Ex Parte Turner

Patent Trial and Appeal Board

Jul 31, 2018

14227238 (P.T.A.B. Jul. 31, 2018)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR
14/227,238 03/27/2014 Nichole Turner
24112 7590 08/01/2018
COATS & BENNETT, PLLC
1400 Crescent Green, Suite 300
Cary, NC 27518
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.
6941-003 9028
EXAMINER
BRAVO, JOCELYN MARY
ART UNIT PAPER NUMBER
3765
MAIL DATE DELIVERY MODE
08/01/2018 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 NICHOLE TURNER 1
Appeal2017-005860
Application 14/227,238
Technology Center 3700
Before LINDA E. HORNER, ANNETTE R. REIMERS, and
SUSAN L. C. MITCHELL, Administrative Patent Judges.
REIMERS, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Nichole Turner (Appellant) appeals under 35 U.S.C. § 134(a) from the
Examiner's decision to reject claims 1 and 3-7 under 35 U.S.C. § 103 as
unpatentable over Brignoli (US 6,532,600 B2, issued Mar. 18, 2003). Final
Action (hereinafter "Final Act.") (dated Apr. 19, 2016), at 4. Claims 2 and 8
have been canceled. We have jurisdiction under 35 U.S.C. § 6(b). 2
1 Nichole Blough, previously Nichole Turner, is the applicant and is identified
as the real party in interest. Supplemental Appeal Brief (hereinafter "Appeal
Br.") (filed Nov. 14, 2016).
2 The Final Office Action also includes objections to the drawings. Final
Appeal2017-005860
Application 14/227,238
We REVERSE.
CLAIMED SUBJECT MATTER
The claimed subject matter relates to "a multi-functional accessory."
Spec. ,r 1, Figs. 1, 3, 6.
Claim 1, the sole independent claim on appeal, is representative of the
claimed subject matter and recites:
1. A fashion accessory comprising:
an elongated band having first and second ends, said
elongated band configured to be worn in a generally flat
configuration and a folded configuration in which the
elongated band is folded along a longitudinal axis;
a first set of fasteners disposed on an inside surface
of the elongated band adjacent the first end;
a second set of fasteners disposed on an outside
surface of the elongated band adjacent the second end for
engagement with the first set of fasteners while the band
is in the flat configuration to secure the band around a
user's waist;
a third set of fasteners disposed on the outside
surface of the elongated band and spaced from the second
set of fasteners for engagement with the first set of
fasteners while the band is in the folded configuration to
secure the band around an article of headwear; and
a decorative bow attached to an outside surface of
the band.
Act. 2-3. The Examiner's objection(s) to the drawings are not appealable
matters, but rather are petitionable matters, and thus, are not within the
jurisdiction of the Board. See 37 C.F.R. § 1.181; see also In re Berger, 279
F.3d 975, 984 (Fed. Cir. 2002); In re Mindick, 371 F.2d 892, 894 (CCPA
1967).
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Appeal2017-005860
Application 14/227,238
ANALYSIS
Independent claim 1 is directed to a fashion accessory including an
elongated band having first and second ends, the elongated band being
"configured to be worn in a generally flat configuration and a folded
configuration in which the elongated band is folded along a longitudinal
axis." Appeal Br. 12, Claims App. The Examiner finds that Brignoli's
martial arts belt ( 10) is the claimed "fashion accessory" including "an
elongated band (18) having first (28) and second (29) ends," the elongated
band being "configured to be worn in a generally flat configuration ... and a
folded configuration in which the elongated band is folded along a
longitudinal axis." Final Act. 4--5 ( citing Brignoli 3: 18-20 and the
"longitudinal axis L," of the Examiner's annotated version of Figures 2, 3, of
Brignoli). The Examiner further finds that elongated band 18 of Brignoli "is
made of fabric which is a flexible material capable of being folded [ (i.e.,
having one part laid over another part thereof) along the longitudinal axis];
thus said elongated band is configured to be worn in a folded configuration
inasmuch as has been claimed by [Appellant]." Final Act. 4; see also Ans.
6.
Appellant contends that "Brignoli does not disclose that the martial
arts belt may be worn in a folded configuration as recited in claim 1" and
"[i]t is unclear from the Brignoli patent whether the belt can be folded as
recited in claim 1." Appeal Br. 10. Appellant further contends that
"[b ]ecause Brignoli does not contemplate folding the elongated band along
the longitudinal axis," the Examiner's assumption that Brignoli's belt could
be folded along the longitudinal axis has no basis and "is nothing more than
speculation." Id.
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Appeal2017-005860
Application 14/227,238
Appellant has the better position here. Contrary to the Examiner's
finding, Brignoli does not disclose that the martial arts belt fabric is "a
flexible material." Final Act. 4 ( emphasis added); see also Ans. 6. Rather,
Brignoli discloses that "[t]he material preferably has a foam core with a
series of lateral quilting stitches which provide a degree of rigidity to the
material." Brignoli, 3:20-22 (emphasis added); see also id. at 4:25 (claim 1)
("[a] relative rigid martial arts belt" (emphasis added)).
We acknowledge Brignoli discloses that belt portion 18 and knot
portion 11 "are constructed from identical materials." Brignoli, 3 :23-25,
Fig. IA; see also Ans. 6 ("It is noted that the knot portion 11 of Brignoli's
belt is made of the same material as the belt portion 18 .... "). However,
Brignoli merely illustrates knot portion I I/knot 12 folded along the
transverse axis in what appears to be the area between the lateral quilted
stitches. See Brignoli, Fig. 5. In this case, the rigidity provided by the
lateral quilted stitches in the longitudinal direction (see id. at 3 :20-22, Figs.
1, IA, 2, 3) would appear to interfere with one's ability to fold Brignoli's
martial arts belt 18 along the longitudinal axis. For these reasons, the
Examiner fails to establish by a preponderance of the evidence that
Brignoli' s martial arts belt is configured to be worn in a folded configuration
in which the elongated band is folded along the longitudinal axis.
Accordingly, we do not sustain the Examiner's rejection of claims 1
and 3-7 as unpatentable over Brignoli.
DECISION
We REVERSE the decision of the Examiner to reject claims 1 and 3-
7 as unpatentable over Brignoli.
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Appeal2017-005860
Application 14/227,238
REVERSED
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