10405778 (B.P.A.I. Oct. 27, 2009)

Ex Parte Jarvis

Board of Patent Appeals and InterferencesOct 27, 2009

10405778 (B.P.A.I. Oct. 27, 2009)

UNITED STATES PATENT AND TRADEMARK OFFICE ________________ BEFORE THE BOARD OF PATENT APPEALS AND INTERFERENCES ________________ Ex parte CHRISTINE W. JARVIS ________________ Appeal 2009-003676 Application 10/405,778 Technology Center 1700 ________________ Decided: October 27, 2009 ________________ Before BRADLEY R. GARRIS, CHUNG K. PAK, and TERRY J. OWENS, Administrative Patent Judges. OWENS, Administrative Patent Judge. DECISION ON APPEAL STATEMENT OF THE CASE The Appellant appeals under 35 U.S.C. § 134(a) from the Examiner’s rejection of claims 1-32 and 52-59, which are all of the pending claims. We have jurisdiction under 35 U.S.C. § 6(b). The Invention Appeal 2009-003676 Application 10/405,778 2 The Appellant claims a composite structure which, the Appellant states, is for use in a garment to control and regulate the microclimate of the environment next to the garment wearer’s body (Spec. 3:11-14). Claim 1 is illustrative: 1. A composite structure for providing microclimate control to an area at least partially enclosed by said composite structure, said composite structure having a first side and a second side, said first side of said composite structure facing said area, said composite structure comprising: a first breathable substrate layer, said first breathable substrate layer comprising a first material; a second material juxtaposed to said first breathable substrate layer, said second material forming at least a portion of at least one wall defining a passageway adjacent said first substrate layer, wherein said passageway and said area are separated by at least said first breathable substrate layer, said second material being secured to said first substrate layer at predetermined locations, said passageway permitting fluid flow therethrough; a fluid entrance for permitting fluid flow into said passageway; a fluid exit for permitting fluid flow out of said passageway, said fluid exit directing fluid flow away from said area; a filler material in said passageway; and at least one connector secured to one of said fluid entrance and said fluid exit, said at least one connector permitting fluid flow therethrough. The References Gore 4,194,041 Mar. 18, 1980 Gioello 5,515,543 May 14, 1996 Lim 6,187,696 B1 Feb. 13, 2001 Isom 2004/0148681 A1 Aug. 5, 2004 (filed Feb. 5, 2003) Appeal 2009-003676 Application 10/405,778 3 The Rejections The claims stand rejected as follows: claims 1, 4, 5, 7, 16, 18, 19, 22- 24, 28, 30-32, and 52-59 under 35 U.S.C. § 102(e) over Isom; claims 14 and 26 under 35 U.S.C. § 102(e) or 103 over Isom; claims 2, 9-13, 15, 17, 20, 25, 27, and 29 under 35 U.S.C. § 103 over Isom in view of Gioello; claims 3 and 21 under 35 U.S.C. § 103 over Isom in view of Lim; and claims 6 and 8 under 35 U.S.C. § 103 over Isom in view of Gore. OPINION We reverse the Examiner’s rejections. Issue Has the Appellant shown reversible error in the Examiner’s determination that Isom discloses a fluid exit directing fluid flow away from a microclimate controlled area? Findings of Fact Isom discloses a glove comprising an air conduit or intake (180) to which is connected multiple channeling members (156) inside the glove, one channeling member extending into the thumb and each of the fingers of the glove (¶ 0067). Each channeling member has, near its end opposite the air conduit or intake, an outlet (159) through which air that has been introduced through the air conduit or intake passes into the portion of the glove interior surrounding a layer (110) into which a hand is placed (¶ 0067; Figs. 4, 5, 10- 14). Analysis The Examiner has the initial burden of establishing a prima facie case of anticipation by pointing out where all of the claim limitations appear in a Appeal 2009-003676 Application 10/405,778 4 single reference. See In re Spada, 911 F.2d 705, 708 (Fed. Cir. 1990); In re King, 801 F.2d 1324, 1327 (Fed. Cir. 1986). The Appellant argues (Br. 8): The air distribution devices of Isom, et al. do not direct fluid flow exiting the outlet away from the area for which microclimate control is provided, as is found in the composite structures of independent claims 1 and 19, but instead distribute and deliver fluid flow exiting the outlet to the area for which microclimate control is provided; to the inner portion of the hand covering including the fingertip area, i.e., to the area that is at least partially enclosed by the structure and also the area for which microclimate control is provided. This is the opposite teaching of what is found in the pending claims. The Examiner argues that “[w]hen looking at either Figure 13 or 14 the forward momentum of the air flowing down the passage way from the right to the left and exiting outlet 559 directs fluid away from the area immediately below layer 555 and around to the bottom side of the fingers towards the palm of the hand” (Ans. 9). The portion of Isom’s glove corresponding to the Appellant’s microclimate controlled area is the area surrounding a hand placed in the glove. As shown in Isom’s Figures 13 and 14, outlet 559 directs air toward rather than away from that area. Thus, the Examiner has not established that Isom discloses each of the Appellant’s claim limitations. Also, the Examiner has not explained how Isom, alone or in combination with the other applied references, would have rendered prima facie obvious, to one of ordinary skill in the art, a fluid flow exit that directs fluid flow away from a microclimate controlled area. Appeal 2009-003676 Application 10/405,778 5 Conclusion of Law The Appellant has shown reversible error in the Examiner’s determination that Isom discloses a fluid exit directing fluid flow away from a microclimate controlled area. DECISION/ORDER The rejections of claims 1, 4, 5, 7, 16, 18, 19, 22-24, 28, 30-32, and 52-59 under 35 U.S.C. § 102(e) over Isom, claims 14 and 26 under 35 U.S.C. § 102(e) or 103 over Isom, claims 2, 9-13, 15, 17, 20, 25, 27, and 29 under 35 U.S.C. § 103 over Isom in view of Gioello, claims 3 and 21 under 35 U.S.C. § 103 over Isom in view of Lim, and claims 6 and 8 under 35 U.S.C. § 103 over Isom in view of Gore are reversed. It is ordered that the Examiner’s decision is reversed. REVERSED PL Initial: sld DORITY & MANNING, P.A. P.O. BOX 1449 GREENVILLE, SC 29602-1449