13925617 (P.T.A.B. Jun. 6, 2017)

Ex Parte Pasko et al

Patent Trial and Appeal BoardJun 6, 2017

13925617 (P.T.A.B. Jun. 6, 2017)

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. BPMDL0035SP D3 (10328UD3) 2244 EXAMINER HADEN, SALLY CLINE ART UNIT PAPER NUMBER 3765 MAIL DATE DELIVERY MODE 13/925,617 06/24/2013 06/06/201727939 7590 Philip H. Burrus, IV Burrus Intellectual Property Law Group LLC 222 12th Street NE Suite 1803 Atlanta, GA 30309 Stephanie Pasko 06/06/2017 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 PASKO and ATIENO OUMA Appeal 2016-000216 Application 13/925,617 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 and Atieno Ouma (Appellants) appeal under 35 U.S.C. § 134 from the Examiner’s final decision rejecting claims 1—9. We have jurisdiction under 35 U.S.C. § 6(b). We REVERSE. Appeal 2016-000216 Application 13/925,617 BACKGROUND Independent claim 1 represents the claimed invention and is reproduced below, with certain disputed language emphasized. 1. A gown, comprising: a non-woven fabric layer defining a body covering portion and a neck opening between a front portion and a rear portion, wherein the rear portion defines an opening slit where the body covering portion terminates at right and left sides of the opening slit, the opening slit configured to assist a user in donning the gown; and one or more perforations extending across the rear portion at least partially between the opening slit and the neck opening, the one or more perforations being configured to tear and split the rear portion when the front portion is pulled away from the user. REJECTION I. Claims 1, 2, and 9 stand rejected under 35 U.S.C. § 103(a) as unpatentable over Graneto (US D598,638 S, iss. Aug. 25, 2009) and Matsushita (US 6,378,136 B2, iss. Apr. 30, 2002). Non-Final Act. 3. II. Claims 3—8 stand rejected under 35 U.S.C. § 103(a) as unpatentable over Graneto, Matsushita, and Cater (US 3,276,036, iss. Oct. 4, 1966). Non-Final Act. 6. OPINION The issue on appeal is whether Graneto discloses an opening slit. The Examiner finds that Graneto’s “rear portion defines an opening slit,” providing the following annotated Figure 7 of Graneto. 2 Appeal 2016-000216 Application 13/925,617 Non-Final Act. 3. Figure 7 of Graneto shows a rear view of a disposable medical gown (Graneto Description) annotated by the Examiner to identify an opening slit. Appellants disagree, arguing that Graneto discloses “an open back design where left and right sides of the gown are separated by a large, gaping opening spanning the wearer’s back.” Appeal Br. 8. Appellants note that Graneto characterizes Figure 7 as “a rear view of the disposable medical gown as worn by a user in a closed configuration.” Id. Appellants define the term “slit” to mean “a long, narrow cut or opening,” contending that this ordinary meaning is consistent with the term’s use in the Specification. Appellants argue that the Examiner broadening the meaning of the term “slit” to encompass Graneto’s “open back” design is an unreasonably broad claim interpretation and “stretches credulity to the limit.” Id. at 11. The Examiner does not refute that the ordinary meaning of the term “slit” provides a correct construction, but responds that the term “‘narrow’ is 3 Appeal 2016-000216 Application 13/925,617 a matter of perspective,” and Graneto’s opening slit “is at least narrower than a slit that is wider.” Ans. 2. According to the Examiner, Appellants’ “dictionary definition, disclosure, and claims are silent as to how ‘narrow’ the opening’s width must be,”’ and Appellants’ opening slit “can be made wider by pulling apart the right and left sides of the opening slit, just as the opening slit disclosed by Graneto can be made narrower by pulling closed the right and left sides of the opening slit.” Id. at 2—3. Indeed, the Examiner contends, “Graneto shows that in use, the side straps are tied together to close the right and left sides around the wearer’s body, and the straps can obviously be tightened until they bring the right and left sides together close enough to be” narrow, i.e., until the right and left sides contacting one another. Id. at 3. Because Figure 7 of Graneto’s design patent is described as illustrating a “closed configuration” of its gown, and the illustrated “closed configuration” shows an open-backed gown rather than a narrow opening, the Examiner’s finding that Graneto discloses the claimed slit is not supported by a preponderance of the evidence. The Examiner’s statement that Graneto’s straps could be tightened to bring the gown sides together is speculative, particularly in light of the description of Figure 7 as illustrating a closed configuration of the gown. That Graneto’s opening is narrower than a wider opening is not persuasive, nor is the Examiner’s determination that the claims are silent as to how ‘narrow’ the opening width must be. Because the Examiner’s finding is not supported by a preponderance of the evidence, we do not sustain the rejection of claim 1. Claims 2 and 9 depend from claim 1, and we therefore do not sustain the rejection of claims 2 and 9 for the same reason. 4 Appeal 2016-000216 Application 13/925,617 Rejection II Claims 3—8 depend directly or indirectly from claim 1. The Examiner’s findings with respect to Cater do not cure the deficiency in the Examiner’s findings with respect to Graneto. We therefore do not sustain Rejection II. DECISION We REVERSE the rejection of claims 1, 2, and 9 under 35 U.S.C. § 103(a) as unpatentable over Graneto and Matsushita. We REVERSE the rejection of claims 3—8 under 35 U.S.C. § 103(a) as unpatentable over Graneto, Matsushita, and Cater. REVERSED 5