DENNING, Rochelle

Patent Trials and Appeals Board

Jan 28, 2021

2019004939 (P.T.A.B. Jan. 28, 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.
13/827,283 03/14/2013 Rochelle DENNING RDE-05-US 9012
50446 7590 01/28/2021
HOXIE & ASSOCIATES LLC
75 MAIN STREET
SUITE 203
MILLBURN, NJ 07041
EXAMINER
PIERORAZIO, JILLIAN KUTCH
ART UNIT PAPER NUMBER
3732
NOTIFICATION DATE DELIVERY MODE
01/28/2021 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
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PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte ROCHELLE DENNING
Appeal 2019-004939
Application 13/827,283
Technology Center 3700
Before DANIEL S. SONG, GEORGE R. HOSKINS, and
ARTHUR M. PESLAK, Administrative Patent Judges.
SONG, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Pursuant to 35 U.S.C. § 134(a), the Appellant1 appeals from the
Examiner’s decision to reject claims 1, 3, and 7. 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(a). The Appellant identifies the real party in interest as the
inventor Rochelle Denning. Appeal Br. 3.
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Application 13/827,283
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CLAIMED SUBJECT MATTER
The claims are directed to removable undergarments. Claims 1 and 7
are independent, and claim 1, reproduced below, is illustrative of the
claimed subject matter:
1. A removable undergarment that is configured for an
individual with limited mobility wherein the removable
undergarment comprises:
a) a natural material or fabric or a synthetic material or
fabric,
b) one or more connective strips, and wherein the one or
more connective strips further comprise:
i) connective means; wherein the connective means
consists of hook and loop fasteners, and
ii) a pull tab;
wherein said pull tab is attached to one or more connective
strips, and
wherein the pull tab is attached to a top medial portion of
the one or more connective strips and
wherein an applied force on the pull tab is sufficient to
fasten or disengage a first connective side strip from a second
complimentary connective strip;
wherein the individual is able to insert a finger or thumb
through the pull tab; and
wherein the pull tab is a continuous piece of fabric or
flexible material containing two ends, and wherein the two ends
of the pull tab are both attached to the same connective strip,
wherein the ends are attached in close proximity to one another,
and wherein said ends are substantially in contact with each other
at approximately the same attachment point on the connective
strip;
and wherein the removable undergarment is selected from
the group consisting of: women’s briefs, men’s briefs, men’s
boxer briefs, and men’s boxer underwear.
Listing of the Claims, filed Nov. 20, 2018.
Appeal 2019-004939
Application 13/827,283
3
REFERENCES
The prior art relied upon by the Examiner is:
Name Reference Date
Rainville-Lonn
(“Rainville”)
US 6,253,424 B1 July 3, 2001
Kuen US 2005/0131381 A1 June 16, 2005
Stanley US 2006/0021115 A1 Feb. 2, 2006
REJECTIONS2
1. Claims 1 and 3 are rejected under 35 U.S.C. § 103 as being
unpatentable over Stanley in view of Kuen and Rainville. Final Act. 10.
2. Claim 7 is rejected under 35 U.S.C. § 103 as being unpatentable
over Stanley in view of Rainville. Final Act. 15.
OPINION
Rejection 1: Claims 1 and 3
The Examiner rejects claims 1 and 3 as unpatentable over Stanley in
view of Kuen and Rainville. Final Act. 10. As to independent claim 1, the
Examiner finds that Stanley discloses the invention substantially as claimed,
including a removable underwear having connective strips of hook and loop
fasteners. Final Act. 11, citing Stanley, Figs. 4–5, ¶¶ 2, 8, 15. The
Examiner finds that although Stanley discloses that the underwear is made of

2 Claims 1, 3, and 7 were rejected under 35 U.S.C. § 112(b) or 35 U.S.C.
§ 112 (pre-AIA), second paragraph, as being indefinite. Final Act. 9. The
Examiner omits this rejection from the listing of rejections “applicable to the
appealed claims,” but it is also not apparent when this rejection was
withdrawn. Ans. 3. Although the record is not clear as to the present status
of this indefiniteness rejection, we take the Examiner’s final listing of
rejections in the Answer at face value as accurately identifying the pending
rejections to be reviewed by the Board.
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Application 13/827,283
4
fabric, it fails to explicitly disclose that the fabric is natural or synthetic
fabric, and further fails to disclose a pull tab. Final Act. 11.
The Examiner relies on Kuen for teaching “a natural material or fabric
or a synthetic material or fabric,” and concludes that it would have been
obvious to one of ordinary skill to use such a fabric to provide a removable
undergarment that is “comfortable and meets the characteristic needs for the
user.” Final Act. 12, citing Kuen ¶ 44. The Examiner also relies on
Rainville for disclosing that use of a pull tab was known in the art, and
concludes that it would have been obvious to one of ordinary skill to provide
a pull tab on the removable underwear of Stanley to “allow[] for easy
grasping to open and close the undergarment” in view of Rainville’s
disclosure of loop 19 “for facilitating engagement by the thumb or a finger
of a person having limited use of their hands.” Final Act. 13–14, citing
Rainville, Figs. 5–7. We agree with the Examiner and address the
Appellant’s arguments below.
The Appellant disagrees with the Examiner and points out that
Rainville discloses two loops that are “positioned to facilitate overlap of
support member 11 with support member 14, (i.e. to move the strips
laterally with respect to each other)” so as to engage the hook fasteners into
the eye fasteners 15. Appeal Br. 8; see also Reply Br. 2–3. The Appellant
also points out that “[i]n contrast, the pull tabs (loops) of the present
invention are designed to effect binding or separation of hook-and-loop
bearing strips by application of force in the longitudinal direction - i.e.,
down the length of the strip.” Appeal Br. 8; see also Reply Br. 3.
Accordingly, the Appellant argues that “those of skill in the art, reading
Rainville, would not be led to import only one part of the Rainville closure
(the fabric loop (19) on fastener support member (14)), as Rainville
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Application 13/827,283
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explicitly teaches its use in concert with face loop (17) on fastener support
member (11).” Appeal Br. 8–9; see also Appeal Br. 10 (“the proposed
modification involves excising a single feature of Rainville (loop 19), that
Rainville itself only teaches in conjunction with its specific closure system,
which involves the concerted use of loop 19 and loop 17”); Reply Br. 3.
The Appellant’s argument is unpersuasive. The Examiner is correct
that “there is no requirement to use every feature of a secondary reference,”
and that the Examiner need not incorporate the second loop 17, the rigid
hook 12, or the rigid eye 15 also disclosed in Rainville. Ans. 4. As the
Examiner correctly finds, “Rainville, just like the claimed invention, may be
used by a handicapped person, where an individual is able to insert a finger
or thumb through a pull tab in which the pull tab fastens or disengages the
undergarment.” Ans. 4. Those of ordinary skilled in the art would
understand the disclosure of Rainville as teaching that a pull tab can be used
to benefit a handicapped person, and we agree that it would have been
obvious to such a person that a pull tab may be beneficially used for the
Stanley’s undergarment by a handicapped person to engage and disengage
the hook and loop fastener. Ans. 4.
The Appellant argues that a reference must be considered as a whole,
for all it teaches and that “the assertion by the Examiner that loop 19 of
Rainville may be used by itself and not in conjunction with loop 17 . . . is
conjecture that is contrary to Rainville’s teaching.” Appeal Br. 9; see also
Reply Br. 4. In that regard, the Appellant argues that “focusing on portions
of prior art references that are relevant to the claimed invention while
ignoring other portions that teach away from the claimed invention is
improper.” Reply Br. 2, citing Bausch & Lomb, Inc. v. Barnes-
Hind/Hydrocurve, Inc., 796 F.2d 443, 448 (Fed. Cir. 1986).
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Application 13/827,283
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These arguments are unpersuasive because they essentially relegate a
person of ordinary skill to an automaton. KSR Int’l Co. v. Teleflex Inc., 550
U.S. 398, 421 (2007) (“[a] person of ordinary skill is also a person of
ordinary creativity, not an automaton.”). Rainville clearly establishes that
the use of loops to assist a handicapped person in engaging and disengaging
fasteners on overlapping portions of a garment was well-known in the art.
Rainville, Abstract; Figs. 5–8. Although Rainville discloses two loops to
facilitate laterally engaging overlapping portions of a garment, this does not
detract from its broader teachings that a loop can be used to facilitate
manipulation of portions of a garment by handicapped hands.3 In addition,
contrary to the Appellant’s assertion, Rainville’s explicit disclosure of two
loops does not teach away from use of one loop instead of two loops
considering that it does not criticize, discredit, or otherwise discourage use
of a single loop. Meiresonne v. Google, 849 F.3d 1379, 1382 (Fed. Cir.
2017) (“[a] reference that ‘merely expresses a general preference for an
alternative invention but does not criticize, discredit, or otherwise discourage
investigation into’ the claimed invention does not teach away.”).
As the Supreme Court also explained, “if a technique has been used to
improve one device, and a person of ordinary skill in the art would recognize
that it would improve similar devices in the same way, using the technique is
obvious unless its actual application is beyond his or her skill.” KSR, 550
U.S. at 417. The technique of providing a loop on a portion of a garment to
facilitate manipulation of portions of a garment by handicapped hands is
well-known, and a person of ordinary skill would have the skill and

3 Although we do not rely on the following in deciding this appeal, we note
that claim 1 uses the transitional phrase “comprises” such that it does not
even preclude use of two pull tabs/loops.
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Application 13/827,283
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creativity to implement one or more loops on a garment as warranted, in
order to facilitate putting on the garment, taking off the garment, or other
manipulation of a garment. See, e.g., Ans. 5 (“Rainville’s loop 19, may
impart additional benefits and function . . . in which loop 19 would not rely
upon loop 17,” such as using “only loop 19 to adjust the garments position
for a more comfortable fit on the user’s body.”).
The Appellant further argues that “[n]othing in Stanley or Rainville
discloses or suggests use of a pull tab attached to a top medial portion of one
or more connective strips such that an applied force on the pull tab is
sufficient to fasten or disengage a first connective side strip from a second
complimentary connective strip.” Reply Br. 3. However, this argument is
foreclosed by KSR, in which the Supreme Court rejected the rigid
requirement of a teaching, suggestion or motivation to combine known
elements in order to establish obviousness. KSR, 550 U.S. at 418–19. What
is required is an articulated reason with a rational basis to support the
conclusion of obviousness. See id. at 417–18. In the present case, the
Examiner has stated a rational reason for combining Stanley and Rainville,
i.e., to “allow[] for easy grasping to open and close the undergarment” and
“for facilitating engagement by the thumb or a finger of a person having
limited use of their hands.” Final Act. 13–14. Moreover, we see no
distinction between the loop 19 of Rainville and the claimed pull tab, and
agree with the Examiner that “the combination of Stanley’s connective strips
and the added pull tab of Rainville’s loop 19 would allow a force to be
applied to Rainville’s loop 19 to engage and disengage Stanley’s connective
means.” Ans. 5.
Finally, the Appellant argues that the “[u]se of a single pull tab, or
two pull tabs, located at the top medial portion of the strip(s) would not be
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Application 13/827,283
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effective to facilitate attachment or separation of the Rainville fastener
support member” because the rigid hook and rigid eye fasteners require
lateral movement relative to the other. Appeal Br. 10. However, this
argument is misdirected because the underwear of Stanley is being modified
to include a pull tab.
Therefore, in view of the above considerations, we affirm the
Examiner’s rejection of claim 1. The Appellant does not submit any
separate arguments directed to claim 3. Accordingly, claim 3 falls with
claim 1.

Rejection 2: Claim 7
Independent claim 7 is rejected under 35 U.S.C. § 103 as being
unpatentable over Stanley in view of Rainville. Final Act. 15. The
Examiner’s rejection of claim 7 is substantively the same as that of claim 1,
except that it does not rely on Kuen because claim 7 does not recite “a
natural material or fabric or a synthetic material or fabric.” Final Act. 15–
18. The Appellant relies on the same unpersuasive arguments discussed
above relative to Rejection 1 in support of patentability of claim 7. Appeal
Br. 11. Accordingly, we affirm the Examiner’s rejection of claim 7 for
reasons discussed above.
CONCLUSION
The Examiner’s rejections are affirmed. More specifically,
1. Rejection of claims 1 and 3 as unpatentable over Stanley, Kuen,
and Rainville is affirmed.
2. Rejection of claim 7 as unpatentable over Stanley and Rainville
is affirmed.
Appeal 2019-004939
Application 13/827,283
9
DECISION SUMMARY
In summary:
Claims
Rejected
35 U.S.C.
§
Reference(s)/Basis Affirmed Reversed
1, 3 103 Stanley, Kuen,
Rainville
1, 3
7 103 Stanley, Rainville 7
Overall
Outcome
1, 3, 7

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