10187682 (B.P.A.I. May. 30, 2012)

Ex Parte Hall et al

Board of Patent Appeals and InterferencesMay 30, 2012

10187682 (B.P.A.I. May. 30, 2012)

UNITED STATES PATENT AND TRADEMARK OFFICE ____________________ BEFORE THE BOARD OF PATENT APPEALS AND INTERFERENCES ____________________ Ex parte GREGORY K. HALL, TIM J. JANSSEN, MICHAEL J. GARVEY, and THOMAS W. ODORZYNSKI ____________________ Appeal 2010-005178 Application 10/187,682 Technology Center 3700 ____________________ Before: KEN B. BARRETT, CHARLES N. GREENHUT, and MICHAEL L. HOELTER, Administrative Patent Judges. GREENHUT, Administrative Patent Judge. DECISION ON APPEAL Appeal 2010-005178 Application 10/187,682 2 STATEMENT OF CASE Appellants appeal under 35 U.S.C. § 134 from a rejection of claims 1- 6 and 8-28. App. Br. 2. We have jurisdiction under 35 U.S.C. § 6(b). We reverse. The claims are directed to garments using elastic strands to enhance performance of elastic barrier adhesive. Claim 1, reproduced below, is illustrative of the claimed subject matter: 1. A garment having at least one elastomeric composite therein, the elastomeric composite comprising a plurality of elastic strands incorporated at least substantially entirely inside a layer of an elastomeric adhesive film; the elastomeric composite having a first set of the elastic strands having a first tension along a first portion of the film and a second set of the elastic strands having a second tension along a second portion of the film, the first tension greater than the second tension; and the garment having at least one expandable area utilizing the elastomeric composite. REFERENCES The prior art relied upon by the Examiner in rejecting the claims on appeal is: Ales Darvell Allen US 4,642,819 US 4,855,170 US 6,149,637 Feb. 17, 1987 Aug. 8, 1989 Nov. 21, 2000 REJECTIONS Claims 1, 2, 4-6, 8-18, and 28 are rejected under 35 U.S.C. § 103(a) as being unpatentable over Ales and Allen. Ans. 4. Appeal 2010-005178 Application 10/187,682 3 Claims 3 and 19-27 are rejected under 35 U.S.C. § 103(a) as being unpatentable over Ales, Allen, and Darvell. Ans. 5. OPINION Regarding Ales, the Examiner states, “the elastic strands 30 are joined along a layer of adhesive 40” but “Ales is silent as to whether the adhesive 40 is an elastomeric adhesive.” Ans.4. In the Final Rejection the Examiner appears to indicate the limitation requiring the strands to be “incorporated at least substantially entirely inside” that layer of elastomeric adhesive is disclosed by Ales. Final Rej. 2. In the Answer, the Examiner does not address this limitation in the statement of rejection but, in response to Appellants’ arguments states, [t]he term ‘substantially’ does not require the entire elastic elements to be inside the layer 40, but allows for some of the elastic element 30 to lie outside of the layer 40. Additionally, the elastomeric laminate of Allen incorporates elastic strands in the elastomeric adhesive layer (Allen col. 6, lines 43-64 where Allen teaches the elastic component is elastic strands1 positioned between 46, 47, and 48). Ans. 6. In Ales, “[t]he sections of the interior and exterior marginal portions 31 and 32 within a zone 34 between the spaced elastic elements 30 are joined together along a layer of adhesive 40.” Col. 4, ll. 11-13, fig. 4. Since zone 34, where the layer of adhesive 40 is applied, is between the elastic elements 30, the structure interpreted by the Examiner as the claimed 1 The Examiner does not specify what structure in Allen the Examiner regards as the “elastic strands.” It appears to be elastic waistband member 76 positioned between gatherable laminae 46 or 48 and elastomeric lamina 47. Appeal 2010-005178 Application 10/187,682 4 “strands,” nearly all of Ales’s elastic element 30, as opposed to merely “some of the elastic element” (Ans. 6), appears to lie outside layer 40. App. Br. 8; cf e.g., Application Fig. 4. In Allen, “the elasticized waistband 34 comprises an elastic waistband member 76 interposed between one of the gatherable laminae 46 or 48 and the elastomeric lamina 47.” Col. 6, ll. 43-46, figs. 2, 3. Allen describes lamina 47 as having pressure sensitive adhesive property. Col. 4, ll. 65-67. Lamina 46 is not described as having any adhesive properties. Col. 4, ll. 43- 53. One of the possible materials suggested for use as lamina 48 is a hot- melt material which implies that, if heated, it would exhibit some adhesive properties. See Col. 4, ll. 36-38. As Appellants point out (Reply Br. 2), Allen is somewhat vague in describing the arrangement of these elements. The cross section of Allen depicted in Figure 3, is not in the area of interest—the elastic waistband region. See Fig. 2. In any case, to the extent that the Examiner takes this position, we cannot agree that by virtue of being between lamina 47 and one of laminae 46 and 48 Allen teaches incorporating an elastic strand substantially entirely inside a layer of elastomeric adhesive film as claimed. Lamina 46 never exhibits adhesive properties and, to the extent lamina 48 does, since lamina 48, like 46, is gatherable by the elastic member 76, one of ordinary skill in the art would understand lamina 48 is not in a melted state, and therefore does not exhibit adhesive properties, at the time the elastic member is incorporated between it and the pressure sensitive lamina 47. For the reasons discussed above, Appellants have persuasively demonstrated “that whether considered alone or in combination the references fail to show or suggest the recited garment including at least an elastomeric composite comprising a plurality of elastic strands incorporated Appeal 2010-005178 Application 10/187,682 5 at least substantially entirely inside a layer of an elastomeric adhesive film” as required by each of the independent claims involved in this appeal, claims 1 and 28. App. Br. 4-10. Darvell, as relied upon by the Examiner, fails to cure the deficiency discussed above. DECISION The Examiner’s rejection of claims 1-6 and 8-28 are reversed. REVERSED mls