Ex parte Brewster

Board of Patent Appeals and Interferences

Nov 24, 1998

08566689 (B.P.A.I. Nov. 24, 1998)

Application for patent filed December 4, 1995. 1
1
THIS OPINION WAS NOT WRITTEN FOR PUBLICATION
The opinion in support of the decision being entered
today (1) was not written for publication in a law
journal and (2) is not binding precedent of the
Board.
Paper No. 13
UNITED STATES PATENT AND TRADEMARK OFFICE
____________
BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
____________
Ex parte LORIE K. BREWSTER
____________
Appeal No. 98-0808
Application No. 08/566,6891
____________
ON BRIEF
____________
Before MCCANDLISH, MEISTER, and STAAB, Administrative Patent
Judges.
MEISTER, Administrative Patent Judge.
DECISION ON APPEAL
Lorie K. Brewster (the appellant) appeals from the final
rejection of claims 1-5, the only claims present in the
application.
Appeal No. 98-0808
Application No. 08/566,689
2
We REVERSE.
The appellant's invention pertains to (1) the combination
of a brassiere and a clip for preventing the shoulder straps
of the
brassiere from slipping off the shoulders of a user and (2) a
method of securing a brassiere including the step of mounting
a clip on the shoulder straps of the brassiere. Independent
claims 1 and 5 are further illustrative of the appealed
subject matter and copies thereof may be found in the appendix
to the brief.
The references relied on by the examiner are:
Baldwin 1,489,731 Apr.
8, 1924
Sanchez 5,024,628 Jun.
18, 1991
Claims 1-5 stand rejected under 35 U.S.C. § 103 as being
unpatentable over Baldwin in view of Sanchez. According to
the examiner it would have been obvious "to employ the clip of
Baldwin with such an undergarment as that of Sanchez in order
to prevent shoulder straps from sliding off of the shoulders
of a wearer and being seen" (answer, page 4). It thus appears
that the examiner is proposing to utilize the clip of Baldwin
to hold Sanchez's pair of brassiere straps together in order
Appeal No. 98-0808
Application No. 08/566,689
3
to retain the straps in a desired position on the shoulders of
a user (the brassiere of which already includes an adjustable
connector band 12 for this same purpose).
In support of this position the answer states that:
Contrary to applicant's arguments the clip in
Baldwin receives more than a single shoulder strap
and more accurately it receives the pair. On lines
47-60, Baldwin discloses. "The top bar 6 is
provided adjacent its opposite ends . . . the
lingerie shoulder strap(s) may be engaged between
adjacent ends of the legs 7 and 8 and positioned
between the legs and the top bar 6 . . . ."
Thus the same is capable of spanning the distance
between the shoulder straps and prevents slipping of
a brassiere strap. . . .
It is clear from the structure of Baldwin [that
it] might be installed on the left, right or center
shoulder and shoulder blad[e] area. Baldwin and
Sanchez clearly provides [sic, provide] support for
the clip to be installed in any or all of the above
areas. Baldwin clearly states that the clip is to
engage shoulder straps of lingerie and in most
conventional situations a [sic] lingerie only has
two shoulder strips since the wearer only has two
shoulders.
* * *
. . . The connector of Baldwin discloses a rigid
connector engaging both straps and discloses a
connector which is capable of sliding down brassiere
straps; it is at the discretion of the wearer as to
w[h]ether he/she desires to secure the connector to
the garment. It is also at the discretion of the
wearer as to the location of the connecto[r] and how
they engage the shoulder straps of the brassiere.
Appeal No. 98-0808
Application No. 08/566,689
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As can be seen by Sanchez these con[n]ectors may
occupy a variety of locations on the shoulders and
shoulder b[l]ade area. [Pages 5 and 6.]
From the above, it is appears that the examiner's position is
bottomed on the belief that, since "in most conventional
situations" a particular item of lingerie "only has two
shoulder straps," Baldwin teaches or suggests a "connector"
clip for connecting together a pair of shoulder straps of a
single item of lingerie (which straps extend over different
shoulders of a user).
We do not support the examiner's position. "A rejection
based on section 103 must rest on a factual basis, and these
facts must be interpreted without hindsight reconstruction of
the invention from the prior art. . . . [The examiner] may
not . . . resort to speculation, unfounded assumptions or
hindsight reconstruction to supply deficiencies in . . . [the]
. . . factual basis." In re Warner, 379 F.2d 1011, 1017, 154
USPQ 173, 178 (CCPA 1967). It does not follow that just
because (1) most individual items of lingerie have only two
shoulder straps (one for each shoulder) and (2) Baldwin states
"lingerie shoulder straps may be engaged between the adjacent
ends" of the holder or clip, that there is a teaching or
Appeal No. 98-0808
Application No. 08/566,689
5
suggestion Baldwin's holder or clip is used to connect
together a pair of shoulder straps of a single item of
lingerie, which straps extend over different shoulders of a
user as the examiner apparently believes. Baldwin has
previously made reference in lines 15 and 16 to "the straps of
any or all undergarments" (emphasis ours). Thus, Baldwin's
reference to shoulder "straps" being engaged between the ends
of the clip may simply be (1) to the fact that, in the broad
sense, either of the customary two shoulder "straps" on a
single undergarment may be engaged in the clip or (2) to the
straps of a plurality of undergarments, each having a strap
which passes over the same shoulder, engaging the clip.
Contrary to the examiner's position, Baldwin expressly
states that the holder or clip is "adapted to be stitched or
otherwise secured to the underside of the gown, dress or
blouse at the shoulder" (lines 13-15; emphasis ours) and makes
no mention of the holder or clip being secured to the gown,
dress or blouse at any other location, or being used in other
manner. Obviously, when a holder or clip is secured "at the
shoulder" (i.e., one clip at each shoulder) as stated by
Baldwin, it cannot be used to connect together a pair of
Appeal No. 98-0808
Application No. 08/566,689
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shoulder straps of a single undergarment wherein the straps
extend over different shoulders as the examiner contends.
Baldwin and Sanchez simply teach two entirely different
ways of preventing shoulder straps of undergarments or
lingerie from shifting position on the shoulders of a user.
That is, Baldwin provides a clip on the underside of an outer
garment at each shoulder for engaging the "straps" of single
or multiple undergarments at that location, while Sanchez
provides a connecting band 12 which may be fastened between
two straps of a single undergarment at selected locations
along an extent of the straps. There is simply nothing in the
combined teachings of Baldwin and Sanchez which would fairly
suggest providing a clip to receive the shoulder straps of a
brassiere which pass over different shoulders of a user in the
manner expressly required by the claims on appeal. This being
the case, we will not sustain the rejection of claims 1-5
under 35 U.S.C. § 103 based on the combined teachings of
Baldwin and Sanchez.
The decision of the examiner is reversed.
REVERSED
Appeal No. 98-0808
Application No. 08/566,689
7
HARRISON E. MCCANDLISH )
Administrative Patent Judge )
)
)
)
) BOARD OF PATENT
JAMES M. MEISTER ) APPEALS
Administrative Patent Judge ) AND
) INTERFERENCES
)
)
)
LAWRENCE J. STAAB )
Administrative Patent Judge )
JMM/sld
Appeal No. 98-0808
Application No. 08/566,689
8
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