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In re Verhoef

United States Court of Appeals, Federal Circuit

May 3, 2018

IN RE: JEFF H. VERHOEF, Appellant

          Appeal from the United States Patent and Trademark Office, Patent Trial and Appeal Board in No. 13/328, 201.

          Thomas E. Loop, Loop Intellectual Property Law PLLC, Seattle, WA, argued for appellant.

          Meredith Hope Schoenfeld, Office of the Solicitor, United States Patent and Trademark Office, Alexandria, VA, argued for appellee Andrei Iancu. Also represented by Nathan K. Kelley, Thomas W. Krause, Brian Racilla.

          Before Newman, Mayer, and Lourie, Circuit Judges.

          LOURIE, CIRCUIT JUDGE.

         Jeff H. VerHoef ("VerHoef") appeals from the decision of the Patent Trial and Appeal Board (the "Board") affirming the examiner's rejection of all claims of VerHoef's pending application 13/328, 201 (the "'201 application") as unpatentable under 35 U.S.C. § 102(f) (2006).[1] Ex parte VerHoef, No. 2015-005270, 2017 WL 745052 (P.T.A.B. Feb. 23, 2017) ("Decision"). Because the Board correctly concluded that VerHoef did not solely invent the claimed subject matter of the '201 application on which he claimed sole inventorship, we affirm.

         Background

         VerHoef filed the '201 application, generally relating to a dog mobility device, at the U.S. Patent and Trademark Office ("the PTO"), naming himself the sole inventor. The only question on appeal is whether VerHoef "himself invent[ed] the subject matter sought to be patented, " as required by § 102(f).

         In response to the examiner's initial rejection of the '201 application under § 102(f), VerHoef submitted an affidavit describing the origins and conception of the claimed invention. We summarize the affidavit here in relevant part.

         VerHoef's dog Reilly developed difficulty walking after undergoing surgery. VerHoef Aff. ¶ 3; J.A. 122. Reilly would drag his hind paw and put weight on his paw's knuckles, called "knuckling." Id. Consequently, VerHoef met with a veterinarian, Dr. Alycia Lamb ("Lamb"), to begin rehabilitative therapy for Reilly. Id. ¶¶ 4-5.

         Initial results using an underwater treadmill were disappointing and appeared to exacerbate the knuckling problem. Id. ¶ 5. Lamb then suggested trying a commercially available harness that would provide support to the hind leg. Id. The harness similarly did not fix the knuckling problem. Id. ¶ 6; J.A. 122. Consequently, VerHoef constructed a homemade harness modeled on the commercial one, but this yielded similar results. Id. ¶¶ 7-8; J.A. 123. VerHoef then recognized that the harness would work better if connected to the dog's toes. Id. ¶ 8.

         After mentioning this idea to Lamb during a therapy session, the following discussion occurred:

I said to Dr. Lamb, "There has to be a way to connect the cord to the toes." At the end of our appointment, Dr. Lamb suggested that a strap configured in a figure '8' that fit around the toes and wrapped around the lower part of the leg, above the paw, might be something to consider. In response, I said that I would try to figure out a way to make that work."

Id. (emphasis added). VerHoef then implemented Lamb's figure eight idea, and, after further adjustments, had a working device that reduced the knuckling problem. Id. ¶¶ 9-10, 17-18; J.A. 123-25.

         VerHoef contacted a patent attorney who then filed a patent application directed to the homemade dog harness listing both VerHoef and Lamb as joint inventors. Id. ΒΆ 28; J.A. 126. The application included a single independent claim that expressly ...


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