Ex Parte McGhee

Board of Patent Appeals and Interferences

Mar 11, 2009

11228403 (B.P.A.I. Mar. 11, 2009)

UNITED STATES PATENT AND TRADEMARK OFFICE
__________

BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
__________

Ex parte KEVIN LLEWELLYN McGHEE
__________

Appeal 2009-0097
Application 11/228,403
Technology Center 3700
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Decided:1 March 11, 2009
__________

Before TONI R. SCHEINER, FRANCISCO C. PRATS, and
MELANIE L. McCOLLUM, Administrative Patent Judges.

SCHEINER, Administrative Patent Judge.

DECISION ON APPEAL

1 The two-month time period for filing an appeal or commencing a civil
action, as recited in 37 C.F.R. § 1.304, begins to run from the decided date
shown on this page of the decision. The time period does not run from the
Mail Date (paper delivery) or Notification Date (electronic delivery).

Appeal 2009-0097
Application 11/228,403

This is an appeal under 35 U.S.C. § 134 from the final rejection of
claims 1-5. We have jurisdiction under 35 U.S.C. § 6(b).
STATEMENT OF THE CASE
Claim 1 is representative of the subject matter on appeal:
1. An adjustable bandana, comprising:
a generally triangular shaped fabric sheet having an upper surface and
a lower surface, the fabric sheet having a proximal end and a distal end, the
upper surface having a first emblem mounting region adjacent the proximal
end, the lower surface having a second emblem mounting region adjacent
the proximal end;
an absorbent layer having a generally trapezoidal shape secured to the
lower surface of the fabric sheet, said absorbent layer partially covering said
lower surface of said fabric sheet, said absorbent layer being formed from a
material different than said fabric sheet;
a pair of first fasteners of a first configuration secured to the upper
surface of the fabric sheet, the pair of first fasteners being positioned
adjacent the proximal end, said pair of first fasteners configured to mate with
and be releasably secured to a fastener of a second configuration;
at least one second fastener of a second configuration secured to the
upper surface of the fabric sheet, the at least one second fastener being
positioned adjacent the distal end, said at least one second fastener
configured to mate with and be releasably secured to said pair of first
fasteners; and,
first and second emblems respectively secured to said first and second
emblem mounting regions;
whereby a user covers a body part with the fabric sheet, the absorbent
layer contacting the body part to absorb perspiration, the pair of first
fasteners engaging and releasably secured to the second fastener to
releasably and adjustably secure the fabric sheet to the body part;
wherein further the user may selectively display said first or second
emblems, said second emblem mounting region selectively covering said
first emblem mounting region, whereby said first emblem is covered by said
second emblem mounting region when said second emblem is selectively
displayed, the user being able to alternate the display of said first and second
emblems without removal of the adjustable bandana from the body part of
the user.
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Application 11/228,403

The Examiner relies on the following evidence:
Barrientos US 5,594,956 Jan. 21, 1997
Douglas US 2002/0083509 A1 Jul. 4, 2002
Cascone US 6,966,071 B1 Nov. 22, 2005

The Examiner rejected claims 1-5 under 35 U.S.C. § 103(a) as
unpatentable over the combined teachings of Douglas, Barrientos, and
Cascone.
We reverse.
THE ISSUE
The issue raised by this appeal is whether the Examiner has
established that an adjustable triangular bandana with a configuration that
would allow a wearer to alternate the display of first and second emblems
without removing or reversing the bandana would have been obvious over
the combined teachings of Douglas, Barrientos, and Cascone.
FINDINGS OF FACT
FF1 Appellant claims an adjustable bandana comprising a generally
triangular shaped fabric sheet having an upper (i.e., right-side) surface and a
lower (i.e., reverse) surface, the fabric sheet having a proximal end and a
distal end, the upper (right-side) surface having a first emblem mounting
region adjacent the proximal end, the lower (reverse) surface having a
second emblem mounting region also adjacent the proximal end. A pair of
fasteners of a first configuration is positioned on the upper surface adjacent
the proximal end, and a second fastener of a second configuration
configured to mate with the first fasteners is positioned on the upper surface
adjacent the proximal end. The second emblem mounting region covers the
first emblem mounting region when the second emblem is selectively
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Application 11/228,403

displayed, so that the first emblem is not visible, and the wearer is able to
alternate the display of the first and second emblems without removing the
bandana. In other words, the wearer can flip between the first and second
emblems while wearing the bandana, without having to remove or reverse
the entire bandana.
FF2 Douglas discloses
[A] head covering [made of a flexible material] which includes
three corners and fasteners to secure the head covering around
the head of the wearer. . . . The flexible material includes an
inside surface and an outside surface. The flexible material
includes at least three corners. A first portion of the flexible
material is formed between a first corner and a second corner
and includes the first and second corners.

(Douglas ¶ 10.)
FF3 Barrientos discloses
[A] head bandanna having a curved, tear-shaped, head covering
integrally attached to a headband, at a 90º angle, for positioning
the bandanna on the brow of the wearer’s head.
Attached to opposite ends of the headband are hook and
loop fastener tabs for securing the head bandanna firmly to the
wearer’s head at the back of the upper neck section having a
minimum amount of folds and creases to the head-covering
portion when in use.

(Barrientos, col. 2, ll. 40-54.) In addition, Barrientos discloses that the
headband “is made by having multilayers of the fabric folded over into . . .
longitudinal strips for headband durability, strength, and absorbency” (id. at
col. 4, ll. 25-28), and “[t]he bandanna can be printed with various designs of
logos, team names,” etc. (id. at col. 2, ll. 53-54).
FF4 Cascone discloses a “reversible baseball style cap . . . [which]
includes a crown . . . having a first layer and a second layer with a domed
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Appeal 2009-0097
Application 11/228,403

shape that enables a user to wear and conform the crown to the user’s head.
The two layers are preferably fabric” (Cascone, col. 2, ll. 17-21). “[E]ither
layer can be shaped into a concavity that abuts a user’s head during use and
wherein the other layer defines an outer exposed surface” (id. at col. 2, ll.
22-25). Cascone’s Figures 1 and 2 are reproduced below:

Figure 1 is a perspective view of Cascone’s cap “in a first position that
exposes the first layer of the crown” (id. at col. 2, ll. 66-67). Figure 2
“show[s] the cap with the second layer as an exposed outer surface of the
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Application 11/228,403

crown” (id. at 3, ll. 2-4). The figures show two different designs, one on the
first layer, and one on the second.
FF5 A wearer must remove Cascone’s cap, invert it, and put it back
on, in order to display an alternate design.
FF6 The Examiner finds that Douglas discloses an adjustable
generally triangular bandana head covering with the fastener configuration
required by the present claims, and a “planar fabric surface . . . capable of
having a first and second mounting region where first and second emblems
can be displayed” (Ans. 4), but “is missing an absorbent layer having a
trapezoidal shape secured to the lower surface of the fabric sheet” (id.), and
is also “missing fabric with indicia imprinted on it” (id.).
FF7 The Examiner finds that Barrientos discloses a similar head
covering with multiple layers of fabric “folded over into longitudinal strips
for . . . durability, strength, and absorbency . . . [which] could easily be
folded into a trapezoidal shape” (id.), and further discloses that the head
covering “can be printed with various designs” (id. at 4-5).
FF8 The Examiner further finds that “Cascone shows reversible
headwear having [first and second] emblems on the upper surface and the
lower surface” (Ans. 5).
FF9 Finally, the Examiner finds that “Figures 2 and 3 of Douglas
show that the bandana is capable of being worn with the top flap attached or
unattached” (Ans. 6), and “[a]s modified by Cascone . . . [would have] an
emblem on both sides of the bandana, [such] that when the flap is unattached
the emblem is visible on the second side without having to remove the
bandana” (id.). The Examiner’s annotated illustration of Douglas’ Figures
1-3, with Figures 2 and 3 “modified by Cascone,” is reproduced below:
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Application 11/228,403

The Examiner’s annotated illustration shows Douglas’ Figures 1-3, with
Figures 2 and 3 “modified by Cascone” (Ans. 6).
PRINCIPLES OF LAW
The question of obviousness is resolved on the basis of underlying
factual determinations including: (1) the scope and content of the prior art;
(2) the level of ordinary skill in the art; (3) the differences between the
claimed invention and the prior art; and (4) secondary considerations of
nonobviousness, if any. Graham v. John Deere Co., 383 U.S. 1, 17-18
(1966). “Often, it will be necessary . . . to look to interrelated teachings of
multiple [references] . . . and the background knowledge possessed by a
person having ordinary skill in the art, all in order to determine whether
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Application 11/228,403

there was an apparent reason to combine the known elements in the fashion
claimed” (KSR Int’l Co. v. Teleflex Inc., 550 U.S. 398, ___, 127 S. Ct. 1727,
1740-41 (2007)), taking into account “the inferences and creative steps that a
person of ordinary skill in the art would employ” (id. at 1741). “[T]his
analysis should be made explicit” (id.), and it “can be important to identify a
reason that would have prompted a person of ordinary skill in the relevant
field to combine the elements in the way the claimed new invention does”
(id.).
ANALYSIS
The Examiner finds that Douglas discloses an adjustable generally
triangular bandana head covering with the fastener configuration required by
the present claims, but “is missing an absorbent layer having a trapezoidal
shape secured to the lower surface of the fabric sheet” (Ans. 4), and is also
“missing fabric with indicia imprinted on it” (id.). The Examiner finds that
Barrientos discloses a similar head covering with multiple layers of fabric
“folded over into longitudinal strips for . . . durability, strength, and
absorbency . . . [which] could easily be folded into a trapezoidal shape” (id.),
and further discloses that the head covering “can be printed with various
designs” (id. at 4-5).
The Examiner acknowledges that neither Douglas nor Barrientos
discloses a head covering “with an emblem secured to first and second
mounting regions” (Ans. 5), but finds that “Barrientos shows that you can
have indicia/emblems on a bandana having an absorbent layer” (id.), while
the bandana disclosed by Douglas has a “planar fabric surface . . . capable of
having a first and second mounting region where first and second emblems
can be displayed’ (id. at 4).
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The Examiner further finds that “Cascone shows reversible headwear
having [first and second] emblems on the upper surface and the lower
surface” (id. at 5), and concludes that “[i]t would have been obvious to one
of ordinary skill in the art . . . to use the teachings of Cascone . . . to modify
the bandanas of Douglas and Barrientos in order to provide reversible
headwear that is capable of being worn with either the upper or lower
surface visibly exposed” (id.).
Appellant contends that “[t]he instant claim recites that the bandana
need not be removed to change the displayed emblem. Although this
limitation is not structural, the Examiner’s combination must be capable of
accomplishing the functional language in the claim” (App. Br. 7). Appellant
contends that
even if the combination [of Douglas, Barrientos, and Cascone]
were appropriate, the instant invention would not be shown.
The instant claim requires that a user can change displayed
emblems by merely flipping one portion of the bandana over
another. The Cascone invention requires that the hat be
removed from the head to change the displayed indicia.

(id. at 7.)

Appellant has the better argument. We agree with the Examiner that
it would have been obvious to combine features of Douglas, Barrientos, and
Cascone to make a bandana with multiple absorbent layers, which could be
reversed to display the wearer’s choice of first and second emblems.
However, the result of the Examiner’s proposed combination would be a
bandana which could display a first emblem when worn “right-side-out,”
and a second emblem when worn “inside-out” (FF5), rather than a bandana
with a physical configuration that would allow the wearer “to alternate the
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Application 11/228,403

display of said first and second emblems without removal of the adjustable
bandana from the body part of the user,” as required by the claims.
We are not persuaded otherwise by the Examiner’s interpretation of
Douglas “as modified by Cascone” (see FF9). While the Examiner’s
illustration shows that a first emblem could be selectively displayed when
Douglas’ head covering is worn with the “top flap” attached at the nape of
the neck, and a second emblem could be displayed when the “top flap” is
unattached and flipped over onto the front of the head covering, the
Examiner has not established that the “top flap” is the proximal end of
Douglas’ head covering, or that the emblems superimposed on Douglas’
head covering are adjacent the proximal end.
Again, the claims on appeal require a bandana with a physical
configuration that would allow the wearer “to alternate the display of said
first and second emblems without removal of the adjustable bandana from
the body part of the user.” But the claims also require that both emblems are
positioned adjacent to the proximal end of the bandana. The Examiner has
not explained how or why the teachings of Douglas, Barrientos, and Cascone
would have led one skilled in the art to arrive at a head covering having first
and second emblems on the proximal end of the head covering, and a
configuration capable of functioning as claimed.
CONCLUSIONS OF LAW
The Examiner has not established that an adjustable triangular
bandana with a configuration that would allow a wearer to alternate the
display of first and second emblems without removing or reversing the
bandana would have been obvious over the combined teachings of Douglas,
Barrientos, and Cascone.
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Application 11/228,403

Accordingly, we reverse the rejection of claims 1-5 under 35 U.S.C.
§ 103(a) as unpatentable over Douglas, Barrientos, and Cascone.

REVERSED

cdc

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