Medline Industries, Inc.

Patent Trials and Appeals Board

Apr 21, 2021

2020005632 (P.T.A.B. Apr. 21, 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.
14/086,798 11/21/2013 Frank Czajka BPMDL0071FC (10885U) 7396
27939 7590 04/21/2021
Philip H. Burrus, IV
Burrus Intellectual Property Law Group LLC
222 12th Street NE
Suite 1803
Atlanta, GA 30309
EXAMINER
BRAVO, JOCELYN MARY
ART UNIT PAPER NUMBER
3732
NOTIFICATION DATE DELIVERY MODE
04/21/2021 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):
kberry@burrusiplaw.com
pburrus@burrusiplaw.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
_______________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
_______________

Ex parte FRANK CZAJKA, DAVID NOSKOWICZ, and
AMANDA JARON
_______________

Appeal 2020-005632
Application 14/086,798
Technology Center 3700
_______________

Before STEFAN STAICOVICI, LEE L. STEPINA, and
ARTHUR M. PESLAK, Administrative Patent Judges.

STAICOVICI, Administrative Patent Judge.

DECISION ON APPEAL

STATEMENT OF THE CASE
Appellant1,2 appeals under 35 U.S.C. § 134(a) from the Examiner’s
decision in the Non-Final Office Action (dated Dec. 11, 2019, hereinafter

1 We use the word “Appellant” to refer to “applicant” as defined in 37
C.F.R. § 1.42. Medline Industries, Inc. is identified as the real party in
interest in Appellant’s Appeal Brief (filed Feb. 20, 2020, hereinafter
“Appeal Br.”). Appeal Br. 3.
2 This is Appellant’s second appeal before the Patent Trial and Appeal
Board. In the first appeal (2017-009123, Decision mailed June 1, 2018)
(hereafter “Decision,”), the rejections under 35 U.S.C. §§ 102(a)(1) and 103
of claims 1–18 were reversed. Decision 5; Appeal Br. 3.
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“Non-Final Act.”) rejecting claims 1–5, 8–13, 15, 17, and 18.3,4 We have
jurisdiction under 35 U.S.C. § 6(b).

SUMMARY OF DECISION
We REVERSE.

CLAIMED SUBJECT MATTER
The invention relates to a medical gown and method for self-donning
the gown while maintaining sterility. Spec. para. 45.
Claims 1 and 15 are independent. Claim 1, reproduced below, is
illustrative of the claimed subject matter:
1. A gown, comprising:
a body covering portion;
sleeves extending distally from the body covering portion;
a shoulder covering portion defining a head insertion
aperture;
the body covering portion comprising a rolled fold
beginning at an end of the gown opposite the head insertion
aperture and terminating at the sleeves.

REJECTIONS
The following rejections are before us for review:
I. Claims 1–4, 8, and 10 are rejected under 35 U.S.C. § 102(a)(1)
as being anticipated by Pearsall.5

3 Claims 19 and 20 are canceled. Appeal Br. 35 (Claims App.).
4 Claims 6, 7, 14, and 16 are objected to as being dependent upon a rejected
claim, but would be allowable if rewritten in independent form including all
of the limitations of the base claims and any intervening claims. Non-Final
Act. 17.
5 Pearsall, US 4,315,334, issued Feb. 16, 1982.
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II. Claim 5 is rejected under 35 U.S.C. § 103 as unpatentable over
Pearsall and Modiano.6
III. Claim 9 is rejected under 35 U.S.C. § 103 as unpatentable over
Pearsall and Tomich.7
IV. Claim 11 is rejected under 35 U.S.C. § 103 as unpatentable
over Pearsall and Lake.8
V. Claims 12 and 13 are rejected under 35 U.S.C. § 103 as
unpatentable over Pearsall and Hartbrodt.9
VI. Claims 15, 17, and 18 are rejected under 35 U.S.C. § 103 as
unpatentable over Cazares10 and Plut.11

ANALYSIS
Rejection I
The Examiner finds that Pearsall discloses gown 10 including, inter
alia, body covering portion 22, sleeves 16, 17, and a head insertion aperture
adjacent collar 14, wherein body covering portion 22 has a rolled fold
beginning at the end of gown 10 opposite the head insertion aperture and
terminating upwardly at the sleeves. Non-Final Act. 6–7 (citing Pearsall,
col. 3, ll. 15–31, Figs. 1, 2, 4, 5, Examiner’s annotated Figure 5 of Pearsall).
In response, Appellant argues that in Pearsall’s Figure 5 the rolled
“fold does not terminate at the sleeves as set forth in Appellant’s claim 1,”

6 Modiano, US 2009/0183529 Al, published July 23, 2009.
7 Tomich, US 2,971,198, issued Feb. 14, 1961.
8 Lake, US 4,864,657, issued Sept. 12, 1989.
9 Hartbrodt, US 2004/0172734 Al, published Sept. 9, 2004.
10 Cazares, US 2007/0061940 Al, published Mar. 22, 2007.
11 Plut et al., US 2006/0277668 Al, published Dec. 14, 2006.
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but rather, “extends all the way to the collar, thereby completely enclosing
and covering the sleeves.” Appeal Br. 19 (citing Pearsall, col. 3, ll. 28–31).
Thus, according to Appellant, because “Pearsall teaches a fold that
completely encloses and covers the sleeves, rather than one that terminates
at the sleeves, it is respectfully submitted that Pearsall fails to teach each
an[d] every limitation of claim 1.” Id.
The Examiner responds that “claim 1 broadly recites wherein the
rolled fold terminates ‘at the sleeves,’ not under the sleeves, before the
sleeves, or at a lower extent of the sleeves.” Examiner’s Answer (dated June
9, 2020, hereinafter “Ans.”) 5. Thus, according to the Examiner, Pearsall’s
Figure 5 illustrates “the rolled fold terminat[ing] at least at a portion of
sleeves 16, 17.” Id. at 4. According to the Examiner, “the configuration of
[Pearsall’s] Fig. 5 is one of the states of the disclosed invention . . .
[because] Pearsall discloses the configuration of Fig. 5 as a particular unique
step.” Id.
During examination, “claims . . . are to be given their broadest
reasonable interpretation consistent with the [S]pecification . . . and . . .
claim language should be read in light of the [S]pecification as it would be
interpreted by one of ordinary skill in the art.” In re Bond, 910 F.2d 831,
833 (Fed. Cir. 1990) (citing In re Sneed, 710 F.2d 1544, 1548 (Fed. Cir.
1983)). In this case, we construe the limitation in claim 1 of a “rolled fold
beginning at an end of the gown opposite the head insertion aperture and
terminating at the sleeves” to mean that the boundaries (ends) of the rolled
fold are defined as the end of the gown opposite the head insertion aperture
and the sleeves. See Appeal Br. 33 (Claims App.) (emphasis added). In
other words, the use of the terms “beginning” and “terminating” define the
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claimed rolled fold as located between a “beginning” location, i.e., the end
of the gown opposite the head insertion aperture, and a “terminating”
location, i.e., the sleeves, and, thus, because the rolled fold terminates (ends)
“at the sleeves,” the rolled fold does not include the sleeves.
Such a construction is consistent with Appellant’s Specification,
which describes rolled fold 401 as beginning at end 111 of gown 100,
terminating at sleeves 107, 108, and not including sleeves 107, 108. See
Spec. para. 67, Fig. 4. Accordingly, in light of Appellant’s Specification,
and a skilled artisan’s understanding of the terms “beginning” and
“terminating,” the Examiner’s construction of the limitation of a “rolled fold
beginning at an end of the gown opposite the head insertion aperture and
terminating at the sleeves” to encompass a “rolled fold terminat[ing] at least
at a portion of sleeves 16, 17” is unreasonably broad, and is therefore in
error. Such a construction would include the sleeves, which for the reasons
discussed supra, are not part of a “rolled fold,” as called for by independent
claim 1.
In contrast to the rolled fold of independent claim 1, Pearsall’s rolled
fold begins at the end of body covering portion 22, terminates (ends) at
collar 14, rather than sleeves 16, 18, and, thus, encompasses sleeves 16, 18.
Compare Pearsall, Fig. 5 with, Appellant’s Fig. 4. Appellant is correct that
“[i]f only the collar [14] protrudes, to be sure the sleeves [16, 18] must be
situated within the fold.” Reply Br. (filed July 28, 2020, hereinafter “Reply
Br.”) 11. Furthermore, we appreciate that when Pearsall’s body covering
portion 22 is rolled upwardly to form a rolled fold, an intermediate position
exists when the rolled fold is located “at the sleeves” 16, 17; however, this
position is not where Pearsall’s rolled fold terminates (ends) because
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Pearsall explicitly discloses that the “rolled fold” is continually rolled
upwardly until it terminates (ends) at collar 14. See Pearsall, col. 3, ll. 28–
31 (“[T]he lower end is fully rolled upward so that only collar 14
protrudes.”).
In conclusion, for the foregoing reasons, Pearsall fails to disclose a
“rolled fold beginning at an end of the gown opposite the head insertion
aperture and terminating at the sleeves,” as called for by independent claim
1. Accordingly, we do not sustain the rejection under 35 U.S.C. § 102(a)(1)
of independent claim 1, and its respective dependent claims 2–4, 8, and 10,
as anticipated by Pearsall.

Rejections II–V
The Examiner’s use of the Modiano, Tomich, Lake, and Hartbrodt
disclosures does not remedy the deficiency of Pearsall discussed supra. See
Non-Final Act. 11–15. Therefore, for the same reasons discussed above, we
also do not sustain the rejections under 35 U.S.C. § 103 of claims 5, 9, and
11–13.

Rejection VI
The Examiner finds that Cazares discloses a method including, inter
alia, providing gown 20 having sleeves 24, lower portion 26, and bottom
end 28 opposite a head insertion aperture and rolling gown 20 from bottom
end 28 toward sleeves 24, wherein the rolling captures a portion of lower
portion 26 within a rolled fold such that the interior of gown 20 is disposed
outside the rolled fold. Non-Final Act. 15–16 (citing Cazares, paras. 27, 32–
35, Figs. 1–4). The Examiner further finds that Cazares “fails to further
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disclose the step of providing one or more pull tabs,” wherein “the rolling
captur[es] portions of the one or more pull tabs within the rolled fold.” Id.
(emphasis added). Nonetheless, the Examiner finds that Plut discloses outer
garment 10 including body covering portion 12 and one or more pull tabs
115 for inverting the bottom end of body covering portion 12, such that
portions of the at least one pull tab 115 are captured within a fold and
interior side 129 of gown 10 is disposed outside the fold. Id. (citing Plut,
paras. 43, 86–88, Figs. 3B, 3C, 3D). Thus, the Examiner concludes that it
would have been obvious to a person of ordinary skill in the art
to have modified Cazares’ method to include the step of
providing one or more pull tabs, [as taught by Plut,] the rolling
capturing portions of the one or more pull tabs within the rolled
fold, as doing so would allow the wearer to more easily lift or
pull the bottom end of the body covering portion.
Id.
Appellant argues that the combined teachings of Cazares and Plut
disclose “capturing an entire pull tab within a singular inversion of a layer of
fabric,” whereas “[b]y contrast, claim 15 recites capturing only a portion of
a pull tab within a rolled fold.” Appeal Br. 31. In particular, Appellant
notes that in Plut’s Figure 3D, “the entirety of the alleged pull tab [115] is
captured.” Id.
The Examiner responds “that claim 15 does not specify wherein ‘only
a portion’ of the pull tab is captured within the rolled fold,” but rather that
“‘the rolling capturing portions of the one or more pull tabs within a rolled
fold.’” Ans. 14. According to the Examiner, because the phrase “portions
of,” as recited in independent claim 15, encompasses “entirety,” the claim
does not prohibit the entirety of the pull tab of Cazares, as modified by Plut,
to be captured. Id.
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Claim language should be read in light of the Specification, as it
would be interpreted by one of ordinary skill in the art. In re Suitco Surface,
Inc., 603 F.3d 1255, 1260 (Fed. Cir. 2010). In this case, we appreciate that
independent claim 15 recites the phrase “portions of the one or more pull
tabs.” See Appeal Br. 35 (Claims App.) (emphasis added). However, even
though the term “portions” is the plural of the term “portion,” which a
person of ordinary skill in the art would readily understand to mean “a part
of a whole,”12 this does not mean that the term “portions” encompasses
“entirety.” To construe the term “portions” as encompassing an “entirety”
would in effect eviscerate the common and ordinary meaning of the term
“portions” as meaning “parts” of a whole.
Accordingly, we construe the phrase “portions of the one or more pull
tabs” to mean “parts” of the one or more pull tabs, but not the “entirety” of
the one or more pull tabs. Such a construction is consistent with Appellant’s
Specification, which describes “portions of the one or more pull tabs 112,
113” as “captured within the partial fold 301 while it is being folded,” such
that “graspable portions 312, 313 of the one or more pull tabs 112, 113,” i.e.,
“parts” of pull tabs 112, 113, “will be available to open the accordion fold
302 or unroll the rolled fold 303.” Spec. para. 66, Fig. 3. In other words,
Appellant’s Specification describes “portions” 312, 313 as “parts” of pull
tabs 112, 113. As such, given the description in Appellant’s Specification
and a skilled artisan’s understanding of the term “portions” to mean “parts”
of a whole, the Examiner’s construction of the phrase “portions of the one or

12 See The Free Dictionary, https://www.thefreedictionary.com/portion (last
visited April 9, 2020).
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more pull tabs” to mean an “entirety” of the one or more pull tabs, is
unreasonably broad, and is therefore in error.
As discussed supra, Cazares’s rolling method captures a portion of
lower portion 26 of gown 20 within a rolled fold such that the interior of the
gown 20 is disposed outside the rolled fold. See Cazares, Fig. 4. Plut
discloses one or more pull tabs 115 for allowing a user to invert the bottom
end of body covering portion 12 of gown 10, such that interior side 129 of
gown 10 is disposed outside the fold. See Plut, Figs. 3C, 3D. As such, in
light of the teachings of Cazares and Plut, we agree with Appellant that
when modifying Cazares’s method to include Plut’s at least one pull tab 115,
“the entirety of the alleged pull tab would . . . be captured” in the rolled fold
of Cazares’s gown 20. Appeal Br. 31 (emphasis added). Therefore, the
combined teachings of Cazares and Plut fail to disclose “capturing portions
of the one or more pull tabs,” as called for by independent claim 15.
Accordingly, for the foregoing reasons, we do not sustain the rejection
under 35 U.S.C. § 103 of independent claim 15, and its respective dependent
claims 17 and 18, as unpatentable over Cazares and Plut.

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CONCLUSION

Claim(s)
Rejected
35 U.S.C.
§
Reference(s)/Basis Affirmed Reversed
1–4, 8, 10 102(a)(1) Pearsall 1–4, 8, 10
5 103 Pearsall, Modiano 5
9 103 Pearsall, Tomich 9
11 103 Pearsall, Lake 11
12, 13 103 Pearsall, Hartbrodt 12, 13
15, 17, 18 103 Cazares, Plut 15, 17, 18
Overall
Outcome
1–5, 8–13,
15, 17, 18

REVERSED