Ex Parte Blizzard

Patent Trial and Appeal Board

Aug 31, 2018

14557028 (P.T.A.B. Aug. 31, 2018)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
14/557,028 12/01/2014
24239 7590 09/05/2018
MOORE & VAN ALLEN PLLC
P.O. BOX 13706
3015 Carrington Mill Boulevard, Suite 400
Research Triangle Park, NC 27709
FIRST NAMED INVENTOR
Philip J. Blizzard
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
ATTORNEY DOCKET NO. CONFIRMATION NO.
026992-000127 5062
EXAMINER
ALKER, KATHLEEN 1W ASAKI
ART UNIT PAPER NUMBER
3643
NOTIFICATION DATE DELIVERY MODE
09/05/2018 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):
iplaw@mvalaw.com
usptomail@mvalaw.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte PHILIP J. BLIZZARD
Appeal2018-000898 1
Application 14/557,028
Technology Center 3600
Before ANNETTE R. REIMERS, LISA M. GUIJT, and
PAUL J. KORNICZKY, Administrative Patent Judges.
REIMERS, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Philip J. Blizzard (Appellant) appeals under 35 U.S.C. § 134(a) from
the Examiner's decision to reject claims 1-20 under 35 U.S.C. § 103(a) as
unpatentable over Ito (JP 2008-178332, published Aug. 7, 2008)2 and Spatt
1 In the Appeal Brief, Thundershirt, LLC, is the applicant as provided under
37 C.F.R. § 1.46 and is identified as the real party in interest. Appeal Brief 1
(hereinafter "Br.") (filed Feb. 24, 2017).
2 We derive our understanding of the Ito reference from an English translation,
which is available in the electronic file wrapper of the underlying application.
All references to the text of Ito are to portions of the translation.
Appeal2018-000898
Application 14/557,028
(US 6,234,117 B 1, issued May 22, 2001 ). We have jurisdiction under 35
U.S.C. § 6(b).
We AFFIRM.
CLAIMED SUBJECT MATTER
The claimed subject matter is directed to a pressure-applying garment
for animals. See Spec. Title, Figs. 1, 2. Claims 1, 14, and 18 are
independent.
Claim 1 is illustrative of the claimed subject matter and recites:
1. A garment for an animal having a first pair of appendages,
a second pair of appendages, and a neck, the animal having a
mid-body between the first pair of appendages and the second
pair of appendages, the garment comprising:
a central portion comprising stretchable fabric and having
a longitudinal axis and including a front end, a rear end opposite
the front end, a first side extending laterally in a first direction
from the longitudinal axis, and a second side extending laterally
in a second direction from the longitudinal axis, the second
direction opposite the first direction;
a first flap comprising stretchable fabric and extending in
the first direction from the first side of the central portion, the
first flap including a free distal end;
a second flap comprising stretchable fabric and extending
in the second direction from the second side of the central
portion, the second flap including a free distal end; and
at least one strap extending from the front end of the
central portion to a free distal end, an inside surface, and an
outside surface, the at least one strap configured to attach to a
complementary fabric of the garment;
wherein when the garment is worn by the animal the first
flap and the second flap extend around the mid-body of the
animal and fasten to each other such that the central portion and
the fastened first and second flaps form a shape conforming to
the outside of the mid-body of the animal, wherein when the
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Application 14/557,028
garment is worn by the animal the at least one strap extends at
least partially around the neck of the animal to connect to the
complementary fabric.
ANALYSIS
Claims 1 and 3-19
Appellant does not offer arguments in favor of independent claims 14
and 18 and dependent claims 3-13, 15-1 7, and 19 separate from those
presented for independent claim 1. See Br. 4---6. We select claim 1 as the
representative claim, and claims 3-19 stand or fall with claim 1. 37 C.F.R.
§ 4I.37(c)(l)(iv). We address claims 2 and 20 separately below.
Claim 1 is directed to a garment for an animal that includes "a central
portion comprising stretchable fabric ... , a first side extending laterally in a
first direction from the longitudinal axis, and a second side extending
laterally in a second direction from the longitudinal axis," "a first flap
comprising stretchable fabric and extending in the first direction from the
first side of the central portion," "a second flap comprising stretchable fabric
and extending in the second direction from the second side of the central
portion," and "at least one strap extending from the front end of the central
portion to a free distal end," "wherein when the garment is worn by the
animal the at least one strap extends at least partially around the neck of the
animal to connect to the complementary fabric." Br. 8, Claims App.
The Examiner finds that Ito discloses a garment for animals that
includes, inter alia, "a central portion 3 comprising stretchable fabric (para
0023 teaches polyester and rayon, both of which are polymers that will
stretch)," the central portion having "a first side (right side of ref. 3 in Fig. 3)
extending laterally in a first direction from the longitudinal axis, and a
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Application 14/557,028
second side (left side of ref. 3 in Fig. 3) extending laterally in a second
direction from the longitudinal axis." Final Act. 2. 3 The Examiner further
finds that Ito's garment includes a first flap 4 A that extends in the first
direction from the first side of the central portion, a second flap 4 B that
extends in the second direction from the second side of the central portion,
and at least one strap 5A, 5B that extends from the front end of the central
portion to a free distal end, and that "when the garment is worn by the
animal the at least one strap extends at least partially around the neck of the
animal to connect to the complementary fabric (Fig. 1)." Id. at 2-3.
The Examiner finds that "Ito is silent about the first flap and the
second flap each comprising stretchable fabric." Id. at 3. As such, the
Examiner looks to Spatt for disclosing "a garment comprising a stretchable
fabric." Id. (citing Spatt 2:13-19). The Examiner reasons that it would have
been obvious to modify the first and second flaps of Ito's garment to
comprise a stretchable fabric in view of Spatt "in order to comfortably
conform to the body of the animal, since it has been held to be within the
general skill of a worker in the art to select a known material on the basis of
its suitability for the intended use as a matter of obvious design choice." Id.
(citing In re Leshin, 125 USPQ 416).
Appellant contends that "Ito does not disclose at least one strap
extending at least partially around the neck of the animal to connect to
complementary fabric." Br. 5.
In response to Appellant's contention, the Examiner points out that
paragraph 25 of Ito states:
3 Final Office Action (hereinafter "Final Act.") dated May 23, 2016.
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Application 14/557,028
Then, after wrapping the neck part coupling member 5B, which
will be on the inside, around the neck part of the pet 2, wrap neck
part coupling member 5A on top so as to be positioned on the
outside, then bring a surface fastener of the back side of 5 A
( omitted from the drawings) together with a surface fastener 13
of a surface side of 5B, and then fasten buckle 14 to hold the neck
part of the pet 2.
Ans. 3 ( citing Ito ,r 25); see also Final Act. 16. 4
The Examiner reasons that this passage of Ito "makes clear that
fastener 13 on neck strap 58 connects to complementary fabric, namely, a
fastener on the reverse side of neck strap 5 A, just as in Appellant's
invention." Ans. 3; see also Final Act. 16 ("This arrangement is the same as
[Appellant's] neck straps 26 and 28, which join each other using fasteners 42
and 44."). As such, the Examiner concludes that "Ito teaches the at least one
strap extends at least partially around the neck of the animal to connect to
the complementary fabric, as recited in independent claim[] 1." Ans. 3; see
also Final Act. 16 ("Therefore, Ito clearly teaches at least one strap 5A,5B
extending at least partially around the neck of the animal to connect to
complementary fabric (ref. 13 on neck strap 5B and fastener (not shown) on
neck strap 5A), as plainly shown in Figs. 1 and 3."). Appellant does not
apprise us of Examiner error.
Appellant further contends that "Ito does not teach a garment for
applying pressure to the animal. In particular, Ito fails to teach a stretchable
garment ... because Ito, in fact, fails to state [that] polyester or rayon are
stretchable." Br. 6.
In response to Appellant's contention, the Examiner points out that:
4 Examiner's Answer (hereinafter "Ans.") dated Apr. 13, 2017.
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It is very well known that both [polyester and rayon] fibers are
capable of stretching, meeting the "stretchable" limitation.
Fibers are known to be capable of stretching with the material
stretching to some degree under certain circumstances. Polyester
and rayon specifically are characteristically stretchy, exemplified
by http://www.ehow.com/how_6386966_stretch-polyester-
fabric.html, describing that "Polyester is naturally stretchy", and
http://www.collegefashion.net/ shopping/the-shoppers-guide-to-
fabric-synthetic-fibers/, describing that "Rayon is absorbent,
stretchy, and dyes well ... ". Therefore, it is a physical property
of polyester and rayon to be stretchable.
Ans. 4. The Examiner further points out that "Ito was modified to include
Spatt' s teaching of a four-way stretch fabric including spandex or elastane
.... Therefore, the combination of Ito as modified by Spatt certainly teaches
a stretchable fabric as well." Id. (citing Spatt 2:13-19). Appellant does not
apprise us of Examiner error.
Based on the record presented, we are not persuaded the Examiner
erred in rejecting independent claim 1 as obvious over Ito and Spatt. We
sustain the Examiner's rejection of claim 1 as obvious over Ito and Spatt.
We further sustain the Examiner's rejection of claims 3-19, which fall with
claim 1.
Claims 2 and 20
Appellant does not offer arguments in favor of dependent claim 20
separate from those presented for dependent claim 2. See Br. 5---6. We
select claim 2 as the representative claim, and claim 20 stands or falls with
claim 2. 37 C.F.R. § 4I.37(c)(l)(iv).
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Appellant contends that the combined teachings of Ito and Spatt "do[]
not teach a garment applying pressure to the animal sufficient to relieve
anxiety, fearfulness, overexcitement, or any combination thereof as recited
in claim[] 2." Br. 6. In particular, Appellant contends that "the [E]xaminer
only relies on Spatt for flexibility of the flaps. And, while the Ito neck straps
may be tightened, they do not provide the constant pressure of flexible,
resilient fabric needed to meet [Appellant's] claimed features. Thus, the Ito
structure is not capable of performing the intended use." Id. Appellant
further explains that:
Id.
When the claimed garment is worn by a dog, the left strap 26 and
the right strap 28 go around the dog's neck and fasten to each
other, with the bottom of the right strap 28 going over the top of
the left strap 26. As a result they form, in conjunction with the
flaps (30, 32) and with the cinching member (34), a structure that
enables a dog owner to apply pressure to the animal.
As an initial matter, claim 2 merely recites "the stretchable fabric
forming the central portion, the first flap, and the second flap provides
resiliency when stretched such that the garment applies pressure to the
animal." Br. 8, Claims App. ( emphases added). Claim 2 recites nothing
about "the at least one [neck] strap" of claim 1 5 let alone "the at least one
[neck] strap" providing "constant pressure of flexible, resilient fabric" or
"the at least one [neck] strap" forming in conjunction with the first and
second flaps "a structure that enables a dog owner to apply pressure to the
animal." Br. 8, Claims App.; see also id. at 6; Ans. 6-7 ("[S]tretchable
5 Claim 1 recites nothing about "the at least one [neck] strap" providing
"constant pressure of flexible, resilient fabric." Br. 6; id. at 8 Claims App.;
See In re Self, 671 F.2d 1344, 1348 (CCPA 1982) (Limitations not appearing
in the claims cannot be relied upon for patentability).
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straps are not claimed .... Nor do the claims recite applying 'constant'
pressure."); See In re Self, 671 F.2d at 1348.
In this case, the Examiner determines that:
[ A ]ny garment is capable of applying pressure to the animal
depending upon many variables, including the weight of the
fabric, the size of the animal, and how tightly the user pulls the
flaps prior to fastening. Although the degree of pressure
necessary to relieve anxiety, fearfulness, overexcitement, or any
combination thereof in the animal is not recited in the claims, it
is clear that the pressure exerted on the animal by the
combination garment may be adjusted so as to be capable of
producing the intended effect. Because the combination garment
flaps include the spandex or elastane taught in Spatt, the
stretchability of flaps provide resiliency further allowing a user
to tighten the garment against the animal's body to a degree that
serves to reduce anxiety, fearfulness, of overexcitement in the
animal. Therefore, the combination garment of Ito as modified
by Spatt is capable of applying pressure to the animal adequate
to reduce anxiety, fearfulness, overexcitement or any
combination thereof in the animal.
Ans. 6. The Examiner's findings are sound and based on rational
underpinnings. Appellant does not provide persuasive evidence or argument
apprising us of Examiner error.
Based on the record presented, we are not persuaded the Examiner
erred in rejecting dependent claim 2 as obvious over Ito and Spatt. We
sustain the Examiner's rejection of claim 2 as obvious over Ito and Spatt.
We further sustain the Examiner's rejection of claim 20, which falls with
claim 2.
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DECISION
We AFFIRM the decision of the Examiner to reject claims 1-20 as
unpatentable over Ito and Spatt.
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a)(l)(iv).
AFFIRMED
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