Thomas Eriksson

Patent Trials and Appeals Board

Aug 15, 2019

14394201 - (D) (P.T.A.B. Aug. 15, 2019)

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.
14/394,201 10/13/2014 Thomas Eriksson 67736.US 2247
408 7590 08/15/2019
LUEDEKA NEELY GROUP, P.C.
P O BOX 1871
KNOXVILLE, TN 37901
EXAMINER
NELSON, KERI JESSICA
ART UNIT PAPER NUMBER
3786
NOTIFICATION DATE DELIVERY MODE
08/15/2019 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):
LNG.PATENT@gmail.com
docketing@luedeka.com
eofficeaction@appcoll.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
____________________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________________

Ex parte THOMAS ERIKSSON
____________________

Appeal 2018-003833
Application 14/394,201
Technology Center 3700
____________________

Before JOHN C. KERINS, DANIEL S. SONG, and
NATHAN A. ENGELS, Administrative Patent Judges.

KERINS, Administrative Patent Judge.

DECISION ON APPEAL

STATEMENT OF THE CASE
Appellant1 seeks our review under 35 U.S.C. § 134(a) from the
Examiner’s Final Office Action dated April 17, 2017 (“Final Act.”),
rejecting claims 1–13. We have jurisdiction under 35 U.S.C. § 6(b).
We REVERSE.
THE INVENTION
Appellant’s invention relates to reusable joint stabilizer. Claim 1,
reproduced below, is illustrative of the claimed subject matter.

1 DeRoyal Global Healthcare Solutions Limited is the Applicant in the
application, and is the real party in interest in this appeal. Appeal Br. 2.
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1. A reusable joint stabilizer for application to a joint of a
patient, the stabilizer comprising:
a web having a pattern selected to provide a desired stability and
restriction in the range of motion of the joint, the web being
securable about the joint of the patient and formed of a plurality
of flexible and non-stretchable strips interconnected in a desired
pattern and a plurality of non-adhesive and reusable flexible
tacky strips aligned with and connected to at least selected ones
of the non-stretchable strips for positioning adjacent to skin of
the patient proximate the joint;
wherein the tacky strips transfer forces between the exterior of
the web and the skin of the patient contacted by the tacky strips
to provide a desired stability of the joint and a desired restriction
in the range of motion of the joint.

THE REJECTIONS
The Examiner rejects:
(i) claims 1–4 and 8–10 under 35 U.S.C. § 103(a) as being
unpatentable over Ostergard (US 2012/0041352 A1, published Feb. 16,
2012) in view of Brown (US 7,871,388 B2, issued Jan. 18, 2011);
(ii) claims 1, 2, 5, 8, and 11 under 35 U.S.C. § 103(a) as being
unpatentable over Campbell (US 7,452,343 B2, issued Nov. 18, 2008) in
view of Brown;
(iii) claims 6 and 12 under 35 U.S.C. § 103(a) as being unpatentable
over Ostergard in view of Brown and Bull (US 2008/0228118 A1, published
Sept. 18, 2008); and
(iv) claims 7 and 13 under 35 U.S.C. § 103(a) as being unpatentable
over Ostergard in view of Brown and Kania (US 7,135,005 B2, issued Nov.
14, 2006).

Appeal 2018-003833
Application 14/394,201
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DISCUSSION
Claims 1–4 and 8–10--§ 103(a)--Ostergard/Brown
The Examiner finds that Ostergard discloses the claimed web in the
form of straps 50, 52, asserted to be interconnected in a desired pattern at
axilla (armpit) anchor region 56. Final Act. 2. The Examiner also finds that
straps 50, 52 of Ostergard are “interlinked” at opening 44 to “form[] at least
a portion of a web pattern.” Adv. Act. 2; see also Ans. 6. In response to
Appellant’s submission of certain dictionary definitions of “web,” the
Examiner finds that “the interwoven straps of the device taught by
Osterwald generally resemble a web.” Ans. 6.
Appellant maintains that straps 50, 52 do not provide a web structure,
and that the Examiner has employed an unreasonably broad claim
construction in order to bring the two straps in Ostergard within the scope of
the web as claimed by Appellant. Appeal Br. 11. Appellant further argues
that the Examiner’s position regarding the linking of the two straps in
Ostergard as forming a web is tantamount to taking the position that “any
straps that cross over one another provide the web as claimed.” Reply Br.
1–2.
Appellant has the better position here. The Examiner equivocates as
to whether the two straps of Ostergard actually form a web as claimed, or
instead only “a portion of a web pattern.” Adv. Act. 2. In the same vein, it
is not clear how and why the Examiner can reasonably take the position that
the two straps in Ostergard generally resemble a web.
Further, the Examiner does not adequately explain how the pair of
straps 50, 52 in Ostergard, which are described as being “interlinked” in the
sense that one passes through a slit in the other to control a tendency of the
straps to slip upward or downward from the shoulder (Ostergard ¶ 37), but
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Application 14/394,201
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are also individually adjustable relative to one another (id. at ¶¶ 45–47), are
properly regarded as being “interconnected” as required by the claims. They
do not appear to be connected to one another, as the term “interconnected”
requires. As a result, Appellant may not be too far off the mark in asserting
that the Examiner would regard any two straps crossing over one another as
being a web formed of a plurality of interconnected straps.
Brown is not relied on by the Examiner in any manner that remedies
the above-noted deficiency in the teachings of Ostergard.
Accordingly, the rejection of claims 1–4 and 8–10 as being
unpatentable over Ostergard in view of Brown is not sustained.
Claims 1, 2, 5, 8, and 11--§ 103(a)--Campbell/Brown
The Examiner finds that Campbell discloses a web 320 made up of
straps 320a, 320b, interconnected in a desired pattern. Final Act. 4. No
explanation is given in the Final Action as to how straps 320a and 320b can
be regarded as forming a web. The Examiner attempts to clarify the position
in the Advisory Action, noting that Campbell discloses that strap 320 “is
made form [sic] a webbing material . . . such that the strap is itself a web
having sections (320a, 320b).” Adv. Act. 2. Responding to arguments
advanced by Appellant, the Examiner further states:
the webbing material of the straps taught by Campbell read on
the claimed web, wherein the straps themselves are formed from
the webbing material such that the web of the straps (as a whole)
include the straps formed in a desired pattern. Further, since the
straps (320a, 320b) of the support taught by Campbell form a
selected pattern when wrapped around a foot and ankle of a user
and are interconnected by the body member (311), the straps
therefore provide the structure of a web.
Ans. 10
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To the extent that the Examiner continues to maintain the position
that, because straps 320a and 320b are made of material described as
webbing material, the straps form a web, that position is unreasonably broad
in view of Appellant’s disclosure. The Examiner further errs in finding that
straps 320a and 320b are “interconnected” by body member 311, in that the
term “interconnected” requires the straps to be connected to one another, and
not solely via an intervening member. The Examiner additionally fails to
adequately explain how the final configuration of the ankle support of
Campbell forms a web pattern.
Brown is not relied on by the Examiner in any manner that remedies
the above-noted deficiencies in the teachings of Campbell.
Accordingly, the rejection of claims 1, 2, 5, 8, and 11 as being
unpatentable over Campbell in view of Brown is not sustained.
Claims 6 and 12--§ 103(a)--Ostergard/Brown/Bull
Bull is not relied on by the Examiner in any manner that remedies the
above-noted deficiency in the teachings of Ostergard in combination with
Brown.
Accordingly, the rejection of claims 6 and 12 as being unpatentable
over Ostergard in view of Brown and Bull is not sustained.
Claims 7 and 13--§ 103(a)--Ostergard/Brown/Kania
Kania is not relied on by the Examiner in any manner that remedies
the above-noted deficiency in the teachings of Ostergard in combination
with Brown.
Accordingly, the rejection of claims 7 and 13 as being unpatentable
over Ostergard in view of Brown and Kania is not sustained.

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Application 14/394,201
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DECISION
The rejections of claims 1–13 under 35 U.S.C. § 103(a) are reversed.

REVERSED