Ex Parte Lintel

Patent Trial and Appeal Board

Jun 29, 2016

13209162 (P.T.A.B. Jun. 29, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
13/209, 162 08/12/2011
65435 7590 07/01/2016
LAW OFFICES OF MICHAEL L WISE, LLC
260 WALSH RD.
LAGRANGEVILLE, NY 12540
FIRST NAMED INVENTOR
Cynthia L. Lintel
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.
10-432-NP 9487
EXAMINER
HADEN, SALLY CLINE
ART UNIT PAPER NUMBER
3765
NOTIFICATION DATE DELIVERY MODE
07/01/2016 ELECTRONIC
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.
Notice of the Office communication was sent electronically on above-indicated "Notification Date" to the
following e-mail address( es):
MLW@MLWISE-LAW.COM
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte CYNTHIA L. LINTEL
Appeal2014-005946
Application 13/209,162
Technology Center 3700
Before EDWARD A. BROWN, JAMES P. CALVE, and
GEORGE R. HOSKINS, Administrative Patent Judges.
BROWN, Administrative Patent Judge.
DECISION ON APPEAL
STATEivIENT OF THE CASE
Cynthia L. Lintel (Appellant) 1 appeals under 35 U.S.C. § 134(a) from
the Examiner's decision rejecting claims 1-3, 6-11, and 14--16, which are
the pending claims. We have jurisdiction under 35 U.S.C. § 6(b).
We REVERSE.
1 The Appeal Brief identifies Cynthia L. Lintel as the real party in interest.
Appeal Br. 2 (filed January 13, 2014).
Appeal2014-005946
Application 13/209,162
CLAIMED SUBJECT MATTER
Appellant's disclosure "relates generally to clothing, and, more
particularly, to garments for use by female patients receiving medical
treatment." Spec. i-f 1. Claims 1 and 9 are the independent claims. Claim 1,
reproduced below, illustrates the claimed subject matter:
1. A garment for use by a female patient, the garment
compnsmg:
a frontal portion, the frontal portion adapted to be capable
of covering at least a portion of the frontal trunk and frontal lower
limbs of the female patient when the garment is worn, and
defining a first portion of a left shoulder strap and a first portion
of a right shoulder strap;
a left rear portion attached to a leftmost edge of the frontal
portion, the left rear portion adapted to be capable of covering at
least a portion of the rear trunk and rear lower limbs of the female
patient when the garment is worn, and defining a second portion
of the left shoulder strap adapted to be detachably attached to the
first portion of the left shoulder strap to collectively form a
complete left shoulder strap configured to be capable of passing
over the left shoulder of the female patient \'l1hen the garment is
worn;
a right rear portion attached to a rightmost edge of the
frontal portion, the right rear portion adapted to be capable of at
least partially overlapping the left rear portion when the garment
is worn, and defining a second portion of the right shoulder strap
adapted to be detachably attached to the first portion of the right
shoulder strap to collectively form a complete right shoulder
strap configured to be capable of passing over the right shoulder
of the female patient when the garment is worn;
a belt hole proximate to the interface of the frontal portion
and right rear portion;
a left belt loop attached to the frontal portion;
a right belt loop attached to the frontal portion
substantially to the right of the left belt loop;
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Application 13/209,162
a left belt attached to a leftmost edge of the left rear
portion, the left belt adapted to be capable of passing through the
belt hole and the right belt loop when the garment is worn; and
a right belt attached to a rightmost edge of the right rear
portion, the right belt adapted to be capable of passing through
the left belt loop when the garment is worn.
Appeal Br. 12 (Claims App.).
REJECTIONS
I. Claims 1-3, 6-11, and 14--16 stand rejected under 35 U.S.C.
§ 112, second paragraph.
II. Claims 1-3, 6-11, and 14--16 stand rejected under 35 U.S.C.
§ 103(a) as unpatentable over Hoegerman (US 3,464,063, issued Sept. 2,
1969) and Ochoa (US 2008/0000006 Al, published Jan. 3, 2008).
ANALYSIS
Rejection I
The Examiner found there is insufficient antecedent basis in claims 1
and 9 for "the frontal trunk," "the rear trunk," and "the interface," and in
claims 8 and 16 for "the arms." Final Act. 4.
Appellant contends a "female patient" would inherently have "a
frontal trunk," "a rear trunk," and "arms," and thus, these limitations have
sufficient antecedent basis. Appeal Br. 6. In support, Appellant cites to the
Manual of Patent Examining Procedure ("MPEP"), which states that
"[i]nherent components of elements recited have antecedent basis in the
recitation of the components themselves. For example, the limitation 'the
outer surface of said sphere' would not require an antecedent recitation that
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Application 13/209,162
the sphere has an outer surface." MPEP § 2173.05(e) (citing Bose Corp. v.
JBL, Inc., 274 F.3d 1354, 1359 (Fed. Cir 2001)).
The Examiner did not make any finding that "the frontal trunk," "the
rear trunk," or "the arms" is not an inherent component of "a female
patient." Appellant's Specification describes that "the 'frontal' region of the
patient, as that term is used herein, would include, for example, that patient's
chest and abdomen, while the 'rear' region of that patient would include that
patient's back" (Spec. i-f 14), and that "[t]he term 'trunk' as used herein is
intended to describe that portion of a human being from which extends the
neck, upper limbs, and lower limbs" (id. i-f 15). Figures 1 and 2 show the
locations of frontal portion 105, left rear portion 110, and right rear portion
115 of garment 100 worn by a patient. See also id. i-f 14. These figures also
depict the exposed arms of the patient. See also id. i-f 22. This disclosure
supports Appellant's position that "the frontal trunk," "the rear trunk," and
"the arms" are inherent components of "a female patient," and thus, have
sufficient antecedent basis in the claims. See MPEP § 2173.05(e).
Further, a failure to provide explicit antecedent basis for a term in a
claim does not per se render the claim indefinite, there being a "well-settled
rule that claims are not necessarily invalid for a lack of antecedent basis."
Microprocessor Enhancement Corp. v. Texas Instruments Inc., 520 F .3d
1367, 1376 (Fed. Cir. 2008). "[D]espite the absence of explicit antecedent
basis, if the scope of a claim would be reasonably ascertainable by those
skilled in the art, then the claim is not indefinite." Energizer Holdings, Inc.
v. Int'! Trade Comm 'n, 435 F.3d 1366, 1370-71 (Fed. Cir. 2006) (citation
omitted). Further, as stated in MPEP § 2173.05(e), "[o]bviously, however,
the failure to provide explicit antecedent basis for terms does not always
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Appeal2014-005946
Application 13/209,162
render a claim indefinite." Thus, whether a claim, despite lack of explicit
antecedent basis for a term, nonetheless has a reasonably certain meaning,
must be determined in context. Energizer Holdings, 435 F.3d at 1370.
The Examiner did not make any finding that the meaning of "the
frontal trunk," "the rear trunk," or "the arms" is not reasonably certain. In
light of Appellant's supporting disclosure, we determine that the meaning of
"the frontal trunk" and "the rear trunk" in claims 1 and 9, and "the arms" in
claims 8 and 16, would have been sufficiently clear to one of ordinary skill
in the art.
Regarding "the interface" recited in claims 1 and 9, the Specification
states that "[t]he belt hole 160, in tum, is defined by the frontal portion 105
and the right rear portion 115 proximate to their interface." Spec. i-f 18.
Figure 3 shows an interface extending vertically between frontal portion 105
and right rear portion 115, where belt hole 160 is located.
The Examiner did not make any finding that the meaning of "the
interface" is not reasonably certain. In light of Appellant's disclosure, the
meaning of this term in claims 1 and 9 would have been sufficiently clear to
one of ordinary skill in the art.
Thus, we do not sustain the rejection of claims 1-3, 6-11, and 14-16
under 35 U.S.C. § 112, second paragraph.
Rejection II
Claim 1 calls for "a left belt attached to a leftmost edge of the left rear
portion, the left belt adapted to be capable of passing through the belt hole
and the right belt loop when the garment is worn," and "a right belt attached
to a rightmost edge of the right rear portion, the right belt adapted to be
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Application 13/209,162
capable ofpassing through the left belt loop when the garment is worn."
Appeal Br. 12 (Claims App.) (emphases added).
The Examiner found Hoegerman discloses a garment comprising all
limitations of claim 1, except Hoegerman discloses a single belt and not both
a left belt and a right belt. Final Act. 4--5. The Examiner found Ochoa
discloses a garment comprising left belt 62a and right belt 61 a meeting the
claim limitations. Id. at 5---6 (citing Ochoa, Fig. 12). The Examiner
concluded it would have been obvious to replace the belt of Hoegerman with
the two belts taught by Ochoa "for the known purpose of providing
improved fit." Id. at 6 (citing Ochoa, Abstr.).
The Examiner provided an annotated Figure 4 of Hoegerman, having
notations for "right belt loop" 44, "left belt loop" 44, and "belt hole" formed
by overlapping flaps 36, 37. Final Act. 5. Hoegerman's belt 46 is shown in
Figure 1 and 2.
Appellant contends that, for Hoegerman and Ochoa to meet the
claimed invention,
one of Ochoa's ties 61 a, 62a would, when added to Hoegerman,
have to be capable of traversing first from one edge of
Hoegerman' s garment to the bottom of the garment, (where the
Examiner asserts the "belt hole" is located) and then further
traversing to the waist-region of Hoegerman's garment (where
the Examiner argues a belt loop is located). Such a path would,
in tum, require that the tie 61 a or 62a have a length equal to at
least the approximate width of the whole garment as the garment
is shown in the Examiner's [annotated Fig. 4 of Hoegerman].
Appeal Br. 8.
The Examiner responds that Figure 4 of Hoegerman shows "at least
the top of the belt hole (36 and 37) is proximate the belt loops (44)," and "a
belt proximate a wearer's waist is capable of passing through the belt loops
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Application 13/209,162
(44) and belt hole (36 and 37) at the top of the belt hole without first
traversing from one edge of the garment to the bottom of the garment." Ans.
3.
Hoegerman's waist sash 46 wraps around a person's body near the
waist level, where the ends of waist sash 46 are tied in front of the body.
Hoegerman, col. 3, 11. 17-19; Figs. 1, 12. The Examiner found "Hoegerman
discloses a single belt having left and right sides respectively attached to left
and right edges of the respective left and right rear portions." Final Act. 5
(emphasis added). Figures 1 and 2 of Hoegerman show garment 10 with
waist sash 46 received by loops 44. See Hoegerman, col. 2, 11. 64---66.
Figure 4 shows garment 10 without waist sash 46. These figures show that
waist sash 46 is removable from garment 10, and not attached to left and
right edges of respective left and right rear portions.
The Examiner's rejection replaces waist sash 46 of Hoegerman with
Ochoa's "two belts." Final Act. 6. Figure 12 of Ochoa shows tie 61a
attached to the leftmost edge of a portion of the garment, and tie 62a
attached to the rightmost edge of another portion of the garment. The
Examiner found the modified Hoegerman garment would meet the claimed
"capable of' limitations recited for the left belt and right belt. Ans. 2. But
even if Ochoa's "left belt" (i.e., tie 62a) were attached to a leftmost edge of
the "left rear portion" of Hoegerman's garment, and Ochoa's "right belt"
(i.e., tie 61a) were attached to a rightmost edge of the "right rear portion"
(see Final Act. 5, Hoegerman annotated Fig. 4, id. at 5-6), the Examiner has
not explained adequately how the left belt would be "adapted to be capable
of passing through the belt hole and the right belt loop when the garment is
worn." Referring to the Examiner's annotated Hoegerman Figure 4 (Final
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Application 13/209,162
Act. 5), it is not apparent to us how a left belt attached to the identified "left
rear portion" would be adapted to pass through both the centrally-located
"belt hole" defined by flaps 36, 37 and the identified "right belt loop," and
function as a belt, when garment 10 is worn by a patient. Further, the
Examiner has not explained adequately how the proposed modification of
Hoegerman's garment with Ochoa's ties would provide an "improved fit."
Final Act. 6.
Thus, we do not sustain the rejection of claim 1, and claims 2, 3, and
6-8 depending therefrom, over Hoegerman and Ochoa.
Claim 9 recites, inter alia, "a belt hole proximate to the interface of
the frontal portion and left rear portion," "a right belt attached to a rightmost
edge of the right rear portion, the right belt adapted to be capable of passing
through the belt hole and the left belt loop when the garment is worn," and
"a left belt attached to a leftmost edge of the left rear portion, the left belt
adapted to be capable of passing through the right belt loop when the
garment is worn." Appeal Br. 13-14 (Claims App.) (emphases added).
The Examiner's findings and reasoning for claim 9 are the same as for
claim 1. See Final Act. 4---6; Ans. 2-3. Accordingly, for reasons similar to
those for claim 1, we do not sustain the rejection of claim 9, and claims 10,
11, and 14--16 depending therefrom, over Hoegerman and Ochoa.
DECISION
The Examiner's decision to reject claims 1-3, 6-11, and 14--16 is
REVERSED.
REVERSED
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