Ex Parte Brown

Patent Trial and Appeal Board

Mar 28, 2018

14555549 (P.T.A.B. Mar. 28, 2018)

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.
14/555,549 11/26/2014 Vanessa Danielle Brown Cameron A. Carter 8021
132644 7590
Vanessa Brown
c/o Devlin Law Firm LLC
1306 N. Broom St., Suite 1
Wilmington, DE 19806
EXAMINER
CARTER, CAMERON A
ART UNIT PAPER NUMBER
3765
NOTIFICATION DATE DELIVERY MODE
03/30/2018 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):
US PTO @ dockettrak. com
vdbro wn @ gmail. com
uspto @ devlinlawfirm. com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte VANESSA DANIELLE BROWN
Appeal 2017-004972
Application 14/555,549
Technology Center 3700
Before JOHN C. KERINS, WILLIAM A. CAPP and
GEORGE R. HOSKINS, Administrative Patent Judges.
CAPP, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Appellant seeks our review under 35 U.S.C. § 134(a) of the final
rejection of claims 1 and 12—20. We have jurisdiction under 35 U.S.C.
§ 6(b).
We AFFIRM-IN-PART.
Appeal 2017-004972
Application 14/555,549
THE INVENTION
Appellant’s invention relates to outerwear garments. Spec. 1.
Claim 1, reproduced below, is illustrative of the subject matter on appeal.
1. A garment to be worn by a human person comprising
a posterior torso portion, an anterior torso portion, shoulder
portions whereto the torso portions are connected to form a bust
capable of fully encircling the torso of a wearer, left arm
aperture, right arm aperture, and head aperture;
the anterior torso portion containing multiple layers of
fabric material, including at least one interior layer and at least
one exterior layer;
wherein the exterior layer of the anterior torso portion
contains right-side and left-side semi-detachable anterior panels
that open away from a vertical centerline of the anterior torso
portion;
the panels containing one or more closure devices located at
the top of a shoulder area of the garment and one or more
closure devices located along the vertical centerline of the
anterior torso portion of the garment to enable partial
detachment of the panels of the exterior layer from the interior
layer.
THE REJECTIONS
The Examiner relies upon the following as evidence in support of the
rejections:
Rizk US 2005/0017566 A1 Jan. 27, 2005
Jenkins US 2014/0132055 A1 May 15, 2014
The following rejections are before us for review:
1. Claims 1 and 12—19 are rejected under 35U.S.C. § 112, second
paragraph, as being indefinite for failing to particularly point out and
distinctly claim the subject matter which the applicant regards as the
invention.
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Application 14/555,549
2. Claims 1 and 12—14 are rejected under 35 U.S.C. § 102(a)(1) as
being anticipated by Rizk.
3. Claims 15—20 are rejected under 35 U.S.C. § 103, as being
unpatentable over Rizk and Jenkins.
OPINION
Indefiniteness
Appellant responds to the Examiner’s various indefmiteness rejections
by indicating that appropriate amendments will be made to the claims upon
resumption of prosecution. Appeal Br. 9. Appellant does not otherwise
contest the Examiner’s indefmiteness rejections, which are hereby
summarily sustained. Id.
Anticipation of Claims 1 and 12—14
by Rizk
Claim 1
The Examiner finds that Rizk contains all of the limitations of
claim 1. Final Action 2—4. In particular, the Examiner finds that the anterior
torso portion of Rizk contains multiple layers of fabric material including an
interior and exterior layer. Id.
Appellant challenges the Examiner’s finding that Rizk’s anterior torso
portion contains multiple layers of fabric as claimed. Appeal Br. 4. In
response, the Examiner states that Rizk’s covering front panel 110 is
fastened to the jacket “by any art recognized fastening mechanism,” thereby
creating an overlapping external layer. Ans. 2; see also Rizk 119. In reply,
Appellant concedes that Rizk has thin slivers of overlap where front
panel 110 fastens to the remainder of the garment. Reply Br. 1. Appellant
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Application 14/555,549
faults the Examiner for using an improper, overly broad construction of
“layer.” Id. at 1—2.
Determining whether claims are anticipated involves a two-step
analysis. In re Montgomery, 677 F.3d 1375, 1379 (Fed. Cir. 2012). The
first step involves construction of the claims of the patent at issue. Id. The
second step of an anticipation analysis involves comparing the claims to
prior art. Id. A prior art reference anticipates a patent claim under 35
U.S.C. § 102 if it discloses every claim limitation. Id.
During examination of a patent application, pending claims are given
their broadest reasonable construction consistent with the specification. In
re Am. Acad. ofSci. Tech Ctr., 367 F.3d 1359, 1364 (Fed. Cir. 2004). Under
the broadest reasonable interpretation standard, claim terms are given their
ordinary and customary meaning as would be understood by one of ordinary
skill in the art in the context of the entire disclosure. In re Translogic Tech.,
Inc., 504 F.3d 1249, 1257 (Fed. Cir. 2007). However, even under the
broadest reasonable interpretation, the Board's construction “cannot be
divorced from the specification and the record evidence.” In re NTP, Inc.,
654 F.3d 1279, 1288 (Fed. Cir. 2011). A construction that is “unreasonably
broad” and which does not “reasonably reflect the plain language and
disclosure” will not pass muster. Microsoft Corp. v. Proxy conn, Inc., 789
F.3d 1292, 1298 (Fed. Cir. 2015).
Appellant’s Specification explains that, in addition to having an
exterior layer:
There can be an underlying, fabric portion of the garment,
under the semi-removable torso panels, to which portions of the
hood, collar, shoulders, and/or areas of the garment shell and or
lining which border the semi-removable panels are attached.
The purpose of this underlying fabric is to maintain the
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Appeal 2017-004972
Application 14/555,549
placement and structure of the garment on the wearer while
one or more of the closure devices are disengaged.
Spec. 2 (emphasis added). Similarly,
Also shown in [Figure 2] is the semi-independent underlying
fabric portion 208 and 209, which is designed to anchor the
hood 113 and hood closure 207 and prevent shifting and
movement of the jacket on the wearer while the primary
fastener is disengaged. In this embodiment, the underlying
fabric portion is shown secured with its own independent
closure device 212 and with its bottom edge 213 and 214 just
below chest level.
Id. at 4 (emphasis added). The Specification thus describes the underlying
(or interior) fabric layer as a structure of sufficient lateral extent to prevent
movement of the jacket while the primary fastener on the exterior fabric is
disengaged.
In view of Appellant’s Specification and drawings, taken as a whole,
the Examiner’s construction is overly broad. The Examiner’s construction,
carried to its logical conclusion, tends to render all garments with button,
zipper, or similar fasteners “multi-layer” garments on account of the slight
overlap that occurs where the garment panels are fastened together.
Essentially, according to the Examiner, there can be no such thing as a single
layer garment if adjoining panels are fastened together using typical,
conventional fasteners. In other words, according to the Examiner, almost
all garments that fasten adjoining panels together “by any art recognized
fastening mechanism,” are multi-layer garments. See Ans. 2. Furthermore,
the Examiner does not find, nor is there any reason to believe, that the
purported interior layer of Rizk is capable of preventing shifting and
movement of the jacket on the wearer while the primary fastener is
disengaged, which is the sole stated purpose for including an interior layer
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Application 14/555,549
on the garment. In our opinion, a person of ordinary skill in the art, having
read Appellant’s entire disclosure, including Figure 2 and its accompanying
description in the Specification, would not construe the “interior layer” of
claim 1 as sufficiently broad to encompass the slight overlap that occurs
where the garment panels adjoin in Rizk.
The Examiner’s anticipation rejection of claim 1 is in error as based
on a faulty claim construction. Accordingly, we do not sustain the
anticipation rejection of claim 1.
Claims 12—14
These claims depend from claim 1. Claims App. The Examiner’s
rejection of these claims suffers from the same infirmity that was identified
above with respect to claim 1. Thus, for essentially the same reason
expressed above in connection with claim 1, we do not sustain the
anticipation rejection of claims 12—14.
Unpatentability of Claims 15—20
over Rizk and Jenkins
Claims 15 and 16
These claims depend from claim 1. Claims App. The Examiner relies
on the secondary reference of Jenkins as disclosing the detachable hood and
arm sleeve limitations of claims 15 and 16 respectively. Id.', Final Action 5.
The Examiner makes no findings with respect to Jenkins that cure the
deficiency noted above with respect to the Rizk reference. Final Action 5.
Thus, for essentially the same reason expressed above in connection with
claim 1, we do not sustain the rejection of claims 15 and 16 as unpatentable
over Rizk and Jenkins.
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Application 14/555,549
Claims 17—19
Claim 17 is written in dependent form but fails to identify the claim
from which it depends. Claims App. Claims 18 and 19 depend from
claim 17. Id. In view of our decision to sustain the indefiniteness rejection
of claims 17—19, we do not reach the art based rejection of these claims over
Rizk and Jenkins. See 37 C.F.R. § 41.50(a)(1) (The affirmance of the
rejection of a claim on any of the grounds specified constitutes a general
affirmance of the decision of the examiner on that claim, except as to any
ground specifically reversed).
Claim 20
Claim 20 is an independent claim that is substantially similar in scope
to claim 1. Claims App. As with the rejection of claim 1, the Examiner
finds that Rizk discloses an interior layer along an anterior portion of the
jacket. Thus, the rejection of claim 20 suffers from the same infirmity that
we have identified with respect to claim 1 that is not cured by reliance on
Jenkins as a secondary reference. Consequently, we do not sustain the
unpatentability rejection of claim 20.
DECISION
The decision of the Examiner to reject claims 1 and 12—19 as
indefinite under 35 U.S.C. § 112, second paragraph, is affirmed.
The decision of the Examiner to reject claims 1 and 12—14 as
anticipated by Rizk is reversed.
The decision of the Examiner to reject claims 15, 16, and 20 as
unpatentable over Rizk and Jenkins is reversed.
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Appeal 2017-004972
Application 14/555,549
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a)(l)(iv).
AFFIRMED-IN-PART
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