Ex Parte Gellis

Patent Trial and Appeal Board

Jun 22, 2016

12577273 (P.T.A.B. Jun. 22, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
12/577,273 10/12/2009
96056 7590
Florek & Endres PLLC
1156 A venue of the Americas
Suite 600
New York, NY 10036
06/22/2016
FIRST NAMED INVENTOR
David Gellis
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.
1545-041B 3913
EXAMINER
MORAN, KATHERINE M
ART UNIT PAPER NUMBER
3765
MAILDATE DELIVERY MODE
06/22/2016 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 DAVID GELLIS
Appeal2014-000910
Application 12/577,273
Technology Center 3700
Before: JENNIFER D. BAHR, EDWARD A. BROWN, and
CHARLES N. GREENHUT, Administrative Patent Judges.
GREENHUT, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Appellant appeals under 35 U.S.C. § 134 from a rejection of claims 1-
3, 6, 7, 11-13, 15, 16, 21-33 and 35-39. We have jurisdiction under 35
U.S.C. § 6(b).
We reverse.
Appeal2014-000910
Application 12/577,273
CLAIMED SUBJECT MATTER
The claims are directed to a utility glove. Claim 1, reproduced below,
is illustrative of the claimed subject matter:
1. A utility glove having an exterior and an interior, a glove
front corresponding to at least a portion of the palm side of the
hand and a glove back corresponding to at least a portion of the
back of the hand, said utility glove comprising a three
dimensional molded portion formed of an elastomeric material
bonded to a fabric, the fabric having an interior corresponding to
the interior of the glove and an exterior to which the elastomeric
material is bonded, with the elastomeric material of the molded
portion integrally formed on the exterior of the glove, said
molded portion having:
a. a thumb portion comprising a cap for covering a tip of the
thumb about the entire circumference of the tip of the thumb;
b. four finger portions each comprising a cap for covering a tip
of the finger about the entire circumference of the tip of the
finger;
c. a knuckle portion for covering at least a portion of the glove
back over a plurality of finger knuckles on the back of a main
body of the hand where the fingers meet the main body of the
hand;and
d. a palm having a middle and edges, the palm formed in a pre-
curved configuration with the middle of the palm set in from the
edges of the palm to form a concave shape on the exterior of the
glove from the edges to the middle of the palm, wherein the
molded portion extends continuously from the palm to the caps
of each of the thumb portion and finger portions on at least a
portion of the glove front.
2
Appeal2014-000910
Application 12/577,273
REJECTIONS
I. Claims 1, 3, 6, 7, and 11 are rejected under 35 U.S.C. § 103(a) as being
unpatentable over Sandusky (U.S. 6,065,155) and Steinberg (U.S.
2,907 ,047).
II. Claims 1 and 38 are rejected under 35 U.S.C. § 103(a) as being
unpatentable over Berend (U.S. 4,371,988) and Steinberg.
III. Claim 2 is rejected under 35 U.S.C. § 103(a) as being unpatentable over
Sandusky, Steinberg, and Andrews (U.S. 5,598,582).
IV. Claim 12 is rejected under 35 U.S.C. § 103(a) as being unpatentable
over Sandusky, Steinberg and Tillotson (U.S. 2,120,722).
V. Claim 13 is rejected under 35 U.S.C. § 103(a) as being unpatentable
over Sandusky, Steinberg and Taira (U.S. 6,928,658).
VI. Claim 15 is rejected under 35 U.S.C. § 103(a) as being unpatentable
over Sandusky, Steinberg, and Wisenburg (U.S. 2,913,729).
VII. Claim 16 is rejected under 35 U.S.C. § 103(a) as being unpatentable
over Sandusky, Steinberg, and Jaeger (U.S. 7,100,212).
VIII. Claims 21-23, 28, 31, 36, 37, and 39 are rejected under 35 U.S.C.
§ 102(b) as being anticipated by Berend.
IX. Claims 24, 25, and 29 are rejected under 35 U.S.C. § 103(a) as being
unpatentable over Berend and Douglas (U.S. 1,664,542).
X. Claims 26 and 27 are rejected under 35 U.S.C. § 103(a) as being
unpatentable over Berend and Steinberg.
XI. Claim 30 is rejected under 35 U.S.C. § 103(a) as being unpatentable
over Berend and Andrews.
XII. Claim 32 is rejected under 35 U.S.C. § 103(a) as being unpatentable
over Berend and Tillotson.
3
Appeal2014-000910
Application 12/577,273
Xlll. Claim 33 is rejected under 35 U.S.C. § 103(a) as being unpatentable
over Berend and Taira.
XIV. Claim 35 is rejected under 35 U.S.C. § 103(a) as being unpatentable
over Berend and Schroeder (U.S. 4,094,014).
OPINION
The dispositive issue regarding rejections I-VII and X insofar as
rejection X pertains to claim 26, is the presence or absence of a "palm
formed in a pre-curved configuration with the middle of the palm set in from
the edges of the palm to form a concave shape on the exterior of the glove
from the edges to the middle of the palm" in Steinberg. Final Act. 3; App.
Br. 4; Ans. 15. The fact that Steinberg's glove is described as being
"longitudinally arcuate, especially through the hand and finger sections 12
and 18 thereof, with the concavity on the inner palm side 14 of the glove"
does not establish that the palm of Steinberg's glove itself must exhibit the
recited concavity. The body portion of the glove may be arcuate without
being concave at every portion of the body, in particular the palm. The body
portion may also exhibit concavity on the palm side without exhibiting
concavity on the palm itself. Neither the drawings of Steinberg nor the
associated description conclusively establish the presence of concavity as
recited in claims 1 and 26. Accordingly rejections I-VII and X insofar as
rejection X pertains to claim 26 cannot be sustained on the basis set forth by
the Examiner.
Turning to claim 21, the disputed limitation is, "wherein the molded
portion is formed to entirely surround one or more openings comprising an
area of fabric without elastomeric material." App. Br. 6-9. The Examiner
4
Appeal2014-000910
Application 12/577,273
considers "an opening at the end of the [Berend] glove for receiving the
hand" as the recited opening. Final Act. 8, Ans. 16. However, the second
outer layer 3 in Berend, which is regarded by the Examiner as the recited
"molded portion," does not "entirely surround" the opening at the end of the
glove as required by claim 21. App. Br. 7; Berend Figs. 1, 2. In fact, the
second outer layer 3 is not even present near the opening at the end of the
glove, so it is unclear why the Examiner believes the second outer layer in
any way surrounds the opening at the end of the glove. Figure 3 is a cross-
sectional view taken along line III-III, which is spaced from the opening.
Furthermore, the opening at the end of the glove is formed by inner lining 1
and first inner layer 2, collectively regarded by the Examiner as the recited
"fabric." Claim 21 calls for the openings to comprise fabric as opposed to
the fabric only surrounding, or defining the boundary of, the opening, i.e.,
the fabric is an element of the opening as opposed to vice versa. App. Br. 7.
We therefore agree with Appellant that the Examiner has not established that
claim 21 is anticipated by Berend and the Examiner has not accounted for
this deficiency in the obviousness rejections relying on the same teachings of
Berend. Thus, we cannot sustain rejections VIII, IX, XI-XIV and X insofar
as rejection X pertains to claim 27 on the basis set forth by the Examiner.
DECISION
The Examiner's rejections are reversed.
REVERSED
5