11135909 (P.T.A.B. May. 6, 2013)

Ex Parte Waters et al

Patent Trial and Appeal BoardMay 6, 2013

11135909 (P.T.A.B. May. 6, 2013)

UNITED STATES PATENT AND TRADEMARK OFFICE ____________________ BEFORE THE PATENT TRIAL AND APPEAL BOARD ____________________ Ex parte PATRICIA K. WATERS, WILLIAM L. GRILLIOT, and MARY I. GRILLIOT ____________________ Appeal 2011-002683 Application 11/135,909 Technology Center 3700 ____________________ Before STEFAN STAICOVICI, MICHAEL C. ASTORINO, and MICHELLE R. OSINSKI, Administrative Patent Judges. OSINSKI, Administrative Patent Judge. DECISION ON APPEAL Appeal 2011-002683 Application 11/135,909 2 STATEMENT OF THE CASE Appellants1 appeal under 35 U.S.C. § 134(a) from a final rejection of claims 1-15 under 35 U.S.C. § 103(a) as unpatentable over Hewitt (US 5,388,270, iss. Feb. 14, 1995). Ans. 3-4. We have jurisdiction under 35 U.S.C. § 6(b). We AFFIRM-IN-PART. CLAIMED SUBJECT MATTER Claims 1-3 are the independent claims on appeal. Claim 1 is illustrative of the appealed subject matter and is reproduced below: 1. A protective garment for a firefighter or for an emergency rescue worker, wherein the protective garment comprises an arm-covering or leg-covering sleeve, which comprises an outer shell having an outer surface and an inner surface, a lining system within the outer shell, and a cuff-forming member, which is attached to the lining system and attached detachably to one said surface of the outer shell. ANALYSIS Claims 1-3, 5, and 10-15 Appellants argue claims 1-3 as a group. App. Br. 3-6; Reply Br. 1-3. We select claim 1 as the representative claim, and claims 2 and 3 stand or fall with claim 1. See 37 C.F.R. § 41.37(c)(1)(vii) (2011). Appellants contend that Hewitt fails to teach “a cuff forming member which is attached detachably to one said surface of the outer shell.” App. Br. 3. More particularly, Appellants contend that the elongated annular 1 Appellants identify the real parties in interest as Morning Pride Manufacturing, L.L.C. and Honeywell International, L.L.C.. App. Br. 1. Appeal 2011-002683 Application 11/135,909 3 portion 50 to which annular portion 90 (identified by the Examiner as the cuff forming member on page 3 of the Answer) is attached “is not the inside or the outside surface of the outer shell (12) [having shell sleeve 24], [but rather] . . . is a separate component that is attached to the inside surface of the [shell sleeve 24 of the] outer shell (12).” Id. at 4. Appellants argue that Hewitt distinguishes the annular portion 50 from the outer shell 12 (Reply Br. 2 (citing Hewitt, col. 3, ll. 3-21)) and that the annular portion 50 and outer shell 12 are made of completely different fabrics (Reply Br. 2 (citing Hewitt, col. 2, ll. 29-35; col. 3, ll. 15-21). Appellants appear to want us to interpret “an outer shell” to mean only a single, unitary element. However, Appellants fail to provide persuasive evidence or reasoning in support of such an interpretation. Appellants have pointed to nothing in the written description or in the language of the claims that would preclude the claimed “outer shell” from being a combination of multiple elements, such as shell sleeve 24 of outer shell 12 and annular portion 50 as found by the Examiner. See Ans. 4 (“Hewitt discloses a cuff forming member [90] that is detachably attached to one surface of the outer shell (24) defined by the annular portion (50) being integrally formed with the outer shell”). Accordingly, we sustain the rejection of claims 1-3 under 35 U.S.C. § 103(a) as unpatentable over Hewitt. Appellants do not provide separate arguments for the dependent claims 5 and 10-15. Therefore, we also sustain the rejection of claims 5 and 10-15 under 35 U.S.C. § 103(a) as unpatentable over Hewitt. Appeal 2011-002683 Application 11/135,909 4 Claims 4 and 6-9 Appellants separately argue the patentability of dependent claims 4 and 6-9. App. Br. 5-6; Reply Br. 2. Dependent claims 4 and 6-9 recite that “the cuff-forming member is attached detachably to the outer surface of the outer shell.” Claims App’x. (emphasis added). The Examiner found that Hewitt’s identified cuff-forming member 90 “is attached detachably . . . to a portion of the outer surface [of the outer shell] by snaps (60, 102) as shown in figures 4 and 5” (Ans. 3) since “the snap fastener (60) extends onto the outer surface of the outer shell . . . .” Id. at 4. Appellants contend that “there is absolutely no connection or attachment to the outer surface of the outer shell (12)” (App. Br. 5) and that “the snap fastener (60) shown in Fig. 4 doesn’t ‘extend’ anywhere, let alone ‘onto the outer surface of the outer shell’ (12) as asserted in the Examiner’s Answer” (Reply Br. 2). Snap fastener 60 that is secured to annular portion 50 of outer shell 24 has a female portion 62 that is disposed on surface 56. Hewitt, col. 3, ll. 22-29, fig. 4. Surface 56 also includes hook and loop connecting means 54. Hewitt, col. 3, ll. 23-25. Surface 92 of the Examiner- identified cuff forming member 90 includes male portion 102 of snap fastener 100 and hook and loop connecting means 94. Hewitt, col. 3, ll. 53- 60, fig. 5. The snap fasteners 60, 100 are snapped together “to properly align and interconnect the shell sleeve and liner sleeve” and “[t]he hook and loop connector means 54 and 94 are pressed together . . . .” Hewitt, col. 4, ll. 5-8. “The components are then folded into the final operative position as shown in FIG. 6 to form a sleeve or water well at the bottom of each sleeve.” Hewitt, col. 4, ll. 10-13, fig. 6. Given that cuff-forming member 90 is attached detachably to outer shell 12 by hook and loop connectors 54, 94 Appeal 2011-002683 Application 11/135,909 5 along surface 56 and given the position of snap fastener 60 on annular portion 50, we cannot find by a preponderance of the evidence that cuff- forming member 90 is attached to the outer surface of outer shell 12 (e.g., shell sleeve 24) as called for in claims 4 and 6-9. See Hewitt, fig. 6. Accordingly, we do not sustain the rejection of claims 4 and 6-9 under 35 U.S.C. § 103(a) as unpatentable over Hewitt. DECISION The Examiner’s rejection of claims 1-3, 5, and 10-15 under 35 U.S.C. § 103(a) is AFFIRMED. The Examiner’s rejection of claims 4 and 6-9 under 35 U.S.C. § 103(a) is REVERSED. No time period for taking any subsequent action in connection with this appeal may be extended under 37 C.F.R. § 1.136(a)(1)(iv). AFFIRMED-IN-PART mls