Ex Parte WALKER

Patent Trial and Appeal Board

Feb 28, 2019

14722207 (P.T.A.B. Feb. 28, 2019)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR
14/722,207 05/27/2015 CHRISTOPHER S. WALKER
99344 7590 03/04/2019
Patent Law of Virginia, PLLC
PO Box 9319
Richmond, VA 23227
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.
WALKER2 5026
EXAMINER
BETANCOURT,ALBERTOJ
ART UNIT PAPER NUMBER
2872
NOTIFICATION DATE DELIVERY MODE
03/04/2019 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):
brian@patentlawva.com
brianjteague@gmail.com
eofficeaction@appcoll.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte CHRISTOPHER S. WALKER
Appeal 2018-004686
Application 14/722,207
Technology Center 2800
Before CATHERINE Q. TIMM, BRIAND. RANGE, and MICHAEL G.
McMANUS, Administrative Patent Judges.
TIMM, Administrative Patent Judge.
DECISION ON APPEAL 1
STATEMENT OF THE CASE
Pursuant to 35 U.S.C. § 134(a), Appellant2 appeals from the
Examiner's decision to reject claims 1-15 under 35 U.S.C. § 103 as obvious
1 In explaining our Decision, we cite to the Specification of May 27, 2015
(Spec.), Non-Final Office Action of April 11, 2017 (Non-Final), and Appeal
Brief of September 27, 2017 (Appeal Br.).
2 Appellant is Common Sense Inventions, Inc., which is the applicant under
37 C.F.R. § 1.46 and also identified as the real party in interest. Appeal Br.
2.
Appeal 2018-004686
Application 14/722,207
over Vander Wal3 in view ofVaught4 and Zelazowski. 5 We have
jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM-IN-PART.
The claims are directed to a system (apparatus) and a method for
securing eyewear (see, e.g., claims 1 and 8).
The apparatus includes an elongated flexible band with magnets
encased in each end and a backplate comprising a third magnet. Spec. ,r 17.
Figure 3 depicts elongated flexible band 12 having first end 16 and
second end 18 and is reproduced below:
:6
FIG. 3
Figure 3 is a perspective view of elongated flexible band 12
3 Vander Wal et al., US 2012/0125046 Al, published May 24, 2012.
4 Vaught, US 8,696,112 Bl, issued Apr. 15, 2014.
5 Zelazowski, US 2010/03094256 Al, published Dec. 9, 2010.
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Appeal 2018-004686
Application 14/722,207
Figure 6, reproduced below, depicts the magnets 20 and 22 encased in
the ends 16 and 18 of elongated flexible band 12. Spec. ,r 18.
s 12 (
FIG. 6
Figure 6 is a sectional view of the elongated flexible band 12
The first magnet 20 is larger and, thus, stronger than the second
magnet 22. Spec. ,r 22.
N
Figure 7, reproduced below, shows backplate 14, which is magnetic.
N
/
s
FIG. 7
Figure 7 is a perspective view of backplate 14
Claim 1, with reference numerals from Figures 3, 6, and 7, is
illustrative of the apparatus:
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Appeal 2018-004686
Application 14/722,207
1. A system for securing eyewear comprising:
an elongated flexible band [12] having first and second
ends [16, 18];
a first magnet [20] encased in the first end [16];
a second magnet [22] encased in the second end [18]; and
a backplate [ 14] comprising a third magnet;
wherein the first magnet [20] is stronger than the second
magnet [22].
Appeal Br. 11 ( claims appendix).
Claim 8 recites, in essence, steps of attaching the backplate and first
magnet on opposite sides of a hat, securing the nose or top bar of eyewear
adjacent the first end, bending the band around at least a portion of the
bridge or top bar, and magnetically attaching the second magnet to the first
magnet.
Importantly, claim 1 does not require the magnetic coupling of the
backplate and first magnet that claim 8 requires.
OPINION
Appellant directs the arguments to the limitations of claims 1 and 8.
Thus, we confine our review to those claims.
There is no dispute that the combination of Vander Wal and Vaught
suggests a three magnet system with a magnetic backplate (Vaught's
magnetic plate 8 with magnets 12) and an elongated flexible band with first
and second magnets encased in its ends ( as suggested by the combination of
Vander Wal's magnets in opposing ends of Vaught's band (securement strap
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Application 14/722,207
18)). Appeal Br. 8. Nor is there any dispute that Vander Wal and Vaught
are silent as to the strength of the magnets in the first and second ends of the
band. Non-Final 3. The Examiner relies on Zelazowski as providing
evidence that it would have been obvious to the ordinary artisan to select
magnets that are of different strengths as required by claims 1 and 8. Non-
Final 3. Zelazowski discloses using magnets as detachable connectors in
eyewear stating that, preferably, the magnets "are as strong and as small as
possible, but may be of any shape, size, or strength that does not interfere
with the functionality of the claimed invention." Zelazowski ,r 76.
Appellant notes that, in the combination suggested by V ander Wal
and Vaught, the elongated flexible band would be attached to the backplate
in the middle of the band. Appeal Br. 8.
We agree. As found by the Examiner, Vander Wal teaches a flexible
band with first and second magnets encased in its ends. Non-Final 2; see
also Vander Wal Fig. 1. The magnets can be brought together as shown in
Figures 3 and 6. Vander Wal ,r,r 20-21. Eyewear can be secured within the
flexible elongated band when the magnets are brought together on either side
of a piece of fabric. Vander Wal ,r 22.
As found by the Examiner, Vaught teaches a backplate comprising
magnets 12. Non-Final 3; see also Vaught Fig. 5. Vaught places the
magnetic plate 8 with magnets 12 within the walls of crown band 10 of a
hat. This is shown in Figure 5, reproduced below:
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Appeal 2018-004686
Application 14/722,207
Figure 5 is an underside view of a hat with magnetic plate 8
located inside crown band 10
On the other side of the hat, which is shown in Figure 4, a receiver
plate 14 with securement strap 18 is magnetically attached to the hat via the
magnets 12 shown in Figure 5. Figure 4 is reproduced below:
Figure 4 is a perspective view of a hat with a pair of eyeglasses
in the secured position within securement strap 18
Securement strap 18 uses a hook and loop fastener system to secure
the eyeglasses. Vaught col. 3, 11. 33-50.
When replacing the hook and loop fasteners on securement strap 18 of
Vaught with a magnetic fastener system as taught by Vander Wal, the
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Application 14/722,207
elongated flexible band (securement strap 18) would remain attached to the
backplate in the middle of the band. See, e.g., Vaught Fig. 4.
Appellant contends that "[ a ]dding magnets to the opposing ends of
Vaught's band [ securement strap 18], as suggested by the Office Action,
would not change the way Vaught's band is attached to the hat." Appeal Br.
8. This is true and relevant for the rejection of claim 8. Claim 8 requires
positioning the magnets so the first magnet ends up on the outer surface of
the hat opposite the backplate so that the first magnet magnetically couples
to the magnet of the backplate and the second magnet ends up magnetically
coupled to the first magnet. This is a different arrangement than that
suggested by the combination of Vander Wal and Vaught, which suggests
attaching the middle of the band to the backplate rather than attaching a first
magnetic end to the backplate. However, it is of little consequence as to the
rejection of claim 1, which does not require the three magnets magnetically
couple to each other.
Appellant continues that "[b ]ecause the ends of Vaught's band would
still only attach to each other (as in Fig. 3A, for example) (and not to another
separate component such as a backplate), there would be no need for
magnets in opposing ends of Vaught's band to have different strength
magnets." Id. The problem here is that there would also be no need for the
magnets in the opposing ends to have the same magnetic strength.
Although the three magnet coupling arrangement, which is required in
the method of claim 8, offers a reason to use magnets of different strengths,
this does not overcome the rejection of claim 1. This is because some
selection of magnet strength must be made when assembling the structure
suggested by Vander Wal and Vaught and, in view of the silence of Vander
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Appeal 2018-004686
Application 14/722,207
Wal on magnetic strength and the disclosure in Zelazowski that strengths in
connecting magnets can be different, there is reason to conclude that using
magnets of different strengths in the ends of Vaught' s securement strap 18
would have been obvious as they would have the predictable and expected
result of providing adequate magnetic coupling for holding eyewear on a
hat. Thus, we sustain the rejection of claim 1 and those claims depending
thereon.
Turning to claim 8, as Appellant points out, Vaught attaches an
elongated flexible band to a backplate, but in the middle of the band (see,
e.g., Vaught Fig. 4), rather than at the location of the hook and loop
fasteners. Appeal Br. 8. Thus, the combination of references does not teach
the method of claim 8. We do not sustain the rejection of claim 8 or the
claims that depend from claim 8.
CONCLUSION
We sustain the rejection of claims 1-7, but we do not sustain the
rejection of claims 8-15.
DECISION
The Examiner's decision is affirmed-in-part.
TIME PERIOD FOR RESPONSE
No time period for taking any subsequent action in connection with
this appeal maybe extended under 37 C.F.R. § 1.136(a)(l).
AFFIRMED-IN-PART
8