Ex Parte Gatto et alDownload PDFPatent Trial and Appeal BoardMay 3, 201611735738 (P.T.A.B. May. 3, 2016) Copy Citation UNITED STA TES p A TENT AND TRADEMARK OFFICE APPLICATION NO. FILING DATE 111735,738 04/16/2007 23556 7590 05/04/2016 KIMBERLY-CLARK WORLDWIDE, INC, Patent Docketing 2300 Winchester Rd. NEENAH, WI 54956 FIRST NAMED INVENTOR Jeanne Marie Gatto 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. 64351927US01 2553 EXAMINER ANDERSON, AMBER R ART UNIT PAPER NUMBER 3678 MAILDATE DELIVERY MODE 05/04/2016 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 JEANNE MARIE GATTO and CHRISTINA MAE CHINGREN SEW ARD Appeal2014-004006 Application 11/735,738 1 Technology Center 3600 Before NINA L. MEDLOCK, KENNETH G. SCHOPPER, and BRADLEY B. BAY AT, Administrative Patent Judges. SCHOPPER, Administrative Patent Judge. DECISION ON APPEAL This is an appeal under 35 U.S.C. § 134 from the rejection of claims 1, 4--7, 9, 11, 24--26, and 32. We have jurisdiction under 35 U.S.C. § 6(b). We AFFIRM. 1 According to Appellants, the real party in interest is Kimberly-Clark Worldwide, Inc. Appeal Br. 1. Appeal2014-004006 Application 11/735,738 BACKGROl.J1'-JD According to Appellants, "[ t ]he present invention is directed to a unique configuration for a protective garment, particularly a coverall design that has the benefits of elastomeric materials without the significant costs associated with conventional elastomeric material coveralls." Spec. 6, 11. 20-22. CLAIMS Claims 1, 4--7, 9, 11, 24--26, and 32 are on appeal. Claim 1 is the only independent claim on appeal and recites: 1. A disposable protective garment for a wearer, the disposable protective garment comprising: a body portion comprising a front side, a back side comprising a central back seam and a lower back portion, and an upper portion, and a neck opening; a right leg and a left leg, both legs extending from the body portion, a crotch formed at the point where the right leg, the left leg and the body portion meet; a closure extending from the neck opening on the front side of the garment toward the crotch; a right sleeve and a left sleeve, both sleeves comprising an underside, both sleeves being attached to and extending from the upper portion, a left underarm formed where the underside of the left sleeve is joined to the upper portion, and a right underarm formed where the underside of the right sleeve is joined to the upper portion; and a V-shaped elastomeric strip comprising an apex and two extensions, the elastomeric strip positioned on the back side of the body portion, the apex being positioned no lower than the lower back portion and substantially in alignment with the central back seam, one extension of the V-shaped elastomeric strip extending from the apex toward the left underarm and the other extension of the V -shaped elastomeric strip extending 2 Appeal2014-004006 Application 11/735,738 from the apex towara me ngm underarm, wherein the elastomeric strip permits the wearer to reach and bend with greater ease than in the same garment that lacks the elastomeric strip. Appeal Br. 19. REJECTIONS 1. The Examiner rejects claims 1, 4--7, 9, 11, 24, and 32 under 35 U.S.C. § 103(a) as unpatentable over Lash2 in view of Hitzeman. 3 2. The Examiner rejects claims 25 and 26 under 35 U.S.C. § 103(a) as unpatentable over Lash in view of Hitzeman and Geiss. 4 DISCUSSION Appellants present arguments with respect to independent claim 1 and certain dependent claims. See Appeal Br. 8-18. To the extent appropriate, we address these claims separately below. Claim 1 With respect to claim 1, the Examiner finds that Lash discloses a disposable protective garment as claimed including an elastomeric strip on the back side of the body portion that is positioned no lower than the lower back portion of the garment. Final Act. 3--4 (citing Lash, Figs. 1-3). The Examiner acknowledges that Lash's garment does not include a central back seam or that the elastomeric strip on the back side is v-shaped with an apex 2 Lash, US 3,086,214, iss. Apr. 23, 1963. 3 Hitzeman, US 1,277,074, iss. Aug. 27, 1918. 4 Geiss, US 2,839,756, iss. June 24, 1958. 3 Appeal2014-004006 Application 11/735,738 aligned with the central back seam. Id. at 4. However, the Examiner finds that Hitzeman teaches a garment with av-shaped elastomeric strip aligned with a central back seam so as to conform to the wearer's body. Id. (citing Hitzeman, Figs. 1, 2). The Examiner concludes that it would have been obvious to include a v-shaped strip with an apex aligned with a central back seam as taught by Hitzeman in Lash's garment "as a well-known means for manufacturing a garment and to make the elastomeric strip conform more to the wearer's body and curves of the wearer's body." Id. We agree with and adopt the Examiner's findings and conclusions regarding the scope and content of the prior art with respect to claim 1. See Final Act. 3--4; Ans. 2-6. As discussed below, we are not persuaded of error by Appellants' arguments. Appellants first argue that it would not have been obvious "to isolate and remove" the panel from Hitzeman from the rest of the garment and system of elastic panels and it would not have been obvious to replace the horizontal band 14 of Lash. Appeal Br. 9-10. In support, Appellants assert that Hitzeman discourages isolation of panels and panel J would not serve the same function as the horizontal band it is replacing in Lash. Id. at 10. Appellants also assert that a person of ordinary skill in the art would not make the replacement to make the garment fit the wearer better, as the Examiner indicates. Id. Thus, Appellants conclude that the only motivation for making the combination proposed is from impermissible hindsight reconstruction based on Appellants' teachings. We disagree for the reasons provided by the Examiner. See Ans. 2-5. Specifically, the Examiner makes clear that the rejection does not rely on any bodily incorporation or physically removing a panel from Hitzeman and 4 Appeal2014-004006 Application 11/735,738 using it to replace a panel in Lash. Id. Rather, the rejection relies on Hitzeman to show that it was known to use av-shaped panel to achieve the same function as the panel used by Lash and would conform to the wearer's body and allow freedom of movement. Id. at 2-3. Further, we agree with the Examiner that the hindsight argument is unpersuasive as Appellants have not shown that the rejection relies on any knowledge obtained only from Appellants' disclosure. Id. at 4--5; see also In re McLaughlin, 443 F.2d 1392, 1395 (CCPA 1971). Finally, to the extent Appellants discuss the benefits of the claimed invention, we agree with the Examiner that claim 1 is an apparatus claim and Appellants have not shown that these benefits or the intended use of the garment results in a structural difference between the claims and the prior art. See Ans. 4. Next, Appellants argue that the proposed modification would render the prior art unsatisfactory for its intended purposes. Appeal Br. 12; see also Reply 2-5. As above, this argument focuses on replacing one panel for another, which would allegedly result in Lash not having an elastic panel on the front of the garment or would require Lash to include a continuous system of panels as in Hitzeman. We are not persuaded for the same reasons identified above. Finally, Appellants argue that the modification would not result in a back panel with an apex positioned no lower than the lower back portion of the garment. Appeal Br. 13-16. Appellants provide a definition of apex as "the narrowed or pointed end: tip." Id. at 14 (citing Merriam-Webster.com). Based on this definition, we agree with the Examiner that Hitzeman's J panel includes an apex under the broadest reasonable interpretation of the claim. See Ans. 6. We also agree with the Examiner that the bottom end of 5 Appeal2014-004006 Application 11/735,738 the J panel is no lower than the lower back portion of the garment. See Ans. 6; Hitzeman, Figs. 1, 2 (showing that the back panel J ends at the lower back where it is attached to panel K). Based on the foregoing, we find that the Examiner established a prima facie showing of obviousness with respect to claim 1 without error. Accordingly, we sustain the rejection of claim 1. Appellants do not raise separate arguments with respect to claims 5, 9, 11, 24--26, and 32, and thus, those claims fall with claim 1. Claims 4, 6, and 7 Claims 4 and 6 requires that the panel is between about 2 and 6 inches wide. Claim 7 requires that the panel is between about 2 and 4 inches wide. The Examiner relies on Lash's teaching of an 8 inch panel as being about 2 to 6 inches because Appellants do not define "the parameter of 'about', i.e. +/- 1 inch." Final Action 4--5. Appellants argue that 8 inches is not within the broadest reasonable interpretation of the claimed ranges. Appeal Br. 1 7- 18. The Examiner responds that Lash states that "8 inches is an example making it obvious that the dimension can vary depending on the size of the garment and wearer and thus that dimension would require nothing more than skill in the art to optimize that value." Ans. 7. We are not persuaded of error by Appellants' argument for reasons provided by the Examiner. Specifically, we agree with the Examiner's unrebutted response that only routine skill in the art would be required to optimize the size of the elastomeric back panel and Lash suggests that an 8 inch is provided only as an example. 6 Appeal2014-004006 Application 11/735,738 Based on the foregoing, we find that the Examiner has established a prima facie showing of obviousness with respect to claims 4, 6, and 7 without error. Accordingly, we sustain the rejection of those claims. CONCLUSION For the reasons set forth above, we affirm the rejections of claims 1, 4--7, 9, 11, 24--26, and 32. No time period for taking any subsequent action in connection with this appeal may be extended under 37 C.F.R. § 1.136(a)(l )(iv). AFFIRMED 7 Copy with citationCopy as parenthetical citation