Ex Parte Rashman

Patent Trial and Appeal Board

Oct 23, 2017

13206296 (P.T.A.B. Oct. 23, 2017)

United States Patent and Trademark Office
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
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR ATTORNEY DOCKET NO. CONFIRMATION NO.
13/206,296 08/09/2011 Daphna Rashman BPMDL0041DR (10331U) 3549
27939 7590 10/24/2017
Philip H. Burrus, IV
Burrus Intellectual Property Law Group LLC
222 12th Street NE
Suite 1803
Atlanta, GA 30309
EXAMINER
HUYNH, KHOA D
ART UNIT PAPER NUMBER
3765
MAIL DATE DELIVERY MODE
10/24/2017 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 DAPHNA RASHMAN
Appeal 2015-007704
Application 13/206,2961
Technology Center 3700
Before STEFAN STAICOVICI, WILLIAM A. CAPP, and
BRANDON J. WARNER, Administrative Patent Judges.
Opinion for the Board filed by STAICOVICI, Administrative Patent
Judge
Opinion Concurring filed by CAPP, Administrative Patent Judge
STAICOVICI, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Daphna Rashman (“Appellant”) appeals under 35 U.S.C. § 134(a)
from the Examiner’s decision in the Non-Final Action (dated Aug. 14, 2014,
1 According to Appellant’s Appeal Brief (hereafter “Br.”), filed Mar.
23, 2015, Medline Industries, Inc. is the real party in interest. Br. 2.
Appeal 2015-007704
Application 13/206,296
hereafter “Non-Final Act.”) rejecting claims 1, 2, 4—8, and 12—22.2 We have
jurisdiction over this appeal under 35 U.S.C. § 6(b).
SUMMARY OF DECISION
We AFFIRM.
INVENTION
Appellant’s invention relates to “an adjustable gown having an
adjustable closing component and an adjustable cinching component.” Spec,
para. 19.
Claims 1, 15, and 19 are independent. Claim 1 is illustrative of the
claimed invention and reads as follows:
1. An adjustable gown, comprising:
a body covering portion having front portion, a first back
portion, and a second back portion, the first back portion and
the second back portion defining an opening therebetween; and
a closing component comprising at least three closing
elements, at least a first closing element coupled to one of the
first back portion or the second back portion, and at least some
remaining closing elements are disposed distally from each
other on another of the first back portion or the second back
portion;
the first closing element having a first color;
one closing element of the at least some remaining
closing elements having the first color, another closing element
of the at least some remaining closing elements having a second
color different from the first color;
coupling the first closing element to one of the remaining
closing elements configures the adjustable gown in a first size
2 Claims 3, 9-11, and 23 are canceled. Br. 20, 21, and 23 (Claims
App.).
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indicated by the first closing element and the one of the at least
some remaining closing elements each have the first color;
coupling the first closing element to another of the
remaining closing elements configures the adjustable gown in a
second size different from the first size indicated by the first
closing element and the another closing element of the at least
some remaining closing elements having different colors.
REJECTIONS
I. The Examiner rejected claims 1, 2, 4, and 12—22 under 35
U.S.C. § 103(a) as being unpatentable over Freeman (US
4,570,268, iss. Feb. 18, 1986) and Richards (US 7,305,716 Bl,
iss. Dec. 11, 2007).
II. The Examiner rejected claims 5—8 under 35 U.S.C. § 103(a) as
being unpatentable over Freeman, Richards, and Kaye (US
5,797,787, iss. Aug. 25, 1998).
ANALYSIS
Rejection I
Claims 1, 2, 4, 12—14, 21, and 22
Appellant has not presented arguments for the patentability of claims
2, 4, 12—14, 21, and 22 apart from claim 1. See Br. 11. Therefore, in
accordance with 37 C.F.R. § 41.37(c)(l)(iv), we select claim 1 as the
representative claim to decide the appeal of the rejection of these claims,
with claims 2, 4, 12—14, 21, and 22 standing or falling with claim l.3
3 We appreciate that Appellant has grouped claims 21 and 22 with
independent claim 19. See Br. 11. However, as claims 21 and 22
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Freeman discloses an adjustable gown including most of the
limitations of independent claim 1, but fails to disclose colored closing
elements (fasteners) having the claimed color-coded scheme. See Non-Final
Act. 5—6. Nonetheless, the Examiner finds that Richards discloses color-
coded fasteners for an adjustable gown. Id. at 6 (citing Richards, col. 2,
11. 23—26). The Examiner notes that, even though Richards “may not
specifically state that one of the mating fasteners is the same color and the
other mating fasteners are different colors than the original fasteners, it is
certainly implied.” Id. (emphasis added). Hence, according to the
Examiner, such implied teaching results from Richards because “[cjolor-
coding is merely a system for displaying information by using different
colors, whether they be the same and/or different, just as long as information
is provided to the viewer/user.” Id. Thus, the Examiner concludes that it
would have been obvious for a person of ordinary skill in the art “to have
used a color-coded scheme for closing elements as taught by Richards for
the closing elements of Freeman in order to facilitate varying the size of the
secured garment through color-coded visual indicia.” Id. at 6—7. Moreover,
the Examiner states that “[t]he first and at least some remaining closing
components of Freeman are capable of being color-coded with regards to
varied sizing as is taught by Richards.” Id. at 6.
Appellant argues that, in contrast to independent claim 1, where some
of the complementary buttons are colored differently, the “complementary
buttons or snaps in Richards must be identically colored.” Br. 15 (emphasis
depend from independent claim 1, for the purpose of this appeal we
shall group them with claim 1.
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omitted). According to Appellant, in order to eliminate the trial and error of
mating numerous snaps in Richards, “snap 25 and the three mating snaps 26
would all have the same color.'” Id. at 16—17 (underlining omitted).
In response, the Examiner notes that “Richards expressly teaches a
garment that uses color[-]coded snaps to match up mating portions of the
garment,” such as a first set of red snaps, a second set of blue snaps and a
third set of green snaps. Examiner’s Answer 4—5 (dated June 17, 2015,
hereafter “Ans.”). The Examiner further reiterates the view that “the term
‘color-coded’ . . . [is] a system for displaying information to a viewer/user
through the use of the same and/or different colors in combination.” Id. at 5.
Hence, according to the Examiner, a person of ordinary skill in the art would
readily understand using a blue snap 25 and three varying shades of blue
snaps 26 to achieve a color-coded system for varying the size of an
adjustable garment and to eliminate the trial and error mating of Richards’
snaps. Id. The Examiner concludes that, by using “the express teachings of
Richards with regards to one view of ‘color-coding’ ([c]ol. 2, lines 10-17)”
and “the traditional meaning of ‘color-coding’ to further elaborate on what is
being taught with regards to snaps 25—26 ([c]ol 2, lines 23—26),” the color­
coding of Richards can “be applied to different colors as well as colors from
the same family, while continuing to eliminate the need for ‘trial and error’
when attaching a garment to a patient.” Id.
Richards discloses a gown member 1 having a pair of sleeve
sections 3 separable and re-attachable along seam 5 “using a series of color-
coded snaps 6,” wherein “a male snap on one side of the seam has a discrete
color that is identical to that of the matching female snap on the opposing
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side of the seam.” Richards, col. 2,11. 4—17, Fig. 1 (emphasis omitted).
Richards further discloses attaching back flaps 7, 30 using a snap 25 that “is
color-coded to correspond with any of the three mating snaps 26 . . .
[thereby] allowing the size of the secured garment to be varied.” Id., col. 2,
11. 18—28, Fig. 1 (emphasis omitted).
As such, in light of Richards’ disclosure, we appreciate Appellant’s
position that the color-coded snaps of Richards do not employ the same
color-coded scheme, as called for by claim 1. See Br. 11—14. However, the
claimed color-coded scheme represents nonfunctional descriptive material
that is not afforded patentable weight, and thus, cannot render nonobvious an
invention that is otherwise obvious over the prior art. We agree with the
Examiner that “[c]olor-coding is merely a system for displaying information
by using different colors, whether they be the same and/or different, just as
long as information is provided to the viewer/user.” Non-Final Act. 6.
Whether the colors of fabric ties 48, 50, 52, and 54 of Freeman’s
gown, as modified by Richards, constitute the recited color-coded scheme or
not does not impart any structural difference to the resulting gown claimed.
Specifically, the claimed color-coded scheme has no bearing on the structure
or ultimate function of fabric ties 48, 50, 52, and 54 of Freeman’s gown, as
modified by Richards, namely, to vary the size of the gown for patients of
different girths. See Freeman, col. 5,11. 49—63. In other words, the
particular color combinations of fabric ties 48, 50, 52, and 54 of Freeman’s
gown, as modified by Richards, does not functionally relate to the fabric ties,
which perform their intended function of varying the size of the gown for
patients of different girths regardless of the color-coded scheme employed.
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Whether fabric ties 48, 50, 52, and 54 have colors that correspond to the
claimed color-coded scheme or, for example, have the color-coded scheme
of Richards, , the resulting gown of Freeman, as modified by Richards, is
usable in the same way and for the same purposes.
Lastly, although Appellant argues that the claimed color-coded
scheme is functionally related to the claimed closing elements because it
informs a user about the size of the gown (see Br. 12—14), i.e., medium or
large, this argument is unpersuasive because the color code cannot impart
patentability, as it is “useful and intelligible only to the human mind.” See
In re Lowry, 32 F.3d 1579, 1583 (Fed. Cir. 1994) (quoting In re Bernhart,
417 F.2d 1395, 1399 (CCPA 1969); see also In re Xiao, 462 Fed. Appx. 947
(Fed. Cir. 2011) (non-precedential) (non-functional descriptive material,
being useful and intelligible only to the human mind, is given no patentable
weight).
In conclusion, for the foregoing reasons, we sustain the rejection
under 35 U.S.C. § 103(a) of claim 1 as unpatentable over Freeman and
Richards. Claims 2, 4, 12—14, 21, and 22 fall with claim 1.
Claims 15—20
Appellant has not presented arguments for the patentability of
claims 16—18 apart from claim 15, and of claim 20 apart from claim
19. See Br. 11, 19. We select claims 15 and 19 as representative
claims, with claims 16—18 standing or falling with claim 15, and claim
20 standing or falling with claim 19.
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With respect to the rejection of independent claims 15 and 19,
Appellant relies on the arguments presented supra in the rejection of
claim 1. See Br. 18. Therefore, for the same reasons as discussed above, we
likewise sustain the rejection of claims 15—20 over the combined teachings
of Freeman and Richards.
Rejection II
As to the rejection of dependent claims 5—8, Appellant does not
present any substantive arguments. Br. 11 (“For efficiency during appeal
Appellant only argues against the rejections for the independent claims.”).
Therefore, we summarily sustain the rejection under 35 U.S.C. § 103(a) of
claims 5—8 as unpatentable over Freeman, Richards, and Kaye.
SUMMARY
The Examiner’s decision to reject claims 1, 2, 4—8, and 12—22 under
35 U.S.C. § 103(a) is affirmed.
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a)(l)(iv).
AFFIRMED
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OPINION CONCURRING
CAPP, Administrative Patent Judge
I concur in the result reached by the majority as I am of the
opinion that the claims are unpatentable as obvious over the cited art.
Richards discloses that color may be used to identify and distinguish
fasteners on a gown. Richards, col.. 2,11. 19-28. In my opinion,
Appellant’s use of a color coding scheme to size a garment is merely a
predictable variation of Richard’s use of color coded garment
fasteners. See KSRInt’l Co. v. Teleflex Inc., 550 U.S. 398, 417 (2007)
(if a person of ordinary skill in the art can implement a predictable
variation of the prior art, section 103 likely bars its patentability).
I write separately because I do not agree that Appellant’s color
coding is nonfunctional descriptive matter as being “useful and
intelligible only to the human mind.” Here, there is a functional
relationship between the size of the garment and the size or shape of
the person that will wear the garment. The user functionally interacts
with the fasters in donning the garment and fastening it around them.
Here, color coding is an integral aspect of the user interface between
the garment and the user, functionally identifying components of the
fastening system so that the user can select the appropriate fastener to
correctly size the garment.
Much of the subject matter within the field of ergonomics
relates to man-machine interfaces and conveying information that is
useful and intelligible to the human mind. For example, it is well
known in the field of ergonomics and aviation cockpit design that
landing gear control handles are shaped liked wheels and that flap
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control handles are shaped like airfoils to facilitate a pilot’s
recognition and selection of the correct control device when flying an
airplane. Similarly, colors such as red and yellow on indicator
displays are frequently used to communicate cautions and warnings to
a pilot. The fact that shapes or colors are used to convey information
to the human mind does not, in my opinion, always require such
matter to be disregarded as of no patentable weight.
In order for descriptive matter to have no patentable weight,
there must be a lack of functionality relative to the substrate that bears
the descriptive matter. In re Milller, 418 F.2d 1392 (CCPA 1969). In
Miller, the court reversed a decision of the Board upholding the
rejection of certain claims as unpatentable. Id. The Miller court
found that gradation indicia disposed on a measuring cup bore a
functional relationship to the cup.
no attempt is here being made to patent printed matter as
such. The fact that printed matter by itself is not
patentable subject matter, because non-statutory, is no
reason for ignoring it when the claim is directed to a
combination. Here there is a new and unobvious
functional relationship between a measuring receptacle,
volumetric indicia thereon indicating volume in a certain
ratio to actual volume, and a legend indicating the ratio,
and in our judgment the appealed claims properly define
this relationship .... The solicitor seems to urge that we
ignore the claim limitations to the indicia and legends
because they are printed and because printed matter is not
patentable subject matter by itself... we reject that
argument.
Id. at 813. In a manner similar to the printed indicia in Miller, the
color coding on Appellant’s fasteners bears a functional relationship
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to the garment as it facilitates the sizing of the garment in the same
way that Miller’s indicia facilitates a cook measuring the ingredients
of a recipe.
Nevertheless, I agree with the Examiner’s conclusion that, in
light of the teachings of Freeman and Richards, it would have been
obvious to use color coding on fasteners in the manner claimed by
Appellant. Thus, I CONCUR in the result.
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