) houses the trigger “since the trigger follows the trigger guard into
this space, and is held in place by the mechanism.” Ans. 7. The Examiner’s
finding is premised upon the claim interpretation that the step at issue calls
for the trigger to be housed in the trigger housing mechanism. For the
reasons that follow, the Examiner has conflated what constitutes a trigger
housing mechanism as claimed with the scope of the claimed step of
removeably disposing the self-loading pistol in the holster.
We assume, for sake of argument, that the Examiner is correct that the
claimed trigger housing mechanism can be construed as a mechanism for
housing the trigger by housing the trigger inside the holster. See Ans. 8.
However, independent method claim 10 does not call for the step of
removeably disposing the self-loading pistol in the holster so that the trigger
is housed by the trigger housing mechanism. Rather, claim 10 calls for the
trigger of the pistol to be removeably “inserted into” the movable trigger
housing mechanism. See App. Br., Claims App’x, Claim 10; Spec. 17, l. 10
(trigger 616); 18:2-3 (echoing the claim language); figs. 6B and 8 (showing
the pistol removably disposed in the holster to include the trigger of the
pistol inside the trigger housing mechanism); fig. 6C (pointing to the trigger
as element 616 and not the trigger guard); Spec. fig. 12 (step 1240, echoing
the claim language). Consequently, the Examiner has misinterpreted the
scope of this step of claim 10. With the proper scope of this step in mind,
we look to the prior art.
Appeal 2011-013667
Application 11/291,631

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When the self-loading pistol (Seldeen’s pistol 12) of the proposed
combination is removeably disposed in the holster as shown in Nichols’s
Figure 5, the trigger of the pistol is not inserted into Nichols’s trigger
housing mechanism (flexible fingers 68 of the trigger guard gripping device
64). Contra. Ans. 8 (relying upon Nichols’s Figure 5 as disclosing this
step). To the contrary, Nichols discloses that in the unlocked position shown
in Figure 5, flexible fingers 68 are not over the trigger guard, and flexible
fingers 68 move over the trigger guard as the gun is moved to the locked
position shown in Figure 4. Nichols, col. 6, l. 60- col. 7, l. 19; col. 8, ll. 21-
37; figs. 4 (locked), 5 (unlocked); App. Br. 10. Although the trigger guard is
inserted into the trigger housing mechanism when the gun is fully inserted
into the holster of Nichols (Figure 4), even in this position, the trigger
remains outside of the trigger housing mechanism.
Accordingly, we do not sustain the rejection of independent claim 10
and its dependent claims 11-19.

DECISION
We reverse the Examiner’s decision to reject claims 10-19.

REVERSED

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