Stephanie Pasko et al.

Patent Trials and Appeals Board

Oct 17, 2019

13925617 - (D) (P.T.A.B. Oct. 17, 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.
13/925,617 06/24/2013 Stephanie Pasko BPMDL0035SP
D3 (10328UD3)
2244
27939 7590 10/17/2019
Philip H. Burrus, IV
Burrus Intellectual Property Law Group LLC
222 12th Street NE
Suite 1803
Atlanta, GA 30309
EXAMINER
HADEN, SALLY CLINE
ART UNIT PAPER NUMBER
3732
MAIL DATE DELIVERY MODE
10/17/2019 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 STEPHANIE PASKO and ATIENO OUMA1

____________________

Appeal 2019-004171
Application 13/925,617
Technology Center 3700
____________________

Before KEVIN F. TURNER, JILL D. HILL, and LISA M. GUIJT,
Administrative Patent Judges.

HILL, Administrative Patent Judge.

DECISION ON APPEAL
STATEMENT OF THE CASE
Medline Industries, Inc. (Appellant) appeals under 35 U.S.C. § 134
from the Examiner’s final decision rejecting claims 1–9 and 11–15. We
have jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM.

1 Assignee Medline Industries, Inc. is identified as an Applicant and as the
real party in interest. Appeal Br. 2.
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BACKGROUND
Sole independent claim 1 represents the claimed invention and is
reproduced below, with certain disputed limitations emphasized.
1. A gown, comprising:
a non-woven fabric layer defining a body covering portion and
a head insertion aperture between a front portion and a rear
portion, wherein the rear portion defines an opening slit
where the body covering portion terminates at right and left
sides of the opening slit, the opening slit configured to assist
a user in donning the gown, the opening slit disposed on a
side of the rear portion opposite the head insertion aperture;
and
one or more perforations extending across the rear portion at
least partially between the opening slit and the head
insertion aperture, the one or more perforations being
configured to tear and split the rear portion when the front
portion is pulled away from the user.

REJECTIONS
I. Claims 3–8 stand rejected under 35 U.S.C. § 112(a) or 35
U.S.C. § 112, first paragraph, as failing to comply with the written
description requirement. Final Act. 5.
II. Claims 1, 2, 9, and 12–15 stand rejected under 35 U.S.C.
§ 103(a) as unpatentable over Graneto (US D622,934 S, iss. Sept. 7, 2010)
and Matsushita (US 6,378,136 B2, iss. Apr. 30, 2002). Final Act. 5.
III. Claims 3–8 stand rejected under 35 U.S.C. § 103(a) as
unpatentable over Graneto, Matsushita, and Cater (US 3,276,036, iss. Oct. 4,
1966). Final Act. 12.

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OPINION
Rejection I – Written Description – Claims 3–8
After objecting to the drawings for not illustrating the claimed feature
combinations (i.e., the Examiner determines that certain features recited in
dependent claims are not illustrated in the same embodiments as features in
the claim from which they depend), the Examiner finds that claim 3, and
claims 4–8 that depend therefrom, contain new matter –– “the new matter
[being] the subject matter of claim 3 in combination with the opening slit of
claim 1.” Final Act. 2–3, 5. Thus, we understand the Examiner to be
finding that, because no single embodiment described in Appellant’s
Specification discloses all of the features of independent claim 1 and
dependent claim 3, Appellant’s Specification fails to describe the claimed
invention in sufficient detail that one skilled in the art can reasonably
conclude that the inventor had possession of the claimed invention at the
time of filing.
Consideration of Appellant’s Specification supports the Examiner’s
finding. No single embodiment includes the features of claim 1 (which are
depicted in the embodiment of Figures 1 and 2) and claim 3 (which are
depicted in the embodiment of Figures 16 through 18). Appellant’s
paragraph 90 states, inter alia, that “while preferred embodiments of the
invention have been illustrated and described, it is clear that the invention is
not so limited. Numerous modifications, changes, variations, substitutions,
and equivalents will occur to those skilled in the art without departing from
the spirit and scope of the present invention.” Further, the figures are
generally described as “example[s] of a gown configured in accordance with
one or more embodiments of the invention.” These statements, however, do
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not inform us that a skilled artisan would have understood that Appellant
intended for the features of each separately-discussed and illustrated
embodiment of its gown to be combined or mixed and matched. Appellant
discloses each embodiment as a separate gown having features that work
together in a way that makes it easy to don and remove the gown.
Although it is true that claims can encompass multiple embodiments,
and claim limitations can be illustrated across multiple figures (Reply Br. 10
(citing MPEP § 2163)), Appellant’s Specification does not inform us that the
inventor had possession of the particularly claimed combinations.
We sustain the written description rejection.
Rejection II – Obviousness
Claims 1, 2, and 9
Appellant argues claims 1, 2, and 9 as a group. We select claim 1 as
representative. Claims 2 and 9 stand or fall with claim 1.
Regarding independent claim 1, the Examiner finds, inter alia, that
Graneto discloses a gown comprising a head insertion aperture between a
front portion and a rear portion of a body covering portion, the rear portion
defining an opening slit where “the body covering portion terminates at right
and left sides of the opening slit.” Final Act. 6 (citing Graneto Figs. 1–5, 7).
The Examiner also finds that Graneto’s opening slit is disposed on a side of
the rear portion opposite the head insertion aperture, with perforations
extending across the rear portion between the opening slit and the head
insertion aperture that are configured to tear and split the rear portion when
the front portion is pulled from the user. Id. at 7 (“Because the prior art
reference and the claimed invention are structurally identical, they are
expected to be capable of being used in the same manner, and the prior art
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reference reads on the intended use recitation in the claim.”). The Examiner
provides the following annotated versions of Graneto’s Figures 5 and 7,
which show what the Examiner considers to be Graneto’s slit, head insertion
aperture, and rear portion. Id. at 8, 12.

Figure 5 above is a front elevation view, and Figure 7 above is an
enlargement of the indicated portion of Figure 5.
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Appellant argues that claim 1 requires the rear portion to be “disposed
between the head insertion aperture and the opening slit,’” and that the
Examiner erred in finding that Graneto discloses a rear portion disposed
between its head insertion aperture and its opening. Appeal Br. 15.
Appellant contends that Graneto’s rear opening intersects its head aperture,
because the edge defining the side of the opening extends all the way to the
neck opening, so that they intersect. Id. at 15, 16. Thus, Appellant argues,
Graneto discloses “no rear portion whatsoever,” because no portion of its
gown “is disposed between the rear opening and the head insertion
aperture.” Id. at 18, 19. According to Appellant, “the Examiner merely
attempts to point at an overlapping rear opening section of Graneto,
declaring it . . . to be a ‘rear portion’ disposed between an opening slit and a
head insertion aperture.” Id. at 20.
The Examiner responds that Appellant’s argument “ignores that there
is an ‘attachment’ . . . on the rear portion of the Graneto gown,” causing the
attached “left and right ‘rear members’” to “effectively form[] a closed solid
portion across the back of the shoulders.” Ans. 5. Further, “the region
where the members are attached together is interpreted as the claimed rear
portion.” Id. The Examiner further argues that “Appellant’s argument that
Graneto’s opening slit intersects the head insertion aperture (Brief page 15)
disregards Graneto’s attachment.” Id. at 5–6.
Appellant replies that Graneto’s Figure 7 “shows a dark line extending
from the opening [and] passing to the right of the attachment, all the way to
the neck opening,” and that attachment is necessary precisely because the
rear opening extends to the neck opening. Reply Br. 11–12.
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We first consider the meaning of the term “rear portion” as recited in
the claims. The term, with its broadest understanding, denotes a portion of
the rear of the gown. However, claim 1 further informs us that the rear
portion “defines an opening slit,” and it is clear that the rear portion defines
the opening slit by being located between the head/neck aperture and the
opening slit. Further, perforations extend across the rear portion at least
partially between the opening slit and the head/neck aperture, the
perforations configured to tear and split the rear portion when the front
portion of the gown is pulled. Appellant’s written description designates the
rear portion as element 203 in Figure 2, and states that the rear portion 203 is
configured to cover at least a portion of a wearer’s shoulder blades.” Spec. ¶
45. The rear portion 203 appears to be designated by a rectangular broken
line in Figure 2. A perforation 202 is shown to extend across the rear
portion 203 and is disclosed to assist in gown removal. Id. ¶ 48.
Appellant’s rear portion is also designated as element 902 in Figure 9,
element 1402 in Figure 14, element 1603 in Figure 16, element 2503 in
Figure 25, and element 2703 in Figure 27, where it appears to have a similar
size and placement as in Figure 2, and at least one line of perforations.
We thus construe the term “rear portion” to mean a portion of a rear
side of a gown that is located between the neck opening and an opening slit,
and that defines the opening slit. There is no requirement, or definition of
the term “rear portion” stating, that the rear portion be a continuous sheet of
material without overlap or attachment. Given this construction, Graneto’s
gown discloses a rear portion, because it includes a portion of a rear side of a
gown, located between the head/neck aperture and the opening, that defines
the opening. Further, even if we construe the rear portion to, additionally, be
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configured to cover at least a portion of a wearer’s shoulder blades,
Graneto’s gown has a rear portion that can cover at least a portion of a
wearer’s shoulder blades. Although not required in our construction of the
term “rear portion,” Graneto’s rear portion additionally includes perforations
that extend across the rear portion between the opening slit and the
head/neck aperture. We discern no error in the Examiner’s determination
that Graneto’s perforations are configured to tear and split the rear portion to
facilitate gown removal.
Appellant argues that, in addition, “the claim recites perforations
extending across the rear portion, with the head insertion aperture on one
side of the rear portion and the opening slit on the other side,” requiring that
“the perforations to be between the slit and the head insertion aperture.”
Reply Br. 12. To the contrary, Appellant argues, “Graneto’s slit and
perforations intersect beneath the attachment, . . . confirming that Graneto
fails to teach Appellant’s claimed rear portion and its unique location.” Id.
This argument was not raised in the Appeal Brief, and good cause was not
shown for its initial introduction in the Reply Brief. Lacking such a showing
of good cause and an opportunity for the Examiner to respond, we decline to
consider this argument.
In our previous Decision in this case, Appeal No. 2018-006328, dated
January 8, 2019 (“Decision”), we determined that Graneto does not include
an “opening configured as a slit with a left side and a right side that abut.”
Decision 5. That language, however, has been amended to read “an opening
slit where the body covering portion terminates at right and left sides of the
opening slit.” Appeal Br. 25 (Claims App.). Appellant does not argue that
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Graneto fails to disclose an opening slit, and we do not consider that issue
herein.
For these reasons, we sustain the rejection of independent claim 1.
Dependent claims 2 and 9 fall with claim 1.
Claim 12
Claim 12 recites the rear portion being disposed “between the head
insertion aperture and the opening slit.” Appellant again argues that the
Examiner erred in finding that Graneto discloses a rear portion. Appeal Br.
21. For the reasons disclosed above, we disagree.
Claim 13
Claim 13 recites one or more perforations configured as a score line.
Appellant argues that Graneto’s perforations “are configured as a U-shape,”
and “[a] U-shape is not a line.” Appeal Br. 21. The Examiner responds that
a line can be straight or curved. Ans. 6. Appellant replies that the Examiner
cites no authority to support that a line can be curved. Reply Br. 12. We
agree with the Examiner. A skilled artisan, would have understood that,
although a line is typically straight, a line can also be curved. See
https://simple.wikipedia.org/wiki/Line (last visited Sept. 24, 2019).
Claim 14
Appellant argues that claim 14 recites the opening slit “‘extending
from the side of the rear portion to a base of the body covering portion,’ with
‘the side’ referring to the ‘side of the rear portion opposite the head insertion
aperture.’” Appeal Br. 22. Appellant contends, as above, that Graneto has
no rear portion, such that its “rear opening extends from the neck opening.”
Id. We are not persuaded by Appellant’s argument. As explained above,
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Graneto discloses a rear portion. Graneto’s rear portion includes attachment
of the side panels of the gown to close the back of the gown until
perforations surrounding the attachment are split for gown removal.
Graneto’s attached portion, or rear portion, is closed, and therefore is not
properly considered to be a portion of the rear opening.
Claim 15
Claim 15 recites the opening slit running “only most of a length of the
body covering portion.” Similar to the arguments raised with respect to
claim 14, Appellant contends that Graneto’s opening extends across the
entire back of the gown. As explained above regarding claim 14, Graneto’s
rear portion includes attachment of the side panels of the gown to close the
back of the gown. Graneto’s attached portion, or rear portion, is closed, and
therefore is not properly considered to be a portion of the rear opening.
Appellant’s argument, therefore, is not persuasive of Examiner error.
Rejection III – Obviousness – Claims 3–8
Claim 3 depends from claim 1, and recites the perforations comprising
“at least two linear score lines” extending along the rear portion to
diagonally cross at least parts of shoulder blades of a wearer. The Examiner
finds this disclosure in Graneto and Cater. Final Act. 12. Appellant argues
that (1) Graneto’s U-shaped score line is not the same as two linear score
lines as claimed, (2) Graneto’s score lines are located “between the shoulder
blades of a wearer,” and Matsushita and Cater do not correct this deficiency.
Appeal Br. 23.
The Examiner responds, inter alia, that (1) Appellant has not defined
the size of the intended wearer, (2) “[a] shoulder blade extends through a
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substantial portion of the wearer’s upper back,” and (3) Graneto’s
perforations extend across the wearer’s upper back in the region of the
shoulder blades, such that (4) it is reasonable to expect that Graneto’s
perforations are capable of crossing at least parts of a wearer’s shoulder
blades, depending on the size of the wearer and the gown worn. Ans. 7.
Regardless of whether Graneto’s U-shaped perforation can be broken
down into two straight lines and a curved portion, and whether the straight
line components of Graneto’s U-shaped portion would cross at least parts of
shoulder blades of a wearer, the Examiner has not established how such
crossing of the shoulder blades would be diagonal, as claimed. The straight
portions of the perforation in Graneto’s Figure 2 appears to extend
vertically, rather than diagonally. For this reason, we do not sustain the
obviousness rejection of claim 3. Claims 4–8 depend directly or indirectly
from claim 3, and we do not sustain the rejection of claims 4–8 for the same
reason.
CONCLUSION
In summary:
Claims
Rejected
Basis Affirmed Reversed
3–8 § 112(a) 3–8
1, 2, 9, 12–15 § 103 Graneto,
Matsushita
1, 2, 9, 12–15
3–8 § 103 Graneto,
Matsushita, Cater
3–8
Overall Outcome 1–1–9, 12–15 3–8

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DECISION
We AFFIRM the rejection of claims 3–8 as failing to comply with the
written description requirement.
We AFFIRM the rejection of claims 1, 2, 9, and 12–15 as
unpatentable over Graneto and Matsushita.
We REVERSE the rejection of claims 3–8 as unpatentable over
Graneto, Matsushita, and Cater.

AFFIRMED