Lothar Poppek

Patent Trials and Appeals Board

Jul 30, 2021

2021002420 (P.T.A.B. Jul. 30, 2021)

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. 15/684,404 08/23/2017 Lothar Pierre Poppek LPOPPEK003 2892 93756 7590 07/30/2021 Adam R. Stephenson, LTD. 8350 E Raintree Dr., Ste 245 Scottsdale, AZ 85260 EXAMINER MATTHEWS, JENNIFER S ART UNIT PAPER NUMBER 3724 NOTIFICATION DATE DELIVERY MODE 07/30/2021 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): adam@iptech.law ipdocket@iptech.law PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte LOTHAR PIERRE POPPEK Appeal 2021-002420 Application 15/684,404 Technology Center 3700 Before JOHN C. KERINS, JILL D. HILL, and JEREMY M. PLENZLER, Administrative Patent Judges. PLENZLER, Administrative Patent Judge. DECISION ON APPEAL STATEMENT OF THE CASE Pursuant to 35 U.S.C. § 134(a), Appellant1 appeals from the Examiner’s decision to reject claims 1, 2, 5, 6, 8, 14, 16, 23, and 24. We have jurisdiction under 35 U.S.C. § 6(b). We REVERSE. 1 We use the word Appellant to refer to “applicant” as defined in 37 C.F.R. § 1.42(a). Appellant identifies the real party in interest as the inventor, Lothar Pierre Poppek. Appeal Br. 3. Appeal 2021-002420 Application 15/684,404 2 CLAIMED SUBJECT MATTER The claims are directed to scissors. Claim 1, reproduced below, is illustrative of the claimed subject matter: 1. A scissors tool for precise cutting operations, comprising: an upper cutting member extending from an upper handle portion at a proximal end to an upper blade portion at a distal end, the upper handle portion comprising an upper digit- receiving eyelet; a lower cutting member extending from a lower handle portion at the proximal end to a lower blade portion at the distal end, the lower handle portion comprising a lower digit- receiving eyelet, the lower cutting member disposed beneath and pivotally coupled to the upper cutting member such that the upper and the lower cutting members pivot between an open position and a closed position; wherein when in the closed position, the upper and the lower blade portions meet along a horizontal cutting plane; wherein the upper digit-receiving eyelet and the lower digit-receiving eyelet are separated by a vertical plane that is perpendicular to the horizontal cutting plane; wherein an upper offset separates the horizontal cutting plane and the upper digit-receiving eyelet; wherein a lower offset separates the horizontal cutting plane and the lower digit-receiving eyelet; wherein an angle between a face of the upper digit- receiving eyelet facing the horizontal cutting plane and the vertical plane is less than 90 degrees; wherein an angle between a face of the lower digit- receiving eyelet facing the horizontal cutting plane and the vertical plane is less than 90 degrees; wherein the angle between the face of the upper digit- receiving eyelet facing the horizontal cutting plane and the vertical plane is configured to be non-adjustable while the scissors are used for cutting; and Appeal 2021-002420 Application 15/684,404 3 wherein the angle between the face of the lower digit- receiving eyelet facing the horizontal cutting plane and the vertical plane is configured to be non-adjustable while the scissors are used for cutting. REFERENCES The prior art relied upon by the Examiner is: Name Reference Date Chiavaras US 5,153,997 Oct. 13, 1992 Robinson US 5,819,416 Oct. 13, 1998 Schmithorst US Des. 417,376 Dec. 7, 1999 Ho US 9,492,932 B2 Nov. 15, 2016 Yeh US 2005/0172500 A1 Aug. 11, 2005 Wu US 2006/0010695 A1 Jan. 19, 2006 REJECTIONS2 Claims 1, 2, 14, 23, and 24 are rejected under 35 U.S.C. § 103 as being unpatentable over Schmithorst and Wu. Claims 5, 6, and 16 are rejected under 35 U.S.C. § 103 as being unpatentable over Schmithorst, Wu, and Ho. Claim 8 is rejected under 35 U.S.C. § 103 as being unpatentable over Schmithorst, Wu, Robinson, and Yeh. Claims 1, 2, 14, 23, and 24 are rejected under 35 U.S.C. § 103 as being unpatentable over Schmithorst and Chiavaras. Claims 5, 6, and 16 are rejected under 35 U.S.C. § 103 as being unpatentable over Schmithorst, Chiavaras, and Ho. Claim 8 is rejected under 35 U.S.C. § 103 as being unpatentable over Schmithorst, Chiavaras, Robinson, and Yeh. 2 The rejection of claims 5 and 6 under 35 U.S.C. § 112 in the Non-Final Action has been withdrawn. See Ans. 3. Appeal 2021-002420 Application 15/684,404 4 OPINION Independent claims 1 and 15 each recite that “the upper and the lower blade portions [of the scissors] meet along a horizontal cutting plane” and that “the upper digit-receiving eyelet and the lower digit-receiving eyelet are separated by a vertical plane that is perpendicular to the horizontal cutting plane.” The claims further specify that “an angle between a face of the upper digit-receiving eyelet facing the horizontal cutting plane and the vertical plane is less than 90 degrees” and “an angle between a face of the lower digit-receiving eyelet facing the horizontal cutting plane and the vertical plane is less than 90 degrees.” The dispositive issue in this appeal concerns the location of vertical plane recited in the claims. Appellant’s Figure 4, reproduced below, illustrates the horizontal and vertical planes. Appeal 2021-002420 Application 15/684,404 5 Figure 4 is “a rear view of the scissors tool.” Spec. ¶ 16. Horizontal plane “h” and vertical plane “v” each extend into the page and are perpendicular to one another. See, e.g., Spec. ¶ 28. Eyelets 36, 38 are located on opposite sides of vertical plane “v.” Wu In the first set of rejections, the Examiner finds that Wu teaches the angular disposition of eyelets relative to the vertical plane. Non-Final Act. 5; Ans. 5-7. The annotated drawings provided in the Examiner’s Answer illustrate the Examiner’s characterization of the vertical plane in Wu. The figure reproduced above is Wu’s Figure 7, which is a perspective view of Wu’s scissors, along with the Examiner’s annotations illustrating the Examiner’s findings regarding the horizontal and vertical planes in Wu. Ans. 7. Although the line representation of the vertical plane in Wu is not the clearest depiction, the Examiner considers the vertical plane to be a plane Appeal 2021-002420 Application 15/684,404 6 that runs through the indicated line and extends perpendicularly to what Appellant discloses as the vertical plane (i.e., the surface of the page with respect to Appellant’s Figure 4 above).3 Appellant contends that “[t]he vertical cutting plane is just that--a plane that extends perpendicular to the horizontal plane and along where the scissors form a cut (or along the longest length of the scissors).” Appeal Br. 20. Initially, we note that the claims recite “vertical plane,” not vertical cutting plane. Nevertheless, the claims require that “the upper digit- receiving eyelet and the lower digit-receiving eyelet are separated by a vertical plane.” In order to separate the eyelets, as required by the claims, the “vertical plane” cannot be oriented in the manner indicated by the Examiner. The plane considered the “vertical plane” by the Examiner in Wu does not separate the eyelets. Rather, it extends through both eyelets in Wu. For this reason, the Examiner’s findings regarding the disclosure of Wu contain error. Chiavaras In the second set of rejections, the Examiner finds that Chiavaras teaches the angular disposition of eyelets relative to the vertical plane. Non- Final Act. 14; Ans. 12. The annotated drawings provided in the Examiner’s Answer illustrate the Examiner’s characterization of the vertical plane in Chiavaras. 3 This is evidenced at least by the Examiner-annotated versions of Figures 8A and 8C of Wu, illustrating angles formed between the horizontal and vertical cutting planes. See Ans. 6-7. Appeal 2021-002420 Application 15/684,404 7 The figure reproduced above is an Examiner-modified version of Chiavaras’s Figure 4,4 which is a side view of Chiavaras’s scissors, along with the Examiner’s annotations illustrating the Examiner’s findings regarding the horizontal and vertical planes in Chiavaras. Ans. 12. The Examiner’s line representation of the vertical plane in Chiavaras is not the clearest depiction, particularly because it is not made in connection with an actual figure from Chiavaras. The Examiner’s figure, itself, cannot 4 The “FIG. 3” legend appearing in the annotated drawing is erroneously included by the Examiner, as can be determined having reference to Drawing Sheet 2 of 4 in Chiavaras. The Examiner’s modification to Figure 4 removes eyelet 40 from the figure, and replaces it with what appears to be eyelet 40 as depicted in Figure 3, which is a perspective view of the scissors, and not a side view as is Figure 4. The specific configuration of the scissors shown in the Examiner-modified Figure 4 is not a configuration actually disclosed by Chiavaras. Appeal 2021-002420 Application 15/684,404 8 support the Examiner’s rejection because it is not based on the disclosure of Chiavaras. Figures 3 and 4 from Chiavaras are reproduced below. “F[igure] 3 is a pictorial view of the ergonomic scissors of [Chiavaras]” and “F[igure] 4 is a pictorial view showing the ergonomic scissors of FIG. 3 from another angle.” Chiavaras, 2:48-51. Eyelets 34, 40 in Chiavaras lie in the same plane as one another and are described as extending from “bends 32 and 38 [that] are approximately 90° with respect to the plane of rotation of the first portions 25 and 29 of the beams.” Id. at 3:37-39; see also id. at 4:36-39 (“The digit receiving portions . . . preferably are 90° out of the plane of rotation.”). Appeal 2021-002420 Application 15/684,404 9 As with the rejection based on Wu discussed above, the Examiner considers the vertical plane to be a plane that runs through the indicated line and extends perpendicular to what Appellant discloses as the vertical plane (i.e., the surface of the page with respect to Appellant’s Figure 4 above).5 That is, based on the actual disclosure of Chiavaras, the Examiner’s characterization of the vertical plane in Chiavaras is a plane that extends parallel to the openings of the eyelets when bends 32, 38 extend perpendicular (i.e., at 90°) relative to the plane of rotation. Again, we note that the claims recite “vertical plane,” not vertical cutting plane. Nevertheless, as explained above with respect to the rejection based on Wu, the claims require that “the upper digit-receiving eyelet and the lower digit-receiving eyelet are separated by a vertical plane.” In order to separate the eyelets, as required by the claims, the “vertical plane” cannot be oriented in the manner indicated by the Examiner. The plane considered the “vertical plane” by the Examiner in Chiavaras does not separate the eyelets. Rather, it extends through both eyelets in Chiavaras. For this reason, the Examiner’s findings regarding the disclosure of Chiavaras contain error. Summary For the reasons explained above, the Examiner’s characterization of the vertical cutting plane in Wu and Chiavaras is fatal to each of the rejections. Accordingly, we do not sustain the Examiner’s decision to reject claims 1, 2, 5, 6, 8, 14, 16, 23, and 24. 5 As evidenced by the Examiner’s reference to “the eyelet angle with respect to the vertical plane (which is the line perpendicular to the horizontal line).” Ans. 12. Appeal 2021-002420 Application 15/684,404 10 CONCLUSION The Examiner’s rejections are reversed. DECISION SUMMARY In summary: Claim(s) Rejected 35 U.S.C. § Reference(s)/Basis Affirmed Reversed 1, 2, 14, 23, 24 103 Schmithorst, Wu 1, 2, 14, 23, 24 5, 6, 16 103 Schmithorst, Wu, Ho 5, 6, 16 8 103 Schmithorst, Wu, Robinson, Yeh 8 1, 2, 14, 23, 24 103 Schmithorst, Chiavaras 1, 2, 14, 23, 24 5, 6, 16 103 Schmithorst, Chiavaras, Ho 5, 6, 16 8 103 Schmithorst, Chiavaras, Robinson, Yeh 8 Overall Outcome 1, 2, 5, 6, 8, 14, 16, 23, 24 REVERSED