Warwick Mills Inc.

Patent Trials and Appeals Board

Aug 31, 2021

2020006713 (P.T.A.B. Aug. 31, 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.
14/533,499 11/05/2014 Charles A. Howland WM093-US_DPB 6729
24222 7590 08/31/2021
Maine Cernota & Rardin
547 Amherst Street
3rd Floor
Nashua, NH 03063
EXAMINER
FERREIRA, CATHERINE M
ART UNIT PAPER NUMBER
3732
NOTIFICATION DATE DELIVERY MODE
08/31/2021 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):
eofficeaction@appcoll.com
mreif@mcr-ip.com
patents@mcr-ip.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________

Ex parte CHARLES A. HOWLAND and JOHN C. HOWLAND
____________

Appeal 2020-006713
Application 14/533,499
Technology Center 3700
____________

Before JENNIFER D. BAHR, EDWARD A. BROWN, and
JAMES A. WORTH, Administrative Patent Judges.

BROWN, Administrative Patent Judge.

DECISION ON APPEAL

STATEMENT OF THE CASE
Appellant1 seeks review under 35 U.S.C. § 134(a) of the Examiner’s
decision rejecting claims 6–10.2 We have jurisdiction under 35 U.S.C.
§ 6(b).
We AFFIRM.

1 We use the word “Appellant” to refer to “applicant” as defined in
37 C.F.R. § 1.42. Appellant identifies Warwick Mills Inc. as the real party
in interest. Appeal Br. 3.
2 Claims 1–5 are withdrawn from consideration, and claims 11–13 are
cancelled. Appeal Br. (Claims App.).
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CLAIMS
Claim 6, reproduced below, is illustrative.
6. A glove constructed from materials that include a low-
stretch material, where a low stretch material is defined herein
as a material having an elongation of less than 5% at 5 lbf/inch
in a machine direction, less than 5% at 5 lbf/inch in a cross
machine direction, and less than 10% at 5 lbf/inch at 45 degrees
off the machine direction, the glove comprising:
a glove having five separate sheaths extending from a
glove palm, the sheaths being a thumb sheath, an index finger
sheath, a middle finger sheath, a ring finger sheath, and a pinky
finger sheath;
the glove being characterized by seven glove dimensions,
which are:
a glove width extending between right and left
sides of the glove palm immediately below the index
finger, middle finger, ring finger, and pinky finger
sheaths;
a glove thumb length extending coaxial with the
thumb sheath from a distal tip of the thumb sheath to a
proximal heel of the glove palm;
a glove index finger length extending coaxial with
the index finger sheath from a distal tip of the index
finger sheath to a point that is equal in depth to a depth of
a valley that divides the index finger sheath from the
middle finger sheath;
a glove middle finger length extending coaxial
with the middle finger sheath from a distal tip of the
middle finger sheath to a point that is equal in depth to an
average of the depths of the valley that divides the index
finger sheath from the middle finger sheath and a valley
that divides the middle finger sheath from the ring finger
sheath;
a glove ring finger length extending coaxial with
the ring finger sheath from a distal tip of the ring finger
sheath to a point that is equal in depth to an average of
the depths of the valley that divides the middle finger
sheath from the ring finger sheath and a valley that
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divides the ring finger sheath from the pinky finger
sheath;
a glove pinky finger length extending coaxial with
the pinky finger sheath from a distal tip of the pinky
finger sheath to a point that is equal in depth to the valley
that divides the ring finger sheath from the pinky finger
sheath; and
a glove hand length extending from a distal tip of
the middle finger sheath coaxial with the middle finger to
the proximal heel of the glove palm;
wherein the glove satisfies at least four of the following six
criteria:
A) said glove width divided by said glove hand length is
between 0.46 and 0.49;
B) said glove thumb length divided by said glove hand
length is between 0.61 and 0.63;
C) said glove index finger length divided by said glove
hand length is between 0.37 and 0.40;
D) said glove middle finger length divided by said glove
hand length is between 0.40 and 0.43;
E) said glove ring finger length divided by said glove
hand length is between 0.37 and 0.40; and
F) said glove pinky finger length divided by said glove
hand length is between 0.30 and 0.33;
said glove thereby providing an accurate fit for a majority of
users without relying on material stretch.

Appeal Br. 29–31 (Claims App.).

REJECTIONS3
Claims 6–10 are rejected under 35 U.S.C. § 112(a) as failing to
comply with the written description requirement.
Claims 6–10 are rejected under 35 U.S.C. § 112(b) as being indefinite.

3 The rejection under 35 U.S.C. § 112(d) has been withdrawn. Ans. 7; Final
Act. 6.
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Claims 6–10 are rejected under 35 U.S.C. § 103 as being unpatentable
over Henriksen (US 5,016,286, issued May 21, 1991) and Stansbury (US
4,115,873, issued Sept. 26, 1978).

ANALYSIS
Written Description (Claims 6–10)
The test for sufficiency under the written description requirement of
35 U.S.C. § 112(a) “is whether the disclosure of the application relied upon
reasonably conveys to those skilled in the art that the inventor had
possession of the claimed subject matter as of the filing date.” Ariad
Pharms., Inc. v. Eli Lilly & Co., 598 F.3d 1336, 1351 (Fed. Cir. 2010) (en
banc). This test “requires an objective inquiry into the four corners of the
specification from the perspective of a person of ordinary skill in the art.”
Id. To have “possession,” “the specification must describe an invention
understandable to that skilled artisan and show that the inventor actually
invented the invention claimed.” Id.
First, the Examiner finds that there is no support in the original
disclosure for the phrase “satisfying all of the limitations included in at least
one of the following fifteen groups of limitations, said fifteen groups of
limitations being” Final Act. 3 (emphasis omitted). Appellant points out,
however, that claims 6–10 do not recite this phrase. Appeal Br. 12.
Second, the Examiner finds that the claim term “valley” is not
supported by the original disclosure. Final Act. 3. Claim 6 recites “a valley
that divides the index finger sheath from the middle finger sheath,” “a valley
that divides the middle finger sheath from the ring finger sheath,” and “a
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valley that divides the ring finger sheath from the pinky finger sheath.”
Appeal Br. 30 (Claims App.) (emphasis added).
Appellant addresses this written description issue in response to the
indefiniteness rejection, which we discuss in detail below. Appeal Br. 14.
Appellant concedes that the term “valley” is not used verbatim in the
Specification. Id. at 15. Appellant contends, however, “that the meaning of
the term ‘valley’ in the context of the spaces between fingers is self-
evident,” and that “the meaning is clear . . . in light of the well-known
structure of the human hand and of a glove as having fingers separated by
‘minima’ that are formed therebetween.” Id. (emphasis added). Appellant
states, “the definitions of the glove dimensions that appear in claim 6,
including mention of the ‘valleys’ that are formed between adjacent finger
sheaths, are obvious verbal descriptions of the visual definitions of hand
dimensions, and thereby of glove dimensions, that appear in Figure 1.” Id.
Appellant is correct that the Specification need not explicitly describe
the term “valley” to comply with the written description requirement.
Appeal Br. 15. As described in MPEP § 2163(I)(B), “there is no in haec
verba requirement.” Drawings can be relied on to provide support, and,
“under proper circumstances, drawings alone may provide a ‘written
description’ of an invention as required by § 112.” Vas-Cath Inc. v.
Mahurkar, 935 F.2d 1555, 1565 (Fed. Cir. 1991). Here, Figure 1 depicts a
human hand with a thumb, index finger, middle finger, ring finger, and
pinky finger, having respective lengths C, D, E, F, and G, as represented by
axially-extending lines. See also Spec. ¶ 19. In view of Figure 1, we
understand that the term “valley” means the depicted concave-shaped
regions located between the index finger and middle finger, the middle
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finger and ring finger, and the ring finger and pinky finger. We agree with
Appellant that the original disclosure provides sufficient support for the
claim term “valley.”
We do not sustain the rejection of claims 6–10 under the written
description requirement of 35 U.S.C. § 112(a).

Indefiniteness (Claims 6–10)
The Examiner determines that claims 6 and 7 both recite limitations
that render them indefinite. Final Act. 4–6.
Claim 6
First, the Examiner determines that the “numbers” “0.46 and 0.49,”
“0.61 and 0.63,” “0.37 and 0.40,” “0.40 and 0.43,” “0.37 and 0.40,” and
“0.30 and 0.33” render the claim indefinite. Final Act. 4. The Examiner
submits that it unclear what structural element or configuration of the
structural element is disclosed by these numbers, and questions what the
numbers represent. Id.
The “numbers” are recited in limitations A–F of claim 6. See Appeal
Br. 31 (Claims App.). Limitation A, for example, recites that “said glove
width divided by said glove hand length is between 0.46 and 0.49.” Id. As
such, limitation A recites a numerical range with lower and upper limits of
the quotient, or dimensional ratio, of the glove width and glove hand length.
Each of limitations B–F likewise recites a numerical range of a dimensional
ratio of two glove dimensions. Id. As noted by Appellant, the
measurements recited in limitations A–F (i.e., glove width, glove hand
length, glove thumb length, glove middle finger length, glove ring finger
length, and glove pinky finger length) and the glove structures (i.e., thumb
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and finger sheaths and glove palm) are defined in claim 6, directly after the
phrase “the glove being characterized by seven glove dimensions.” Id. at 13.
Immediately preceding limitations A–F, claim 6 recites that “the glove
satisfies at least four of the following six criteria.” Appeal Br. 30 (Claims
App.). Accordingly, limitations A–F are the respective “six criteria.” To
satisfy the criterion of limitation A, for example, the dimensional ratio of the
glove width divided by the glove hand length must be between 0.46 and
0.49. Appellant points out that claim 6 requires that at least four of the six
dimensional ratios in limitations A–F fall within the corresponding
numerical ranges. Id. at 13. For example, satisfying the criterion of
limitation A, and additionally satisfying the criteria of any three, any four, or
all five of limitations B–F, would satisfy the “at least four of the following
six criteria” requirement. We agree with Appellant that the meaning of the
“numbers” recited in claim 6 is clear.
The Examiner also questions what claims 6–10 are drawn to. Final
Act. 4. The Examiner notes that Appellant “elected . . . claims 6–10, the
apparatus,” but submits that “[l]imitations in the elected claims are drawn to
some sort of equations for a standardized sizing which indeed as written is a
process or method, as such they remain a method of designing a glove.” Id.
(emphasis added).
We disagree with the Examiner. The preamble of claim 6 recites that
the glove is constructed from materials that include a low-stretch material
having the recited properties. Appeal Br. 29–30 (Claims App.). The body
of claim 6 recites that the glove has “five separate sheaths extending from a
glove palm” and then lists these sheaths. Id. Claim 6 further recites that
“the glove [is] characterized by seven glove dimensions” and then describes
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these dimensions. Id. And lastly, claim 6 recites that “the glove satisfies at
least four of the following six criteria,” and then recites these criteria. Id.
We agree with Appellant that these limitations are structural limitations of
the glove. Id. at 14. Accordingly, the structural limitations recite materials
that the glove is constructed from, the elements of the glove, and
dimensional ratios of these elements. We agree with Appellant that the
claims are clearly directed to a glove, an article of manufacture. Id.
The Examiner also determines that the limitation “and/or” in claim 6
renders the claim indefinite. Final Act. 4. Appellant points out, however,
that this limitation is not recited in claims 6–10. Appeal Br. 14.
The Examiner next determines that the term “valley” renders the
claim indefinite because it unclear what structural element is meant by the
term. Final Act. 4–5. As discussed, we construe this term to mean the
concave-shaped regions located between the index finger and middle finger,
the middle finger and ring finger, and the ring finger and pinky finger,
respectively, as depicted in Figure 1. We agree with Appellant that the
meaning of this term would be sufficiently clear to one of ordinary skill in
the art in view of the disclosure. Appeal Br. 15–16.
The Examiner also determines that the phrase “is equal in depth to an
average of the depths of the valley” renders claim 6 indefinite because it
unclear what structural element or configuration of the structural element
this phrase discloses, and also what Appellant intends to claim as the
invention. Final Act. 5 (emphasis omitted). The Examiner questions “What
is the average of the depths of the valley when no information of the valleys
or measures are disclosed?” Id.
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The Examiner does not state explicitly that the meaning of the claim
term “depth” is unclear; however, the Examiner implies this. Claim 6
recites, for example, “a glove index finger length extending coaxial with the
index finger sheath from a distal tip of the index finger sheath to a point that
is equal in depth to a depth of a valley that divides the index finger sheath
from the middle finger sheath.” Appeal Br. 30 (Claims App.) (emphasis
added). The term “depth” is not described in the Specification.
Appellant contends that “the meaning of a length that extends from a
distal tip of a finger to a ‘depth of a valley’ is clear.” Appeal Br. 16.
However, claim 6 does not recite this particular language, but recites that the
glove index finger length extends to “a point that is equal in depth to a depth
of a valley.” Figure 1 shows that the length D of the index finger extends
axially from its distal tip to an opposite end. This end “point” appears to be
approximately aligned, horizontally, with the “valley” defined between the
index finger and adjacent middle finger. It is unclear, however, what the
recited “depth” of the “point” means as the claim does not recite the location
of the “point” relative to a reference location. This same lack of clarity
applies to the meaning of “a depth of a valley.”
We agree with the Examiner that the meaning of the phrase “an
average of the depths” is indefinite. Claim 6 recites “a glove middle finger
length extending . . . to a point that is equal in depth to an average of the
depths of the valley that divides the index finger sheath from the middle
finger sheath and a valley that divides the middle finger sheath from the ring
finger sheath” (“glove middle finger length limitation”), and “a glove ring
finger length extending . . . to a point that is equal in depth to an average of
the depths of the valley and a valley that divides the middle finger sheath
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from the ring finger sheath and a valley that divides the ring finger sheath
from the pinky finger sheath” (“glove ring finger length limitation”). Appeal
Br. 30 (Claims App.).
As for the glove middle finger length limitation, Figure 1 shows that
the index finger (of length D) and the middle finger (of length E) define a
concave-shaped first “valley” between them, and the middle finger and the
ring finger (of length F) define a concave-shaped second “valley” between
them. Appellant contends, “a length extending from the distal tip to an
‘average’ of the two ‘depths’ adjacent to a middle finger clearly refers to an
average of the lengths as measured from the tip of the middle finger to each
of the adjacent valleys.” Appeal Br. 16. Accordingly, Appellant contends
that the depth of the first valley means the length measured from the tip of
the middle finger to the first valley, and the depth of the second valley
means the length measured from the tip of the middle finger to the second
valley. However, claim 6 does not recite any language that supports this
particular meaning. Nor does Appellant direct us to any disclosure that
does. Even if the “depths” of the first and second valleys could be measured
in this particular manner, Appellant does not identify any support for
necessarily construing the terms “depths” to have this particular meaning.
Similar indefiniteness issues also exist for the glove ring finger length
limitation. Accordingly, we agree with the Examiner that the meaning of the
recited phrase “an average of the depths” is indefinite.4

4 In view of this indefiniteness issue, if there is further prosecution of the
present application, the Examiner may consider whether the original
disclosure provides sufficient written description support for the full “glove
middle finger length” and the “glove ring finger length” limitations recited
in claim 6.
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Lastly, the Examiner determines that the phrase “wherein the glove
satisfies at least four of the following six criteria” renders claim 6 indefinite
because it unclear what structural element or configuration of the structural
element is disclosed by the phrase, and what Appellant intends to claim as
the invention. Final Act. 5 (emphasis omitted). We disagree. For the
reasons discussed above for the written description rejection, the meaning of
this phrase is sufficiently clear.
Claim 7
For claim 7, the Examiner determines that the phrase “the glove
satisfies all of the six criteria A through F” renders the claim indefinite
because it unclear what structural element or configuration of the structural
element is disclosed by the phrase, and what Appellant intends to claim as
the invention. Final Act. 5 (emphasis omitted). Appellant explains that this
phrase requires that all six limitation A–F recited in claim 6 must be met,
that is, “satisfied.” Appeal Br. 17–18.
For reasons similar to those discussed above for the written
description rejection, we agree with Appellant that the meaning of claim 7 is
clear. However, because dependent claims 7–10 incorporate all limitations
of claim 6, which recites language that is unclear, we sustain the rejection of
claims 6–10 under 35 U.S.C. § 112(b) as being indefinite.

Obviousness over Henriksen and Stansbury (Claims 6–10)
As for claim 6, the Examiner finds that Henriksen discloses a glove
including a thumb sheath, an index finger sheath, a middle finger sheath, a
ring finger sheath, and a pinky finger sheath extending from a glove palm.
Final Act. 8 (citing Henriksen, Figs. 1, 2). The Examiner determines that
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Henriksen is silent as to the “seven glove dimensions” and “the glove
satisfies at least four of the following six criteria,” as claimed. Id. at 8–9.
The Examiner finds that Stansbury discloses a glove including all of
the limitations missing in Henriksen. Final Act. 9–10 (citing Stansbury, col.
2, ll. 44–58, Figs. 3–8). First, the Examiner concludes that it would have
been obvious to one of ordinary skill in the art to modify Henriksen’s low-
stretch glove system “by constructing the gloves having the appropriate
measurements for fit as taught by Stansbury in order to provide a glove
made of low stretch materials that fits comfortably and is provided in a range
of sizes based on fit specific measurements.” Id. at 10.
Second, the Examiner submits, “where the only difference between
the prior art and the claims was a recitation of relative dimensions of the
claimed device, and a device having the claimed relative dimensions would
not perform differently than the prior art device, the claimed device was not
patentably distinct from the prior art.” Final Act. 11–12 (citing MPEP
§ 2144).
In contrast to the Examiner’s finding, Appellant admits that
“Henricksen does teach index finger, middle finger, ring finger, and pinky
finger lengths, which are Ll3, Ll4, LI5, and Ll6, and also a palm width Dh,
as shown in Figs. 1 and 2, all of which agree with the definitions of claim 6.”
Appeal Br. 19. Appellant agrees with the Examiner, however, that the
thumb length L12 and hand length S14 disclosed in Henriksen differ from
the claimed definitions. Appellant agrees with the Examiner that Stansbury
teaches a hand length as shown in Figures 1 and 2 that meets the claimed
definition, but contends that Stansbury fails to teach a thumb length as
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claimed. Id. at 20. Thus, Appellant contends that both Henriksen and
Stansbury fail to teach a thumb length as defined in claim 6. Id.
More fundamentally, Appellant contends, Stansbury’s glove does not
satisfy at least four of the six criteria recited in claim 6. Appeal Br. 20.
Appellant contends that although Stansbury attempts to solve a similar
problem to the present invention (i.e., provide gloves with a good,
comfortable fit), Stansbury’s solution applies to an opposite category of
gloves. Id. Particularly, the present invention solves the problem with
gloves having limited or no stretch by specifying dimensional limitations
that will cause the glove to closely correspond to the shape of a human hand.
Id. In contrast, Stansbury addresses sizing problems in high-stretch gloves.
Id. at 20–21 (citing Stansbury, col. 1, ll. 40–51). Appellant points out that
Stansbury contrasts the problem it solves against fit requirements of low-
stretch gloves. Id. at 21 (citing Stansbury, col. 2, ll. 34–43). Appellant
contends that Stansbury does not seek to match the dimensions of the glove
to those of the human hand, but instead “seeks to determine the amount by
which a high-stretch glove, such as a surgical glove, should be undersized in
various dimensions to provide the best fit.” Id.
Appellant also contends that Stansbury teaches away from a glove that
conforms to the shape of the user’s hand. Appeal Br. 23 (citing Stansbury,
col. 2, ll. 35–43).
We do not necessarily agree with Appellant that Stansbury teaches
away from the claimed glove. Nonetheless, we agree that the Examiner has
not provided an adequate reason why one of ordinary skill in the art would
have looked to Stansbury’s teachings, which pertain to a glove structure that
is highly-stretchable and, as such, designed to be undersized for the user’s
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hands and to stretch significantly when worn to provide a comfortable fit. In
contrast, the claimed glove is constructed from materials that include a low-
stretch material. As noted by Appellant, Stansbury expressly contrasts
sizing problems for “generally nonstretchable” gloves versus “highly
stretchable latex rubber gloves,” which Stansbury is directed to. See, e.g.,
Stansbury, col. 1, ll. 40–53, col. 2, ll. 34–43.
The passage in Stansbury cited by the Examiner only describes stretch
along the length of the glove hand portion. See Stansbury, col. 2, ll. 44–58,
Fig. 3. Figures 4–6 of Stansbury pertain to glove stretch at a hand
circumference, first knuckle circumference, and second knuckle
circumference, respectively. See id. Figs. 4–6, col. 2, ll. 44–58. Figure 8
shows the relationship between hand circumference and hand length to
provide different fits. See id. Fig. 8, col. 3, l. 27–col. 4, l. 2. Figures 3–6
and 8 and the associated disclosure in Stansbury does not appear to disclose
or suggest the recited “six criteria,” much less satisfying four of the six
criteria, as required by claim 6.
As for the Examiner’s second obviousness rationale, Appellant
submits that “when a glove satisfies the criteria recited in claim 6, and if it is
sized appropriately, it will correspond closely to the shape of the hand of
most human beings, as demonstrated by actual, measured data.” Appeal Br.
24 (citing Figs. 3–8, Spec. Table 1, ¶¶ 31–34). Appellant submits that the
disclosed data clearly establish that the criteria recited in claim 6 cause the
claimed glove to perform differently than prior art gloves. Id.
We agree with Appellant that the data shown in Figure 3–8 provides
support that the recited dimensional ranges for the “six criteria” gives gloves
constructed from low-stretch material that will correspond closely to the
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shape of human hands. The Examiner has not explained why the claimed
glove would not perform differently than Stansbury’s glove constructed
from high-stretch material.
For the foregoing reasons, we do not sustain the rejection of claim 6,
and claims 7–10 depending therefrom, as unpatentable over Henriksen and
Stansbury.

CONCLUSION
We affirm the rejection of claims 6–10 under 35 U.S.C. § 112(b), and
reverse the rejections of claims 6–10 under 35 U.S.C. §§ 112(a) and 103.

DECISION SUMMARY
In summary:
Claim(s)
Rejected
35 U.S.C.
§
Reference(s)/Basis Affirmed Reversed
6–10 112(a) Written
Description
6–10
6–10 112(b) Indefiniteness 6–10
6–10 103 Henriksen,
Stansbury
6–10
Overall
Outcome
6–10

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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