IWOM Outerwear, LLC

Patent Trials and Appeals Board

Apr 28, 2021

2020005255 (P.T.A.B. Apr. 28, 2021)

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.
15/390,992 12/27/2016 David EISENHUTH 12251-0009 1505
22902 7590 04/28/2021
CLARK & BRODY
1700 Diagonal Road
Suite 310
Alexandria, VA 22314
EXAMINER
COLLIER, JAMESON D
ART UNIT PAPER NUMBER
3732
MAIL DATE DELIVERY MODE
04/28/2021 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 DAVID EISENHUTH
Appeal 2020-005255
Application 15/390,992
Technology Center 3700

Before BENJAMIN D.M. WOOD, WILLIAM A. CAPP, and
JILL D. HILL, Administrative Patent Judges.

WOOD, Administrative Patent Judge.

DECISION ON APPEAL
STATEMENT OF THE CASE
Pursuant to 35 U.S.C. § 134(a), Appellant1 appeals from the
Examiner’s May 14, 2019 Final Action rejecting claims 1–9. See Final
Act. 1. We have jurisdiction under 35 U.S.C. § 6(b).
We affirm.

1 “Appellant” refers to the applicant as defined in 37 C.F.R. § 1.42.
Appellant identifies the real party in interest as IWOM Outerwear, LLC.
Appeal Br. 3.
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CLAIMED SUBJECT MATTER
The claims are directed to “pants that have zippered legs, with the
zippers located on each pant leg to allow a user to don the pants while
wearing large footwear.” Spec. 1. Claim 1, reproduced below (and
reformatted slightly for clarity), is illustrative of the claimed subject matter:
1. Pants comprising
a pair of pant legs, each pant leg having an inside side
portion, an outside side portion, and a front thigh portion,
the front thigh portion of each pant leg spaced laterally from
a respective one of the inside or outside side portions of the
respective pant leg,
the pants further comprising a pair of zippers, each zipper
having a first end, a second end, and a zipper pull,
the first end of each zipper located at a respective free end
of a respective one of the pant legs, the second end of the zipper
terminating in the front thigh portion of the respective pant leg,
each zipper in a zipped state extending from the second end
at the front thigh portion, curving to one of the inside or outside
side portions of the respective pant leg thereby forming a
curved section extending from the second end of the zipper to a
curved section end at the inside or outside side portion of the
pant leg,
each zipper extending from the curved section end along the
inside or outside side portion of each pant leg to the first end of
the zipper at the free end of each pant leg,
wherein each zipper is configured to create an opening in
the pant leg along a length of the zipper when in an unzipped
state so that a wearer of the pants can pass a leg and footwear
through the opening when either donning the pants or removing
the pants.
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REFERENCES
Name Reference Date
Edmund US 3,771,169 Nov. 13, 1973
Stadtmauer US 2015/0359270 A1 Dec. 17, 2015
REJECTIONS
Claim(s) Rejected 35 U.S.C. § Reference(s)/Basis
8, 9 112(a) Written Description
1–9 103 Stadtmauer, Edmund
OPINION
Claims 8 and 9: Rejected as Failing the Written-Description Requirement
Claims 8 and 9 depend from claims 1 and 6, respectively, and add the
limitation “wherein the pants legs are loose fitting.” Appeal Br. 19–20
(Claims App.). The Examiner finds that this limitation “cannot be located
anywhere in the original disclosure.” Final Act. 3. Appellant responds that
Figure 7 of its application provides sufficient disclosure for this limitation.
Appeal Br. 12. According to Appellant:
Figure 7 of the provisional application illustrates the inventive
pants over another pair of pants. Page 5, lines 14-16, of the
instant application describes wearing the inventive pants over
another pair of [pants]. These disclosures clearly imply that the
pants are loose fitting. If the pants were not loose fitting, it
would be impossible to wear the pants over another set of pants.
Id. The Examiner responds:
Figure 7 illustrates the pants with one pant leg in a closed,
zipped-up configuration with no indication of any spacing or
gap between the material of the pants #10 of the claimed
invention and an underlying pair of pants, and illustrates the
other pant leg in an open, unzipped configuration with
underlying pair of pants #50 (Page 4, last paragraph of
Appellant’s Specification, as filed) identified only in the part of
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the figure with the opened configuration. One cannot ascertain
the tightness of the fit of the pants by Figure 7 because the only
part of Figure 7 that shows the pants #10 in relation to an
underlying leg or underlying pants is the part that is
opened/unzipped. Further, it would not be “impossible” for a
pair of non-loose-fitting pants to be worn over another set of
pants, as Appellant argues. This configuration would merely
result in two sets of tight-fitting pants being worn over one
another.
Ans. 4.
We are not persuaded of Examiner error. As the Examiner notes,
“[o]ne cannot ascertain the tightness of the fit of the pants by Figure 7
because the only part of Figure 7 that shows the pants #10 in relation to an
underlying leg or underlying pants is the part that is opened/unzipped.”2 We
also agree with the Examiner that Appellant has not established that it would
be impossible for the disclosed pants to be worn over another set of pants.
The degree of difficulty in wearing the zippered pants pictured in Figure 7
would seem to depend at least in part on the size, fit, and fabric of the inner
pair of pants, but the Specification does not describe any of these
characteristics of the inner pants.
As we are not persuaded that the Examiner erred in rejecting claims 8
and 9 for failing the written-description requirement, the rejection is
sustained.

2 Although there is no indication in the Specification whether the loose fit
must be achieved when the pants are zipped up, the limitation would be
virtually meaningless if it encompassed a loose fit when the pants are
unzipped, as the purpose of the zipper is to loosen the pants by creating a
larger opening for footwear to pass through. Spec. 1.
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Claims 1–9: Rejected as Unpatentable over Stadtmauer and Edmund
Appellant argues claims 1–9 as a group. Appeal Br. 12–16. We
select claim 1 as representative of the group, and decide the appeal of this
rejection on the basis of claim 1 alone. 37 C.F.R. § 41.37(c)(1)(iv) (2019).
The Examiner finds that Stadtmauer discloses the invention recited in
claim 1 substantially as claimed, but
is silent to the zipper’s top end (i.e. second end) being located
at a point spaced away laterally from the side of the respective
pant leg and silent to the zipper having a curved section, and
therefore silent to the second end of the zipper terminating in
the front thigh portion of the respective pant leg, each zipper in
a zipped state extending from the second end at the front thigh
portion, curving to one of the inside or outside side portions of
the respective pant leg thereby forming a curved section
extending from the second end of the zipper to a curved section
end at the inside or outside side portion of the pant leg.
Final Act. 6 (citing Stadtmauer ¶¶ 6–8, Figs. 1, 2); see id. at 7 (providing
annotated version of Figure 1 of Stadtmauer). The Examiner further finds
that Edmunds teaches pants with a zipper on each leg, the zipper having a
top end “located in a spot that is spaced away from the sides of the
respective pant leg,” i.e., “the zipper curved onto the front of the thigh area.”
Id. at 7 (citing Edmunds Figs. 8, 9). The Examiner determines that it would
have been obvious to one of ordinary skill in the art “to have changed the
shape of the zippers of the pant legs so that they curve slightly inward at
their respective top ends, as taught by Edmund, for a variety of reasons
including, by non-limiting examples, of altering the aesthetic appearance of
the pants or for allowing the user an easier view of the zipper pull for
grasping the zipper pull to start the closing motion.”
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We have reviewed each of Appellant’s arguments in opposition to this
rejection, but find them unpersuasive of Examiner error. Therefore, we
sustain the Examiner’s rejection for essentially those reasons expressed in
the Final Action and Answer, and we add the following primarily for
emphasis.
Appellant first argues that “Edmund[] teaches a wetsuit that uses
zippers to allow a person to wear the wetsuit out of the water in a
comfortable manner” by “expand[ing] the girth of the wetsuit pant leg for
comfort,” but Edmund’s zippers “do not open like a conventional zipper to
separate the pant legs by the zipper.” Appeal Br. 13. Appellant therefore
submits that “[o]ne of skill in the art would not consider the teachings of
Edmund[] in terms of the zipper configurations as the aim of Edmund[]
relates to a wetsuit and does not even use zippers that open a garment at all.”
The Examiner responds that “Stadtmauer already teaches that each of its
pant legs has a zipper that opens the pant legs up for the purpose of
improving the capability of the pants to be donned or removed ‘even while
wearing shoes/boots’” (Ans. 5 (quoting Stadtmauer ¶ 3)), and “Edmund is
only relied upon for teaching that the upper end of the zipper is curved
inward” (id.).
This argument is not persuasive of Examiner error. First, Edmund’s
use of a zipper is not entirely different from that of Stadtmauer, in that
Edmund, like Stadtmauer, uses the zippers to loosen pants. Stadtmauer ¶ 3;
Edmund, 2:62–65. Second, the “aim” of Edmund need not be the same as
that of Stadtmauer in order for one of ordinary skill in the art to consider its
teachings in view of Stadtmauer. In evaluating obviousness, the Examiner
need not “seek out precise teachings directed to the specific subject matter of
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the challenged claim,” but may “take account of the inferences and creative
steps that a person of ordinary skill in the art would employ.” KSR Int’l Co.
v. Teleflex, Inc., 550 U.S. 398, 418 (2007).
Appellant also argues that moving Stadtmauer’s zipper so that it is
located over the thigh portion as in Edmund “goes against the very object of
Stadtmauer, which is to specifically place the zipper end at the waistband so
that the pants could be easily removed or donned.” Appeal Br. 13.
Appellant submits that “[m]oving the zipper end to a location like that
shown in Edmund[] destroys the desired functionality of having the zipper
end at the waistband to allow the tight fitting pants to be donned or removed
as is taught in Stadtmauer.” Id. Thus, according to Appellant, “Stadtmauer
provides a clear teaching away from the change in the zipper end location in
this prior art.” Id. at 13–14.
The Examiner responds that Stadtmauer teaches “that the top ends of
the zippers . . . [are] located ‘just below’ the waistband,” and “the ‘front
thigh portion’ can extend all the way up to the waistband, wherein a position
‘just below’ the waistband would be within the arbitrarily-defined ‘front
thigh portion.’” Ans. 5–6 (citing Stadtmauer claims 1–3).
Appellant’s argument is also not persuasive of Examiner error. First,
as the Examiner notes, Stadtmauer teaches placing the top end of the zipper
“just below,” or “just under,” the waistband, not “at” the waistband, as
Appellant contends. Stadtmauer ¶¶ 2, 8, claims 1–3. Second, we agree with
the Examiner that there is nothing inherently inconsistent with moving the
top end of Stadtmauer’s zipper to the “front thigh portion” of Stadtmauer’s
pants, as taught by Edmund, and having it “just under” the waistband, in
accordance with Stadtmauer. Third, we are not persuaded that Stadtmauer
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teaches away from the modification, because it does not “criticize, discredit,
or otherwise discourage” the modification. In re Fulton, 391 F.3d 1195,
1201 (Fed. Cir. 2004).
Appellant also takes issue with the Examiner’s reasons to combine
Stadtmauer and Edmond. Appellant contends that “the Examiner’s theory
that a desire for aesthetics would motivate the artisan to move the zipper to a
location that corresponds to that claimed is . . . speculation.” Appeal Br. 14.
According to Appellant, to the extent that “there is some aesthetic aspect to
the zipper of Stadtmauer,” that consideration “cannot outweigh the
functionality of the placement of the zipper end in Stadtmauer,” i.e.,
placement at the waistband in Stadtmauer. Id. Appellant further contends
that “the Examiner’s allegation that the zipper pull location in Edmund[] is
more convenient as grounds to modify Stadtmauer is not supported by any
objective facts.” Appellant notes, in this regard, that “Edmund[] does not
exemplify a zipper at the waistband and indicate that this is less convenient
[than] the zipper configuration of Edmund that involves the thigh.” Id.
at 15.
Again, we are not persuaded of Examiner error. As to Appellant’s
first point, and as discussed above, the proposed modification does not
necessarily move the top of the zipper from just under the waistband of the
pants, so it would not result in any loss of functionality based on that
placement. Appellant’s second point implies that Edmunds must provide an
express teaching, suggestion, or motivation for the combination. This is
incorrect. An obviousness analysis “need not seek out precise teachings
directed to the specific subject matter of the challenged claim, for a court
can take account of the inferences and creative steps that a person of
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ordinary skill in the art would employ.” KSR, 550 U.S. at 418. Instead, for
obviousness determinations based on teachings of multiple references, “there
must be some articulated reasoning with some rational underpinning to
support the legal conclusion of obviousness.” Id. (quoting In re Kahn, 441
F.3d 977, 988 (Fed. Cir. 2006)). Here, the Examiner articulated two reasons
why one of ordinary skill in the art would have moved the location of
Stadtmauer’s zipper in accordance with Edmund: (1) “altering the aesthetic
appearance of the pants”; or (2) “for allowing the user an easier view of the
zipper pull for grasping the zipper pull to start the closing motion.” Final
Act. 7; Ans. 5. The second reason, in particular, is supported by a rational
underpinning, in that it is rational to find that a zipper (or any other feature)
located on the front of pants is easier to see than a zipper pull located at the
sides, and, because it is easier to see, it would be easier to grasp.
Because we are not persuaded that the Examiner erred in rejecting
claim 1 as unpatentable over Stadtmauer and Edmund, we sustain the
rejection of claim 1, as well as of claims 2–9, which fall therewith.
CONCLUSION
In summary:
DECISION SUMMARY
Claim(s)
Rejected
35 U.S.C. § Reference(s)/Basis Affirmed Reversed
8, 9 112(a) Written
Description
8, 9
1–9 103 Stadtmauer,
Edmund
1–9
Overall
Outcome
1–9

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TIME PERIOD FOR RESPONSE
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a). See 37 C.F.R.
§ 1.136(a)(1)(iv).
AFFIRMED