Ex Parte Grilliot et al

Patent Trial and Appeal Board

Nov 25, 2013

10999437 (P.T.A.B. Nov. 25, 2013)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________________

Ex parte WILLIAM L. GRILLIOT and MARY I. GRILLIOT
____________________

Appeal 2012-001659
Application 10/999,437
Technology Center 3700
____________________

Before EDWARD A. BROWN, PATRICK R. SCANLON, and
ANNETTE R. REIMERS, Administrative Patent Judges.

BROWN, Administrative Patent Judge.

DECISION ON APPEAL
Appeal 2012-001659
Application 10/999,437

2
STATEMENT OF THE CASE
Appellants appeal under 35 U.S.C. § 134(a) from the Examiner’s
decision rejecting claims 1, 3, 5, 7, and 18-28. App. Br. 2. Claims 2, 4, 6,
and 8-17 are cancelled. Id. We have jurisdiction under 35 U.S.C. § 6(b).
We REVERSE.

CLAIMED SUBJECT MATTER
Claim 1 is the sole independent claim and reads:
1. For a firefighter or for an emergency rescue
worker, a protective garment having a margin, for
extension around a part of a worker wearing the
protective garment, wherein the protective
garment has an outer shell extending over a first
area and a liner extending over a second area, the
liner providing a moisture barrier or a moisture and
chemical barrier inside the outer shell over a
substantial portion of the first area to substantially
block passage of moisture or chemicals through
the first area of the outer shell into contact with a
worker wearing the protective garment, and a
single continuous layer of elastomeric material
forms both the liner and an elastomeric gasket is
unitary with a liner, The , [sic] the elastomeric
gasket extending from and unitary with the liner
such that there is no multi-layer structure or
stitched seam connecting the gasket and the liner,
the elastomeric gasket exposed at and extending
over a third area on an inside surface of the margin
and sized to be snugly stretched around a part
around which the margin extends to form a seal,
wherein the second area is substantially greater
than the third area.

Appeal 2012-001659
Application 10/999,437

3
REJECTIONS
1. Claim 1 is rejected under 35 U.S.C. § 102(b) as anticipated by
Musto (US 4,535,477; issued Aug. 20, 1985).
2. Claims 1, 3, 5, 18-20, and 23-28 are rejected under 35 U.S.C.
§ 103(a) as unpatentable over Grilliot (US 4,864,742; issued Sep. 12, 1989)
and Freese (US 5,247,708; issued Sep. 28, 1993).
3. Claims 7, 21, and 22 are rejected under 35 U.S.C. § 103(a) as
unpatentable over Grilliot, Freese, and Snedeker (US 5,884,332; issued Mar.
23, 1999).
4. Claims 1, 3, 5, 7, and 18-28 are rejected under 35 U.S.C.
§ 102(e) as anticipated by Lewis (US 6,983,490 B1; issued Jan. 10, 2006).

ANALYSIS
Rejection (1) – Anticipation - Musto
Claim 1 recites the limitation “the elastomeric gasket exposed at and
extending over a third area on an inside surface of the margin and sized to
be snugly stretched around a part around which the margin extends to form a
seal, wherein the second area is substantially greater than the third area.”
Emphasis added. The Examiner found that Musto discloses an elastomeric
material forming a liner 5 and a gasket 5 extending from and unitary with
the liner 5. Ans. 5. The Examiner also found that Musto discloses that the
second area (non-rolled, top portion of section 5) is substantially greater than
the third area (rolled, bottom portion of section 5). Id. at 13 (citing Musto,
figs. 4 and 5).
Musto discloses a top including a body part 1, welt flap 6, and an
annular rubber band 5 defining a sealing skirt, and trousers 10 including a
sealing skirt 13. Musto, col. 2, ll. 6-16 and ll. 22-31; figs. 1 and 2. Musto
Appeal 2012-001659
Application 10/999,437

4
also discloses that the sealing skirt 5 is arranged to overlie the sealing skirt
(13) of the trousers (fig. 3) and the two skirts are rolled up together from
their lower free edges (fig. 4). Id. at col. 2, ll. 32-37. Musto further
discloses that when the seal has been fully rolled (fig. 5), the welt flap 6 is
turned over the rolled seal 14 and the elasticated seam 7 is tucked in under
the roll (fig. 6). Id. at col. 2, ll. 37-40).
Appellants contend that “the ‘third area’ [of Musto] . . . does not
extend over ‘a third area on an inside surface of the margin,’” as claimed.
App. Br. 4; see also Reply Br. 2. We agree. Because the sealing skirt 5 of
the top overlies the sealing skirt 13 of the trousers 10 in Musto, the rolled
portion of the sealing skirt 13, not the sealing skirt 5, would form an inside
surface when rolled as depicted in Figures 4 and 5. The Examiner does not
address this contention. Ans. 12-13. Accordingly, we agree with Appellants
that the Examiner’s finding that Musto discloses every limitation of claim 1
is not supported by a preponderance of the evidence. Thus, we do not
sustain the rejection of claim 1 as anticipated by Musto.
Rejection (2) – Obviousness – Grilliot and Freese
As to claim 1, the Examiner found that Grilliot discloses “a single
continuous layer of material forms both the liner and [a] gasket (see figure 4
liner flips over inner liner),” but does not disclose that the liner and gasket
are made from an elastomeric material. Ans. 6 (citing Grilliot, figs. 3 and 4).
The Examiner found that Freese teaches a protective garment including “a
liner made out of neoprene, which is an elastomeric material” (id., citing
Freese, col. 2, ll. 44-55), and concluded that it would have been obvious to
one of ordinary skill in the art to provide Grilliot’s firefighter’s pants with
the layers and material taught by Freese (id. at 8). The Examiner also found
Appeal 2012-001659
Application 10/999,437

5
that the gasket is “sized to be snugly stretched around a part around which
the margin extends (depending upon size of part capable of forming a seal
when provided with Freese Jr.’s elastomeric material . . . ).” Id. at 6.
Appellants contend that neither Grilliot nor Freese disclose an
elastomeric gasket “‘sized to be snugly stretched around a part around which
the margin extends,’ let alone ‘to form a seal.’” App. Br. 5. We agree with
Appellants that the Examiner did not make a finding supported by a
preponderance of the evidence that the “gasket” of Grilliot is “sized to be
snugly stretched around a part around which the margin extends to form a
seal,” as claimed. Appellants also contend that Grilliot teaches in Figure 4
that the sizing should be the opposite of the claimed sizing. Id. While
Grilliot does not expressly describe such opposite sizing, Figure 4 of Grilliot
shows a substantial gap between the “gasket” of the trousers 60 and the boot
10 when worn by a user.
Freese discloses firefighter pants including a liner 12 with an outer
moisture barrier layer 14 and an inner heat insulating layer 16. Freese, col.
2, ll. 38-43. Freese does not disclose that the liner is “sized to be snugly
stretched around a part around which the margin extends to form a seal,” as
claimed. Freese discloses that the outer vapor barrier layer of the liner may
be made of “a neoprene coated cotton material.” Id. at col. 2, ll. 49-51. As
such, Freese discloses that a layer of the liner may have a neoprene coating.
Freese does not disclose that the neoprene coated cotton material is
stretchable, much less that the outer vapor barrier layer, or the liner
including this layer, can be snugly stretched around a part to form a seal.
Accordingly, the Examiner’s finding is not supported by a preponderance of
the evidence.
Appeal 2012-001659
Application 10/999,437

6
In view of the above, we find that the Examiner did not articulate an
adequate reason with a rational underpinning as to why one skilled in the art
would have combined the teachings of Grilliot and Freese. Thus, we do not
sustain the obviousness rejection of claim 1, or its dependent claims 3, 5, 18-
20, and 23-28.
Rejection (3) – Obviousness – Grilliot, Freese, and Snedeker
The Examiner relied on Snedeker for teaching a liner worn in both
firefighter’s pants and jackets, and having a thermal liner and a moisture
barrier liner. Ans. 8. Accordingly, the Examiner’s application of Snedeker
for the rejection of claims 7, 21, and 22 does not cure the deficiencies of the
rejection of claim 1, as discussed supra. Thus, we do not sustain the
obviousness rejection of claims 7, 21, and 22.
Rejection (4) – Anticipation - Lewis
Regarding claim 1, the Examiner found that Lewis discloses the
claimed protective garment including a unitary elastomeric gasket 70 and
liner 40. Ans. 10. The Examiner also found that the elastomeric gasket 70
is “sized to be snugly stretched around a part around which the margin
extends to form a seal (see figure 1, the elastomeric material due to it’s [sic,
its] material construction would provide a seal when snugly stretched around
a larger part than the margin).” Id.
Lewis discloses that liner 40 shown in Figure 2 is made of neoprene
rubber (col. 2, ll. 56-61; fig. 2) and that the liner 70 is made from the
material of the liner 40 (col. 3, ll. 4-8; fig. 2). Appellants contend that Lewis
does not disclose that any of the components can act as a gasket, as claimed,
and does not disclose an elastomeric gasket “‘sized to be snugly stretched
Appeal 2012-001659
Application 10/999,437

7
around a part around which the margin extends,’ let alone ‘to form a seal,’”
as claimed. App Br. 11.
We agree with Appellants that the Examiner did not identify any
disclosure in Lewis that the liner 70 is “sized to be snugly stretched around a
part around which the margin extends to form a seal.” The Examiner stated
that claim 1 does not limit the recited “part” to anything specific. Ans. 18.
However, claim 1 recites “a part of a worker wearing the protective
garment.” Figure 1 of Lewis shows a firefighter wearing protecting
garments (Lewis, col. 2, ll. 38-44), but does not show the liner 70, let alone
show that the liner 70 forms a seal with any part of the firefighter. The
Examiner did not provide sufficient evidence to show that the liner 70 is
“sized” to be capable of being snugly stretched around a part of a worker
wearing the protective garment, around which the margin extends to form a
seal, as called for by claim 1. We note that Lewis describes:
The liner 70 providing the inner moisture barrier is
worn within the thermal liner 50 and extends from
the edge 12, 16, 26 of the protective garment 10,
20, into the protective garment 10, 20, for at least
several inches from the edge 12, 16, 26. Thus, the
liner 70 providing the inner moisture barrier
protects the thermal liner 50 against becoming wet
from water entering the protective garment 10, 20,
for at least several inches from the edge 12, 16, 26.
Lewis, col. 3, ll. 8-15.
Accordingly, Lewis discloses that the function of the liner 70 is to
protect the thermal liner 50, which it surrounds, from becoming wet from
water entering the garment. Lewis does not describe that the liner 70 forms
a seal with a part of a wearer in providing this protective function. Indeed,
the Examiner did not adequately show that a worker would even be capable
Appeal 2012-001659
Application 10/999,437

8
of putting on the protective garment of Lewis if the liner 70 were snugly
stretchable around a part of that worker to form a seal. In this regard, we
agree with Appellants that the size of the garment would be increased to fit a
larger worker, but that the Examiner has not shown that the size of the liner
70 would remain the same (and not also increase) when the size of the
garment is increased. App. Br. 11; Reply Br. 7.
In view of the above, we do not sustain the rejection of claim 1 or its
dependent claims 3, 5, 7, and 18-28, as anticipated by Lewis.

DECISION
The Examiner's decision rejecting claims 1, 3, 5, 7, and 18-28 is
REVERSED.

REVERSED

hh