Ex Parte Pasko

Patent Trial and Appeal Board

Jan 8, 2019

13804565 (P.T.A.B. Jan. 8, 2019)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
13/804,565 03/14/2013
27939 7590 01/08/2019
Philip H. Burrus, IV
Burrus Intellectual Property Law Group LLC
222 12th Street NE
Suite 1803
Atlanta, GA 30309
FIRST NAMED INVENTOR
Stephanie Pasko
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
ATTORNEY DOCKET NO.
BPMDL35SP Pl
(10328UCIP)
CONFIRMATION NO.
4551
EXAMINER
HADEN, SALLY CLINE
ART UNIT PAPER NUMBER
3732
MAIL DATE DELIVERY MODE
01/08/2019 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 PASK0 1
Appeal2018-002944
Application 13/804,565
Technology Center 3700
Before LYNNE H. BROWNE, JILL D. HILL, and LISA M. GUIJT,
Administrative Patent Judges.
HILL, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Stephanie Pasko ("Appellant") appeals under 35 U.S.C. § 134(a) from
the Examiner's final decision rejecting claims 1-17. 2 We have jurisdiction
under 35 U.S.C. § 6(b ).
We AFFIRM-IN-PART.
1 Appellant identify the real party in interest as the Assignee and Applicant
Medline Industries, Inc. Appeal Br. 2.
2 Claims 18-20 have been withdrawn from consideration. Final Act. 1.
Appeal2018-002944
Application 13/804,565
BACKGROUND
Independent claims 1 and 17 are pending. Claim 1 is reproduced
below, with disputed limitations italicized.
1. A gown, comprising:
a non-woven fabric layer defining a head insertion
aperture between a front portion and a rear portion, wherein a
front portion length is greater than a rear portion length and the
rear portion defines an opening configured to assist a user in
donning the gown; and
one or more progressive perforations extending across
the rear portion at least partially between the opening and the
neck opening, the one or more progressive peiforations being
non-uniform in length and comprising at least a first score, a
second score separated from the first score by a first length of
material, the second score having a second score length that is
longer than a first score length of the first score, and a third
score separated from the second score by a second length of
material, the third score having a third score length that is
longer than the second score length, and configured to tear and
split the rear portion when the front portion is pulled away
from the user.
REJECTIONS
I. Claims 1-11 stand rejected under 35 U.S.C. § I03(a) as
unpatentable over Graneto '805 (US 2010/0299805 Al, pub. Dec. 2, 2010),
Matsushita (US 6,378,136 B2, iss. Apr. 30, 2002), and Graneto '638 (US
D598,638 S, iss. Aug. 25, 2009). Final Act. 3.
II. Claims 12-14 stand rejected under 35 U.S.C. § I03(a) as
unpatentable over Graneto '805, Matsushita, Graneto '638, and Fujikawa
(US 2002/0095709 Al, pub. July 25, 2002). Final Act. 9-10.
2
Appeal2018-002944
Application 13/804,565
III. Claim 15 stands rejected under 35 U.S.C. § I03(a) as
unpatentable over Graneto '805, Matsushita, Graneto '638, Fujikawa, and
Lair (US 2010/0300459 Al, pub. Dec. 2, 2010). Final Act. 13.
IV. Claim 16 stands rejected under 35 U.S.C. § I03(a) as
unpatentable over Graneto '805, Matsushita, Graneto '638, and Small (US
3,968,792, iss. July 13, 1976). Final Act. 13-14.
V. Claim 17 stands rejected under 35 U.S.C. § I03(a) as
unpatentable over Graneto '934 (US D622,934 S, iss. Sep. 7, 2010) and
Zoephel (US 3,921,221, iss. Nov. 25, 1975). Final Act. 14.
ANALYSIS
Rejections I-IV: Claims 1-16
Regarding independent claim 1, the Examiner finds that Graneto '805
discloses, inter alia, a gown with a head insertion aperture (neck opening
20) defined between a front portion (front member 14) and a rear portion
(left rear member 102 and right rear member 104), and progressive
perforations extending across the rear portion at least partially between the
opening (between rear members 102, 104) and neck opening 120, with "the
one or more progressive perforations being non-uniform in length (fig 6) and
comprising at least a first score (fig 6), a second score separated from the
first score by a first length of material (fig 6), and a third score separated
from the second score by a second length of material (fig 6)," the
perforations being "configured to tear and split the rear portion when the
front portion is pulled away from the user." Final Act. 3 ( citing Graneto
'805 ,r,r 14, 27, 28). The Examiner finds that Graneto '805 shows "at least
four different score lengths," that are "randomized" instead of progressively
increasing, such that Graneto '805 "does not expressly disclose the second
3
Appeal2018-002944
Application 13/804,565
score having a second score length that is longer than a first score length of
the first score and the third score having a third score length that is longer
than the second score length." Id. at 5. The Examiner concludes, however,
that Graneto '805 contemplates that its "perforations may take other forms"
(Graneto '805 ,r 29), so that "it is within the scope of [Graneto '805] to
provide alternative perforations," making it obvious to one skilled in the art
to provide progressive perforations "for the purpose of simplifying removal
of the gown." Id. (citing Graneto '805 ,r 29).
Appellant argues, inter alia, that the Examiner erred in concluding
that it would have been obvious to make the randomly-sized perforations of
Graneto '805 progressively longer. Appeal Br. 15-16. According to
Appellant, the Examiner's conclusion of obviousness "attempts to magically
'fill the void' by alleging rearranging the scores of the reference would 'only
require rearranging the order of the existing scores so that they are aligned in
ascending length ... ," which "fails to confirm the suitability of the
rejection." Id.
The Examiner responds that, to achieve progressive perforation
lengths, "Graneto' s three perforations having different lengths would only
need to be reordered in ascending length," reasoning that one skilled in the
art would appreciate that "a longer perforation would be easier to tear than a
smaller perforation" such that "ordering the perforations from largest to
smallest would allow a more controlled tear down the line of perforations,"
which would "simplify removal of the garment because the tear would be
easier at the start and more difficult as the tear progresses to prevent the user
from tearing unintended portions of the gown." Ans. 2-3. The Examiner
also contends that one skilled in the art would recognize that "ordering the
4
Appeal2018-002944
Application 13/804,565
perforations from largest to smallest would have the advantage of allowing
the perforation to be easier to tear at the start and more difficult to tear at the
bottom to control the tear from extending past the line of perforations." Id.
at 3.
Appellant replies that the record contains no evidence that ( 1) "longer
perforations followed by shorter perforations provides for 'a more controlled
tear down the line of perforations,'" or (2) larger perforation are easier to
tear and smaller perforations are harder to tear, such that the Examiner has
not provided any evidence establishing a rational basis supporting the
proffered conclusion of obviousness. Reply Br. 8-9. Appellant contends
that the Examiner's finding is, thus, "nothing more than speculation." Id. at
9.
Although Graneto '805, relied on by the Examiner to support the
conclusion of obviousness of progressive score length, contemplates the
overall length of the perforation 120 being related to how easily a user can
"rip the material" of the gown (see Graneto ,r,r 20, 28-30), Graneto '805
does not provide support for the Examiner's determination that controlling
score length can provide a more controlled tear along the perforation, or that
a larger score makes a perforation easier to tear and a smaller score makes a
perforation harder to tear. For this reason, we agree with Appellant that
evidence has not been provided to establish a rational basis for the
Examiner's reasoning. Lacking such a rational basis, prima facie
obviousness of claim 1 has not been established. Prima facie obviousness of
claims 2-16, which depend directly or indirectly from claim 1, has not been
established for the same reason.
5
Appeal2018-002944
Application 13/804,565
Rejection V - Claim 17
Claim 17 recites, rather than the progressively-sized perforations of
claim 1, "two tie members, both extending from the body covering portion at
a side tie attachment disposed between the frontal body covering portion and
the rear portion of the body covering portion, such that the two tie members
extend from the side tie attachment distally from the disposable medical
gown" to "wrap about a waist of a wearer." Appeal Br. 29 (Claims App.).
The Examiner finds this disclosure in Graneto '934, including two tie
members extending from the body covering portion at a side tie attachment
distally to "wrap about a waist of a wearer ( capable of wrapping about a
waist of a wearer)." Final Act. 15. The Examiner finds that Graneto '934
does not disclose its tie attachments being disposed between the frontal body
covering portion and the rear portion of the body covering portion, but finds
this teaching in Zoephel, which discloses a similar gown having "two tie
members (first and second end portions 11 and 12), both extending from the
body covering portion at a side tie attachment ( attachment 16) disposed
between the frontal body covering portion ( fig. 1, right side) and the rear
portion of the body covering portion (fig. 1, left side)." Id. The Examiner
concludes that a skilled artisan would have recognized that the Graneto '934
gown could be modified by moving the Graneto '934 tie attachment from
the front side to one of the lateral sides as taught by Zoephel to "provid[ e] a
convenient point for attachment." Id. at 16 (citing Zoephel 3:50-55).
Appellant argues that Graneto discloses a front tie attachment, and
that "[i]t is not clear under the disclosed circumstances how moving the tie
would be beneficial, or how the same could be achieved without disrupting
the desired centrally disposed attachment of the ties occurring place in the
6
Appeal2018-002944
Application 13/804,565
primary reference," making the Examiner's proffered motivation "suspect,
as it does not appear relevant given the context of the primary reference."
Appeal Br. 21. According to Appellant, the Examiner's "cursory statement
for the motivation to combine, namely, that it is a 'convenient' point of
attachment," lacks a rational underpinning. Id. Appellant further contends
that "moving ties to the side would be less convenient because one arm
would need to reach around the torso to grasp a tie rather than to the belly."
Id. at 21-22.
The Examiner responds that Zoephel discloses that gown sides
provide a "'convenient point for attachment"' for gown ties, and that ties can
be attached "'at any convenient area on the gown,"' making front and side
attachment locations known suitable equivalents and "interchangeable
depending on which is convenient for the end user," such that one skilled in
the art "would expect the Graneto gown to work equally well with a front
side or a right side tie attachment." Ans. 4 (citing Zoephel 3:52---61).
The Examiner has the better argument. Zoephel indeed discloses side
tie attachment, and that attachment locations are interchangeable and
selected for user convenience. See Zoephel 3 :52---61. We therefore sustain
the rejection of claim 17 as unpatentable over Graneto '934 and Zoephel.
DECISION
We REVERSE the rejections of claims 1-16 under 35 U.S.C. § 103(a)
as unpatentable over the applied references.
We AFFIRM the rejection of claim 17 under 35 U.S.C. § 103(a) as
unpatentable over Graneto '934 and Zoephel.
7
Appeal2018-002944
Application 13/804,565
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a).
AFFIRMED-IN-PART
8