Ex parte Kibbee

Board of Patent Appeals and Interferences

Jul 18, 2000

08589022 (B.P.A.I. Jul. 18, 2000)

A hearing set for November 18, 1999 was waived by1
appellant (Paper No. 15).
THIS OPINION WAS NOT WRITTEN FOR PUBLICATION
The opinion in support of the decision being entered today (1) was not written
for publication in a law journal and (2) is not binding precedent of the Board.
Paper No. 16
UNITED STATES PATENT AND TRADEMARK OFFICE
____________
BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
____________
Ex parte RICK E. KIBBEE
____________
Appeal No. 1998-1609
Application No. 08/589,022
____________
ON BRIEF1
____________
Before COHEN, ABRAMS, and GONZALES, Administrative Patent
Judges.
COHEN, Administrative Patent Judge.
DECISION ON APPEAL
This is an appeal from the final rejection of claims 1
through 15. Claims 16 through 19 stand allowed. These claims
constitute all of the claims in the application.
Appeal No. 1998-1609
Application No. 08/589022
A final rejection of claim 3 under 35 U.S.C. § 112,2
second paragraph, was overcome, as indicated in an advisory
action (Paper No. 8).
2
The invention before us pertains to a garment anchoring
system. A basic understanding of the invention can be derived
from a reading of exemplary claim 1, a copy of which appears
in the APPENDIX to the brief (Paper No. 10).
As evidence of obviousness, the examiner has applied the
documents listed below:
Larsen 5,033,121 Jul. 23, 1991
Atwater et al. 5,131,100 Jul. 21,
1992
(Atwater)
The following rejection is before us for review.2
Claims 1 through 15 stand rejected under 35 U.S.C. § 103
as being unpatentable over Larsen in view of Atwater.
The full text of the examiner’s rejection and response to
the argument presented by appellant appears in the final
rejection and the answer (Paper Nos. 6 and 11), while the
complete statement of appellant’s argument can be found in the
brief (Paper No. 10).
OPINION
Appeal No. 1998-1609
Application No. 08/589022
In our evaluation of the applied prior art, we have3
considered all of the disclosure of each document for what it
would have fairly taught one of ordinary skill in the art.
See In re Boe, 355 F.2d 961, 965, 148 USPQ 507, 510 (CCPA
1966). Additionally, this panel of the board has taken into
account not only the specific teachings, but also the
inferences which one skilled in the art would reasonably have
been expected to draw from the disclosure. See In re Preda,
401 F.2d 825, 826, 159 USPQ 342, 344 (CCPA 1968).
3
In reaching our conclusion on the obviousness issue
raised in this appeal, this panel of the board has carefully
considered
appellant’s specification and claims, the applied teachings,3
and the respective viewpoints of appellant and the examiner.
As a consequence of our review, we make the determination
which follows.
We reverse the examiner’s rejection of claims 1 through
15.
In the specification (pages 32 and 33), appellant
explains the advantages of the legged brief version 50c of the
invention (Fig. 6). In particular, the legged brief includes
an elastic waistband and also elastically encircles the thighs
of a wearer providing tension around the wearer’s legs, with
Appeal No. 1998-1609
Application No. 08/589022
4
the result that more stable anchoring points are provided, as
illustrated at point 74.
Independent claim 1 is drawn to a garment anchoring
system comprising, inter alia, a horizontally and vertically
elastic lower garment having a continuous waistband of elastic
material and an elastic body portion including a pair of leg
encircling bands, and fastening means at the front and back of
the lower garment. Claim 10 recites a garment anchoring
system comprising, inter alia, a lower garment including a
legged brief lower torso fitting body portion having a top and
a pair of leg portions, an elastic waistband including a
continuous waist-encircling elastic fiber material having a
first part of a hoop and loop fastener material. Claim 12
sets forth a garment anchoring system comprising, inter alia,
a lower garment including a legged brief lower-torso fitting
body portion having a continuous elastic waistband having a
pair of leg portions, and pressure responsive fastener
material secured to the waistband at the front and back
thereof.
Turning now to the applied prior art, we find that the
specific focus of patentee Larsen in resolving the problem of
Appeal No. 1998-1609
Application No. 08/589022
5
retaining shirt tails is not on acknowledged known and
conventional briefs and boxer shorts of the type that one
having ordinary skill in the art would understand as having
continuous waistbands (column 1, lines 10 through). Instead,
Larsen teaches a particular type of brief 19 (Fig. 3) which is
characterized in the specification (column 3, lines 20 through
24) and claims of the patent as elastically girding a person’s
body substantially all around, i.e., the front and rear waists
26 and 18 are interrupted by short sections at each side of a
shirt 11.
Considering the overall teaching of Larsen, we fail to
perceive where one having ordinary skill in this art, absent
appellant’s own teaching, would have derived a suggestion to
seek out the particular athletic compression shorts of Atwater
for making an obvious modification of the article of Larsen.
Clearly, the type of brief of interest to Larsen has
distinctly different characteristics from the shorts disclosed
by Atwater. More specifically, it is clear to us that the
Larsen brief 19 (Fig. 3) would not have been suggestive of a
legged brief with a continuous elastic waistband and leg
encircling bands or leg portions. In our opinion, only
Appeal No. 1998-1609
Application No. 08/589022
6
impermissible hindsight would have enabled one to seek out the
Atwater shorts to effect the combination now proposed. Thus,
based upon the evidence of obviousness before us, the
rejection under 35 U.S.C. § 103 cannot be sustained.
In summary, this panel of the board has reversed the
rejection of claims 1 through 15 under 35 U.S.C. § 103 as
being unpatentable over Larsen in view of Atwater.
The decision of the examiner is reversed.
REVERSED
IRWIN CHARLES COHEN )
Administrative Patent Judge )
)
)
)
) BOARD OF PATENT
NEAL E. ABRAMS ) APPEALS
Administrative Patent Judge ) AND
) INTERFERENCES
)
)
)
JOHN F. GONZALES )
Administrative Patent Judge )
Appeal No. 1998-1609
Application No. 08/589022
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ICC/ki
Appeal No. 1998-1609
Application No. 08/589022
8
WOOD HERRON AND EVANS
2700 CAREW TOWER
CINCINNATI, OH 45202