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In re Verhoef

United States Court of Appeals for the Federal Circuit

May 3, 2018, Decided



 [*1363]  [***1562]   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 JEFF H. VERHOEF, No. 2015-005270, 2017 Pat. App. LEXIS 1474, 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.


VerHoef filed the '201 application, generally relating to a dog mobility device, at  [*1364]  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 [**2]  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 [**3]  session, the following discussion occurred:

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888 F.3d 1362 *; 2018 U.S. App. LEXIS 11554 **; 126 U.S.P.Q.2D (BNA) 1561 ***; 2018 WL 2050095


Prior History:  [**1] Appeal from the United States Patent and Trademark Office, Patent Trial and Appeal Board in No. 13/328,201.

Disposition: AFFIRMED.


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Patent Law, Originality, Joinder of Inventors, Jurisdiction & Review, Standards of Review, De Novo Review, Originality, Substantial Evidence