Ebony Blackmon-Humphrey

Patent Trials and Appeals Board

Jun 22, 2020

2018005880 (P.T.A.B. Jun. 22, 2020)

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.
14/483,505 09/11/2014 Ebony BLACKMON-HUMPHREY 2013-09-00330 2223
108998 7590 06/22/2020
WSU Patent Procurement Clinic
Wayne State University Law School
471 West Palmer
Detroit, MI 48202
EXAMINER
HUYNH, KHOA D
ART UNIT PAPER NUMBER
3732
NOTIFICATION DATE DELIVERY MODE
06/22/2020 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):
dberry@brookskushman.com
lawclinics@wayne.edu
patents@brookskushman.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
____________________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________________

Ex parte EBONY BLACKMON-HUMPHREY
____________

Appeal 2018-005880
Application 14/483,505
Technology Center 3700
____________

Before WILLIAM A. CAPP, ERIC C. JESCHKE, and
FREDERICK C. LANEY, Administrative Patent Judges.

CAPP, Administrative Patent Judge.

DECISION ON APPEAL

STATEMENT OF THE CASE
Appellant1 seeks our review under 35 U.S.C. § 134(a) of the final
rejection of claims 1–20. We have jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM IN PART.

1 We use the word “Appellant” to refer to “applicant” as defined in 37
C.F.R. § 1.42(a).
Appeal 2018-005880
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THE INVENTION
Appellant’s invention is a nursing bra. Spec. ¶ 1. Claim 1,
reproduced below, is illustrative of the subject matter on appeal.
1. A nursing brassiere for facilitating release of breast milk
from a nipple of a breast of a woman, the nursing brassiere
comprising:
a shoulder strap section (10) having a pair of primary
shoulder straps (12, 112) and a pair of secondary shoulder
straps (14, 114), the primary shoulder straps connected to the
secondary shoulder straps;
a pair of breast cups (16) connected to the secondary
shoulder straps (14, 114), each of the pair of breast cups
configured to substantially cover the breast of the woman, each
of the pair of breast cups further including an open ended sleeve
of stretchable compression material completely encircling an
external periphery of the breast for providing compressive
pressure directed radially inward toward a centerline of the
breast, the centerline of the breast extending outwardly from a
chest of the woman through the nipple of the breast, the open-
ended sleeve of stretchable compression material for placing
pressure on milk ducts of the breast to assist in release of breast
milk from the milk ducts, the stretchable compression material
providing a constant and uniform pressure to breast tissue
around the external periphery of the breast and in an outward
direction toward the nipple to push milk from the milk ducts
and out of the nipple;
a middle section (18) connected between the breast cups;
and a body support section (20) having a front portion (22)
connected extending through side portions (24) to a back
portion (26), the front portion connecting to the middle section
and each of the pair of breast cups, the side portions connecting
to the front portion with one side portion connecting to one
each of the pair of breast cups, and the back portion extending
between the side portions and having a top edge, wherein the
primary should straps connect to the top edge of the back
portion.
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THE REJECTIONS
The Examiner relies upon the following as evidence in support of the
rejections:
NAME REFERENCE DATE
Pearson US 6,083,079 July 4, 2000
Scholz US 2007/0105481 A1 May 10, 2007
Leavell US 8,414,353 B1 Apr. 9, 2013
Handras US 2014/0051331 A1 Feb. 20, 2014
The following rejections are before us for review:
1. Claims 1–17 are is rejected under 35 U.S.C. § 112(b) as being
indefinite for failing to particularly point out and distinctly claim the subject
matter which the inventor regards as the invention.
2. Claims 1, 3–9, 11, 17, and 20 are rejected under 35 U.S.C. § 103 as
being unpatentable over Pearson.
3. Claims 2, 10, and 18 are rejected under 35 U.S.C. § 103 as being
unpatentable over Pearson and Leavell.
4. Claims 12 and 13 are rejected under 35 U.S.C. § 103 as being
unpatentable over Pearson and Scholz.
5. Claims 14–16 are rejected under 35 U.S.C. § 103 as being
unpatentable over Pearson and Handras.
6. Claim 19 is rejected under 35 U.S.C. § 103 as being unpatentable
over Pearson, Leavell, and Scholz.
OPINION
Indefiniteness
The Examiner considers claim 1 to be indefinite because it lacks detail
concerning the breast cups and open ended sleeve. Final Act. 7–8. The
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Examiner considers claim 7, which depends from claim 1, to be indefinite
because it is unclear whether the recitation of “primary shoulder strap
sections” in claim 7 refers to another structure that is different from the
“primary shoulder straps” of claim 1. Id. at 8.
Appellant reacts to the rejection by submitting an After Final
amendment to the claims and commenting that such amendment “remedied”
the Section 112 concerns. Appeal Br. 9. Appellant remarks that “entry of
the Amendment” advances prosecution and places the application in a better
form for appeal. Id.
The Examiner responds by pointing out that, after Appellant
submitted its After Final amendment but before filing its Appeal Brief, the
Examiner issued an Advisory Action notifying Appellant that the After Final
amendment was not entered. See Advisory Action dated September 8, 2017;
Ans. 2.2 Appellant’s Reply Brief makes no mention of the Section 112
rejection. See generally Reply Br.
Under the circumstances, we deem the Section 112 rejection to be
unopposed and that argument against the claims that are actually on appeal
is waived. See 37 C.F.R. § 41.37(c)(1)(iv) (failure to separately argue
claims constitutes a waiver of arguments for separate patentability). We
sustain the Examiner’s Section 112 indefiniteness rejection of claims 1–17.

2 Indeed, Appellant attached the non-entered claims to the original Appeal
Brief, necessitating issuance by the Office of a Notice of Defective Appeal
Brief and the subsequent filing by Appellant of a corrected Appeal Brief that
included the correct set of claims that are on Appeal before us. See Notice
of Defective Appeal Brief dated September 14, 2017.
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Unpatentability of
Claims 1, 3–9, 11, 17, and 20 over Pearson
Claim 1
The Examiner finds that Pearson discloses the invention substantially
as claimed except that only some embodiments teach the use of primary and
secondary straps. Final Act. 9. The Examiner considers that it would have
been obvious to combine teachings from the various embodiments. Id.
at 9–10. The Examiner further finds that Pearson fails to explicitly disclose
use of a stretchable, compression material, but that it would have been
obvious to do so. Id. The Examiner further finds that only some
embodiments of Pearson disclose a body support section as claimed, but that
it would have been obvious to combine teachings from the various
embodiments of Pearson to achieve the claimed invention. Id. at 11.
According to the Examiner, a person of ordinary skill in the art would have
so combined and modified the teachings of Pearson as a matter of design
choice and to provide a comfortable fit for the user. Id.
Appellant argues that Pearson fails to teach the use of stretchable
compression fabric to provide uniform pressure directed radially toward the
nipple of the nursing mother. Appeal Br. 9–10. Appellant argues that
Pearson fails to use pressure to alleviate clogged milk ducts and to release
milk from the breast. Id. at 10.
In response, the Examiner notes that, in the Background section of
Appellant’s Specification, Appellant admits that it was known to use
stretchable material (Spandex) in a nursing bra. Ans. 3. The Examiner
notes that Pearson teaches the use of soft, flexible materials “known in the
trade.” Id. at 4. The Examiner then concludes that it would have been
reasonable and obvious to utilize stretchable material in Pearson. Id. The
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Examiner further cites the case of In re Leshin, 277 F.2d 197, 199
(CCPA 1960) for the proposition that it is a matter of obvious design choice
to select suitable materials. Id. at 5.
Pearson discloses a bra that includes embodiments directed to a
nursing application. Pearson, col. 8, ll. 13–16. Pearson features padded
shaper 12 with an inverted “Y” shape that surrounds the upper portion and
sides of a breast. Id. col. 5, l. 67 – col. 6, l. 6. Shaper 12 is made from
relatively non-elastic materials. Id. col. 6, ll. 6–9. Shaper 12 is configured
so that it “gently supports” the breast. Pearson “stabilizes” – “without
flattening” a woman’s breasts. Id. col. 5, ll. 12–24. Partial cup 20 is
attached to the lateral legs of shaper 12. Id. col. 6, ll. 19–20. Cup 20
supports the breast from underneath and is configured, together with the
lateral legs of shaper 12, to provide foundation support and lifting force to
the breast. Id. col. 6, ll. 20–35. As with shaper 12, partial cup 20 is made
from relatively non-elastic material. Id. col. 6, ll. 37–39.
Thus, Pearson is replete with references to providing “gentle support”
to the breast. See e.g., Pearson, col. 2, ll. 65–67; col. 3, ll. 50–55; col. 6,
ll. 6–10; col. 6, ll. 36–42; col. 6, ll. 53–58. Elastic band 46 “gently” holds
the bra in place against the torso, but does not function “to provide any
significant support” for the breasts of the wearer. Id. col. 6, ll. 53–60.
We have reviewed US 4,633,876 to Scullin, issued Jan. 6, 1987,
which is referred to in Appellant’s Background section and the Examiner’s
Answer. Spec. ¶ 5; Ans. 3. Scullin does indeed disclose the use of Spandex
in a nursing bra. See id. col. 5, ll. 28–48. However, we observe that it is one
thing to make a bra out of Spandex, but that it is an entirely different matter
to construct a bra and configure the arrangement of the components of the
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bra using Spandex so as to provide “constant and uniform pressure” to breast
tissue. Scullin may disclose the former, but the Examiner errs in finding that
it teaches or suggests the latter. Thus, the Examiner may be correct that
Pearson could be modified to use stretchable material. Ans. 4–5. However,
there is no evidentiary support for the Examiner’s conclusory statement that
merely using stretchable material would “provide compressive pressure
directed radially inward toward the centerline of the breast.” Id. at 4. A
person of ordinary skill in the art would understand that the stretchable
material would also have to be sized and shaped into a particular
configuration vis-à-vis the corresponding size and shape of the breast in
order to provide compressive pressure.
Pearson teaches providing “gentle” support “without flattening the
breasts” which, in our view, is almost diametrically opposed to proving
constant and uniform pressure. Thus, we find unlikely that a person of
ordinary skill in the art would have modified Pearson with Scullin’s Spandex
and configured the bra in such a manner as to achieve the claimed invention.
See In re Fritch, 972 F.2d 1260, 1266 (Fed. Cir. 1992) (explaining that the
mere fact that the prior art may be modified in the manner suggested by the
Examiner does not necessarily make the modification obvious).
In view of the foregoing discussion, we determine that the Examiner’s
findings of fact are not supported by a preponderance of the evidence and
that the Examiner's legal conclusion of unpatentability is not well-founded.
Accordingly, we do not sustain the Examiner’s unpatentability rejection of
claim 1.
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Claims 3–9, 11, and 17
These claims depend, directly or indirectly, from claim 1. Claims
App. The Examiner’s rejection of these claims suffers from the same
infirmity that was identified above with respect to claim 1. Thus, for
essentially the same reason expressed above in connection with claim 1, we
do not sustain the rejection of claims 3–9, 11, and 17.
Claim 20
Claim 20 is an independent claim that, like claim 1, has a limitation
directed to providing compressive pressure to the breast. Claims App.
Thus, the Examiner’s rejection of claim 20 suffers from the same infirmity
that was identified above with respect to claim 1. Thus, for essentially the
same reason expressed above in connection with claim 1, we do not sustain
the rejection of claim 20.
Unpatentability of Claims 2, 10, 12–16, 18, and 19
over Combinations Based on Pearson
Claims 2, 10 and 12–16
These claims depend, directly or indirectly, from claim 1. Claims
App. The Examiner’s rejection of these claims suffers from the same
infirmity that was identified above with respect to claim 1. That infirmity is
not remedied by the Examiner’s reliance on various secondary references
that are used solely to teach dependent limitations. Final Act. 12–23. Thus,
for essentially the same reason expressed above in connection with claim 1,
we do not sustain the rejection of claims 2, 10 and 12–16.
Claims 18 and 19
Claim 18 is an independent claim that, like claim 1, has a limitation
directed to compressive pressure on the breast, for which the Examiner, once
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again, relies on Pearson. Claims App., Final Act. 19–20. Claim 19 depends
from claim 18. Claims App. The Examiner’s rejection of these claims
suffers from the same infirmity that was identified above with respect to
claim 1. That infirmity is not remedied by the Examiner’s reliance on
various secondary references. Final Act. 19–21, 24–25. Thus, for
essentially the same reason expressed above in connection with claim 1, we
do not sustain the rejection of claims 18 and 19.
CONCLUSION
Claims
Rejected
§ Reference(s)/Basis Affirmed Reversed
1-17 112 Indefiniteness 1-17
1, 3-9, 11,
17, 20
103 Pearson 1, 3-9, 11,
17, 20
2, 10, 18 103 Pearson, Leavell 2, 10, 18
12, 13 103 Pearson, Scholz 12, 13
14-16 103 Pearson, Handras 14-16
19 103 Pearson, Leavell, Scholz 19
Overall
Outcome
1-17 18-20
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-IN-PART