Ex Parte VanElverdinghe

Patent Trial and Appeal Board

Oct 18, 2013

12201220 (P.T.A.B. Oct. 18, 2013)

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.
12/201,220 08/29/2008 Jeffry L. VanElverdinghe 135.0030 9053
114999 7590 10/18/2013
Jeffry L. VanElverdinghe
15891 McBee Road
Dallas, OR 97338-9404
EXAMINER
THANH, LOAN H
ART UNIT PAPER NUMBER
3764
MAIL DATE DELIVERY MODE
10/18/2013 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 JEFFRY L. VanELVERDINGHE
____________

Appeal 2011-011325
Application 12/201,220
Technology Center 3700
____________

Before JENNIFER D. BAHR, MICHAEL C. ASTORINO, and
MICHELLE R. OSINSKI, Administrative Patent Judges.

ASTORINO, Administrative Patent Judge.

DECISION ON APPEAL

STATEMENT OF THE CASE
The Appellant appeals under 35 U.S.C. § 134 from the Examiner’s
decision rejecting claims 11-15. Br. 2, 3. Claims 1-10 have been cancelled.
Br. 2. We have jurisdiction over the appeal under 35 U.S.C. § 6(b).
We AFFIRM.
Appeal 2011-011325
Application 12/201,220

2
Claimed Subject Matter
Claim 11, reproduced below, is representative of the subject matter on
appeal.
11. A safety enclosure structure, comprising:
a plurality of flexible rods, each flexible rod
comprising a first end and a second end;
a frame assembly comprising a closed shape
and at least four apertures arranged in a first
through fourth sequential arrangement along the
frame assembly, each aperture capable of receiving
an end of a flexible rod, the first end of a first
flexible rod being received by the first aperture and
the second end of the first flexible rod being
received by the third aperture, and the first end of
the second flexible rod being received by the
second aperture and the second end of the second
flexible rod being received by the fourth aperture,
the first and second flexible rods each forming an
arch shape between the apertures receiving the
respective ends of the first and second flexible
rods;
at least one ferrule, each ferrule being
coupled to two adjacent flexible rods, and the two
adjacent flexible rods each passing through the
ferrule; and
a net coupled to at least a top arch portion of
at least one of the first and second flexible rods,
the net substantially forming a shape comprising
an opening distal to the frame assembly and
proximate to the top arch portion, the opening
distal to the frame assembly being substantially a
same size as a size of the closed shape of the frame
assembly, the net and the plurality of flexible rods
when received by the apertures of the frame
assembly forming a safety enclosure structure that
does not act as a rebounder.
Appeal 2011-011325
Application 12/201,220

3
Rejections
Claims 11-14 are rejected under 35 U.S.C. § 103(a) as unpatentable
over Adams (US 2005/0143225 A1, pub. Jun. 30, 2005) in view of Yeh (US
5,137,503, iss. Aug. 11, 1992).
Claims 11-14 are rejected under 35 U.S.C. § 103(a) as unpatentable
over Adams in view of Mo (US 2007/0015631 A1, pub. Jan. 18, 2007).
Claim 15 is rejected under 35 U.S.C. § 103(a) as unpatentable over
Adams in view of either Yeh or Mo as applied to claim 14 above, and
further in view of Publicover (US 2002/0137598 A1, pub. Sep. 26, 2002).

OPINION
The rejection based on Adams and Yeh
The Examiner finds Adams discloses a safety enclosure structure
including, among other things, a plurality of flexible rods 105 forming arch
shapes. See Ans. 5 (citing Adams, fig. 1, paras. [0009], [0035]). The
Examiner relies on Adams to teach nearly all of the limitations of claim 11
except for the claimed ferrule. Ans. 5-6, 10. The Examiner finds that Yeh’s
two fastening rings 52 and 53 are constructed as ferrules and correspond to
the claimed “at least one ferrule,” as recited in claim 11. Ans. 6 (citing Yeh,
fig. 4). The Examiner concludes, “it would have been obvious . . . to modify
the device of Adams by including the ferrule(s) taught by Yeh because it
would give added strength to the frame members.” Id. (citing Yeh, col. 4, ll.
14-18 (stating “[t]wo fastening rings 52 and 53 . . . are constructed as
ferrules to give an added strength.”)).
The Appellant asserts, “[t]he Examiner uses a syllogism to conclude
that the claimed subject matter would have been obvious.” Br. 4. The
Appeal 2011-011325
Application 12/201,220

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Appellant identifies Adams as evidencing the major premise and Yeh as
evidencing a minor premise of the syllogism. Br. 5. The Appellant asserts
the major premise of the syllogism includes the Examiner’s finding that
Adams does not teach, “at least one ferrule, each ferrule being coupled to
two adjacent flexible rods, and the two adjacent flexible rods each passing
through the ferrule,” as recited in claim 11. The minor premise of the
syllogism is that “Yeh teaches an exercise device comprises at least one
ferrule (Fig 4, #52 or #53), the ferrule being coupled to two flexible rods
each passing through the ferrule.” Id. The Appellant also asserts that
“Yeh[‘s] tightening rings 52, 53 do not correspond to the claimed at least
one ferrule of claim 11.” Br. 11.
The Appellant’s assertions are incorrect. The Examiner’s rejection
relies on Yeh’s disclosure to teach the use of ferrules 52, 53 to strengthen the
members positioned in fastening holes 521 and 531 of ferrules 52, 53,
respectively. See Ans. 10; Yeh, col. 4, ll. 14-18. Notably, the Examiner’s
rejection does not rely on Yeh’s elastic body 51 to correspond to the claimed
plurality of flexible rods. Rather, the Examiner relies on Adams’s rods 105
to correspond to the claimed “plurality of flexible rods.” Ans. 5; see Ans.
10-11. Additionally, the Examiner’s finding that Yeh’s two fastening rings
52, 53 correspond to the “at least one ferrule,” as recited in claim 11, is
correct.
The Appellant contends that the Examiner’s conclusion of
obviousness suffers from “impermissible hindsight” and is “confused and
unconvincing.” Br. 10, 11. However, adding ferrules to Adams’ rods 105 to
strengthen Adams’ structure has rational underpinning. See In re Kahn, 441
F.3d 977, 988 (Fed. Cir. 2006) (“[R]ejections on obviousness grounds
Appeal 2011-011325
Application 12/201,220

5
[require] some articulated reasoning with some rational underpinning to
support the legal conclusion of obviousness”) (cited with approval in KSR
Int’l Co. v. Teleflex, Inc., 550 U.S. 398, 418 (2007)); see also Ans. 10 (citing
Spec. para. [0015] (stating “Safety enclosure 300 further comprises a
plurality of ferrules 304, of which only a few are indicated, that rods 301
pass through in a well-known manner. Ferrules 304 provide additional
support between the different rods 301.” (emphasis added))). Additionally,
the Appellant contends that:
even if a person of skill in the art would be motivated to modify
“the device of Adams by including the ferrule(s) taught by Yeh
because it would give added strength to the frame members”
. . . , such a modification would only result in increasing the
structural strength of the frame members (as stated by the
Examiner), and not result in the claimed at least one ferrule,
such that each ferrule is coupled to two adjacent flexible rods,
and the two adjacent flexible rods each pass through the ferrule.
Br. 8.
In response, the Examiner explains that, as modified, Adams would
include ferrules attached to rods 105, and rods 105 are a part of the general
frame of Adams’ trampoline 100. Ans. 11; see Adams, para. [0022]
(disclosing that trampoline 100 includes a frame structure having members
103, 104, 105, and 106.). Hence, the Appellant’s additional contention is
unpersausive. Further, the Examiner finds both Adams and Yeh “are
analogous in that they are both exercise devices.” Ans. 11.
Thus, Appellant’s argument does not apprise us of error in the
Examiner’s rejection of claim 11. We thus sustain the rejection of claim 11
and of its dependent claims 12-14, for which Appellant does not assert any
separate arguments, and which thus fall with claim 11, as unpatentable over
Adams and Yeh.
Appeal 2011-011325
Application 12/201,220

6
The rejection based on Adams and Mo
The Examiner finds Adams discloses a safety enclosure structure
including, among other things, a plurality of flexible rods 105 forming arch
shapes. See Ans. 7 (citing Adams, fig. 1, paras. [0009], [0035]). The
Examiner relies on Adams to teach nearly all of the limitations of claim 11
except for the claimed ferrule. Ans. 7-8; see Ans. 13. The Examiner finds
that Mo’s embrace clamp 6 corresponds with the claimed “at least one
ferrule,” as recited in claim 11. Ans. 8 (citing Mo, fig. 2). The Examiner
concludes, “it would have been obvious . . . to modify the device of Adams
by including the ferrule(s) taught by Mo because it would increase the
structural strength of the frame members.” Id. (citing Mo, Abstract).
Notably, with the exception of substituting Mo’s teaching for Yeh’s
teaching, the rejection of claims 11-14 as unpatentable over Adams and Mo
and the rejection of claims 11-14 as unpatentable over Adams and Yeh are
very similar. Additionally, similar to the rejection based on Adams and Yeh,
the Appellant asserts that Mo “does not disclose or suggest the claimed at
least one ferrule.” Br. 18. However, the Appellant does not cogently
explain how the Examiner’s finding that Mo’s embrace clamp 6 corresponds
to the claimed ferrule is in error. See Ans. 8. The Appellant also asserts,
similar to the rejection of claims 11-14 as unpatentable over Adams and
Yeh, that the rejection of Adams and Mo uses a syllogism to conclude that
the claimed subject matter would have been obvious, lacks a convincing line
of reasoning, and suffers from impermissible hindsight. See Br. 12-19. For
similar reasons discussed above with regard to the Appellant’s assertions
against the rejection of claims 11-14 as unpatentable over Adams and Yeh,
Appeal 2011-011325
Application 12/201,220

7
the Appellant’s assertions against the rejection of claims 11-14 as
unpatentable over Adams and Mo are unpersuasive.
Thus, we sustain the rejection of claim 11 and of its dependent claims
12-14, for which Appellant does not assert any separate arguments, and
which thus fall with claim 11, as unpatentable over Adams and Mo.

The rejection based on Adams, either of Yeh or Mo, and Publicover
The Appellant has not provided further arguments for the rejection of
claim 15 under 35 U.S.C. § 103(a) as unpatentable over Adams, either of
Yeh or Mo, and Publicover. See Br. 19. The Appellant merely relies on the
arguments presented for the Examiner’s rejection of claim 11 for these
grounds of rejection. For the same reasons we have sustained the rejections
of claim 11, we likewise sustain the rejections of claim 15 under 35 U.S.C.
§ 103(a) as unpatentable over Adams, either of Yeh or Mo, and Publicover.

DECISION
We AFFIRM the rejections of claims 11-15.
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)(1)(iv).

AFFIRMED

Klh