Medline Industries, Inc.

Patent Trials and Appeals Board

Sep 29, 2021

2020005337 (P.T.A.B. Sep. 29, 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.
13/961,683 08/07/2013 Michael Turturro BPMDL0068MT (10822U) 5933
27939 7590 09/29/2021
Philip H. Burrus, IV
Burrus Intellectual Property Law Group LLC
222 12th Street NE
Suite 1803
Atlanta, GA 30309
EXAMINER
HAWK, NOAH CHANDLER
ART UNIT PAPER NUMBER
3636
NOTIFICATION DATE DELIVERY MODE
09/29/2021 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):
kberry@burrusiplaw.com
pburrus@burrusiplaw.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte MICHAEL TURTURRO and EDWARD DROWER
Appeal 2020-005337
Application 13/961,683
Technology Center 3600
Before JEREMY M. PLENZLER, LISA M. GUIJT, and
NATHAN A. ENGELS, Administrative Patent Judges.
ENGELS, 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, 3–16, and 22–25. The Examiner
withdrew the rejection of claim 26 in the Examiner’s Answer, and no other
claims are pending. We have jurisdiction under 35 U.S.C. § 6(b).
We affirm.

1 We use the word Appellant to refer to “applicant” as defined in 37 C.F.R.
§ 1.42(a) (2019). Appellant identifies the real party in interest as Medline
Industries, Inc. Appeal Br. 2.
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CLAIMED SUBJECT MATTER
Claims 1 and 25, reproduced below, are illustrative of the claimed
subject matter:
1. A device, comprising:
a crutch comprising at least two vertical crutch columns; and
a substantially flat panel attached to the crutch interior to the at
least two vertical crutch columns and comprising a marking receiving
coating applied only to selective locations of the substantially flat
panel, the marking receiving coating accepting a marking from a
marking instrument;
the substantially flat panel attached to the crutch interior to the
at least two vertical crutch columns in at least two dimensions.
25. A device, comprising:
a crutch comprising at least two vertical crutch columns; and
a substantially flat panel attached to the crutch interior to the at
least two vertical crutch columns;
the substantially flat panel comprising a marking receiving
panel to accept a marking from a marking instrument;
the substantially flat panel attached to the crutch interior to the
at least two vertical crutch columns in at least two dimensions; and
the substantially flat panel cut into a predefined shape
indicative of one of a holiday, a hobby, or an object of admiration.
REJECTIONS
Claim 25 stands rejected under 35 U.S.C. § 102(a)(1) as being
anticipated by McBride (US 4,850,383; July 25, 1989).
Claims 1, 3–11, 15, 16, and 22–24 stand rejected under 35 U.S.C.
§ 103 as being unpatentable in view of Woods (US 5,340,005; Aug. 23,
1994) and McKinney (US 2009/0294499 A1; Dec. 3, 2009).
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Claims 1, 3, 4, 8–11, 15, 16, and 22–24 stand rejected under 35 U.S.C.
§ 103 as being unpatentable in view of McBride and McKinney.
Claims 5–7 stand rejected under 35 U.S.C. § 103 as being
unpatentable in view of McBride, McKinney, and Kost (US 8,929,581 B2;
Jan. 6, 2015).
Claims 12–14 stand rejected under 35 U.S.C. § 103 as being
unpatentable in view of Woods, McKinney, and Guirlinger (US
2011/0180681 A1; July 28, 2011).
Claims 12–14 stand rejected under 35 U.S.C. § 103 as being
unpatentable in view of McBride, McKinney, and Guirlinger.
OPINION
Claim 25
Claim 25 recites a crutch device having, among other limitations, a
substantially flat panel “cut into a predefined shape indicative of one of a
holiday, a hobby, or an object of admiration.” The quoted language is
central to Appellant’s arguments in the appeal of claim 25 as anticipated by
McBride.
Appellant argues McBride does not anticipate claim 25 because
McBride’s panel is not cut into a shape indicative of a holiday, hobby, or
object of admiration. Appeal Br. 14. Appellant argues McBride’s panel is
cut for purely functional reasons, namely to match the interior of the crutch’s
vertical columns. Appeal Br. 14–16.
In relevant part, the Examiner finds that McBride discloses a crutch
having a substantially flat panel cut into a predefined shape (Final Act. 3–4),
and the Examiner acknowledges that McBride “is silent on the artistic intent
of the shape of the panel” (Ans. 3). The Examiner explains that the
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statement “indicative of one of a holiday, a hobby, or an object of
admiration” cannot impart patentability over the predefined Y-shaped panel
disclosed in McBride. Final Act. 3–4, 19–20.
We agree with the Examiner. Appellant does not dispute that
McBride discloses a substantially flat panel cut into a predefined shape (see
Appeal Br. 15 (arguing McBride’s panel is cut into a shape for functional
reasons)), and claim 25’s additional recitation of aesthetic or ornamental
aspects cannot distinguish McBride. In re Seid, 161 F.2d 229, 231 (CCPA
1947) (stating that claimed features that “relate to ornamentation only and
have no mechanical function” cannot be relied on for patentability for
“structural claims”). In other words, even though McBride’s panel may be
shaped for functional reasons, reciting merely aesthetic differences in shape
cannot distinguish the prior art.
Accordingly, having considered the Examiner’s rejection in light of
each of Appellant’s arguments and the evidence of record, we affirm the
Examiner’s rejection of claim 25 as anticipated by McBride.

Claim 1
Claim 1 recites, in relevant part, a crutch having a substantially flat
panel “comprising a marking receiving coating applied only to selective
locations of the substantially flat panel.” The Examiner cites McKinney for
the quoted language, determining claim 1 is unpatentable based on
McKinney in combination with the crutches taught by either McBride or
Woods. Final Act. 4–8 (addressing McKinney in combination with Woods),
9–11 (addressing McKinney in combination with McBride). More
specifically, the Examiner cites McKinney’s teachings regarding a panel
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made of fabric with one section of the panel being a whiteboard material,
which the Examiner cites as the marking receiving coating applied only to
selective locations of the panel. Final Act. 6–7, 10–11.
Appellant argues that McKinney does not teach a marking receiving
coating applied only to selective locations of a panel because, according to
Appellant, the entirety of McKinney’s panel is coated with a marking
receiving coating. Appeal Br. 21–22. Appellant argues the portions
surrounding McKinney’s marking receiving coating are completely different
panels. Appeal Br. 21–22. Appellant illustrates those arguments with the
annotated version of McKinney’s Figure 1, copied below along with a non-
annotated version of McKinney’s Figure 2.

McKinney’s Figures 1 and 2 depict a backpack having straps 12, main
zipper 14, writing panel 50, and stitching 55 that joins perimeter 52 of panel
50 to boarder panels 56. McKinney ¶¶ 31–32. Even though McKinney
terms its writing surface a “panel” distinct from its “boarder panels,” we
agree with the Examiner that the entire front of McKinney’s backpack can
be considered a panel, of which only a portion is a writing surface. In other
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words, we agree with the Examiner that McKinney teaches or at least
reasonably suggests a panel with a marking receiving coating applied only to
selective locations within the scope of claim 1.
Accordingly, having considered the Examiner’s rejection in light of
Appellant’s arguments and the evidence of record, we agree with the
Examiner and affirm the rejections of claim 1 as obvious in view of the
combination of Woods and McKinney or McBride and McKinney.

Claim 4
Claim 4 depends from claim 1 and recites that “the selective locations
of the marking receiving coating defining a visible indication that the
substantially flat panel is an autographable panel.” Appellant argues none of
Woods, McBride, or McKinney teaches a panel that provides a visible
indication that the panel is autographable. Appeal Br. 23–24.
The Examiner determines, and we agree, that the differences in color
and texture of McKinney’s whiteboard and surrounding cloth would indicate
that the whiteboard portion of the panel is autographable. Ans. 5.
Accordingly, having considered the Examiner’s rejections of claim 4
in light of each of Appellant’s arguments and the evidence of record, we
agree with the Examiner and affirm the rejections of claim 4 as unpatentable
in view of Woods and McKinney or McBride and McKinney.

Claim 9
Claim 9 depends from claim 1 and recites “the selective locations of
the marking receiving coating defining an artistic design.” Appellant repeats
its argument that McKinney teaches that an entire panel having a marking
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receiving surface, and Appellant contends that McKinney does not teach an
artistic design.
We disagree with Appellant’s argument regarding the entire panel for
the reasons discussed above regarding claim 1. We also disagree with
Appellant’s arguments regarding the recited “artistic design” for the reasons
discussed above with claim 25; an artistic or ornamental design having no
function cannot distinguish the prior art. Seid, 161 F.2d at 231.
Accordingly, having considered the Examiner’s rejections of claim 9
in light of each of Appellant’s arguments and the evidence of record, we
agree with the Examiner and affirm the rejections of claim 9 as unpatentable
in view of Woods and McKinney or McBride and McKinney.

Claim 11
Claim 11 depends from claim 4 and recites that “the marking
receiving coating to receive the marking such that the marking is not readily
altered mechanically.” Appellant argues that whiteboard material as taught
by McKinney allows instant mechanical alteration, such as erasure with the
wipe of a rag. Appeal Br. 26.
The Examiner determines, and we agree, that McKinney teaches or at
least reasonably suggests a marking that is not readily altered mechanically
because a person of ordinary skill would recognize that a permanent marker,
for example, could be used on a whiteboard such as McKinney’s to make a
marking that is not readily altered mechanically.
Accordingly, having considered the Examiner’s rejections of claim 11
in light of each of Appellant’s arguments and the evidence of record, we
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agree with the Examiner and affirm the rejections of claim 11 as
unpatentable in view of Woods and McKinney or McBride and McKinney.

Claims 3, 5–8, 10, 15, 16, and 22–24
Appellant does not separately address the rejections of dependent
claims 3, 5–8, 10, 15, 16, and 22–24. We sustain the Examiner’s rejections
of those claims for the reasons discussed above.
CONCLUSION
The Examiner’s rejections of claims 1, 3–16, and 22–25 are affirmed.
DECISION SUMMARY
In summary:
Claims
Rejected
35 U.S.C.
§
Reference(s)/Basis Affirmed Reversed
25 102(a) McBride 25
1, 3–11, 15,
16, 22–24
103 Woods, McKinney 1, 3–11, 15,
16, 22–24

1, 3–11, 15,
16, 22–24
103 McBride,
McKinney
1, 3–11, 15,
16, 22–24

5–7 103 McBride,
McKinney, Kost
5–7
12–14 103 Woods,
McKinney,
Guirlinger
12–14
12–14 103 McBride,
McKinney,
Guirlinger
12–14
Overall
Outcome
1, 3–16, 22–
25

Appeal 2020-005337
Application 13/961,683

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TIME PERIOD FOR RESPONSE
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