Alecia Lee

Patent Trials and Appeals Board

Jul 22, 2021

2021001389 (P.T.A.B. Jul. 22, 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.
15/342,905 11/03/2016 Alecia Lee SK12271 2670
44088 7590 07/22/2021
KAUFHOLD DIX PATENT LAW
P. O. BOX 89626
SIOUX FALLS, SD 57109
EXAMINER
BENNETT, BRANT T
ART UNIT PAPER NUMBER
3786
NOTIFICATION DATE DELIVERY MODE
07/22/2021 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):
jason@kaufholdlaw.com
PTOL-90A (Rev. 04/07)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________

Ex parte ALECIA LEE

Appeal 2021-001389
Application 15/342,905
Technology Center 3700
____________

Before HUBERT C. LORIN, MICHAEL C. ASTORINO, and
NINA L. MEDLOCK, Administrative Patent Judges.

ASTORINO, Administrative Patent Judge.

DECISION ON APPEAL
Pursuant to 35 U.S.C. § 134(a), the Appellant1 appeals from the
Examiner’s decision to reject claims 1, 3, and 4, which constitute all the
claims pending in this application. 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. The Appellant identifies the real party in interest as “the
applicant, Alecia Lee.” Appeal Br. 2.
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STATEMENT OF THE CASE
Claimed Subject Matter
Claims 1 and 4 are the independent claims on appeal. Claim 1,
reproduced below, is illustrative of the claimed subject matter.
1. A therapeutic garment assembly being configured to be
worn on an animal thereby facilitating said assembly to ease
joint pain, said assembly comprising:
a garment being configured to be worn on an animal, said
garment having a body, a neck and a pair of
sleeves extending downwardly from said body,
said body having a lower edge, said body being
configured to extend along the animal’s back, each
of said sleeves being configured to receive and
cover a knee joint in an associated one of the
animal’s front legs, said garment being infused
with a copper material wherein said garment is
configured to ease joint pain, said garment being
comprised of a resiliently stretchable material
wherein said garment is configured to facilitate
compression therapy; and
a pair of straps, each of said straps being coupled to said
garment wherein each of said straps is configured
to be wrapped around the animal thereby retaining
said garment on the animal.
Appeal Br., Claims App.
References
The prior art relied upon by the Examiner is:
Name Reference Date
Spice et al. (“Spice”) WO 2012/094712 A1 July 19, 2012
Blizzard CA 2,765,747 Dec. 23, 2010
Scott et al. (“Scott”) US 2015/0224011 A1 Aug. 13, 2015

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Rejections
Claims 1 and 3 are rejected under 35 U.S.C. § 103 as unpatentable
over Spice, Blizzard, and Scott.
Claim 4 is rejected under 35 U.S.C. § 103 as unpatentable over Spice,
Scott, and Blizzard.

ANALYSIS
The Appellant argues that the Examiner’s rejection of claim 1 is
improper because the claim includes subject matter that is not obvious in
view of the collective teachings of Spice, Blizzard, and Scott. Appeal Br. 4,
6. The Appellant’s argument is supported by two points: first, “[c]laim 1
requires a garment of a resiliently compressible material for therapeutic
compression and infused with a copper material for therapeutic pain
reduction for an animal” (Appeal Br. 4); and second, that Spice, Blizzard,
and Scott fail to teach the use of copper for pain reduction (Appeal Br. 6).
We determine that these points are not persuasive of error for the following
reasons.
As for the Appellant’s first point, claim 1 recites “said garment being
infused with a copper material wherein said garment is configured to ease
joint pain.” Appeal Br., Claims App. This recitation requires that the
claimed garment is: (1) infused with copper material; and (2) configured to
ease joint pain.2 The recitation does not require that the infused copper
material provides therapeutic pain reduction. Rather, the recitation requires

2 The claim also requires the garment to be “comprised of a resiliently
stretchable material” and “configured to facilitate compression therapy.”
Appeal Br., Claims App.
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that the garment itself is configured to ease of joint pain. Additionally, we
determine that this understanding is consistent with the Specification. The
Specification attributes the ease of joint pain to both copper therapy and
compression therapy. Spec. 3:24–28, 4:12–18. For example, the
Specification describes:
The garment 12 is infused with a copper material 21. The
copper material 21 may be threaded copper or the like. Thus, the
garment 12 eases joint pain through copper therapy. The
garment 12 is comprised of a resiliently stretchable material to
facilitate compression therapy. Thus, the garment 12 eases joint
pain through stability and support. The joint pain may be related
to arthritis or the like.
Accordingly, the Specification instructs that the ease of joint pain is
attributable to the garment having copper (i.e., copper therapy) and/or a
resiliently stretchable material for stability and support (i.e., compression
therapy). As discussed above, claim 1 recites that the “garment is
configured to ease joint pain.” The claim does not specify that the garment
is configured to ease joint pain due to copper therapy, compression therapy,
or both.
Turning to the Examiner’s rejection, the Examiner finds that Spicer
teaches a garment that is configured to ease joint pain through compression
therapy. See Final Act. 3 (citing Spice 1:9–12, 2:18–21, 3:17–24,
18:14–25). We agree with this finding.
As for the Appellant’s second point –– i.e., that Spice, Blizzard, and
Scott fail to teach the use of copper for pain reduction (Appeal Br. 6) –– we
determine that this point is not persuasive.
First, as discussed above, claim 1 does not call for the use of copper
for pain reduction.
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Second, the Examiner’s reason for modifying the antimicrobial thread
in Spice’s compression garment with copper antimicrobial thread, as taught
by Scott, has rational underpinning (i.e., to reduce the likelihood of
infection). See Final Act. 5 (citing Spice 3:26–27; Scott ¶ 42); In re Kahn,
441 F.3d 977, 988 (Fed. Cir. 2006) (“[R]ejections on obviousness grounds
. . . [require] some articulated reasoning with some rational underpinning to
support the legal conclusion of obviousness.”) (cited with approval in KSR
Int’l Co. v. Teleflex Inc., 550 U.S. 398, 418 (2007)). Moreover, we note that
the Examiner’s reason for modifying the antimicrobial thread in Spice’s
compression garment with copper antimicrobial thread does not have to be
identical to the Appellant’s purpose for including copper thread.
Third, once Spice’s compression garment is modified to be infused
with copper, the therapeutic properties of copper including easing joint pain
would flow naturally therefrom. See Ans. 8–9 (citing Maurer (US
4,680,309, issued July 14, 1987) col. 1, ll. 40–56, col. 9, l. 63–col. 10, l. 13);
Final Act. 3 (“it is noted that since the garment is configured to cover the
knees of the animal and relieve pain, that it would relieve joint pain at the
knees”); see also PAR Pharma., Inc. v. TWI Pharma., Inc., 773 F.3d 1186,
1195–96 (Fed. Cir. 2014) (citations omitted) (“[T]o rely on inherency to
establish the existence of a claim limitation in the prior art in an obviousness
analysis––the limitation at issue necessarily must be present, or the natural
result of the combination of elements explicitly disclosed by the prior art.”);
Ex parte Obiaya, 227 USPQ 58, 60 (BPAI 1985), aff’d mem., 795 F.2d 1017
(Fed. Cir. 1986) (“The fact that appellant has recognized another advantage
which would flow naturally from following the suggestion of the prior art
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cannot be the basis for patentability when the differences would otherwise
be obvious.”).
Further, the Appellant “submit[s] that the line of argument used to
support the allegation of obviousness is merely a conclusory statement of
obviousness based upon speculation (rather than evidence) of what one of
ordinary skill in the art would recognize about Spice, Blizzard and Scott.”
Appeal Br. 5. However, the Appellant fails to particularly point out how the
Examiner’s rejection is speculative. Additionally, we fail to understand how
the Examiner’s rejection is based on speculation. To the contrary, we
determine that the Examiner’s rejection is well supported. See Final
Act. 3–5.
Thus, we sustain the Examiner’s rejection of independent claim 1 and
claim 3, which depends therefrom. See 37 C.F.R. § 41.37(c)(1)(iv).
The Appellant does not provide a separate argument for the
Examiner’s rejection of independent claim 4. We note that both claims 1
and 4 recite “said garment being infused with a copper material wherein said
garment is configured to ease joint pain.” See Appeal Br., Claims App.
And, for this recitation of claims 1 and 4 the Examiner’s findings and
reasoning are the same. Compare Final Act. 3, 5 with id. at 7–8. Thus, we
likewise sustain the Examiner’s rejection of independent claim 4.

CONCLUSION
In summary:
Claim(s)
Rejected
35 U.S.C. § Reference(s)/Basis Affirmed Reversed
1, 3 Spice, Blizzard, Scott 1, 3

4 Spice, Scott, Blizzard 4
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Claim(s)
Rejected
35 U.S.C. § Reference(s)/Basis Affirmed Reversed
Overall
Outcome
1, 3, 4

No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a)(1)(iv).

AFFIRMED