Ex Parte Pasko et al

Patent Trial and Appeal Board

Sep 14, 2018

13276232 (P.T.A.B. Sep. 14, 2018)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
13/276,232 10/18/2011
27939 7590 09/17/2018
Philip H. Burrus, IV
Burrus Intellectual Property Law Group LLC
222 12th Street NE
Suite 1803
Atlanta, GA 30309
FIRST NAMED INVENTOR
Stephanie Pasko
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.
BPMDL0035SP (10328U) 9806
EXAMINER
HADEN, SALLY CLINE
ART UNIT PAPER NUMBER
3765
MAIL DATE DELIVERY MODE
09/17/2018 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 1
Appeal2017-011695
Application 13/276,232
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 Omna ("Appellants") appeal under 35
U.S.C. § 134(a) from the Examiner's final decision rejecting claims 1-10,
12, 13, and 37--42. 2 We have jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM-IN-PART.
1 Appellants identify the real party in interest as Medline Industries, Inc.
Appeal Br. 2.
2 Claims 11 and 14--36 were canceled. Appeal Br. 17-21 (Claims App.).
Appeal 2017-011695
Application 13/276,232
BACKGROUND
Independent claims 1 and 37 are pending. Each independent claim is
reproduced below, with disputed limitations italicized.
1. A gown, comprising:
a body covering portion configured to wrap about a torso
of a wearer, the body covering portion comprising non-woven
fabric layer defining a neck opening between a front portion
and a rear portion of the body covering portion, wherein a front
portion length of the body covering portion is greater than a
rear portion length of the body covering portion, and the rear
portion defines an opening configured to assist the wearer in
donning the gown; and
one or more perforations extending across the rear
portion at least partially between the opening 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; and
the rear portion of the body covering portion comprising
a check indentation disposed at a rear underarm area; and
the front portion comprising a loop in a front underarm
area that is co-aligned with the check indentation.
3 7. A disposable medical gown, comprising:
a yellow body covering portion defining a frontal body
covering portion and a rear portion, the yellow body covering
portion defining a length configured to run from a shoulder of a
wearer to below a knee of the wearer; and
a plurality of perforations extending across the rear
portion at least partially between a head insertion aperture and a
rear opemng;
wherein:
the plurality of perforations is configured to tear
when the frontal body covering portion is pulled from the
wearer, thereby splitting the rear portion; [ and]
the plurality of perforations comprises at least two
sets of linear scores, each set of linear scores comprising
a plurality of scores separated by lengths of material.
2
Appeal 2017-011695
Application 13/276,232
REJECTIONS
I. Claims 1, 2, 5-10, 12, 13, and 42 stand rejected under 35
U.S.C. § I03(a) as unpatentable over Graneto (US D598,638 S, iss. Aug. 25,
2009) and Matsushita (US 6,378,136 B2, iss. Apr. 30, 2002). Final Act. 2.
II. Claims 3 and 4 stand rejected under 35 U.S.C. § I03(a) as
unpatentable over Graneto, Matsushita, and Cater (US 3,276,036, iss. Oct. 4,
1966). Final Act. 7.
III. Claims 37--41 stand rejected under 35 U.S.C. § I03(a) as
unpatentable over Graneto and Lin (US 2009/0320177 Al, pub. Dec. 31,
2009). Final Act. 8.
ANALYSIS
Rejection!: Claims 1, 2, 5-10, 12, 13, and 42
The Examiner finds that Graneto discloses, inter alia, a body covering
portion having: ( 1) rear portion comprising a check indentation disposed at
a rear underarm area; and (2) a front portion comprising a co-aligned loop
disposed at a front underarm area. Final Act. 3 (citing Graneto Figs. 3, 6, 7).
According to the Examiner, Appellants have not claimed that the "check
indentation" and the "loop" have different shapes, and these limitations are,
therefore, met by Graneto' s gown having the same shape at the front and
rear portion underarm areas. Final Act. 11. The Examiner also finds that
Graneto' s front portion loop "could be interpreted as including the small
upper hook-shaped cut-out [and] the larger lower u-shaped cut-out, which
would result in the check indentation and loop having two different shapes."
Id.
3
Appeal 2017-011695
Application 13/276,232
Appellants argue that the Examiner erred in determining that the terms
"check indentation" and "loop" can be construed to include the same shape.
Appeal Br. 12. According to Appellants, different words are used to
describe different shapes, and the Specification illustrates each term
corresponding to a different shape. Id.; Spec. ,r 73, Figs. 19 and 20.
Appellants further argue that Graneto' s front and rear underarm areas each
have the same "squiggle" that does not include both a check indentation and
a loop. Id. at 13.
The Examiner responds that Appellants' Specification
does not define the structure of the check indentation or loop.
Therefore, the difference between the check indentation and the
loop appears to be one of nomenclature and the Examiner has
taken the broadest reasonable interpretation of a check
indentation and a loop. Graneto's cutouts have the same
structure and function as the check indentation and the loop ...
Ans. 3.
We disagree with the Examiner that Appellants' Specification does
not define the structure of the check indentation or loop. Appellants'
Specification states that "[t]he gown includes a loop-check configuration
with the rear underarm area 1960 including a check indention 1961. The
front underarm area 2060 has a corresponding loop 2061." Spec. ,r 73. The
referenced check indentation 1961 is illustrated in Appellants' Figure 19,
shown below.
4
Appeal 2017-011695
Application 13/276,232
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FIG. 19 depicts a close-up, rear underarm portion of a gown configured in
accordance with one or more embodiments of the invention.
The referenced check indentation 2061 is illustrated in Appellants'
Figure 20, which is shown below to have a different shape than the check
indentation 1961.
5
Appeal 2017-011695
Application 13/276,232
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FIG. 20 depicts a close-up, front underarm portion of a gown configured in
accordance with one or more embodiments of the invention.
Appellants' Specification, therefore, defines the structure of the
claimed "check indentation" and "loop" sufficiently to exclude the shapes
being the same. Further, we construe the term "check indentation" to
include a shape like a check mark in accordance with the shape illustrated in
Appellants' Figure 19, in which case the check indentation includes a v-
shaped (non-rounded) area that differentiates it from a loop. We disagree
with the Examiner's contention that the difference between the check
indentation and the loop is merely one of nomenclature. Given that the
terms "check indentation" and "loop" denote different shapes, with the
check indentation having av-shaped area, we fail to discern where Graneto's
front and rear underarm areas include a loop and check indentation,
6
Appeal 2017-011695
Application 13/276,232
respectively. We do not sustain the rejection of claim 1, or claims 2, 5-10,
12, 13, and 42 that depend therefrom.
Rejection II: Claims 3 and 4
Appellants make no argument that claims 3 and 4 would be patentable
over Graneto, Matsushita, and Cater, if claim 1 is not patentable over
Graneto and Matsushita. For the reason set forth above regarding Rejection
I, we do not sustain Rejection II.
Rejection III: Claims 37-41
The Examiner finds that Graneto discloses, inter alia, a frontal body
covering portion "defining a length configured to run ( capable of running)
from a shoulder of a wearer to below a knee of the wearer." Final Act. 8
( citing Graneto Figs. 2, 7). According to the Examiner, the gown being
"configured to" run below a wearer's knee is an intended use limitation and
"must result in a structural difference between the claimed invention and the
prior art ... to patentably distinguish that claimed invention from the prior
art." Id. at 12.
Appellants argue claims 37--41 as a group. Appeal Br. 14--15. We
select independent claim 3 7 as representative. Claims 3 8--41 stand or fall
with claim 37.
Appellants argue that Graneto' s Figure 7 shows its gown terminating
above the wearer's knee, rather than running "below a knee of the wearer."
Id. at 14. Appellants argue that Lin fails to cure this deficiency. Id.
Regarding the limitation being an intended use, Appellants argue that "the
limitation does result in a structural difference, namely, the length of the
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Appeal 2017-011695
Application 13/276,232
gown." Id. at 15. According to Appellants, "[s]horts are not pants[, and]
[p ]ants are not shorts." Id.
The Examiner responds that
The claimed structure requires the length to be
"configured to run" below a knee of the wearer, which is a
limitation that is dependent on the size of the wearer. Appellant
has not defined the size of the intended wearer. Graneto' s
figure 7 appears to show the gown on an adult male. When a
wearer is much smaller than that adult male, such as a shorter
adult or a child, the same gown would be "configured to run"
below a knee of the wearer.
Ans. 3--4.
The limitation at issue recites dimensions relative to a wearer having
an undefined height/torso length. We agree with the Examiner that such
functional recitations are directed to the use of the gown and, therefore, are
met by prior art that is capable of performing the same function of body
coverage extending below the knee. Appellants have not identified any
structure of the claimed gown, other than a length relative to a wearer of
unspecified torso length, which is required to meet this dimension. The
variance in patient size is simply too large for the limitation "below a knee
of the wearer" to provide a defined structural characteristic in terms of gown
length that is not met by the similar structure shown in Graneto, which is
capable of extending below the knee of a patient that has a shorter torso than
its illustrated patient. For this reason, we discern no Examiner error, and we
sustain the rejection of claim 3 7. Claims 3 8--41 fall with claim 3 7.
DECISION
We REVERSE the rejection of claims 1, 2, 5-10, 12, 13, and 42 under
35 U.S.C. § 103(a) as unpatentable over Graneto and Matsushita.
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Appeal 2017-011695
Application 13/276,232
We REVERSE the rejection of claims 3 and 4 under 35 U.S.C.
§ 103(a) as unpatentable over Graneto, Matsushita, and Cater.
We AFFIRM the rejection of claims 37--41 under 35 U.S.C. § 103(a)
as unpatentable over Graneto and Lin.
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a).
AFFIRMED-IN-PART
9