Ex Parte Bordeaux

Board of Patent Appeals and Interferences

Jul 1, 2008

10871833 (B.P.A.I. Jul. 1, 2008)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
____________

Ex parte JACQUELINE BORDEAUX
____________

Appeal 2008-2685
Application 10/871,833
Technology Center 3700
____________

Decided: July 1, 2008
____________

Before DONALD E. ADAMS, RICHARD M. LEBOVITZ, and MELANIE
L. MCCOLLUM, Administrative Patent Judges.

ADAMS, Administrative Patent Judge.

DECISION ON APPEAL

This appeal under 35 U.S.C. § 134 involves claims 1-28. “Claims 29-
38 have been withdrawn from consideration” (App. Br. 2). We have
jurisdiction under 35 U.S.C. § 6(b).

Appeal 2008-2685
Application 10/871,833

INTRODUCTION
The claims are directed to a safety garment. Claim 1 is illustrative:
1. A safety garment, comprising:
a garment portion; and
at least one reflective panel portion having a proximate portion with
respect to the garment portion and a distal portion with respect to the
garment portion, the proximate portion being attached to the garment
portion, each reflective panel portion moving in a swaying motion as
air moves past the distal portion of the reflective panel portion.

The Examiner relies on the following prior art references to show
unpatentability:
Ruffa US 5,819,315 Oct. 13, 1998
Porter US 6,148,442 Nov. 21, 2000

Thesaurus.com, thesaurus.reference.com/search?r=20&q=luminescent (1 of
5) (accessed Feb. 4, 2008).

The rejection as presented by the Examiner is as follows:
Claims 1-28 stand rejected under 35 U.S.C § 103(a) as unpatentable
over the combination of Ruffa and Porter.
We affirm.

DISCUSSION
Claim Grouping:
The claims have not been argued separately and therefore stand or fall
together. 37 C.F.R. § 41.37(c)(1)(vii). Therefore, we limit our discussion to
representative claim 1. Claims 2-28 will stand or fall with claim 1.

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Application 10/871,833

Findings of Fact:
1. Ruffa teaches “an athletic garment having fairings which adjust to the
flow of air to form an ideal fairing shape for reduction of aerodynamic drag
associated with speed sport activities” (Ruffa 1: 47-50).
2. For clarity we reproduce Ruffa’s FIGs. 1 and 6 below:

“FIG. 1 is a front view of the faired athletic garment of the instant invention”
(Ruffa 2: 39-40). “FIG. 6 is a top view illustrating the fairing shape” (Ruffa
2: 49).
3. Ruffa teaches “a plurality of flexible ribbon fairings 20 are each attached
at one end thereof to the athletic garment 10 so that they hang downwardly
from the front, rear, and side portions of the garment 10” (Ruffa 2: 64-67).
4. Ruffa teaches that
[w]hen an identified velocity point is reached, the flexible
fairings automatically adjust to the air flow to wrap around the
upper portion of the human body thereby providing a
streamlined surface . . . for improved aerodynamic pressure
drag reduction. The velocity at which the fairings adjust to the
air flow, or deploy, is sufficiently low such that drag, including
the increased drag resulting from undeployed fairings, is not a
major factor in the athlete’s performance.

(Ruffa 3: 50-58.)
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Application 10/871,833

5. Ruffa teaches that “[i]t should be understood that the athletic garment 10
will vary in style, shape and size depending on the particular application,
i.e., sport and climate, for which the garment is being utilized” (Ruffa 3: 9-
12). In this regard, Ruffa teaches that “the length of the fairings will have
limiting constraints in particular applications. For example, the fairings
must be sized so that they will not get caught in the spokes of the bicycle
wheel when the garment is worn by a cyclist” (Ruffa 3: 26-30).
6. “As to claim[ ] 1 . . . Ruffa does not disclose that the panel portions . . .
are reflective” (Ans. 3-4).
7. Porter teaches “reflectorized and/or safety-colored work clothes” (Porter
Abstract).
8. Porter teaches that the “[c]lothing of the invention may be constructed of
. . . cotton [and] . . . the reflecting and/or fluorescent material is provided as
bands on the cotton” (Porter 2: 38-42).
9. Porter exemplifies a reflective vest trim wherein the reflective or safety-
colored bands
are sewn vertically on the front, over the shoulder, and on the
rear of the tee shirt, on the torso portion of the shirt. The
vertical orientation of the bands is advantageous for tree cutters,
because the bands tend not to catch on protrusions, as is the
situation in the case of horizontal bands, in climbing or
descending.

(Porter 3: 19-25).

Analysis:
Based on the combined teachings of Ruffa and Porter the Examiner
concludes that it “would be obvious to one of ordinary skill in the art to
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Application 10/871,833

provide reflective material as taught by Porter to the panels of Ruffa so as to
provide an article of clothing that is reflective and therefore provides
increased safety to the wearer at nighttime or low light conditions” (Ans. 4).
In response Appellant asserts that “Porter teaches away from Ruffa
because Porter states that the disclosed safety work clothing ‘may fit closely
to the body, where such is an important factor for safety reasons’” (App. Br.
4). In this regard, Appellant asserts that “Porter indicates that the close-
fitting aspect of the disclosed safety work clothing is desirable because
current safety vests can be the cause of serious accidents, such as when a
safety vest becomes snagged” (id.). We are not persuaded.
A reference is said to “teach away” from a claimed invention when it
“suggests that the line of development flowing from the reference's
disclosure is unlikely to be productive of the result sought by the applicant.”
In re Gurley, 27 F.3d 551, 553 (Fed. Cir. 1994). This is not the case on this
record. Appellant’s claimed invention is drawn to a safety garment. The
scope of this garment is open to include any number of garments and thus
the term garment is interpreted to be one worn by a bicyclist. Both of Ruffa
and Porter are directed to garments. Ruffa teaches a particular garment that
comprises fairings which move in relation to the wind (FF 1-4). Ruffa also
points out that the size and shape of the garment are of concern and points
out that in the case of a bicyclist, “the fairings must be sized so that they will
not get caught in the spokes of the bicycle wheel” (FF 5). Similarly, in the
context of vests for tree cutters, Porter explains that vertical bands are
beneficial over horizontal bands which tend to catch on protrusions as the
tree cutter climbs or descends from a tree (FF 9). While we agree with
Appellant that Porter teaches that the garments “may fit closely to the body,
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where such is an important factor for safety reasons (Porter 2: 32-38; App.
Br. 4), we do not find this assertion to be a teaching away from Ruffa’s
garment for bicyclists, where the only disclosed safety issue is whether the
fairing is so long as to “get caught in the spokes of the bicycle wheel” (FF
5).
We are also not persuaded by Appellant’s assertion that “[a]t best,
Porter[’s] bands . . . would be stitched, . . . vertically on the front of a Ruffa
faired athletic garment over the shoulder and on the rear of the faired athletic
garment, on the torso portion of the faired athletic garment” (App. Br. 5-6).
While Porter exemplifies reflective or safety colored bands that are
vertically oriented on a garment, e.g., to reduce the possibility of a tree cutter
becoming caught on a protrusion (FF 9), we find no requirement in Porter
that the bands must be oriented in this manner. Instead, we find that Porter
broadly teaches the application of reflective or safety colored bands to a
garment, in an orientation that is suitable for a particular application.
Accordingly, we find that a person of ordinary skill in this art would apply
the reflective or safety colored bands to at least the fairings of Ruffa’s
garment to increase the reflective area and thereby the safety to the wearer.
It is proper to “take account of the inferences and creative steps that a person
of ordinary skill in the art would employ.” KSR Int’l Co. v. Teleflex Inc.,
127 S. Ct. 1727, 1741 (2007). See also id. at 1742 (“A person of ordinary
skill is also a person of ordinary creativity, not an automaton.”).
For the foregoing reasons we affirm the rejection of claim 1 under 35
U.S.C. § 103(a) as unpatentable over the combination of Ruffa and Porter.
Claims 2-28 fall together with claim 1.

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CONCLUSION
In summary, we affirm the rejection of record.
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a).

AFFIRMED

Ssc:

JOSEPH P. CURTIN
1469 N.W. MORGAN LANE
PORTLAND, OR 97229

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