Ex Parte Deerin

Patent Trial and Appeal Board

Sep 26, 2016

13356845 (P.T.A.B. Sep. 26, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
13/356,845 01124/2012
24239 7590 09/28/2016
MOORE & VAN ALLEN PLLC
P.O. BOX 13706
3015 Carrington Mill Boulevard, Suite 400
Research Triangle Park, NC 27709
FIRST NAMED INVENTOR
Robert F. Deerin
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.
014110-000019 3265
EXAMINER
STEPHENS, JACQUELINE F
ART UNIT PAPER NUMBER
3761
NOTIFICATION DATE DELIVERY MODE
09/28/2016 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):
iplaw@mvalaw.com
usptomail@mvalaw.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Exparte ROBERT F. DEERIN
Appeal2015-000539
Application 13/356,845 1
Technology Center 3700
Before MICHAEL L. HOELTER, THOMAS F. SMEGAL, and
LISA M. GUIJT, Administrative Patent Judges.
SMEGAL, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Robert F. Deerin (Appellant) seeks our review under 35 U.S.C. § 134
of the Examiner's final rejection of claims 1-20 under 35 U.S.C. § 102(b) as
anticipated by Brownlee (US 5,360,422, iss. Nov. 1, 1994); of claims 1-20
under 35 U.S.C. § 103(a) as unpatentable over Brownlee; and of claims 5, 6,
and 18 under 35 U.S.C. § 103(a) as unpatentable over Brownlee and Foss
(US 6,723,428, iss. Apr. 20, 2004). We have jurisdiction under
35 U.S.C. § 6(b).
We AFFIRM.
1 According to Appellant, the real party in interest is the inventor. Br. 1.
Appeal2015-000539
Application 13/356,845
CLAIMED SUBJECT MATTER
Claims 1 and 17 are independent. Claim 1 is reproduced below and
illustrates the claimed subject matter, with disputed limitations emphasized.
1. A washable, reusable garment for retention of body fluids
when worn on a person's lower body part, the garment
compnsmg:
a crotch portion adapted to be proximate to the person's
crotch and having a first end and a second end;
a body portion contiguous with the first end and second
end of the crotch portion and defining at all times a waist
opening, the body portion and the crotch portion together
forming at all times first and second leg openings; and
a washable absorbent composite attached to the crotch
portion.
ANALYSIS
Anticipation of Claims 1-20 by Brownlee
Appellant argues claims 1-20 together in contesting the rejection of
these claims as anticipated by Brownlee. See Br. 4--5.2 We select claim 1 as
the representative claim for this group, and the remaining claims stand or fall
with claim 1. See 37 C.F.R. § 41.37(c)(l)(iv). We have considered
Appellant's arguments raised in the Appeal Brief, but do not find them
persuasive to demonstrate error in the Examiner's rejection of claim 1 as
being anticipated by Brownlee.
The Examiner finds that Brownlee anticipates claim 1 by teaching a
washable, reusable garment having a crotch portion, including inter alia, "a
2 For ease of reference, we have added numbers to the pages of the Appeal
Brief.
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Appeal2015-000539
Application 13/356,845
washable absorbent composite 80 attached to the crotch portion." Final Act.
3. Compare Brownlee, col. 3, 11. 13-16 with Appellant's Specification
iT 27' 11. 3---6.
Appellant takes issue with the analysis and conclusions presented in
the Final Action, first contending that because claim 1 "recites that a
washable absorbent composite is attached to a crotch portion[, that] the
absorbent composite is physically part of the Appellant's washable garment
by attachment thereto." Br. 4. Appellant also asserts that "Brownlee
describes a removable absorbent insert [that] is intentionally not attached or
secured to the garment so that it may be disposed of, or removed and
washed." Id.
We determine the scope of the claims in a patent application not
solely on the basis of the claim language, but upon giving claims "their
broadest reasonable interpretation consistent with the specification" and "in
light of the specification as it would be interpreted by one of ordinary skill in
the art." In re Am. Acad. of Sci. Tech Ctr., 367 F.3d 1359, 1364 (Fed. Cir.
2004) (citations omitted). "It is the [Appellant's] burden to precisely define
the invention, not the PTO's." In re Morris, 127 F.3d 1048, 1056 (Fed. Cir.
1997) (citation omitted).
Appellant has not pointed to any lexicographic definition in the
Specification of the term "attached" or identified any other disclosure
therein that precludes the Examiner from construing "attached" to include
"[t]he absorbent composite [of Brownlee being] attached to the crotch by
way of the reusable waterproof channel [8]." Ans. 6 (citing Brownlee, col.
3, 11. 8-16).
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Application 13/356,845
Appellant also contends that "attached to the crotch portion means an
integral part of the crotch," while "the rejection ignores that the Brownlee
insert is not a part of the Brownlee garment." Br. 5. However, the Examiner
reasons that "attached is not synonymous with integral," further explaining
that "[a]ttached is interpreted as connected or joined to something; while
integral, means no separation, homogeneous." Ans. 6-7. The Examiner
continues by finding that "the claim does not require [the composite] to be
integral," and for that reason, "the arguments [are] not commensurate with
the scope of the claims." Id. at 7. We agree, noting the admonition of our
reviewing court that "limitations are not to be read into the claims from the
[S]pecification." In re Van Geuns, 988 F.2d 1181, 1184 (Fed. Cir. 1993)
(citing In re Zletz, 893 F.2d 319, 321 (Fed. Cir. 1989)).
Appellant also argues of having "conceived of a claimed washable
garment with a pocket in the crotch and a washable absorbent composite
attached to the crotch portion as a part of the crotch portion." Br. 5.
However, Appellant misstates the scope of claim 1, which is not limited to
"a pocket in the crotch." Thus, Appellant's argument is also not
commensurate with the scope of claim 1. See Br. 7, Claims App.; In re Van
Geuns, 988 F.2d at 1184.
For the foregoing reasons, we discern no error in the Examiner's
findings and agree that Brownlee anticipates claims 1-20.
Obviousness of Claims 1-20 over Brownlee; and of Claims 5, 6, and
18 over Brownlee and Foss
We have affirmed the rejection of claims 1-20 under 35 U.S.C.
§ 102(b) as anticipated by Brownlee. This affirmance disposes of these
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Application 13/356,845
claims before us on appeal. See 3 7 C.F .R. § 41. 50( a)( 1) ("The affirmance of
the rejection of a claim on any of the grounds specified constitutes a general
affirmance of the decision of the examiner on that claim, except as to any
ground specifically reversed.").
DECISION
We AFFIRM the Examiner's rejections.
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a). See 37 C.F.R.
§ 1.136(a)(l )(iv).
AFFIRMED
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