Jerod Dahl et al.Download PDFPatent Trials and Appeals BoardAug 21, 201914445752 - (D) (P.T.A.B. Aug. 21, 2019) Copy Citation 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. 14/445,752 07/29/2014 Jerod Dahl 125022USP 5469 16275 7590 08/21/2019 HolzerIPLaw, PC dba Holzer Patel Drennan 216 16th Street Suite 1350 Denver, CO 80202 EXAMINER GRACZ, KATHARINE ART UNIT PAPER NUMBER 3732 NOTIFICATION DATE DELIVERY MODE 08/21/2019 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): docket@hpdlaw.com hiplaw@blackhillsip.com rholzer@hpdlaw.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE ____________ BEFORE THE PATENT TRIAL AND APPEAL BOARD ____________ Ex parte JEROD DAHL, PETER FOLEY, COLLIN METZER, TREVOR KANOUS, and ERIC WILLIAM SUGANO ____________ Appeal 2018-008082 Application 14/445,752 Technology Center 3700 _______________ Before MICHELLE R. OSINSKI, GEORGE R. HOSKINS, and LISA M. GUIJT, Administrative Patent Judges. GUIJT, Administrative Patent Judge. DECISION ON APPEAL STATEMENT OF THE CASE Appellant1 appeals under 35 U.S.C. § 134(a) from the Examiner’s rejection of claims 1, 2, 4–10, 13–19, and 21–26.2 We have jurisdiction under 35 U.S.C. § 6(b). 1 Skydex Technologies, Inc. (“Appellant”), the applicant as provided for under 37 C.F.R. § 1.46, is also identified as the real party in interest. Appeal Br. 3. 2 Appeal is taken from the Final Office Action dated June 9, 2017, as supplemented by the Advisory Action dated Oct. 10, 2017. Claims 3, 11, 12, and 20 have been cancelled. Appeal Br. 3. Appeal 2018-008082 Application 14/445,752 2 We AFFIRM–IN–PART. CLAIMED SUBJECT MATTER Claims 1, 9, and 17 are the independent claims on appeal. Claim 1, reproduced below with paragraph indentations added for clarity and disputed limitations emphasized, is exemplary of the subject matter on appeal. 1. A void cell arrangement comprising: a first void cell matrix including a first array of void cells interconnected by a first binding layer oriented adjacent to a second opposing void cell[] matrix including a second array of void cells interconnected by a second binding layer, wherein a volume between the first binding layer and the second binding layer is open to atmosphere outside of an outer perimeter dimension of the entire first array of interconnected void cells and an outer perimeter dimension of the entire second array of interconnected void cells, wherein the second array of interconnected void cells is geometrically different from the first array of interconnected void cells, wherein the outer perimeter dimension of the entire second array of interconnected void cells is different than the outer perimeter dimension of the entire first array of interconnected void cells, and wherein at least one void cell has an symmetrical perimeter. THE REJECTIONS I. Claim 19 stands rejected under 35 U.S.C. § 112(b) as indefinite. II. Claims 1, 6, 9, 17–19, and 23 stand rejected under 35 U.S.C. § 102(a)(1) as anticipated by Schindler (US 7,707,743 B2; issued May 4, 2010). Appeal 2018-008082 Application 14/445,752 3 III. Claims 1, 2, 4, 5, 7–10, 13–16, 21, 22, and 24–26 stand rejected under 35 U.S.C. § 103 as unpatentable over Brncick (US 2010/0176633 A1; published July 15, 2010) and Sell (US 6,385,864 B1; issued May 14, 2002). ANALYSIS Rejection I Regarding claim 19, the Examiner finds that the claim recitation “the outer perimeter dimension of the entire first array of interconnected void cells” and “the outer perimeter dimension of the entire second array of interconnected void cells” lacks antecedent basis. Final Act. 2. Appellant does not present any arguments relevant to the Examiner’s rejection, and therefore, we summarily affirm the Examiner’s rejection of claim 19 under 35 U.S.C. § 112(b) as indefinite. Appeal Br. 6; see also id. at 6–17. Rejection II Independent claims 1 and 9, and dependent claim 6 Regarding independent claim 1, the Examiner finds, inter alia, that Schindler discloses a void cell arrangement comprising a first void cell matrix including a first array of void cells (i.e., first wave crests 38, first wave troughs 40) interconnected by a first binding layer (i.e., first layer 36) oriented adjacent to a second opposing void cell matrix including a second array of void cells (i.e., second wave crests 44, second wave troughs 46) interconnected by a second binding layer (i.e., second layer 42), as claimed. Final Act. 3. Figure 3 of Schindler is reproduced below. Appeal 2018-008082 Application 14/445,752 4 Figure 3 is “an elevation view of an alternative embodiment of the support assembly of [an] article of footwear.” Schindler 2:56–59. The Examiner also finds that an outer perimeter (“OP”) dimension of the entire second array of interconnected void cells is different than an OP dimension of the entire first array of interconnected void cells, and in support, the Examiner provides an annotation of Figure 1 of Schindler, reproduced below. Final Act. 3–4, 6 (citing Schindler 5:39–42, 5:59–6:10). Figure 1 of Schindler depicts “an elevation view of an embodiment of [an] article of footwear having a sole assembly with a multi-layered support assembly positioned therein,” wherein the Examiner has identified an OP dimension. Schindler 2:53–54. The Examiner determines that “[s]ince Schindler discloses each of the layers can have any number of amplitudes and frequencies and each of the trough[s] don’t necessarily have to be in Appeal 2018-008082 Application 14/445,752 5 contact with a corresponding crest, then clearly the dimensions can be different;” for example, “a different size of the voids (troughs/crests) creates different dimensions between the first array and the second array.” Adv. Act. 3. Appellant argues that “Schindler does not disclose [that] ‘an outer perimeter dimension of the entire second array of interconnected void cells is different than an outer perimeter dimension of the entire first array of interconnected void cells.’” Appeal Br. 9; see also Reply Br. 2–5. In support, Appellant submits that the Examiner does not explain “how lack of contact between the wave crests in Schindler correlates to the outer perimeter dimensions of the entire first array and the entire second array.” Appeal Br. 8. Appellant also submits that “[t]he voids creating different dimensions between the arrays in Schindler does not equate to different outer perimeter dimensions of the entire arrays,” and “that Schindler discloses ‘each of the layers can have any number of amplitudes and frequencies’ does not specifically equate to ‘different’ perimeter dimensions of entire arrays.” Id. An ordinary meaning of the claim term “perimeter,” in view of the Specification, is “the boundary of a closed plane figure.” https://www.merriam-webster.com/dictionary/perimeter (last visited Aug. 8, 2019). Therefore, the claim language “outer perimeter dimension of [an] entire [first or second] array” means the outer boundary of the entire first or second array, which claim 1 requires to be different one from the other. We agree with Appellant that although Schindler discloses that “the amplitudes and frequencies of the first layer 36 need not be the same as those of second layer 42” (Schindler 5:21–24) and also that “each first wave trough 40 need Appeal 2018-008082 Application 14/445,752 6 not necessarily be in contact with a corresponding second wave crest 44” (id. at 5:41–42), Schindler is silent with respect to how the outer perimeter dimension of the entire first array (i.e., first layer 36, first wave crests 38, first wave troughs 40) relates to the outer perimeter dimension of the entire second array (i.e., second layer 42, second wave crests 44, second wave troughs 46), other than to depict the two outer perimeter dimensions being the same. See, e.g., Schindler, Figs. 1, 14, 15. In other words, we agree with Appellant that teaching different amplitudes and frequencies for the wave crests and troughs within a layer of an array does not inform one skilled in the art about the outer perimeter dimension of an entire array. Accordingly, we do not sustain the Examiner’s rejection of independent claim 1 and claim 6 depending therefrom. Although omitted from the Examiner’s analysis, independent claim 9 also requires the outer perimeter dimension of the entire second array to be different than the outer perimeter dimension of the entire first array, and therefore, for essentially the same reasons as set forth supra, we also do not sustain the Examiner’s rejection of independent claim 9. Final Act. 3. Independent claim 17 and dependent claims 18, 19, and 23 Regarding independent claim 17, the Examiner finds, inter alia and similar to independent claim 1 supra, that Schindler’s Figures 1, 2–5, and 11–13 disclose a first array of interconnected void cells (i.e., first layer 36, first wave crests 38, first wave troughs 40) and a second array of interconnected void cells (i.e., second layer 42, second wave crests 44, second wave troughs 46), and also that the second array of interconnected void cells includes at least one void cell (i.e., second wave crests 58) that opposes multiple void cells (two first wave troughs 54 “via” third layer 60) Appeal 2018-008082 Application 14/445,752 7 of the first array of interconnected void cells, as claimed. Final Act. 4–5 (citing Schindler, Fig. 5); see also Ans. 4. The Examiner’s annotated Figure 5 of Schindler is reproduced below. Figure 5 is “an elevation view of yet another alternative embodiment of the support assembly of [an] article of footwear,” (Schindler 2:63–65), wherein the Examiner identifies a “1st void cell” of the second array of interconnected void cells that opposes “void cells 2nd, 3rd, and 4th” of the first array of interconnected void cells. Ans. 5. Appellant argues that the Examiner “is not mapping the claimed features to equivalent features in Schindler” and that Figure 5 of Schindler “does not show a ‘void cell 58,’” but rather, “‘wave crests 58,’ which depict the wave-shaped profiles of the layers.” Appeal Br. 12 (citing Schindler 4:62–63); see also Reply Br. 8. The Specification does not provide a special definition for the claim term “void cell,” but rather refers, for example, to “void cells 102, 104” which are depicted as “hollow chambers” within the material of a shoe sole “that resist deflection due to compressive forces.” Spec. ¶ 11, Fig. 1. Likewise, claim 17 does not specify any particular structure for the void cell itself. An ordinary definition of the terms “void” and “cell,” consistent with Appeal 2018-008082 Application 14/445,752 8 the Specification are “containing nothing” (https://www.meriam- webster.com/dictionary/void (last visited Aug. 9, 2019)) and “a small compartment, cavity, or bounded space: such as a : one of the compartments of a honeycomb” (https://www.meriam-webster.com/dictionary/cell (last visited Aug. 9, 2019)). Thus, Appellant’s argument does not apprise us of error in the Examiner’s finding that the empty, bounded space between Schindler’s wave crest 58 and plate 34, identified by the Examiner’s annotation to Figure 5 supra as a 1st void cell, is a void cell. A preponderance of the evidence supports the Examiner’s determination that the 1st void cell is in a second array of interconnected void cells opposed to multiple (i.e., at least two void cells) in a first array of interconnected void cells, namely, the 2nd and 4th void cells, as identified by the Examiner supra. We decline to read into claim 17 that the at least one void cell of the second array must be opposed to the entirety of the multiple void cells of the first array; rather, the void cell of the second array may be opposed to only a partial portion of a void cell in the first array. Thus, the 1st void cell is opposed to each of the 2nd, 3rd, and 4th void cells. Accordingly, we sustain the Examiner’s rejection of independent claim 17. Appellant chose not to present separate arguments for claims 18, 19, and 23, which depend from claim 17, and therefore, for essentially the same reasons stated supra, we sustain the Examiner’s rejection of claims 18, 19, and 23. Appeal Br. 6–12. Rejection III Regarding independent claim 1, the Examiner finds, inter alia, that Brncick discloses a void cell arrangement comprising a first void cell matrix Appeal 2018-008082 Application 14/445,752 9 (i.e., top shell 42) including a first array of void cells (i.e., a series of spaced- apart downwardly projecting domes 46) interconnected by a first binding layer (i.e., plate 44) oriented adjacent to a second opposing void cell matrix (i.e., bottom shell 142) including a second array of void cells (i.e., a series of spaced-apart upwardly projecting domes 146) interconnected by a second binding layer (i.e., plate 144). Final Act. 8; see, e.g., Brncick ¶ 47, Figs. 1, 7. The Examiner also finds that Brncick’s flanges 48 and 148 “are of different constructions” and “it appears as though the outer perimeter dimension of the entire second array . . . is different than the outer perimeter dimension of the entire first array.” Final Act. 8–9. The Examiner relies on the same findings relative to Brncick for the same limitation recited in independent claim 9. Id. at 10. Regarding claims 1 and 9, Appellant argues that “a flange may more reasonably be interpreted to be a segment of the outer perimeter of one cell, as each of the flanges is not the entire perimeter dimension of an entire array,” and that the Examiner is speculating by using the language “‘appears’ as though.” Appeal Br. 14; Reply Br. 8–10. Brncick discloses, with reference to Figures 1 and 7, “cover-mount flange 48 coupled to plate 44 and arranged to extend around the perimeter of top shell 42” and “retainer-mount plate 148 coupled to plate 144 and arranged to extend around the perimeter of bottom shell 142.” Brncick ¶ 47. Brncick discloses that [d]omes 46 and 146 are aligned in base-to-base registration as suggested in FIG. 1 and cooperate with plates 44, 144 to form a deformable elastic bed 47 coupled to cover-mount flange 48 and retainer-mount flanges 148. These flanges 48, 148 are arranged to lie in spaced-apart relation to one another as suggested in FIGS. 1 and 7. Appeal 2018-008082 Application 14/445,752 10 Id. We are persuaded by Appellant’s argument that it is unclear from the Figures of Brncick as to whether Brncick discloses that either of the top or bottom shells 42, 142 have outer perimeter dimensions that are different one from the other, based upon flanges 48, 148. Accordingly, we do not sustain the Examiner’s rejection of independent claims 1 and 9, and claims 2, 4, 5, 7, 8, 10, 13–16, 21, 22, and 24–26 depending therefrom. DECISION The Examiner’s rejection of claim 19 under 35 U.S.C. § 112(b) as indefinite is AFFIRMED. The Examiner’s rejection of claims 1, 6, and 9 under 35 U.S.C. § 102(a)(1) as anticipated by Schindler is REVERSED. The Examiner’s rejection of claims 17–19 and 23 under 35 U.S.C. § 102(a)(1) as anticipated by Schindler is AFFIRMED. The Examiner’s rejection of claims 1, 2, 4, 5, 7–10, 13–16, 21, 22, and 24–26 under 35 U.S.C. § 103 as unpatentable over Brncick and Sell is REVERSED. 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–IN–PART Copy with citationCopy as parenthetical citation