Ex Parte Czajka et alDownload PDFPatent Trial and Appeal BoardMay 31, 201814086798 (P.T.A.B. May. 31, 2018) Copy Citation UNITED STA TES p A TENT AND TRADEMARK OFFICE APPLICATION NO. FILING DATE 14/086,798 11/21/2013 27939 7590 06/01/2018 Philip H. Burrus, IV Burrus Intellectual Property Law Group LLC 222 12th Street NE Suite 1803 Atlanta, GA 30309 FIRST NAMED INVENTOR Frank Czajka 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. BPMDL0071FC (10885U) 7396 EXAMINER BRAVO, JOCELYN MARY ART UNIT PAPER NUMBER 3765 MAIL DATE DELIVERY MODE 06/01/2018 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 FRANK CZAJKA, DAVID NOSKOWICZ, and AMANDA JARON Appeal2017-009123 Application 14/086,798 Technology Center 3700 Before: STEFAN STAICOVICI, LEE L. STEPINA, and ARTHUR M. PESLAK, Administrative Patent Judges. ST AI CO VICI, Administrative Patent Judge. DECISION ON APPEAL STATEMENT OF THE CASE Frank Czajka et al. ("Appellants") 1 appeal under 35 U.S.C. § 134(a) from the Examiner's decision in the Final Action (dated Feb. 1, 2016, hereinafter "Final Act.") rejecting claims 1-18.2 We have jurisdiction under 35 U.S.C. § 6(b). SUMMARY OF DECISION We REVERSE. 1 According to Appellants' Appeal Brief (hereinafter "Br."), filed Sept. 1, 2016, the real party in interest is Medline Industries, Inc. Br. 2. 2 Claims 19 and 20 are canceled. Br. 5. Appeal2017-009123 Application 14/086, 798 CLAIMED SUBJECT MATTER The invention relates to a gown and method for self-donning the gown while maintaining sterility. Spec. para. 45. Claims 1 and 15 are independent. Claim 1, reproduced below, is illustrative of the claimed subject matter: 1. A gown, comprising: a body covering portion; sleeves extending distally from the body covering portion; a shoulder covering portion defining a head insertion aperture; the body covering portion comprising a rolled fold beginning at an end of the gown opposite the head insertion aperture and terminating at the sleeves. REJECTIONS The following rejections are before us for review: 3 I. Claims 1-12 and 15-18 are rejected under 35 U.S.C. § I02(a)(l) as being anticipated by Viemeister et al. (US 5,097,534, iss. Mar. 24, 1992, hereinafter "Viemeister"). II. Claim 13 is rejected under 35 U.S.C. § 103 as unpatentable over Viemeister and Herzog (US 2012/0060257 Al, pub. Mar. 15, 2012). 3 Although we appreciate Appellants' point that paragraph 95 of the Specification, as filed, provides in haec verba support for claim 14, and that Figure 35 shows a labeled representation of the claimed features (see Br. 10- 14), the Examiner's objection to the Drawings for not showing the features recited in claim 14 (see Final Act. 4---6) constitutes a petitionable matter. As such, the objection is not within the jurisdiction of the Board and is not part of the instant appeal. In re Mindick, 371 F.2d 892, 894 (CCPA 1967). 2 Appeal2017-009123 Application 14/086, 798 III. Claim 14 is rejected under 35 U.S.C. § 103 as unpatentable over Viemeister and Allen (US 2010/0031966 Al, pub. Feb. 11, 2010). ANALYSIS Rejection I Appellants argue that "Viemeister teaches a conventional, non-rolled fold," and does not disclose "the claimed rolled fold that begins at the end opposite a head insertion aperture and then terminates at the sleeves. "Br. 17. The Examiner responds that Viemeister discloses a rolled fold as recited in claim 1 because the term "roll" is "commonly defined to mean 'to wrap round on itself; to produce by such shaping."' Final Act. 3 ( citing Merriam-Webster). During examination, "claims ... are to be given their broadest reasonable interpretation consistent with the [S]pecification ... and ... claim language should be read in light of the [S]pecification as it would be interpreted by one of ordinary skill in the art." In re Bond, 910 F.2d 831, 833 (Fed. Cir. 1990) (citing In re Sneed, 710 F.2d 1544, 1548 (Fed. Cir. 1983)). This means that the words of the claim must be given their plain meaning unless the plain meaning is inconsistent with the Specification. In re Zietz, 893 F.2d 319,321 (Fed. Cir. 1989). In this case, although we appreciate the Examiner's general definition of the term "roll," we note that the provided definition is incomplete and, in contrast to the Examiner's position, it is not "clearly satisfied by the action set forth by ... Viemeister's disclosure." Answer 3 (dated Oct. 31, 2016, hereinafter 3 Appeal2017-009123 Application 14/086, 798 "Ans."). More specifically, a common and ordinary meaning of the term "roll" is "to wrap round on itself : shape into a ball or roll" or "to produce by such shaping." See www.merriam-webster.com/dictionary/roll (last visited May 23, 2018). Consistent with this definition, Appellants' Figure 3 shows rolled fold 303 that is repeatedly wrapped around itself beginning at the bottom end of the gown and continually rolled to form a roll. See also Spec. para 62. In contrast, Viemeister discloses "folding of the garment 12 to produce a folded garment." Viemeister, col. 5, 11. 62---63, Fig. 16. Specifically, Viemeister, "in an intermediate stage of folding," inverts (turns inside out) lower portion 38 over upper portions 39 and 41 by folding the gown in half with the bottom end touching the sleeves (Viemeister, Fig. 12) so as to form a new bottom, and then folds the gown in half again with the new bottom touching the sleeves (Viemeister, Fig. 13) to produce a "folded garment." Id., col 6, 11. 6-36. As such, we agree with Appellants that "Viemeister teaches a conventional, non-rolled fold." Br. 17. Moreover, Appellants disclose an alternate embodiment where the gown is folded onto itself into accordion fold 302 (see Spec. Figs. 3, 4), and thus, Appellants distinguish a "rolled fold" from an "accordion fold," which constitutes a folded construction, similar to that of Viemeister. See Spec. paras. 62-64. Hence, the Examiner's interpretation of the term "roll" to include Viemeister' s situation where a gown is folded over itself is unreasonably broad and inconsistent with Appellants' Specification and its plain and ordinary meaning. Like independent claim 1, independent claim 15 also recites "a rolled fold" and requires "rolling the body covering portion of the gown from a[ n] 4 Appeal2017-009123 Application 14/086, 798 bottom end." Br. 25 (Claims App'x.). Once again, the Examiner relies on Viemeister as support for disclosing this limitation. See Final Act. 9. However, for the reasons discussed supra, Viemeister fails to disclose that its folded garment 12 includes a "rolled" fold. In conclusion, for the reasons discussed above, we do not sustain the rejection under 35 U.S.C. § 102(a)(l) of claims 1-12 and 15-18. Rejections II and III The Examiner's use of the Herzog and Allen disclosures does not remedy the deficiency of Viemeister discussed supra. See Final Act. 10-13. Therefore, for the same reasons discussed above, we also do not sustain the rejections under 35 U.S.C. § 103 of claims 13 and 14. DECISION The Examiner's decision to reject claims 1-18 is reversed. REVERSED 5 Copy with citationCopy as parenthetical citation