Ex Parte Evans

Patent Trial and Appeal Board

May 29, 2018

14616140 (P.T.A.B. May. 29, 2018)

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
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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.
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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.
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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
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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.
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