Ex Parte Ironi

Patent Trial and Appeal Board

Feb 13, 2019

13831876 (P.T.A.B. Feb. 13, 2019)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
13/831,876 03/15/2013
103107 7590 02/15/2019
David D. Griner
14601 Honeycomb Drive
Leander, TX 78641
FIRST NAMED INVENTOR
Emily Ironi
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. CONFIRMATION NO.
GAPATlOOl 3618
EXAMINER
HUYNH, KHOA D
ART UNIT PAPER NUMBER
3732
NOTIFICATION DATE DELIVERY MODE
02/15/2019 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):
mail@griner-ip.com
dgriner@griner-ip.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte EMILY IRONI
Appeal2017-010402
Application 13/831,87 6
Technology Center 3700
Before JEREMY M. PLENZLER, AR THUR M. PESLAK, and
ALYSSA A. FINAMORE, Administrative Patent Judges.
PESLAK, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Emily Ironi ("Appellant") appeals under 35 U.S.C. § 134(a) from the
Examiner's decision rejecting claims 1-8, 10, 11, 13, and 16-23. We have
jurisdiction under 35 U.S.C. § 6(b ).
We REVERSE.
Appeal2017-010402
Application 13/831,876
THE CLAIMED SUBJECT MATTER
Appellant's invention concerns an apparatus "designed to support a
lactating individual, nursing woman or mother." Spec. ,r 2. Claim 1,
reproduced below, is illustrative of the claimed subject matter.
1. An apparatus to be worn by a lactating individual for
breastfeeding and/or hands-free pumpmg and for
accommodating breast size fluctuation in each breast; the
apparatus comprising:
a pair of bra panels comprising multiple underlying
pumping panels, wherein each bra panel is attached via a
detachable connection to an elastic shoulder strap of the
apparatus; whereby detaching the bra panel at the detachable
connection thereby exposes a breast for breastfeeding; and
a pair of outermost crossover cover panels, wherein each
crossover cover panel is attached via a panel connector to a
bottom elastic band of the apparatus; whereby disconnecting
the crossover cover panel at the panel connector exposes the
multiple underlying pumping panels for hands-free pumping,
wherein the panel connectors are on the bottom elastic band, and
wherein each panel connector adjusts each crossover cover panel
over each breast of the individual thereby providing a functional
reminder to alternate breasts when breastfeeding and/ or pumping
depending upon which side a crossover cover panel is situated
outermost or innermost to the other crossover cover panel.
REJECTION
Claims 1-8, 10, 11, 13, and 16-23 are rejected under 35 U.S.C.
§ I03(a) as unpatentable over La Fontaine (US 2008/0064299 Al, published
Mar. 13, 2008) and Johnstone (US 2012/0021669 Al, published Jan. 26,
2012).
DISCUSSION
The Examiner relies on Johnstone for disclosure of "a bra with a pair
of outermost crossover cover panels (5, 9) wherein each crossover cover
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Application 13/831,876
panel (5, 9) is attached via a panel connector (Figure IA)." Final Act. 3.
The Examiner explains that "[ w ]hen in combination, as crossover cover
panels (5, 9) ... are disconnected at the panel connector ... it would expose
the multiple underlying pumping panels of La Fontaine." Id. The Examiner
also finds that Johnstone's "panel connectors (Figure IA) are on a bottom
elastic band." Id.
Appellant contends that Johnstone "discloses a front opening
adjustable bra with bra panels (5, 9) that are stitched along their entire length
to an elastic 'chest band' (39)." Appeal Br. 12 (citing Johnstone ,r 58).
According to Appellant,
FIG. IA of Johnstone ... shows a view of a hook and eyelet type
latching mechanism used to attach the elastic belt to itself around a
wearer's body. Since both the latches and the eyelets in Johnstone are
located on the elastic band itself (as is clearly shown in FIG. IA and
FIG. 2) they cannot possibly be used to attach the bra panels to
anything. In other words, the Johnstone bra panels are attached to the
elastic band via the stitches, not by the supposed "panel connector."
Id. at 12-13.
The Examiner responds that the panels of Johnstone "are very clearly
attached to the band (39) via connectors (Figure IA)." Ans. 10. In addition,
the Examiner asserts that "Appellant has not provided any language within
the claims that would prevent the panels from also being stitched to the
band." Id. For the following reasons, we do not sustain the rejection of
claim 1.
Claim 1 requires that "each crossover cover panel is attached via a
panel connector to a bottom elastic band" and "the panel connectors are on
the bottom elastic band." Appellant's Figure 1 illustrates the orientation of
crossover cover panels 1, panel connectors 2, and elastic band 3. Spec. ,r 39,
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Appeal2017-010402
Application 13/831,876
Fig. 1. Panel connectors 2 include "connector structures such as hooks and
corresponding connector slots, stitches, holes, eyelets, link, or loops" and
"Velcro®, zippers, snaps, ties, and/or buttons." Id. ,r 39. Appellant's
Figure 2 shows "a front view of the apparatus showing disconnection of
each outermost crossover cover panel." Id. at Fig. 2, ,r 30. As shown in the
embodiment in Figure 2, the panel connectors comprise two mating parts,
i.e., one is attached to the end of the crossover cover panels 1 and the second
mating part is attached to elastic band 3. See id. at Fig. 2.
In Johnstone, "in order to provide for the adjustment of bra 1, a
latching structure has inwardly facing ... eyelets 45--4 7 on the outside ...
layer of band 39 on the right side of bra 1" and "hook 51 (which could be a
pair of hooks as shown in FIG. 2) on long end portion 43 can selectively
engage one of the eyelets." Johnstone ,r 56. As can be seen in Figure 2 of
Johnstone, hooks 51 and 53 and eyelets 45--47 are on opposite ends of
elastic band 39. See id. at Fig. 2. Panels 5 and 9, which the Examiner finds
correspond to the recited crossover cover panels, appear to be joined to
elastic band 39 by stitching. See id. ,r 58, Figs. 1, 2; Appeal Br. 12-13.
We note that the Examiner refers generally to the mechanism shown
in Figure IA of Johnstone but does not identify the specific items by number
that are asserted to correspond to the recited panel connectors. See Final
Act. 3; Ans. 10. We agree with the Examiner that the mechanism shown in
Johnstone's Figure IA meets the claim limitation that "the panel connectors
are on the bottom elastic band." However, with respect to the limitation
"wherein each crossover cover panel is attached via a panel connector to a
bottom elastic band," the Examiner does not adequately explain how
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Appeal2017-010402
Application 13/831,876
Johnstone's panels 5, 9 are attached via the mechanism shown in Figure IA
to bottom elastic panel 39.
In Figures 1 and IA of Johnstone, hooks 51 and 53 are engaged with
eyelets 45--4 7 and elastic band 39 is joined at its ends. In Figure 2 of
Johnstone, hooks 51 and 53 are not engaged in any of the eyelets 45--47 and
elastic band 39 is not joined at its ends. Panels 5 and 9, however, are still
connected to elastic band 39 in Figure 2. Consequently, the Examiner has
not persuaded us that one of ordinary skill in the art would understand that
panels 5 and 9 are attached via the mechanism illustrated in Figure IA to
elastic band 39 because panels 5 and 9 are connected to elastic band 39
regardless of whether the hooks and eyelets are engaged or disengaged.
Because the rejection is based on an erroneous factual finding, the
conclusion of obviousness cannot stand. See In re Warner, 379 F.2d 1011,
1017 (CCP A 1967) (holding that "[t ]he legal conclusion of obviousness
must be supported by facts. Where the legal conclusion is not supported by
facts it cannot stand."). We, therefore, do not sustain the rejection of claim
1. Claims 2-8, 10, 11, and 13 depend directly or indirectly from claim 1.
Appeal Br. 19-20 (Claims App.). We do not sustain the rejection of these
dependent claims for the same reasons.
Independent claims 16 and 21 contain substantially similar limitations
as claim 1 concerning the connection of the crossover cover panels to the
bottom elastic band. Appeal Br. 20-21 (Claims App.). In rejecting claims
16 and 21, the Examiner makes substantially similar findings based on
Johnstone. Final Act. 7-8, 10. We, thus, do not sustain the rejections of
claims 16 and 21 for the same reasons discussed above for claim 1. Claims
17-20, 22, and 23 depend from claim 16 or claim 21. Appeal Br. 20-21
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Application 13/831,876
(Claims App.). We do not sustain the rejection of these dependent claims
for the same reasons.
DECISION
The Examiner's decision rejecting claims 1-8, 10, 11, 13, and 16-23
is reversed.
REVERSED
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