Ex Parte Czajka et al

Patent Trial and Appeal Board

May 31, 2018

14086798 (P.T.A.B. May. 31, 2018)

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).
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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
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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]
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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
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