Ex Parte Gatto et al

Patent Trial and Appeal Board

May 3, 2016

11735738 (P.T.A.B. May. 3, 2016)

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
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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.
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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
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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
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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.
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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
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