Lander, Kirt

Patent Trials and Appeals Board

Apr 1, 2020

13621199 - (D) (P.T.A.B. Apr. 1, 2020)

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.
13/621,199 09/15/2012 Kirt Lander PHDL1526-007 7438
26948 7590 04/01/2020
VENJURIS, P.C.
1938 E. OSBORN RD
PHOENIX, AZ 85016-7234
EXAMINER
NGUYEN, SON T
ART UNIT PAPER NUMBER
3643
NOTIFICATION DATE DELIVERY MODE
04/01/2020 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):
docketing@venjuris.com
vclmdocket@venjuris.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
____________________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________________

Ex parte KIRT LANDER
____________

Appeal 2018-006243
Application 13/621,199
Technology Center 3600
____________

Before MICHAEL L. HOELTER, BRANDON J. WARNER, and
LISA M. GUIJT, Administrative Patent Judges.

GUIJT, Administrative Patent Judge.

DECISION ON APPEAL

STATEMENT OF THE CASE
Appellant1 seeks our review under 35 U.S.C. § 134(a) of the rejection
of claims 1–20. We have jurisdiction under 35 U.S.C. § 6(b). An oral
hearing was held on March 17, 2020.
We AFFIRM.

1 We use the word “Appellant” to refer to “applicant” as defined in 37
C.F.R. § 1.42.
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THE INVENTION
Appellant’s invention relates to “equine footwear.” Spec. ¶ 2. Claims
1, 6, and 16 are the independent claims on appeal. Claim 1, reproduced
below, is illustrative of the subject matter on appeal.
1. A hoof boot for placement on a hoof, the hoof boot
comprising:
a base including a bottom wherein the bottom covers the
entire bottom surface of the hoof and wherein the base at least
partially covers lateral and anterior surface[s] of the hoof;
a cupped heel captivator; and
a coupling mechanism for coupling the base to the cupped
heel captivator wherein the cupped heel captivator is coupled to
the base and moves forward and upward relative to the base after
coupling when said coupling mechanism is under tension.
THE REJECTIONS2
The Examiner relies upon the following as evidence in support of the
rejections:
NAME REFERENCE DATE
Halsey US 115,311 May 30, 1871
Gilbert US 162,052 Apr. 13, 1875
Munsey US 503,869 Aug. 22, 1893
Thurlow US 591,510 Oct. 12, 1897
Dallmer US 4,744,422 May 17, 1988
Fox US 5,002,132 Mar. 26, 1991
Marquis US 6,305,328 B1 Oct. 23, 2001
Faulk US 7,185,612 B2 Mar. 6, 2007

2 The Examiner’s objection to the Specification for “failing to provide
proper antecedent basis for the claimed subject matter,” is a petitionable, not
appealable, matter. Final Act. 3.
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The following rejections are before us for review:
I. Claims 6, 7, 9, and 15 stand rejected under 35 U.S.C.
§ 102(b) as anticipated by Dallmer.
II. Claims 6, 7, 9, 13–15 stand rejected under 35 U.S.C.
§ 102(b) as anticipated by Halsey.
III. Claim 8 stands rejected under 35 U.S.C. § 103(a) as
unpatentable over Dallmer.
IV. Claim 10 stands rejected under 35 U.S.C. § 103(a) as
unpatentable over Dallmer and Marquis.
V. Claims 11 and 12 stand rejected under 35 U.S.C. § 103(a)
as unpatentable over Dallmer and Faulk.
VI. Claims 1, 5, 16, and 20 stand rejected under 35 U.S.C.
§ 103(a) as unpatentable over Halsey and Munsey.
VII. Claims 2 and 17 stand rejected under 35 U.S.C. § 103(a)
as unpatentable over Halsey, Munsey, and Fox.
VIII. Claims 3 and 18 stand rejected under 35 U.S.C. § 103(a) as
unpatentable over Halsey, Munsey, and Thurlow.
IX. Claims 4 and 19 stand rejected under 35 U.S.C. § 103(a) as
unpatentable over Halsey, Munsey, and Gilbert.
X. Claim 8 stands rejected under 35 U.S.C. § 103(a) as
unpatentable over Halsey.
XI. Claim 10 stands rejected under 35 U.S.C. § 103(a) as
unpatentable over Halsey and Fox.
XII. Claim 11 stands rejected under 35 U.S.C. § 103(a) as
unpatentable over Halsey and Thurlow.
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XIII. Claim 12 stands rejected under 35 U.S.C. § 103(a) as
unpatentable over Halsey and Gilbert.

OPINION
Rejections I–V and X–XIII
Appellant does not present arguments for the patentability of claims
6–15. Appeal Br. 12–30. “Any bases for asserting error, whether factual or
legal, that are not raised in the principal brief are waived.” Ex parte Borden,
93 USPQ2d 1473, 1474 (BPAI 2010) (informative). See also Optivus Tech.,
Inc. v. Ion Beam Appl’ns. S.A., 469 F.3d 978, 989 (Fed. Cir. 2006) (“[A]n
issue not raised by an appellant in its opening brief . . . is waived.”) (citation
omitted).
Accordingly, we summarily sustain the Examiner’s rejections of
claims 6–15 in Rejections I–V and X–XIII.

Rejection VI
Independent claims 1 and 16, and dependent claims 5 and 20
Regarding independent claims 1 and 16, the Examiner finds that
Halsey teaches a hoof boot including a base (i.e., metal plate A), a cupped
heel captivator (i.e., leather strap B), and a coupling mechanism (i.e.,
tongues or straps d, d’, e, e’, loops f, forked strap h (collectively referred to
as Halsey’s “straps”)), as claimed. Final Act. 11; see, e.g., Halsey, Fig. 1.
Regarding the claim limitation, “wherein the cupped heeled captivator
is coupled to the base and moves forward and upward relative to the base
after coupling when said coupling mechanism is under tension,” the
Examiner finds (i) “the leather material of heel captivator B . . . allow[s] the
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captivator to move forward and upward when an upward force or movement
of the hoof is placed upon the shoe by the horse’s hoof” (Final Act. 11; see
also Ans. 5); (ii) similar to Appellant’s invention, “the rear portion of the
captivator of Halsey is not attached to the rearmost portion of the base,”
which “would allow forward and upward movement of the captivator as the
hoof puts pressure on the shoe” (Final Act. 11 (citing Spec. ¶ 66); see also
Ans. 5); and (iii) “in attaching the shoe to the hoof, the initial position of the
captivator B will be loose and as the user tightens the tension of the straps e,
e’, d, d’ and couple[s] the straps to the buckle, the captivator will move
forward and upward to contour and cover the hoof as shown in [Figure] 1 of
Halsey” (Final Act. 11–12; see also Ans. 7).
The Examiner also finds that Halsey fails to disclose that the bottom
of the base (i.e., plate A) covers the entire bottom surface of the hoof, as
claimed, and relies on Munsey for teaching a horseshoe having a base (i.e.,
bottom 1) having a bottom that covers the entire surface of the hoof. Id. at
12. The Examiner reasons that it would have been obvious to modify the
base of Halsey’s temporary horseshoe to cover the entire bottom surface of
the hoof, as taught by Munsey, “to further support and protect the hoof.” Id.
First, Appellant argues that “the Examiner improperly equated
elements of Appellant’s current claims with previously interpreted claims.”
Appeal Br. 14, 22; see also Reply Br. 2–6 (citations omitted). In support,
Appellant submits that
the Examiner has equated elements d, e, d’, e’, f, and h of Halsey
to Appellant’s coupling mechanism in claim 1 of the current
application. This, however, is improper because elements d, e,
d’, e’ have been previously adjudicated by the PTAB to be
equivalent to inertia straps in the related, continuation-in-part
invention disclosed in Appellant’s U.S. App. No. 12/882,192
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(the “’192 App”).3 The inertia straps are elements disclosed in
the claims of the ’192 App that couple[] the heel captivator to the
front of the base and is explicitly distinct from the coupling
mechanism. Thus, elements d, e, d’, e’ of Halsey cannot be in
whole or in part equivalent to the coupling mechanism of the
current invention and the inertia straps disclosed in the ’192 App.
Id. at 14–15; see also id. at 22–23. In sum, Appellant argues that “the
meaning of claim elements must be consistently interpreted across patents in
a family.” Id. at 13 (emphasis added).
We are not persuaded by Appellant’s argument. Appellant has not
provided any evidence of, nor can we find on the record before us, any
inconsistencies in the Examiner’s interpretation of claim elements between
the claims as presently recited and the claims recited in the prior decision
(namely, Appeal No. 2015-004008 for US Patent App. 12/882,192 (the
“Prior Application I” and the “Prior Decision I”)), notwithstanding the
differences in the scopes of the relevant claims.
The claims construed in the Prior Decision I recited “at least one
inertia strap” in addition to “a coupling mechanism,” which read, for
example, on an embodiment of the invention disclosed in the Prior
Application I wherein inertia straps 140, 143 are used in addition to a
coupling mechanism (i.e., cables 60, hook strap 50), and the Examiner read
claim 1 onto Halsey’s temporary horseshoe by finding that Halsey’s loop f
discloses the claimed coupling mechanism and Halsey’s straps e, e’, d, d’
disclose at least one inertia strap. See the Final Office Action dated Oct. 10,
2013 issued in the Prior Application I, page 2. In comparison, independent

3 See Final Office Action of US Patent App. 12/882,192 (wherein the
Examiner found that Halsey’s loops f corresponded to the claimed coupling
mechanism and straps e, e’, d, d’ corresponded to the claimed inertia strap).
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claims 1 and 16 of the present application, and their dependent claims, do
not recite “an inertia strap,” nor does the term “inertia strap” appear in the
present Specification; rather, claim 1 more broadly requires “a coupling
mechanism for coupling the base to the cupped heel captivator wherein the
cupped heel captivator is coupled to the base and moves forward and upward
relative to the base after coupling when said coupling mechanism is under
tension.” Appeal Br., Claims App. 31, 33. As set forth supra, the Examiner
finds that the claimed coupling mechanisms read on Halsey’s straps d, d’, e,
e’ in addition to loop f and forked strap h, notwithstanding the Board’s prior
decision affirming the Examiner’s finding that Halsey’s straps d, d’, e, e’
also may be relied upon separately for disclosing inertia straps.
The Examiner appropriately maps elements of Halsey’s horseshoe to
the elements recited in the relevant claims, and we know of no requirement
that the Examiner must apply the same mapping applied previously from a
prior art reference to claims of different scope. In other words, the
Examiner’s interpretation of prior art elements as disclosing claim elements
does not have to be applied in the exact same way to claims of different
scope, and there is no evidence on the record before us of any
inconsistencies in the Examiner’s interpretation of claim elements relative to
related applications. Nor has Appellant presented any persuasive argument
or evidence as to why Halsey’s straps d, d’, e, e’ do not qualify as part of a
coupling mechanism according to the Examiner’s present findings, but must
only be interpreted as inertia straps, according to the Examiner’s prior
findings in considering a different claim.
In sum, by affirming the Examiner in the Prior Decision, we
determined that a preponderance of the evidence supported the Examiner’s
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finding that Halsey’s straps d, d’, e, e’ disclose inertia straps, as claimed.
However, we did not adjudicate, as argued by Appellant, that Halsey’s straps
d, d’, e, e’ must only disclose inertia straps, as claimed in the Prior
Application, or that Halsey’s straps d, d’, e, e’ cannot be relied on for also
disclosing a coupling mechanism, as recited in the present claims.
Next, Appellant argues that the Examiner erred by finding that Halsey
discloses that leather band B moves forwardly and upwardly relative to
metal plate A after coupling when the coupling mechanism (i.e., Halsey’s
straps) is under tension.
In support, Appellant submits that, because Halsey discloses that
“plate [A] is firmly held to the hoof,” Halsey’s teaching is “in contravention
to allowing forward and upward movement relative to the base after
coupling when the coupling mechanism is under tension,” as claimed.
Appeal Br. 15 (citing Halsey 2:22–25). Appellant also submits that “the
material from which the band B is made is irrelevant to the forward and
upward movement after coupling,” because, in Halsey, “the band B is
fastened such that it is held firmly to the plate not allowing movement
relative to the plate.” Id. at 16. Similarly, Appellant submits that the
disconnection between leather band B and metal plate A at the rear of
horseshoe (for example, leather band B is coupled to metal plate A at lugs b,
c on the side and the front of the horseshoe, respectively) may allow a height
adjustment of leather band B relative to a horse’s hoof before coupling, but
is irrelevant to the firm connection disclosed by Halsey after coupling as
discussed supra. Id. at 16–17. Finally, Appellant submits that the Examiner
errs by considering the relative movement of Halsey’s band B and plate A
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during coupling and under some tension (i.e., “as the user buckles the
straps”). Id. at 17.
The Specification discloses that Appellant’s invention affords some
play between cupped heel captivator 30 and base 20 via a coupling
mechanism (i.e., lace or cables 60 passing through cable guides 200 on the
sides of the base and looping about a sloppy pulley 122 at attachment
positions 101 on the sides 102 of heel captivator 30), when tensioned (i.e.,
by hook strap 50) after coupling and under tension, as claimed, when the
horse’s hoof is within the hoof boot 10. For example, the Specification
discloses that
[t]he heel retention piece can be coupled to the base in any
suitable manner. Preferred coupling mechanisms provide
sufficient play to provide for freestanding up/down, and
forward/rearward displacement of the heel captivator of at least
1.2 cm. An especially preferred coupling mechanism is a
mechanically advantaged lacing system, with hook and loop
fasteners. The lace preferably extends through a channel, and the
pivoting mechanism comprises a restriction point where the lace
exits from the channel. Such mechanisms are especially
advantageously [sic] in that they allow the heel captivator at least
three degrees of freedom of movement relative to the base.
Spec. ¶ 13; Fig. 1. The Specification also discloses that
[i]n preferred embodiments, the heel captivator 30 is attached to
the base at attachment positions 101 . . . in a pivoting motion.
The pivoting motion includes use of sloppy pivots that have more
than a rotational freedom of movement and allows the heel
captivator in [sic] all directions. . . . [T]he cable pulley block 122
comprises two end pieces 128, and a connector 129 about which
the cable is disposed. . . . [T]he cables 60 go through the cable
guides 220 to the front 195 of the base 20 and allow the heel
captivator to have elasticity upon wearing. . . . The mechanically
advantaged cable lacing pathway reduces the tension forces
required of the cable tension mechanism, by virtue of the cables
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passing through and around the cable pulley. Use of a
mechanically advantaged pathway also serves to reduce the
effort required of the user in tensioning the lacing system,
thereby eliminating the need for geared or similar systems.
Id. ¶ 59, Figs. 8B, 11, 19.4 Figures 1 and 8A from the Specification are
reproduced below.

Figures 1 and 8A depict a hoof boot “fitted to a model of a hoof” (id. ¶¶ 17,
24).
In sum, Appellant limits the claimed coupling mechanism by the
functional movement (i.e., forward and upward) that the coupling
mechanism provides to the heel captivator relative to the base after coupling
when the coupling mechanism is under tension. See claim 1 supra.
Figure 1 of Halsey is reproduced below.

4 Notably, the Specification discloses that attachment position 101 is for
attaching cable pulley onto heel captivator 30, about which cables 60 pass
around; in other words, the Specification does not teach, although not clearly
depicted in the perspectives of the horseshoe in the Figures, that base 20 is
attached to heel captivator 30 at attachment position 101, which may be a
point of confusion.
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Figure 1 of depicts Halsey’s horse shoe attached to a hoof. Halsey, col. 1.
The Examiner finds that Halsey discloses a coupling mechanism (i.e.,
Halsey’s straps) that provides the claimed movement to strap B relative to
plate A, after Halsey’s straps are buckled about the horse’s hoof and to plate
A, and when Halsey’s straps are under at least some tension. We determine
that a preponderance of the evidence supports this finding by the Examiner,
notwithstanding Halsey’s teaching that the straps “hold[] the plate firmly to
the hoof, and at the same time enable[] the plate to be adapted to hoofs of
different sizes.” Halsey, col. 2. This is because Halsey’s straps are made of
leather and there is a lack of any connection between the leather strap B and
the rear of the metal plate A, such that even after buckling and at least some
tensioning of the straps (for example, if the straps are not tightened to such
an extent so as to prevent some play), straps d, d’, e, e’, f, h couple Halsey’s
leather band B to plate A, wherein band B moves at least somewhat (i.e.,
forwardly and upwardly) relative to metal plate A. Notably, claim 1 does
not specify an amount of movement or an amount of tension required by the
coupling mechanism after coupling. Further, given that horse hooves range
in size, as recognized by Halsey supra, and the tension provided by Halsey’s
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straps is dependent on the spacing of the apertures in the straps received by
Halsey’s buckles, there will be hoof sizes wherein Halsey’s straps will strap
B to plate A with some play, resulting in the claimed movement.
Appellant also argues that “Munsey is explicitly limited to a horse
boot that does not allow movement of the boot while on the hoof of the
horse.” Appeal Br. 17. Appellant submits that “no person of ordinary skill
in the art at the time of the invention would have found Appellant’s
invention obvious by combining Halsey in view of Munsey. Id. at 18.
Appellant’s argument, however, does not apprise us of error in the
Examiner’s reliance on Halsey for disclosing the claimed movement, as
discussed supra. As set forth supra, the Examiner relies on Munsey for
disclosing a base including a bottom that covers the entire bottom surface of
the hoof. Appellant’s argument, therefore, does not apprise us of error in the
Examiner’s findings or reasoning.
Accordingly, we sustain the Examiner’s rejection of claim 1. The
Examiner relies on the same findings with respect to independent claim 16.
Final Act. 12–14. Appellant chose not to present arguments for the
patentability of claims 16, and claims 5 and 20, which depend from
independent claims 1 and 16, respectively, and therefore, for essentially the
same reasons stated supra, we also sustain the Examiner’s rejection of
claims 5, 16, and 20. Appeal Br. 22–25, 30.

Rejection VII
Claims 2 and 17 depend from independent claims 1 and 16,
respectively, and recite, in relevant part, “wherein the base comprises a
polymeric substance.” Appeal Br., Claims App. 31, 33. The Examiner
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relies on Fox for teaching a base (i.e., 12) of a horseshoe made out of a
polymeric substance. Final Act. 14 (citing Fox, “Summary of Invention”);
see Fox, e.g., 1:15–16 (disclosing “a durable, resilient plastic horseshoe”).
The Examiner reasons that it would have been obvious to have made
Halsey’s horseshoe base (i.e., metal plate A), as modified by Munsey to
cover the entire bottom surface of a horse’s hoof, out of a polymeric
substance, as taught by Fox, “to provide a horseshoe that absorbs and
dissipates impact related shock while at the same time showing minimal
slippage and excellent strength and durability.” Final Act. 14 (citing Fox,
“Summary of Invention”); see Fox, e.g., 1:33–37 (“[a] horseshoe composed
of plastic polymers . . . both absorbs and dissipates impact related shock
while at the same time showing minimal slippage and excellent strength and
durability”).
In addition to the arguments presented supra for independent claims 1
and 16, Appellant argues that “making the base of Munsey out of a
polymeric substance would render the Munsey invention inoperable as
described because the bottom 1 and guard 3 and extensions 4 are of one
integral formation,” and “[t]his structure would not work if the base was
made of a polymeric material.” Appeal Br. 18, 26. However, Appellant’s
argument does not address the Examiner’s rejection as set forth supra, which
does not bodily incorporate Munsey’s guard 3 and extensions 4 into the
Halsey’s horseshoe, but rather, modifies metal plate A of Halsey to have a
bottom that covers the entire bottom surface of a hoof, as taught by Munsey.
Accordingly, we sustain the Examiner’s rejection of claims 2 and 17.

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Rejection VIII
Claims 3 and 18 depend from independent claims 1 and 16,
respectively, and recite, in relevant part, “wherein the heel captivator
includes a mesh with a plurality of holes” (Appeal Br., Claims App. 31, 33).
The Examiner relies on Thurlow for teaching “a foot cover that is meshed
with a plurality of holes.” Ans. 11; see also Final Act. 15 (finding that
Thurlow discloses “armor pieces A, B, band C” with “a mesh with a
plurality of holes,” as claimed). The Examiner also finds that Thurlow’s
horse foot protector qualifies as a “heel captivator” because Thurlow’s horse
foot protector “includes the heel,” or at least a portion of the heel, and also
that “the protector is adjustable and flexible to accommodate different
size[s],” such that “one can use the protector to cover the heel area of the
foot if that is desired.” Ans. 11. The Examiner reasons that it would have
been obvious to have made Halsey’s band B (i.e., heel captivator), as
modified by Munsey to cover the entire bottom surface of a horse’s hoof, “to
include a mesh with a plurality of holes as taught by Thurlow, in order to
protect the hoof and to allow debris from not getting stuck due to the holes
in the captivator.” Final Act. 15.
In addition to the arguments presented supra for independent claims 1
and 16, Appellant argues that “Thurlow does not teach a heel captivator,”
but rather “[a] horse-hoof protector,” which “does not cover the heel of the
horse,” and instead “is attached above the hoof at the fetlock.” Appeal Br.
18; see also id. 18–21, 26–29. However, Appellant’s argument does not
recognize the Examiner’s reliance on Halsey for disclosing a cupped heel
captivator, which is modified to include a mesh, as in Thurlow’s horse foot
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protector. Thus, we do not find Appellant’s argument that Thurlow does not
teach a heel captivator persuasive of Examiner error.
Appellant also argues that “the PTAB has previously ruled in a related
application that “Thurlow does not teach a device with a heel captivator that
includes a mesh with a plurality of holes,” and thus the Examiner is
collaterally estopped from relying on Thurlow for this claim limitation. Id.
at 21, 29 (citing the Board’s prior decision in US Patent App. No.
11/516,914 (“Prior Application II”); Appeal No. 2013-006386 (“Prior
Decision II”)).
However, Appellant’s argument mischaracterizes the Board’s finding
in the Prior Decision II, in that we did not find that Thurlow fails to disclose
a heel captivator that includes a mesh with a plurality of holes. In the
rejections involving Thurlow in Prior Decision II, the Board determined that
“[t]he Examiner’s finding that expressly excludes lining 8 from being a part
of Miller’s heel-piece 6 fails to establish a prima face case of anticipation”
(Prior Decision 8) and also that “the Examiner has not met the burden of
establishing a prima facie case of obvious,” based on Miller (id. at 10). The
Board further determined that Thurlow did not cure these deficiencies in the
Examiner’s findings (id. at 10, 11). In other words, the Board did not make
a decision about any errors in the Examiner’s findings with respect to
Thurlow.
Accordingly, we sustain the Examiner’s rejection of claims 3 and 18.

Rejection IX
Claims 4 and 19 depend from independent claims 1 and 16
respectively, and further require, in relevant part, “a lining underlying the
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heel captivator.” Appeal Br., Claims App. 31, 33. The Examiner relies on
Gilbert for teaching a horse boot comprising a heel captivator (i.e., boot B)
and a lining. Final Act. 16 (citing Gilbert 1:5 (for disclosing that quarter-
boot B is “lined with felt, cloth, or other suitable soft material”)). The
Examiner reasons that it would have been obvious “to include a lining[,] as
taught by Gilbert[,] underlying the heel captivator of Halsey as modified by
Munsey, in order to provide more cushion for the hoof.” Id.
In addition to the arguments presented supra for independent claims 1
and 16, Appellant argues that “the devices described in Halsey, Munsey, and
Gilbert do not include similar elements and do not function similarly to
Appellant’s invention,” and therefore, “[n]o person of ordinary skill in the
art would look to combine these devices to create Appellant’s [invention].”
Appeal Br. 21–22, 29–30.
To the extent Appellant is arguing that Halsey, Munsey, and Gilbert
are nonanalogous art improperly relied on by the Examiner, we disagree. A
reference qualifies as prior art for an obviousness determination when it is
analogous to the claimed invention. Innovention Toys, LLC. v. MGA Ent.,
Inc., 637 F.3d 1314, 1321 (Fed. Cir. 2011).
Two separate tests define the scope of analogous art: (1)
whether the art is from the same field of endeavor, regardless of
the problem addressed, and (2) if the reference is not within the
field of the inventor’s endeavor, whether the reference still is
reasonably pertinent to the particular problem with which the
inventor is involved.
In re Bigio, 381 F.3d 1320, 1325 (Fed. Cir. 2004). We determine that, as
stated in the Specification, Appellant’s field of endeavor is “equine
footwear” (Spec. ¶ 2), wherein Halsey (i.e., titled “Improvement in
Temporary Shoes for Horses”), Munsey (i.e., titled, “Horseshoe and Quarter
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Boot”), and Gilbert (i.e., titled, “Combined Quarter-Boot and Toe-Weight
for Horses”) are in the same field of endeavor as Appellant’s claimed
invention. Appellant’s argument does not otherwise apprise us of error in
the Examiner’s findings and reasoning in the rejection of claims 4 and 19.
Accordingly, we sustain the Examiner’s rejection of claims 4 and 19.
CONCLUSION
In summary:
Claims
Rejected
35
U.S.C.
§
Reference(s) Affirmed Reversed
6, 7, 9, 15 102(b) Dallmer 6, 7, 9, 15
6, 7, 9, 13–15 102(b) Halsey 6, 7, 9, 13–15
8 103(a) Dallmer 8
10 103(a) Dallmer, Marquis 10
11, 12 103(a) Dallmer, Faulk 11, 12
1, 5, 16, 20 103(a) Halsey, Munsey 1, 5, 16, 20
2, 17 103(a) Halsey, Munsey,
Fox
2, 17
3, 18 103(a) Halsey, Munsey,
Thurlow
3, 18
4, 19 103(a) Halsey, Munsey,
Gilbert
4, 19
8 103(a) Halsey 8
10 103(a) Halsey, Fox 10
11 103(a) Halsey, Thurlow 11
12 103(a) Halsey, Gilbert 12
Overall
Outcome
1–20
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a)(1)(iv).
AFFIRMED