Ex Parte EvansDownload PDFPatent Trial and Appeal BoardMay 29, 201814616140 (P.T.A.B. May. 29, 2018) Copy Citation UNITED STA TES p A TENT AND TRADEMARK OFFICE APPLICATION NO. FILING DATE FIRST NAMED INVENTOR 14/616,140 02/06/2015 John C. Evans 152460 7590 05/31/2018 Shumaker, Loop & Kendrick, LLP 101 South Tryon Street Suite 2200 Charlotte, NC 28280-0002 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. 2765/723US-A 7344 EXAMINER CARREIRO, CAITLIN ANN ART UNIT PAPER NUMBER 3772 NOTIFICATION DATE DELIVERY MODE 05/31/2018 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): mpurvis@slk-law.com sharris@ slk-law. com agalo@slk-law.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte JOHN C. EV ANS Appeal2017-006525 Application 14/616, 140 Technology Center 3700 Before CHARLES N. GREENHUT, JILL D. HILL, and PAUL J. KORNICZKY, Administrative Patent Judges. KORNICZKY, Administrative Patent Judge. DECISION ON APPEAL Appeal2017-006525 Application 14/616, 140 STATEMENT OF THE CASE Pursuant to 35 U.S.C. § 134(a), Appellant1 appeals from the Examiner's decision, as set forth in the Final Office Action dated March 9, 2016 ("Final Act.") and the Advisory Action dated July 11, 2016 ("Adv. Act."), rejecting claims 1-14. We have jurisdiction under 35 U.S.C. § 6(b). We REVERSE. THE CLAIMED SUBJECT MATTER The claims are directed to a water resistant bandage. Claim 1, the only independent claim on appeal, is reproduced below with disputed limitations italicized for emphasis: 1. A knitted bandage, comprising: an inner face adapted to be positioned contacting skin and an outer face adapted to be positioned apart from the skin; nylon monofilament yarns knitted into only the inner face and having a maximum diameter of 0.1 mm; polyproylene monofilament yarns knitted into only the outer face and having a maximum diameter of 0.1 mm; and elastic yams knitted or laid in with wales of the knitted bandage to impart elasticity in the knitted bandage; wherein the knitted bandage has a moisture vapor transmission rate of at least 500 g/m2 per 24 hours. BSN Medial, Inc. ("Appellant") is the applicant pursuant to 37 C.F.R. § 1.46, and is identified as the real party in interest. Appeal Brief, dated September 23, 2016 ("Appeal Br."), at 3. 2 Appeal2017-006525 Application 14/616, 140 REFERENCES In rejecting the claims on appeal, the Examiner relied upon the following prior art: Riedel Trainor McMurray Frauendorf Hockaday Evans us 4,366,814 us 4,665,909 us 4,745,912 us 5,086,150 US 2005/0186871 Al US 2008/0287852 Al Jan.4, 1983 May 19, 1987 May 24, 1988 Feb.4, 1992 Aug. 25, 2005 Nov. 20, 2008 Spencer, Knitting Technology, Second Edition, p. 36. REJECTIONS The Examiner made the following rejections: 1. Claims 1, 2, 5, 8-10, 12, and 14 stand rejected under 35 U.S.C. § I03(a) as being unpatentable over Evans and McMurray. 2. Claim 3 stands rejected under 35 U.S.C. § I03(a) as being unpatentable over Evans, McMurray, and Hockaday. 3. Claim 4 stands rejected under 35 U.S.C. § I03(a) as being unpatentable over Evans, McMurray, and Spencer. 4. Claim 6 stands rejected under 35 U.S.C. § I03(a) as being unpatentable over Evans, McMurray, and Frauendorf. 5. Claim 7 stands rejected under 35 U.S.C. § I03(a) as being unpatentable over Evans, McMurray, and Trainor. 6. Claims 11 and 13 stand rejected under 35 U.S.C. § I03(a) as being unpatentable over Evans, McMurray, and Riedel. Appellant seeks our review of these rejections. 3 Appeal2017-006525 Application 14/616, 140 DISCUSSION Rejections 1-6 Independent claim 1 recites, in part, that "nylon monofilament yams [are] knitted into only the inner face" and "polypropylene monofilament yams [are] knitted into only the outer face." Claims 2-14 depend from claim 1. The Examiner finds that "either, or both, of [Evans'] surfaces 111 /112 can be formed of hydrophobic yams, such as nylon and therefore is capable of being used to form the surface that will be positioned in contact with the skin" and "either, or both, of [Evans'] surfaces 111 /112 can be formed of hydrophobic yams, such as polypropylene and therefore is capable of being used to form the surface that will be positioned away from the skin." Final Act. 3 (citing Evans ,r 49). The Examiner explains that Evans discloses alternative materials which can be used for forming the faces 111 /112[. However,] this teaching has not been interpreted to inherently require that multiple yams must be present on each of the faces at any time, just that one or more of the types of yams recited are capable of being used for forming each of the faces of the bandage. Therefore, Examiner maintains that the broadest reasonable interpretation of the disclosure of Evans includes a configuration where each of the faces 111 /112 is formed from a different type of yam and that the yam that forms that face, respectively, is the only yam on that face. Id. at 14. We disagree. We agree with Appellant that Evans does not disclose that each face (i.e., inner and outer faces recited in claim 1) may be made of different materials/yams, or that a single, specific material is used in one face, but not the other face. See Appeal Br. 9-10. We find persuasive Appellant's assertion that Evans' statement that the "use of a monofilament hydrophobic 4 Appeal2017-006525 Application 14/616, 140 yam on both faces 11, 12 [provides certain advantages]" suggests that both faces use the same material/yam. Id. ( citing Evans ,r 49). The Examiner has not identified a prior art reference that discloses that the inner and outer faces may be made of different materials, or that a single, specific material is used in one face, but not the other face. 2 For the reasons above, the combination of Evans and McMurray does not disclose all of the limitations of claim 1, and the rejection of claim 1 is not sustained. The Examiner does not identify any portion of the other prior art (Hockaday, Spencer, Frauendorf, Trainor, or Reidel) that remedies the deficiencies of Evans and McMurray. Thus, the rejections of claims 2-14, which depend from claim 1, likewise, are not sustained. DECISION For the above reasons, the Examiner's rejections of claims 1-14 are REVERSED. REVERSED 2 To the extent that Appellant suggests that each of the inner and outer faces are made of "only a single, specific yam" (see, e.g., Appeal Br. 9), we disagree. Here, claim 1 requires that nylon monofilament yam is used only in the inner face, not in the outer face; and that polypropylene monofilament yam is used only in the outer face, not in the inner face. Due to the open- ended "comprising" language, the inner and outer faces may be made of combinations of other yams/materials. Stated another way, we do not agree that the inner face is made of only nylon monofilament yam, or the outer face is made of only polypropylene monofilament yam; other combinations of materials may be used. 5 Appeal2017-006525 Application 14/616, 140 6 Copy with citationCopy as parenthetical citation