Ex Parte Crosby

Patent Trial and Appeal Board

Nov 21, 2016

13766047 (P.T.A.B. Nov. 21, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
13/766,047 02/13/2013
832 7590 11/23/2016
FAEGRE BAKER DANIELS LLP
110 WEST BERRY STREET
SUITE 2400
FORT WAYNE, IN 46802
FIRST NAMED INVENTOR
Stacey D. Crosby
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.
CSSOOOl-02-US 1013
EXAMINER
ANNIS, KHALED
ART UNIT PAPER NUMBER
3765
NOTIFICATION DATE DELIVERY MODE
11/23/2016 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):
inteas@faegrebd.com
mickie.potter@faegrebd.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte STACEY D. CROSBY
Appeal2015-001494
Application 13/766,047
Technology Center 3700
Before JENNIFER D. BAHR, LINDA E. HORNER, and
BRANDON J. WARNER, Administrative Patent Judges.
HORNER, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Stacey D. Crosby (Appellant) seeks our review under 35 U.S.C. § 134
of the Examiner's decision rejecting claims 11-22, which are all of the
pending claims. We have jurisdiction under 35 U.S.C. § 6(b ).
We REVERSE.
Appeal2015-001494
Application 13/766,047
CLAIMED SUBJECT MATTER
Appellant's claimed subject matter relates to "a water sock." Spec.,
para. 2. Claim 11 is the sole independent claim on appeal and is reproduced
below.
11. A water sock, comprising:
an elongate sewn tubular body formed from a first
resiliently stretchable fabric material having a top, a bottom, a
foot engaging portion and a heel engaging portion, each of said
foot engaging portion and said heal engaging portion defining an
open end, said open end of said heel engaging portion being
formed in said first material and including a heel band, said heel
band dimensioned and permanently shaped to lie beneath the
ankle joint of a user and, in use, to securingly engage a user's
foot beneath the ankle joint of a user whereby the user's ankle
joint is exposed;
the top and bottom of the first material at said open end of
said foot engaging portion being sewn together to thereby form
a toe strap extending between opposing sides thereof thereby
creating two discrete openings adapted to separate the big toe
from the remaining toes of a wearer, said bottom of said body
having a ball region and a heel region;
said first material adapted to cling to a wearer's foot;
a circumferential toe band on said open end of said foot
engaging portion surrounding said two discrete openings and
joined at said toe strap and being formed in said first material and
dimensioned and permanently shaped to be angled about said toe
strap both in use and in non-use of the water sock and, in use, to
securingly engage a user's foot about respective locations at
which the user's toes are joined to the user's foot;
said heel band and said toe band providing an increased
thickness of elastic material, relative to said first material, about
a user's heel and toes to facilitate retention of the water sock on
the user's foot;
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Appeal2015-001494
Application 13/766,047
said first material including at least one seam connecting
cut portions of the first material to one another, said seam formed
with a flatlock stitch, said seam separate from said open ends of
said foot and heel engaging portions and extending along a
significant portion of a length of said first material;
a plurality of discrete slip resistant regions formed from a
second material, said plurality of slip resistant regions positioned
on said bottom of said body such that said first material underlies
said plurality of slip resistant regions;
wherein said first material and said second material are
different, said first material being formed from a combination of
spandex and at least one of polyester or nylon and said second
material being formed at least partially from a polymer, said
plurality of discrete slip resistant regions being separated from
each other along the bottom of the sock body by areas of said
resiliently stretchable first material thereby enabling the bottom
of the sock to stretch longitudinally and laterally; and
said water sock being resistant to the accumulation of
significant amounts of water.
EVIDENCE
The Examiner relied upon the following evidence:
Tasbas
Alley
Mazor
Stuart
US 6,247,182 Bl
US 2005/0091729 Al
US 2007/0197112 Al
US 2008/0060118 Al
3
June 19, 2001
May 5, 2005
Aug. 23, 2007
Mar. 13, 2008
Appeal2015-001494
Application 13/766,047
REJECTIONS
Appellant appeals from the Final Action, dated March 14, 2014
("Final Act."), which includes the following rejections:
1. Claims 11-13 and 18-22 under 35 U.S.C. § 103(a) as unpatentable
over Stuart. 1
2. Claims 14--16 under 35 U.S.C. § 103(a) as unpatentable over
Stuart and Tasbas.
3. Claim 17 under 35 U.S.C. § 103(a) as unpatentable over Stuart,
Alley, and Mazor.
ANALYSIS
First Ground of Rejection: Obviousness based on Stuart
Independent claim 11 recites, in relevant part, "said first material
including at least one seam connecting cut portions of the first material to
one another." Appeal Br. 19 (Claims App.).
The Examiner found that Stuart discloses a water sock, substantially
as claimed, including:
[A] pocket (Fig. 3 identifier 50) being sewn directly into the body
of the stocking/first material (Para. 0035, lines 1-5); therefore it
is obvious that there will be a seam attaching the pocket to the
sock, the pocket seam is separate from said open ends of said foot
and heel engaging portions because it is located on the leg
portion of the sock and extending along a significant portion of
a length of said first material. The seam is connecting the pocket
1 Although the Examiner's statement of this ground of rejection on page 2 of
the Final Action omits claims 19-22, the Examiner's detailed explanation of
the rejection includes analysis of claims 19-22. Final Act. 11-12. As such,
we understand claims 19-22 to be included in this ground of rejection.
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Appeal2015-001494
Application 13/766,047
to the sock which are considered as cut portions of the first
material being connected to one another by the seam.
Final Act. 7 (emphasis added).
Appellant argues that "Stuart does not teach a seam that connects cut
portions of the material of the sock to one another." Appeal Br. 15. In
particular, Appellant asserts that one of ordinary skill in the art would
recognize that the body of Stuart's stocking is "made by knitting whereby
the tubular stocking itself is formed as a continuously knit tube," and "due to
its knitted construction, the Stuart stocking would not include a seam
connecting cut portions of the knitted material to one another." Id. Further,
with regard to the attachment of Stuart's pocket 50 to the stocking body,
Appellant asserts that "[a ]ny seams by which the pocket flap are connected
to the body of the stocking are not seams connecting cut portions of the
material of the stocking to one another, as claimed." Id. at 16.
Stuart discloses, with reference to Figure 3, that "pocket 50 may be
provided on the outer surface of ... leg engaging portion 20 of ... stocking
10." Stuart, para. 35. According to Stuart, "pocket 50 can be sewn directly
into the body of ... stocking 10 or otherwise integrally fonned with ...
stocking 10." Id. To the extent that Stuart's pocket 50 may represent a cut
portion of a first material connected by a seam to stocking 10, we find
insufficient evidence to support the Examiner's finding that this cut portion
of the edge of pocket 50 is connected to a cut portion of the stocking 10.
Thus, the Examiner's finding that Stuart discloses "at least one seam
connecting cut portions of the first material to one another" is not supported
by a preponderance of the evidence.
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Appeal2015-001494
Application 13/766,047
For these reasons, we do not sustain the Examiner's rejection of
independent claim 11, and of claims 12, 13, and 18-22 depending therefrom,
under 35 U.S.C. § 103(a) as unpatentable over Stuart.
Second and Third Grounds of Rejection: Obviousness based on Stuart and
one or more of Tasbas, Alley, and Mazor
The rejections of dependent claims 14--17 rely on the same
unsupported findings as to the disclosure of Stuart relied upon in the first
ground of rejection. See Final Act. 12-15. The Examiner did not make any
findings as to the scope and content of Tasbas, Alley, or Mazor that would
cure the deficiency in Stuart discussed supra. Accordingly, we do not
sustain the Examiner's rejections under 35 U.S.C. § 103(a) of claims 14--17.
DECISION
The decision of the Examiner to reject claims 11-'22 is REVERSED.
REVERSED
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