Ex Parte Chamandy et al

Board of Patent Appeals and Interferences

Aug 22, 2006

10216272 (B.P.A.I. Aug. 22, 2006)

The opinion in support of the decision being entered today was not written

UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE BOARD OF PATENT APPEALS
Ex parte PAUL A. CHAMANDY and RUDOLPH J. KLEIN
Appeal No. 2006-1904
Application No. 10/216,272
Technology Center 1700

___________
Before FRANKFORT, OWENS and BAHR, Administrative Patent Judges.
BAHR, Administrative Patent Judge.

rejection, in an amendment filed September 28,
2005, to overcome the rejection under 35 U.S.C. § 112, second paragraph, set forth in the
final rejection (mailed July 27, 2005).
for publication and is not binding precedent of the Board.
____________

AND INTERFERENCES
____________

____________

____________
Heard: August 8, 2006
_

DECISION ON APPEAL
This is a decision on appeal from the examiner's rejection of claims 27-37, 39 and
40. Claims 38 and 42 stand withdrawn from consideration as not being directed to an
elected species and claim 41 has been indicated to be allowable by the examiner. Claim
32 was amended subsequent to the final

le
tion device (RFID) marker disposed in a
Frowein (Frowein ‘087) US 5,896,087 Apr. 20, 1999

Claims 36 and 37 stand rejected under 35 U.S.C. § 102(b) as being anticipated by
over Frowein ‘087 in view of Frowein ‘514, Humble and Kolton.
points advanced by the examiner and the
appellants regarding this appeal, we make reference to the examiner's answer (mailed

BACKGROUND
The appellants’ invention relates to a garment label having an electronic artic
surveillance (EAS) or radio frequency identifica
pocket therein and to a method of making such a label. A copy of the claims under
appeal is set forth in the appendix to the appellants’ brief.
The examiner relies upon the following as evidence of unpatentability:
Humble US 4,254,868 Mar. 10, 1981
Frowein (Frowein ‘514) US 5,624,514 Apr. 29, 1997
Senior US 6,019,540 Feb. 1, 2000
Kolton US 6,724,311 B1 Apr. 20, 2004
The following rejections are before us for review.
Frowein ‘087.
Claims 27-29, 31 and 40 stand rejected under 35 U.S.C. § 103(a) as being
unpatentable over Frowein ‘087 in view of Kolton.
Claim 39 stands rejected under 35 U.S.C. § 103(a) as being unpatentable over
Frowein ‘087 in view of Senior.
Claims 32-37 stand rejected under 35 U.S.C. § 103(a) as being unpatentable over
Frowein ‘087 in view of Frowein ‘514 and Humble.
Claim 39 stands rejected under 35 U.S.C. § 103(a) as being unpatentable over
Frowein ‘087 in view of Frowein ‘514, Humble and Senior.
Claims 27-31 and 40 stand rejected under 35 U.S.C. § 103(a) as being unpatentable
Rather than reiterate the conflicting view

and
r
pends
f

the pocket that is subsequently closed by forcing the layer 24 past
r to
the answer, a position which is
tenable only igure 2,
February 24, 2006) for the examiner's complete reasoning in support of the rejections
to the appellants’ brief (filed January 23, 2006) and reply brief (filed March 14, 2006) for
the appellants’ arguments thereagainst.

OPINION
In reaching our decision in this appeal, we have given careful consideration to the
appellants’ specification and claims, to the applied prior art, and to the respective
positions articulated by the appellants and the examiner. As a consequence of our
review, we make the following determinations.
We turn our attention first to the rejection of independent claim 36, which requires
forming a label material into a pocket having a wall and inserting a detectable EAS o
RFID marker through the wall into the inside of the pocket, and claim 37, which de
from claim 36, as being anticipated by Frowein ‘087. As illustrated in Figures 2 and 3 o
Frowein ‘087 and explained in column 3, lines 42-55, the alarm tripping device 10 is
inserted in the direction of arrow 20 into a pocket 22 provided between an upper layer 23
and a layer 24 of the label 11 facing the product. The pocket 22 is closed by forcing the
layer 24 of the label 11 past a short loop 25 of the upper layer 23 into the hollow space of
the pocket 22 so that subsequently the layer 24 is prevented from slipping out by the
protruding loop 25.
The alarm tripping device 10 of Frowein ‘087 is inserted into the pocket 22
through an open end of
the loop 25 of the upper layer 23. The device is not inserted through the wall of the
pocket as called for in claim 36. If the loop 25 and layer 24 were considered togethe
form a wall, as urged by the examiner on page 7 of
when the layer 24 is tucked under the loop 25, as illustrated in F

there is no in rmed between
the loop 25 a e insertion of
the device 10 ted in Figure 3,
Frowein disc et with the
layer 24 disp
As dis the marker
into the pock or in claim 36. It
thus follows nding from
claim 36 as b
The re iew of
Kolton and c enior both rest
in part on the g the
marker throu pport in Frowein
‘087 for this plication of
Kolton or Se between the
subject matte rior art are
such that the time the invention
was made to
We al unpatentable
ver Frowein ton. As discussed above, Frowein ‘087 discloses
ed
and

insertion of the alarm tripping device 10 into the pocket, as illustrated in Figure 3,
through the open end of the pocket 22 between the loop 25 of upper layer 23 and layer
24, when the layer 24 is not tucked under the loop 25. Such open end is not a slit spac
from closed ends, as called for in claims 27-29 and 31. There is no indication in Frowein
‘087 that the device 10 is insertable through the space formed between the loop 25
dication that the device 10 could be inserted into the space fo
nd the layer 24. In any event, Frowein ‘087 does not disclos
with the layer 24 tucked under the loop 25; rather, as illustra
loses insertion of the device 10 through the open end of the pock
osed outside of the loop 25.
cussed above, Frowein ‘087 does not disclose a step of inserting
et of the label through the wall of the pocket as called f
that we cannot sustain the rejection of claim 36 or claim 37 depe
eing anticipated by Frowein ‘087.
jections of claim 40 as being unpatentable over Frowein ‘087 in v
laim 39 as being unpatentable over Frowein ‘087 in view of S
examiner's finding that Frowein ‘087 discloses a step of insertin
gh the wall of the pocket. The above discussed lack of su
finding, which deficiency finds no remedy in the examiner’s ap
nior, fatally taints the examiner's conclusion that the differences
r recited in claims 39 and 40 dependent on claim 36 and the p
subject matter as a whole would have been obvious at the
a person having ordinary skill in the art.
so cannot sustain the rejection of claims 27-29 and 31 as being
‘087 in view of Kolo

for
if
e
that the pocket is ''closed except for the slit'' (claim 32, claim
''spaced from the closed ends'' (claim 32, claim 35) and to insert
the antitheft device ''through the wall'' (claim 36) and into the

pocket 22 since (1) Frowein 087 teaches
the layer 24 when the layer 24 is tucked under the loop 25 to arguably form a slit spaced
from closed ends as required by claims 27-29 and 31. The examiner relies on Kolton
a suggestion to adhesively attach the device 10 to the layer 24 of Frowein ‘087. Even
Frowein ‘087 were so modified, this would not make up for the deficiency of Frowein
‘087 discussed above.
The examiner’s rationale in rejecting claims 32-37 as being unpatentable over
Frowein ‘087 in view of Frowein ‘514 and Humble is set forth on pages 9-12 of th
answer. Specifically, the examiner contends that
it would have been obvious to one of ordinary skill in the art to
provide Frowein 087's function strip (elongate housing) such
35) wherein the slit ''sized to receive the marker'' (claim 32) and
inserting an antitheft
device into a pocket (figure 3), (2) Frowein 514 suggests
closed so that the antitheft device cannot fall out and (3)
Humble et al, which teaches an antitheft device located in a
antitheft device in the pocket of an elongate housing by
locating an antitheft device in a pocket having all its edges
pocket having all of its edges closed, suggests disposing the
inserting the antitheft device through a slot (slit) in a wall of the
teaches the combination of a label comprising fabric label
material, a detectable marker and a pocket in combination with
insertable through an opening of the label into the pocket 22.
Frowein 087's label has a pair of long edges extending between
edges is closed as can be seen from the cross-sectional view of
figure 3. Frowein 514 and Humble et al add to the disclosure of
close all four edges of Frowein 087's elongated tubular label so
pocket. Hence, Frowein 087, directed to theft detection,
the detectable marker (alarm tripping device 10) being
the short edges 16, and is therefore elongated. Each of the long
Frowein 087 by motivating one of ordinary skill in the art to

Frowein 087's label except for the opening through which the
tion of closed long edges and Frowein 087's teaching to
secure the function strip 11 at both short edges 16 where the
function strip is folded in toward the product. Humble et al
provides one of ordinary skill in the art with a reasonable
expectation of success since Humble et al teaches inserting a
detectable marker through an opening in the form of a slot (slit)
in a wall of a pocket which is closed except for the slot (slit)
[answer, pp. 10-11].

Frowein ‘514 is directed to a woven label having an alarm trigger 50 inserted into a
completely closed pocket therein during the weaving process of the label and provides no
teaching or suggestion to provide a slot in a fabric label wall through which an alarm
triggering device is inserted into a pocket in the label. Humble is directed to an enclosure
of tough tear resistant plastic for securing to a flat surface of an article, such as a
cardboard record jacket, by pressure sensitive adhesive, the enclosure provided with a
slot 45 for accepting a security tag 12 therethrough for retention within the enclosure and
a tab 23 for elevating the tag to the ceiling 22 of the enclosure. When a retailer desires to
affix a tag 12 to an article such as a record jacket, the tag may be inserted through the slot
45 into an enclosure 10 whereupon the release paper 18 is peeled from the panel 24 of the
enclosure exposing the pressure sensitive adhesive 15. In order to remove the tag 12
from the enclosure, upon retail purchase of the record, a razor edge implement 26 is
applied to the enclosure 10 to sever the enclosure at the intersection 21 between walls 19
and 20. The implement 26 includes a platform portion 37 supporting a blade 32. The
platform portion 37 penetrates the enclosure so as to slip under the end of tag 12, which is
located within the enclosure with its end 25 elevated toward the ceiling 22 of the
as to obtain the benefit of preventing the detectable marker
from falling out of the pocket. Closing all four edges of
detectable marker is inserted is consistent with Frowein 087's
illustra

enclos
wall of the enclosure the
post 39 will slide under the tag 12 unti ith and enters an aperture 41
provided in the tag 12. The tag can then be extracted from the enclosure with the
plement.
Frowein ‘087, Frowein ‘514 and Humble are directed to three different types of
devices for securin rker to an article and, in light of their
disparate approaches and structures, we find
combine them as proposed by the examiner. Specifically, while Frowein ‘087 and
Frowein ‘514 are both directed to fabric labels, Frowein ‘087 provides an open-pocket
arrangement with a loop and Frowei lly-
enclosed pocket. One skilled in the art view
in combination would have selected one or the other of the two arrangements and would
have found no suggestion to modify Frowein ‘087 to provide a closed pocket with a slit.
Humble is directed not to a fabric label but to a tough tear resistant plastic enclosure for a
security tag, the enclosure being adapted for ent to an article, and thus
would not have provided any suggestion for modification of a fabric label. In light of the
above, we will not sustain the rejection of claims 32-37 as being unpatentable over
Frowein ‘087 in view of Frowein ‘514 and Humble.
The examiner’s application of Senior and Kolton provides no cure for the
deficiency of the combination of Frowein ‘087 in view of Frowein ‘514 and Humble
discussed above. It follows that the rejections of claim 39 as being unpatentable over
Frowein ‘087 in view of Frowein ‘514, Humble and Senior and claims 27-31 and 40 as
being unpatentable over Frowein ‘087 in view of Frowein ‘514, Humble and Kolton are
also not sustained.
ure by tab 23. A post 39 projects upwardly from the platform 37 and is tapered at
40 so that upon movement of the implement through the side
l it registers w
im

g an antitheft alarm tripping ma
no suggestion in the applied references to
folded-over insertion n ‘514 provides a fu
ing the teachings of the two Frowein patents
adhesive attachm

CONCLUSION
To summarize, none of the examiner’s rejections is sustained. The decision of the
examiner to reject claims 27-37, 39 and 40 is REVERSED.
REVERSED

CHARLES E. FRANKFORT )
Administrative Patent Judge )
)
)
)
) BOARD OF PATENT
TERRY J. OWENS ) APPEALS
Administrative Patent Judge ) AND
) INTERFERENCES
)
)
)
JENNIFER D. BAHR )
Administrative Patent Judge )

JOSEPH J. GRASS
MANARCH MARKING SYSTEMS, INC.
P.O. Box 608
Dayton, OH 45401