Ex Parte Tyrer

Patent Trial and Appeal Board

Apr 5, 2017

13387238 (P.T.A.B. Apr. 5, 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.
13/387,238 01/26/2012 John Tyrer 02070004US 7367
62008 7590 04/07/2017
MAIER & MAIER, PLLC
345 South Patrick Street
ALEXANDRIA, VA 22314
EXAMINER
SZAFRAN, BRIE ANNA TARAH LARELL
ART UNIT PAPER NUMBER
3765
NOTIFICATION DATE DELIVERY MODE
04/07/2017 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):
patent @ maierandmaier. com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte JOHN TYRER
Appeal 2015-007255
Application 13/387,238
Technology Center 3700
Before STEVEN D.A. McCARTHY, LISA M. GUIJT, and
NATHAN A. ENGELS, Administrative Patent Judges.
McCARTHY, Administrative Patent Judge.
DECISION ON APPEAL
1 The Appellant1 appeals under 35 U.S.C. § 134(a) from the Examiner’s
2 decision finally rejecting claims 1, 2 and 15—23. We have jurisdiction under
3 35 U.S.C. § 6(b). We sustain the rejection of claims 1, 2 and 15—23 under
4 pre-AIA 35 U.S.C. § 112, second paragraph, as being indefinite. We do not
5 sustain the rejection of claims 1 and 16—23 under pre-AIA 35 U.S.C.
6 § 102(b) as being anticipated by Henz (US 6,431,947 Bl, issued Aug. 13,
7 2002); and of claims 2 and 15 under pre-AIA 35 U.S.C. §103(a) as being
8 unpatentable over Henz and Dorf (US 921,812, issued May 18, 1909).
1 The Appellant identifies the real party in interest as Laser Optical
Engineering Ltd., having a place of business in Derbyshire, United
Kingdom.
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Appeal 2015-007255
Application 13/387,238
Claim 1 is the sole independent claim on appeal:
1. A breast support arrangement comprising:
a first breast cup connected with a first wing portion; and
a second breast cup connected with a second wing portion;
the first and second breast cups and wing portions being
interconnected by a connecting member,
the connecting member:
passing from the first breast cup to the second breast cup
via the second wing portion then the first wing portion; and
being or including an elastic member to draw the first
breast cup towards the second wing portion, the second breast
cup towards the first wing portion, and the first and second wing
portions towards one another;
each wing portion including a wing guide to couple the
connecting member to each wing portion and guide movement
of the connecting member relative to a respective wing portion,
and each wing guide including a guide body which defines a rigid
guide portion to receive the connecting member and maintain a
relative orientation of respective portions of the connecting
member, and the connecting member being moveable in use
relative to each wing portion and associated wing guide in
response to changes in a wearer’s body position to adjust
dynamically the configuration of the breast support arrangement.
We summarily affirm the Examiner’s decision rejecting claims 1, 2
and 15—23 under the second paragraph of § 112. The Examiner concludes
that the terms “the configuration of the breast support arrangement” in claim
1; and “the connecting member guide” in claims 2 and 15 lack antecedent
basis. We recognize that lack of antecedent basis alone does not necessarily
imply indefmiteness, at least in a litigation context. See Energizer Holdings,
Inc. v. International Trade Comm’n, 435 F.3d 1366, 1370—71 (Fed. Cir.
2006). Nevertheless, lack of antecedent basis could lead to confusion as to
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Appeal 2015-007255
Application 13/387,238
the relationships between elements recited in a claim. See Manual of
Patent Examining Procedure § 2173.05(e) (rev. 7, 2015).
The Examiner rejected claims 1, 2 and 15—23 under the second
paragraph of §112 in the Final Action; and stated reasons for the rejection.
(See Final Act. 4—5). The Appellant did not acknowledge the rejection in the
Appeal Brief (see Br. 4), much less respond. The Examiner repeated the
rejection in the Answer, emphasizing that the rejection was still
“applicable.” (See Ans. 2). The Appellant does not appear to have filed a
reply brief.
It is not the role of the Board to look for reasons to reverse a decision
of an examiner that an appellant has not challenged. We sustain the
rejection of the appealed claims under the second paragraph of § 112.
Having sustained at least one ground of rejection against each claim on
appeal, we affirm the Examiner’s decision rejecting claims 1, 2 and 15—23.
See 37 C.F.R. § 41.50(a).
With respect to the rejection of claim 1 under § 102(b), Figure 6 of
Henz depicts a full-support brassiere including a first breast receptor cup 115
connected with a first wing portion or back band 106; and a second breast
receptor cup 116 connected with a second wing portion or back band 107.
(See Henz, col. 2,1. 57 — col. 3,1. 10). A connector member including two
connector member portions, a shoulder strap assembly 102 and a shoulder
strap assembly 103, interconnects the first and second breast receptor cups
115, 116; and the wing portions or back bands 106, 107. (See Henz, col. 3,
11. 3—10 and 34—37). As depicted in Figure 6, the shoulder strap assemblies
102,103 cross at the wearer’s back (see Henz, col. 3,11. 34—37 & col. 5,11.
10—14), so that the connecting member passes from the first breast receptor
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Appeal 2015-007255
Application 13/387,238
cup 115 to the second breast receptor cup 116 via the second wing portion or
back band 107, then the first wing portion or back band 106.
The shoulder strap assembly 102 passes through loops 109, 111,
which orient a lower portion of the shoulder strap assembly 102 along the
wing portion or back band 107. The shoulder strap assembly 103 passes
through loops 108, 110, which orient a lower portion of the shoulder strap
assembly 103 along the wing portion or back band 106. A hook 100 and an
eye 101 connect the ends of the shoulder strap assemblies 102,103 to secure
the brassiere to the wearer. (See Henz, col. 5,11. 14—18 & Fig. 6; see also
Br. 5).
The end of the shoulder strap assembly 102 is attached to the hook
100 at a wide end of the hook. Likewise, the end of the shoulder strap
assembly 103 is attached to the eye 101 at a wide end of the eye. The wide
ends of the hook 100 and the eye 101 are wider than the corresponding loops
110, 111 in order to prevent the hook and the eye from being pulled through
the respective cloth loops. (See Henz, col. 3,11. 14—23).
Claim 1 recites that “the connecting member [is] moveable in use
relative to each wing portion and associated wing guide in response to
changes in a wearer’s body position to adjust dynamically the configuration
of the breast support arrangement.” The Examiner correctly concludes that
this limitation is functional and is satisfied only if the connector possesses
the “ability to so perform and/or function” (Final Act. 6—7; Ans. 5), that is,
only if the connecting member is capable of movement in use relative to
each wing portion and associated wing guide in response to changes in a
wearer’s body position to adjust dynamically the configuration of the breast
support arrangement.
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Appeal 2015-007255
Application 13/387,238
The Appellant correctly points out that the engagement of the wide
ends of the hook 100 and the eye 101 with the loops 110,111 would have
resisted movement of the shoulder strap assemblies 102,102 relative to the
wing portions or back bands 106, 107 in response to changes in a wearer’s
position. Even assuming, as the Examiner finds, that the shoulder strap
assemblies 102,103 swayed on the rings 104,105 coupling the shoulder
strap assemblies to the breast receptor cups 115,116; or that the shoulder
strap assemblies slid relatively to the loops 108,109 on the back bands 106,
107 (see Ans. 4), these movements need not have resulted in dynamic
adjustment of the configuration of the breast support arrangement. The
Examiner has not adequately shown that movement of one of the shoulder
strap assemblies 102,103 at a shoulder area (see Ans. 6) necessarily would
result in movement relative to the wing portions or back bands 106, 107; or
in dynamic adjustment of the configuration of the breast support
arrangement.
The Examiner has not shown that the disclosure of Henz anticipates
independent claim 1 or dependent claims 16—23. We do not sustain the
rejection of claims 1 and 16—23 under § 102(b) as being anticipated by
Henz. Furthermore, the Examiner cites Dorf against claims 2 and 15 for
Dorf’s description of a connecting member guide satisfying the limitations
specifically recited in claims 2 and 15. (See Final Act. 10—11). The
Examiner has not shown that the teachings of Dorf remedy the deficiencies
in the disclosure of Henz as applied to parent claim 1. We do not sustain the
rejection of claims 2 and 15 under § 103(a) as being unpatentable over Henz
and Dorf.
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Appeal 2015-007255
Application 13/387,238
DECISION
We AFFIRM the Examiner’s decision rejecting claims 1, 2 and 15—
23. More specifically, we sustain the rejection of these claims under 35
U.S.C. § 112, second paragraph, as indefinite; do not sustain the rejection of
claims 1 and 16—23 under pre-AIA 35 U.S.C. § 102(b) as being anticipated
by Henz; and do not sustain the rejection of claims 2 and 15 under pre-AIA
35 U.S.C. § 103(a) as being unpatentable over Henz and Dorf.
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a). See 37 C.F.R.
§ 1.136(a).
AFFIRMED
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