Jennifer A. Walrich et al.

Patent Trials and Appeals Board

Aug 27, 2019

13745961 - (D) (P.T.A.B. Aug. 27, 2019)

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.
13/745,961 01/21/2013 Jennifer A. Walrich 24698US02 7758
23446 7590 08/27/2019
MCANDREWS HELD & MALLOY, LTD
500 WEST MADISON STREET
SUITE 3400
CHICAGO, IL 60661
EXAMINER
FERREIRA, CATHERINE M
ART UNIT PAPER NUMBER
3732
NOTIFICATION DATE DELIVERY MODE
08/27/2019 ELECTRONIC
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.
Notice of the Office communication was sent electronically on above-indicated "Notification Date" to the
following e-mail address(es):
mhmpto@mcandrews-ip.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________

Ex parte JENNIFER A. WALRICH and MICHAEL POPE
____________

Appeal 2017-011810
Application 13/745,9611
Technology Center 3700
____________

Before MICHAEL C. ASTORINO, NINA L. MEDLOCK, and
ROBERT J. SILVERMAN, Administrative Patent Judges.

ASTORINO, Administrative Patent Judge.

DECISION ON APPEAL
Pursuant to 35 U.S.C. § 134(a), the Appellants appeal from the
Examiner’s decision rejecting claims 1–15, 24, and 25. We have jurisdiction
over the appeal under 35 U.S.C. § 6(b).
We REVERSE.

1 “The real party in interest is Medline Industries, Inc.” Appeal Br. 3.
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STATEMENT OF THE CASE
Subject Matter on Appeal
The Appellants’ invention “relate[s] to garments worn by healthcare
workers, such as doctors, nurses, medics, or other clinical personnel.”
Spec. ¶ 5.
Claims 1 and 24 are the independent claims on appeal. Claim 1,
reproduced below, is illustrative of the claimed subject matter.
1. A garment comprising:
a placket attached to at least a portion of a V-neck cutaway
in a trunk with at least one placket outer seam,
wherein the placket includes:
a first placket piece;
a second placket piece attached to the first placket
piece by at least one placket inner seam,
wherein the first placket piece and the second
placket piece form a V-shaped open area
comprising a neck opening;
a third placket piece located at least partially
between the first placket piece and the second
placket piece;
wherein the third placket piece extends across a
bottom region of the V-shaped open area; and
wherein the third placket piece is attached to the
first placket piece and the second placket
piece by the at least one placket inner seam.

Rejections
I. Claim 1 is rejected under 35 U.S.C. § 102(b) as anticipated by
Patel et al. (US Des. 373,893, iss. Sept. 24, 1996) (hereinafter “Patel”).
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II. Claims 1, 2, 3, 24, and 25 are rejected under 35 U.S.C. § 103(a)
as unpatentable over Knight-Yurt (US 5,652,961, iss. Aug. 5, 1997) and
Patel.
III. Claims 4–7 and 10–15 are rejected under 35 U.S.C. § 103(a) as
unpatentable over Knight-Yurt, Patel, and Salem (US 7,441,281 B2, iss.
Oct. 28, 2008).
IV. Claim 8 is rejected under 35 U.S.C. § 103(a) as unpatentable
over Knight-Yurt, Patel, Salem, and Carney (US 8,276,216 B2, iss. Oct. 2,
2012).
V. Claim 9 is rejected under 35 U.S.C. § 103(a) as unpatentable
over Knight-Yurt, Patel, Salem, Carney, and Rothrum (US 5,673,433, iss.
Oct. 7, 1997).

ANALYSIS
Anticipation
Independent claim 1 requires a garment having a V-neck cutaway in a
trunk, a placket with first, second, and third placket pieces, at least one
placket outer seam, and at least one placket inner seam. Appeal Br., Claims
App. Among other things, claim 1 recites, “the third placket piece is
attached to the first placket piece and the second placket piece by the at least
one placket inner seam.” Id.
The Appellants dispute the Examiner’s finding that Patel discloses the
foregoing recitation of claim 1 by seeking an explanation of how Patel’s
teachings are being applied to the subject matter of claim 1. Id. at 10–14. In
the Answer, the Examiner further explains how Patel’s teachings apply to
the subject matter of claim 1. Ans. 3–5; see Final Act. 4. In the Answer, the
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Examiner finds that the inner seam on the interior of Patel’s garment
corresponds to the claimed “at least one placket inner seam.” Ans. 4–6.
Here, the Examiner interprets the phrase “at least one placket inner seam” as
referring to at least one seam positioned on the interior of a garment.
The Appellants point out that by reading claim 1’s “at least one
placket inner seam” on the inner seam on the interior of Patel’s garment, the
Examiner in effect gives no meaning to the terms “inner” and “outer” as
modifiers for the term “seam” because the seam in Patel’s garment that the
Examiner points to is located on both the inside and outside of Patel’s
plackets. See Reply Br. 2. Additionally, the Appellants contend the
Examiner’s interpretation does not account for one of ordinary skill in the
art’s understanding of the term “inner seam” when viewed in light of the
Specification. See id. The Appellants support this contention by pointing to
Figure 5D and the Specification’s description thereof. Figure 5D is
reproduced below:

Figure 5D shows a portion of a garment having placket 500 attached to a V-
neck cutaway in trunk 140 with at least one placket outer seam 520 and at
least one placket inner seam 510. See Spec. ¶¶ 15, 60–61. The Appellants
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assert, “[a]s can clearly be seen, the ‘inner seam’ [510] is inside the ‘outer
seam,’ [520] while, of course, the ‘outer seam’ [520] is outside the ‘inner
seam’ [510].” Reply Br. 3. Accordingly, the Appellants’ understanding of
the phrases “at least one placket outer seam” and “at least one placket inner
seam” is based on how the seams are positioned relative to one another or,
perhaps, another point of reference.
In view of the foregoing, it is clear that the Examiner and the
Appellants are in dispute as to the construction of the terms “at least one
placket outer seam” and “at least one placket inner seam.” At the outset, we
note that claim 1 provides some context as to the meaning of the terms
“outer seam” and “inner seam” by requiring attachment of the seams to a V-
neck cutaway in the garment’s trunk and the first, second, and/or third
placket pieces. For example, claim 1 recites: “a placket attached to at least
a portion of a V-neck cutaway in a trunk with at least one placket outer
seam”; “a second placket piece attached to the first placket piece by at least
one placket inner seam”; and “the third placket piece is attached to the first
placket piece and the second placket piece by the at least one placket inner
seam.” Appeal Br., Claims App. However, claim 1 does not provide clarity
as to how the terms “outer” and “inner” modify the term “seam.”
As mentioned by the Appellants, the Specification and drawings of
the present application help to guide one of ordinary skill in the art’s
understanding of the terms “outer seam” and “inner seam.” See Reply
Br. 2–3; see also Spec. ¶¶ 15, 60–61, Figs. 5A–5D. Notably, the seams’
positioning relative to one another does not provide sufficient context to
identify the placket’s “inner” and “outer” seam. The positional relationship
of the seams relative to one another is only helpful if compared against a
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reference point apart from the seams. For example, in Figure 5D, inner
seam 510 is depicted closer to the opening in the garment for a healthcare
worker’s head and neck area as compared to outer seam 520. See supra.
Because seam 510 is depicted closer to the opening in the garment for a
healthcare worker’s head and neck area as compared to outer seam 520 it is
reasonably interpreted that seam 510 is an inner seam and seam 520 is an
outer seam. Further, claim 1 provides the possibility of more than one
placket inner and outer seam by virtue of the phrase “at least one.”
Although Figure 5D shows inner seam 510 and outer seam 520, the figure
does not show more than one inner or outer seam. One of ordinary skill in
the art would understand that inner seam 510 is the innermost seam and
outer seam 520 is the outermost seam. Additional seams positioned between
the innermost and outermost seams would be understood as an inner seam or
outer seam relative to their position to the innermost and outermost seams.
See also Spec. ¶¶ 18–19 (describing relative terms “long and “short” as a
modifier for the term “sleeve” as being based on the longest and shortest
length sleeve, respectively, of a garment for which the sleeve belongs).
Turning to the Examiner’s rejection of claim 1, the clearest
representation of what structure the Examiner finds as corresponding to the
claimed “at least one placket inner seam” is based on an annotated version of
Patel’s Figures 4 and 5, which are reproduced below:
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Ans. 4. Figures 4 and 5 show a fragmentary view of a garment with a front
and rear view, respectively, of a V-neck insert; the Examiner annotates
Figure 4 with three separate arrows emanating from three separate text boxes
that identify first, second, and third placket pieces; and the Examiner
annotates Figure 5 with a first arrow emanating from a first text box pointing
to the identified third placket piece, and second and third arrows emanating
from a second text box pointing to a shaded area that appears to include
multiple seams.2
It is not clear from the Examiner’s annotations of Figures 4 and 5,
which seam and/or seams on the interior of Patel’s garment the Examiner is
referencing as corresponding to the claimed “at least one placket inner
seam.” In the Answer, the Examiner explains that “(as shown in . . .
annotated Figures 4 and 5 – the inner seam[,] being the seam on the interior

2 The first text box recites, “[t]he ‘third placket piece’ is attached to the ‘first
placket piece’ and the ‘second placket piece’ by the at least one placket
‘inner seam’” and the second text box recites, “[t]he ‘second placket piece’
[is] attached to the ‘first placket piece’ by at least one placket ‘inner
seam[.]’”
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of the garment as seen in Figure 5, . . . holds the first and second plackets
meeting at the lower point of the V, and secures the third placket between
them.” Ans. 3–4. The foregoing explanation fails to sufficiently explain
how a particular seam of Patel’s garment corresponds to the claimed “at
least one placket inner seam” when properly interpreted. Therefore, we
determine that the Examiner fails on this record to adequately support the
finding that a seam of Patel’s garment corresponds to the claimed “at least
one placket inner seam.”
Thus, we do not sustain the Examiner’s rejection of claim 1 as
anticipated by Patel (Rejection I).

Obviousness
Independent Claim 1 and Dependent Claims 2–15
The Examiner’s rejection of independent claim 1 based on the
combined teachings of Knight-Yurt and Patel relies on the same
inadequately supported finding as discussed above. See Final Act. 6–7.
This deficiency in the rejection is not cured by any other findings and/or
reasoning associated with the rejections of claims 2–15. Thus, we do not
sustain the Examiner’s rejection of claims 1–15 as unpatentable over
Knight-Yurt and Patel by themselves or in combination with one or more of
Salem, Carney, and Rothrum (Rejections II–V).

Independent Claim 24 and Dependent Claim 25
Independent claim 24 recites “[a] garment” including “a V-neck insert
portion covering at least a part of a bottom area of the V-neck cutaway area
in the trunk.” Appeal Br., Claims App. (emphasis added).
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The Examiner finds that Knight-Yurt substantially teaches the
garment required by claim 24, including “a V-neck insert portion covering at
least a part of the V-neck cutaway area in the trunk.” Final Act. 7–8. The
Examiner does not make a finding that Knight-Yurt’s V-neck insert portion
covers at least a part of a bottom area of the V-neck cutaway area. The
Examiner turns to Patel’s teachings to remedy this deficiency. Id. at 8. The
Examiner concludes:
It would have been obvious to one having ordinary skill in the art
at the time the invention was made to modify the garment of
Knight-Yurt by constructing a V-neck insert portion extending
across the lo[w]er [V]-neck where the first and second plackets
join as taught by Patel in order to provide discreet coverage in
the front of the garment when bending forward.
Id. (emphasis omitted).
The Appellants argue that “the justification for combining these
references is a conclusory statement without rational underpinning.” Appeal
Br. 20. Additionally, the Appellants argue “[t]here has been no explanation
as to why such a realization would have been apparent at the time of the
invention to one having ordinary skill in the art.” Id. at 21.
In response, the Examiner explains:
[The] Appellant[s’] disclosure provides the rationale. Paragraph
0059, discloses element 147 being made of a fight fitting fabric.
The tight fitting fabric holding the V- shaped neck opening in
place and providing discreet coverage at the front opening
without the neckline shifting out of place.
Ans. 9 (emphasis added); see Spec. ¶ 59 (“As discussed above, the V-neck
insert portion 147 may include a tight-fitting fabric (for example, a fabric
that includes 10% or more spandex).”).
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The Examiner’s response is indicative of an impermissible hindsight
reconstruction in combining the teachings of Knight-Yurt and Patel. In the
response, the Examiner explicitly states that the rationale is provided by the
Appellants’ disclosure; specifically, paragraph 59 of the Specification,
which is part of the section entitled, Detailed Description of the Application.
Spec. page 5. Moreover, the Examiner does not offer a separate basis of
support for the rationale. Consequently, we determine that the record
strongly suggests that the Examiner’s reconstruction is based on knowledge
gleaned only from the Appellants’ disclosure, and therefore an
impermissible hindsight reconstruction. See also In re McLaughlin,
443 F.2d 1392 (CCPA 1971).
Thus, we do not sustain the Examiner’s rejection of independent
claim 24 and dependent claim 25 as unpatentable over Knight-Yurt and Patel
(Rejection II).

DECISION
We REVERSE the Examiner’s decision rejecting claims 1–15, 24,
and 25.

REVERSED