Daniel Schlatterer

Patent Trials and Appeals Board

Jun 18, 2021

2021000212 (P.T.A.B. Jun. 18, 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.
15/245,991 08/24/2016 Daniel Robert Schlatterer DN0298 5680
51108 7590 06/18/2021
DAVID L. KING, SR.
5131 N.E. COUNTY ROAD 340
HIGH SPRINGS, FL 32643
EXAMINER
SPATZ, ABBY M
ART UNIT PAPER NUMBER
3732
NOTIFICATION DATE DELIVERY MODE
06/18/2021 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):
davidlkingsr@windstream.net
uspto@dockettrak.com
valerie365@yahoo.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte DANIEL ROBERT SCHLATTERER

Appeal 2021-000212
Application 15/245,991
Technology Center 3700
Before JOHN C. KERINS, MICHELLE R. OSINSKI, and
MICHAEL L. WOODS, Administrative Patent Judges.
WOODS, 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 1–4, 6, and 7, which constitute all of
the claims pending in the application. See Appeal Br. 5. We have
jurisdiction under 35 U.S.C. § 6(b).
We REVERSE.

1 We use the word Appellant to refer to “applicant” as defined in 37 C.F.R.
§ 1.42(a). Appellant identifies the inventor, Dr. Daniel Robert Schlatterer,
as the real party in interest. Appeal Br. 3.
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Application 15/245,991

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CLAIMED SUBJECT MATTER
The application is titled “Two-Toned Gowns for Operating Room
Personnel.” Spec. 1. Claims 1 and 2 are independent. Appeal Br. 27–28.
We reproduce claim 1, below:
1. A sterility indicating operating room surgical gown
comprises:
a two-toned surgical gown having outer surfaces of a first
color indicating a sterile area, and outer surfaces of a contrasting
second color added to back areas of the two-toned surgical gown
including back areas of a pair of sleeves of the two-toned surgical
gown to demark non-sterile areas of the two-toned surgical
gown, the first color being of a blue or green color indicating the
sterile area, the contrasting second color being yellow, orange,
red or pink indicating the non-sterile area of a cautionary color
indicating do not touch region of the two-toned surgical gown.
Appeal Br. 27 (Claims App.) (emphases added).
REFERENCES
The prior art relied upon by the Examiner is:
Name Reference Date
Santini US 5,276,075 Jan. 4, 1994
Blauer US 6,128,783 Oct. 10, 2000
Plut US 7,748,060 B2 July 6, 2010
Kantrowitz US 2013/0104284 A1 May 2, 2013
Williams US 8,646,114 B1 Feb. 11, 2014
Forbes US 9,179,716 B2 Nov. 10, 2015
Gubitosa US 2016/0081405 A1 Mar. 24, 2016
Getty Photo from The Tonight Show with Jay
Leno, Episode 1738
Dec. 13, 1999
BluemangroupLondon Photo from
https://youtube.com/watch?v=Nau6B38luc
Mar. 19, 2008
See Final Act. 3–18.
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Application 15/245,991

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REJECTIONS
The following rejections are before us on appeal:
Claim(s) Rejected 35 U.S.C. § Reference(s)/Basis
1, 3 102(a) Plut
1, 3 103 Plut
1 103 Williams, Gubitosa
2, 7 103 Getty, Santini
2, 7 103 BluemangroupLondon, Santini
2 103 Williams, Gubitosa, Kantrowitz
3, 4 103 Williams, Gubitosa, Forbes
4 103 Plut, Blauer
6 103 Getty, Santini, Plut
6, 7 103 Williams, Gubitosa, Forbes
Final Act. 3–18.
OPINION
1. Rejections based primarily on Plut
The Examiner rejects claims 1 and 3 as anticipated by Plut and, in the
alternative, as obvious over Plut. Final Act. 11. The Examiner also rejects
dependent claim 4 as unpatentable over Plut in view of Blauer. Id. at 15. In
rejecting claim 4, the Examiner relies on the same findings and reasoning
relied upon in rejecting independent claim 1. See id.

a. Examiner’s Rejection
In rejecting claims 1 and 3 as anticipated by Plut and, in the
alternative, as obvious over Plut, the Examiner finds that Plut discloses the
claimed two-toned surgical gown having, inter alia, “outer surfaces of a first
color indicating a sterile area, and outer surfaces of a contrasting second
color.” See Final Act. 3 (citing in relevant part Plut, 24:4–22). The cited
portion of Plut discloses:
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In one embodiment, apparel 10 comprises a first identifier
or color (e.g., green) disposed on inner surfaces of shroud
material 15 included in body portion 12, transition portal 100 and
sleeves 14. The first identifier or color differentiates inner
surfaces of shroud material 15 from outer surfaces of the shroud
material. Doffing then includes handling inner surfaces of
shroud material 15 that are marked with the first identifier or
color---after the person has removed their arms from sleeves 14
and their hands from gloves 40. Apparel 10 may also comprise a
second identifier or color (e.g., red) disposed on outer surfaces
of the shroud material 15. Doffing according to the present
invention then avoids contact between the person and these outer
surfaces of the shroud material 15 after the person has removed
their arms from sleeves 14 and their hands from gloves 40.
Before the person has removed their arms from sleeves 14 and
their hands from gloves 40, however, doffing may use the outer
surfaces and keep contaminants on the hands localized to these
outer surfaces.
Plut, 24:4–22 (emphases replaced).
The Examiner explains that Plut’s surgical gown has
outer surfaces of a first color (green surfaces of the back of the
gown closest to the wearer, considered to be outer surfaces
where the gown is oriented such that the front of the gown is the
inner most surface and the rear of the gown is the outermost
surface) indicating a sterile area . . . and outer surfaces of a
contrasting second color added to back areas of a pair of sleeves
of the two-toned surgical gown (red outermost surface of the
back of the gown, where the gown is oriented such that the front
of the gown is the inner most surface and the rear of the gown is
the outermost surface) to demark non-sterile areas[.]
Final Act. 3–4 (citing Plut, 24:4–22) (emphasis added).

b. Analysis
Appellant asserts that “[n]ot one embodiment disclosed in Plut dealt
with sterile or non-sterile exterior outer surfaces . . . because the protective
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gown in Plut is configured to protect a wearer doffing a gown wherein the
entire exterior or outside surfaces are considered contaminated.” Appeal Br.
13.
We agree with Appellant.
Claim 1 and its dependent claim 3 require the surgical gown to have
“outer surfaces of a first color . . . and outer surfaces of a contrasting second
color.” Appeal Br. 27 (Claims App.) (emphases added). Although Plut
discloses a two-toned gown, Plut’s gown is two-toned because its inner
surface (e.g., green) is a different color from its outer surface (e.g., red). See
Plut, 24:4–22; see also id. at 7–10 (“The first identifier or color
differentiates inner surfaces of shroud material 15 from outer surfaces of the
shroud material.”) (emphasis omitted).
The Examiner understood Plut’s disclosure, but nevertheless found
that Plut satisfies the limitation because Plut’s “green surfaces of the back of
the gown closest to the wearer [are] considered to be outer surfaces.” Final
Act. 3. The Examiner’s interpretation of the claim limitation, however, is
unreasonably broad and inconsistent with the Specification. In re Abbott
Diabetes Care Inc., 696 F.3d 1142, 1148 (Fed. Cir. 2012) (“[C]laims under
examination before the PTO are given their broadest reasonable
interpretation consistent with the specification.”).
In particular, it is unreasonable for the Examiner to interpret a surgical
gown “having outer surfaces of a first color . . . and outer surfaces of a
second color” as being disclosed by a gown having different inner surface
and outer surface colors. See Final Act. 3. The claim requires the gown to
have two contrasting outer surface colors. See Appeal Br. 27. The
Examiner’s interpretation of the claim limitation ignores the term “outer
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surfaces,” thereby rendering it superfluous. See Bicon Inc. v. Straumann
Co., 441 F.3d 945, 950 (Fed. Cir. 2006) (“[C]laims are interpreted with an
eye toward giving effect to all terms in the claim.”); see also Stumbo v.
Eastman Outdoors, Inc., 508 F.3d 1358, 1362 (Fed. Cir. 2007) (denouncing
claim constructions which render phrases in claims superfluous); Merck &
Co. v. Teva Pharms. USA, Inc., 395 F.3d 1364, 1372 (Fed. Cir.
2005) (rejecting a proposed claim construction that would render claim
terms superfluous).
Furthermore, every embodiment of the Specification describes a gown
with two contrasting outer surface colors, and the outer surface of each of
these gowns is the exterior surface of the gown, not the inner surface closest
to the wearer. See, e.g., Spec., Figs. 1A, 1B, 3, 4B. As such, the Examiner’s
interpretation of “outer surfaces” is also inconsistent with the Specification.
Abbott, 696 F.3d at1148.
Accordingly, we reverse the Examiner’s rejection of claims 1 and 3 as
anticipated by Plut and, in the alternative, as obvious over Plut. We also
reverse the rejection of claim 4 as unpatentable over Plut in view of Blauer
for the same reason.

2. Rejections based on Williams and other cited art
The Examiner maintains additional § 103 rejections on appeal, as
follows: (1) claim 1 as unpatentable over Williams in view of Gubitosa; (2)
claim 2 as unpatentable over Williams in view of Gubitosa and Kantrowitz;
(3) claims 3 and 4 as unpatentable over Williams in view of Gubitosa and
Forbes; and (4) claims 6 and 7 as unpatentable over Williams in view of
Gubitosa in view of Kantrowitz and Forbes (“the Williams-based
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rejections”). See Final Act. 4, 11, 14, 17; see also Ans. 3 (maintaining all
rejections from Final Office Action).

a. Examiner’s Rejection
In rejecting claims 1–4, 6, and 7 under the Williams-based rejections,
the Examiner finds that “Williams discloses a sterility indicating operating
room surgical gown.” See Final Act. 4 (rejecting claim 1) (citing Williams,
2:66–67); see also id. at 11 (rejecting claim 2), 14 (rejecting claims 3 and 4),
17 (rejecting claims 6 and 7).
The cited portion of Williams discloses that its “invention provides a
gown 10 that indicates to health care workers those portions of the body that
should not be pressured or punctured.” Williams, 2:66–3:1 (emphasis
omitted).

b. Analysis
Appellant argues that Williams “is exclusively concerned with the
patient and identifying where portions of the patient’s body that are
vulnerable are located. . . . These are not remotely similar to surgical gowns
worn, not by the patient, but by members of a surgical team.” Appeal Br.
14–15.
Appellant’s argument is persuasive. We disagree with the Examiner’s
finding that Williams’s patient gown satisfies the claimed “surgical gown.”
See Final Act. 4.
The Food and Drug Administration (“FDA”) defines a surgical gown
as:
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A surgical gown is regulated by the FDA as a Class II
medical device that requires a 510(k) premarket notification. A
surgical gown is a personal protective garment intended to be
worn by health care personnel during surgical procedures to
protect both the patient and health care personnel from the
transfer of microorganisms, body fluids, and particulate matter.
Because of the controlled nature of surgical procedures, critical
zones of protection have been described by national
standards. As referenced in Figure 1: the critical zones include
the front of the body from top of shoulders to knees and the arms
from the wrist cuff to above the elbow. Surgical gowns can be
used for any risk level (Levels 1-4). All surgical gowns must be
labeled as a surgical gown.
https://www.fda.gov/medical-devices/personal-protective-equipment-
infection-control/medical-gowns#g2 (“Surgical Gown Definition”) (last
visited June 11, 2021). Importantly, the FDA provides that a “surgical gown
is a personal protective garment intended to be worn by health care
personnel during surgical procedures.” Id. (emphasis added).
Based on this definition, a skilled artisan would not have understood
Williams’s patient gown as being a “surgical gown,” as required by each of
claims 1–4, 6, and 7. See Appeal Br. 27–28.
As such, we reverse the Williams-based rejections of claims 1–4, 6,
and 7.

3. Rejections based on Getty and other cited art
The Examiner further rejects: (1) claims 2 and 7 as unpatentable over
Getty in view of Santini; and (2) claim 6 as unpatentable over Getty in view
of Santini and Plut (“the Getty-based rejections”). See Final Act. 6, 16.

a. Examiner’s Rejection
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In rejecting claims 2, 6, and 7, the Examiner finds that Getty “teaches
a sterility indicating operating room surgical gown.” Id. at 6 (rejecting
independent claim 2); see also id. at 8 (rejecting dependent claim 7); see
also id. at 16 (rejecting dependent claim 6).
We reproduce the entirety of Getty’s disclosure, below:

Getty.

b. Analysis
Appellant asserts that “the episode of Blue Man Group, while
entertaining, is not remotely relevant.” Appeal Br. 17.
We agree with Appellant.
We disagree with the Examiner’s finding that the clothing worn by
Robin Williams in performing with the Blue Man Group can reasonably be
understood to be a “surgical gown.” See Final Act. 6. The Examiner’s
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interpretation of “surgical gown” appears to treat any coverall—as
apparently worn by Robin Williams—as a “surgical gown.” See id.; see also
Getty. Such an interpretation is unreasonably broad and inconsistent with
the Specification.
As explained above (see supra Part 2.b), the FDA provides that a
“surgical gown is a personal protective garment intended to be worn by
health care personnel during surgical procedures.” Surgical Gown
Definition (emphasis added). As accomplished as Robin Williams was
during his life, the evidence cited by the Examiner does not establish that he
donned a “two-toned surgical gown,” as required by claims 2, 6, and 7.
Accordingly, we reverse the Getty-based rejections of claims 2, 6, and
7.

4. Rejection based on BluemangroupLondon and Santini
The Examiner also rejects claims 2 and 7 as unpatentable over
BluemangroupLondon in view of Santini. Final Act. 9. In rejecting the
claims, the Examiner finds that “BluemangroupLondon teaches a sterility
indicating operating room surgical gown.” Id. We reproduce the entirety of
BluemangroupLondon, below:
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BluemangroupLondon.
For the same reasons that Getty does not disclose a “surgical gown,”
BluemangroupLondon does not disclose a “surgical gown.” The evidence
cited by the Examiner does not establish that the coverall shown is a surgical
gown.
Accordingly, we reverse the Examiner’s rejection of claims 2 and 7 as
unpatentable over BluemangroupLondon and Santini.

CONCLUSION
We reverse all of the rejections.
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DECISION SUMMARY
In summary:
Claim(s)
Rejected
35 U.S.C. § Reference(s)/Basis Affirmed Reversed
1, 3 102 Plut 1, 3
1, 3 103 Plut 1, 3
1 103 Williams, Gubitosa 1
2, 7 103 Getty, Santini 2, 7
2, 7 103 BluemangroupLondon,
Santini
2, 7
2 103 Williams, Gubitosa,
Kantrowitz
2
3, 4 103 Williams, Gubitosa,
Forbes
3, 4
4 103 Plut, Blauer 4
6 103 Getty, Santini, Plut 6
6, 7 103 Williams, Gubitosa,
Kantrowitz, Forbes
6, 7
Overall
Outcome
1–4, 6, 7

REVERSED