Ex Parte Cho

Patent Trial and Appeal Board

May 6, 2013

11403339 (P.T.A.B. May. 6, 2013)

UNITED STATES PATENT AND TRADEMARKOFFICE
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.
11/403,339 04/13/2006 Byoung-Woo Cho 66273/06-382 7980
22206 7590 05/06/2013
FELLERS SNIDER BLANKENSHIP
BAILEY & TIPPENS
THE KENNEDY BUILDING
321 SOUTH BOSTON SUITE 800
TULSA, OK 74103-3318
EXAMINER
HADEN, SALLY CLINE
ART UNIT PAPER NUMBER
3765
MAIL DATE DELIVERY MODE
05/06/2013 PAPER
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.
PTOL-90A (Rev. 04/07)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________

Ex parte BYOUNG-WOO CHO
____________

Appeal 2011-004319
Application 11/403,339
Technology Center 3700
____________

Before JAMES P. CALVE, NEIL T. POWELL, and
BEVERLY M. BUNTING, Administrative Patent Judges.

CALVE, Administrative Patent Judge.

DECISION ON APPEAL

STATEMENT OF THE CASE
Appellant appeals under 35 U.S.C. § 134(a) from the rejection of
claims 1, 8-11, 15, 19, and 22-25. See App. Br. 7-13. Claims 2-7, 12-14,
16-18, 20, 21, and 26-29 are cancelled. We have jurisdiction under 35
U.S.C. § 6(b).
We AFFIRM.
Appeal 2011-004319
Application 11/403,339

2
CLAIMED SUBJECT MATTER
Claims 1 and 15 are independent. Claim 15 is reproduced below:
15. A sweatband coupled with a headwear is formed of one
seamless tubular fabric having a first end and a second end
adjacent one another to form a circular band for encircling a
head of a wearer, said tubular fabric comprising a first section
and a second section when said tubular fabric is flattened, said
tubular fabric having pluralities of polyurethane warp yarns and
non-polyurethane weft yarns crossing one another, wherein the
two sections of said tubular fabric have a different fabric
texture, yarn count and density.

REJECTIONS1
Claims 1, 8, 9, 11, 15, 19, 22, 23, and 25 are rejected under 35 U.S.C.
§ 103(a) as being unpatentable over Cho ‘336 (US 2004/0250336 A1; pub.
Dec. 16, 2004) and Cho ‘518 (US 2005/0160518 A1; pub. Jul. 28, 2005).
Claims 10 and 24 are rejected under 35 U.S.C. § 103(a) as being
unpatentable over Cho ‘336, Cho ‘518, and Cho ‘474 (2005/0223474 A1;
pub. Oct. 13, 2005).
ANALYSIS
Claims 1, 8, 9, 11, 15, 19, 22, 23, and 25 as unpatentable over Cho ‘336 and
Cho ‘518
Claims 1 and 15
The Examiner found that Cho ‘336 discloses headwear with a head
covering portion 1, a visor portion 3, and a woven sweatband 5 made of a
seamless fabric of two overlapped sections 7a, 7b continuously connected to

1 The Examiner withdrew the rejection of claims 15, 19, and 22-25 under 35
U.S.C. § 112, first paragraph, as lacking an adequate written description and
claims 1, 8-11, 22, 23, and 25 under 35 U.S.C. § 103(a) as unpatentable over
Cho ‘336 and Park (US 6,817,035 B2; iss. Nov. 16, 2004). Ans. 3.
Appeal 2011-004319
Application 11/403,339

3
one another when the sweatband is cut perpendicularly to a lengthwise
direction and a fabric woven in a cylindrical shape with a plurality of warp
and weft yarns crossing one another. Ans. 4. The Examiner found that Cho
‘518 discloses a sweatband in a plain, twill, or satin weave and the claimed
arrangement of over one and under three is known as a three-by-one twill,
which is an old and standard weave that is considered obvious to provide.
Ans. 5, 8. The Examiner also found that Cho ‘336 has a cylindrical cross-
section when the cross-section is taken laterally. Ans. 8.
Appellant argues that neither Cho ‘336 nor Cho ‘518 teaches the
headwear of claim 1 because neither reference teaches an “‘arrangement of
one weft yarn disposed on one warp yarn and the weft yarn disposed under
three warp yarns,. . . .’” App. Br. 9. Appellant also argues that neither Cho
‘336 nor Cho ‘518 teaches a tubular fabric arranged to form a circular band
as recited in claim 15. Id.
Appellant’s arguments merely recite limitations of claims 1 and 15
that allegedly are not taught by Cho ‘336 or Cho ‘518 and do not persuade or
even apprise us of error in the Examiner’s findings that Cho ‘518 discloses a
twill weave and the claimed three-by-one weave is an old, standard twill
weave that would have been obvious to provide on Cho ‘336, or that Cho
‘336 discloses a seamless fabric with two overlapped sections and first and
second ends that are adjacent each other and form a circular band when the
tubular fabric is flattened. See Ans. 4-5, 8; see also In re Jung, 637 F.3d
1356, 1365 (Fed. Cir. 2011) (approving of Board’s practice of requiring an
applicant to identify alleged error in an Examiner’s rejection); In re Lovin,
652 F.3d 1349, 1357 (Fed. Cir. 2011) (“In sum, we hold that the Board
reasonably interpreted Rule 41.37 to require more substantive arguments in
Appeal 2011-004319
Application 11/403,339

4
an appeal brief than a mere recitation of the claim elements and a naked
assertion that the corresponding elements were not found in the prior art.”).
We sustain the rejection of claims 1 and 15.
Claims 8, 9, 11, 19, 22, 23, and 25
Appellant states that claims 8, 9, and 11 stand or fall with claim 1 and
claims 19, 22, 23, and 25 stand or fall with claim 15. App. Br. 9-11. As we
sustain the rejection of claims 1 and 15, we also sustain the rejection of
claims 8, 9, 11, 19, 22, 23, and 25.
Claims 10 and 24 as unpatentable over Cho ‘336, Cho ‘518, and Cho ‘474
Appellant states that claim 10 stands or falls with claim 1 and claim
24 stands of falls with claim 15. App. Br. 11. As we sustain the rejection of
claims 1 and 15, we also sustain the rejection of claims 10 and 24.
DECISION
We AFFIRM the rejection of claims 1, 8-11, 15, 19, and 22-25.
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

rvb