Ex Parte Walsh

Patent Trial and Appeal Board

Oct 31, 2018

14214776 (P.T.A.B. Oct. 31, 2018)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
14/214,776 03/15/2014
27939 7590 11/01/2018
Philip H. Burrus, IV
Burrus Intellectual Property Law Group LLC
222 12th Street NE
Suite 1803
Atlanta, GA 30309
FIRST NAMED INVENTOR
Megan Walsh
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.
BPMDL0043MB.Cl
(10360U Cl
3929
EXAMINER
SLAWSKI, BRIAN R
ART UNIT PAPER NUMBER
1745
MAIL DATE DELIVERY MODE
11/01/2018 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 MEGAN WALSH
Appeal 2017-011096
Application 14/214,776
Technology Center 1700
Before MICHAEL P. COLAIANNI, RAE LYNN P. GUEST,
and GEORGE C. BEST, Administrative Patent Judges.
COLAIANNI, Administrative Patent Judge.
DECISION ON APPEAL
Appellant1 appeals under 35 U.S.C. § 134 the final rejections of
claims 1-20. We have jurisdiction over the appeal pursuant to 35 U.S.C.
§ 6(b ).
We REVERSE.
Appellant's invention is directed to protective apparel components
suitable for use with medical gowns (Spec. ,r 2).
1 Appellant identifies the real party in interest as Medline Industries, Inc.
(Br. 1 ).
Appeal 2017-011096
Application 14/214,776
Claims 1, 12, and 17 are illustrative (emphasis added):
1. A multilayer, seamless garment portion, comprising:
a circular knit layer having a inner side and an outer side;
and
a seamless barrier layer coupled to one of the inner side or
the outer side of the circular knit layer to form a
laminated tubular layer;
wherein the laminated tubular layer defines a sleeve for
protective apparel without seams.
12. A medical gown, comprising:
a body covering portion;
sleeves extending distally from the body covering portion,
wherein one or both of the sleeves comprise:
a knit layer having a inner side and an outer side; and
a seamless barrier layer coupled to one of the inner side
or the outer side of the knit layer to form a sleeve.
17. A method of making a sleeve for protective apparel,
compnsmg:
attaching a seamless barrier layer to a circularly knit layer
having an inner side and an outer side to form the sleeve,
wherein the sleeve is seamless;
wherein the seamless barrier layer is attached to one of the
inner side or the outer side of the circularly knit layer.
Appellant appeals the following rejections:
1. Claims 12, 15, and 16 are rejected under 35 U.S.C. § 102(b) as
anticipated by Smith et al. (US 4,114,200, issued Sept. 19, 1978,
"Smith").
2. Claims 13 and 14 are rejected under 35 U.S.C. § 103(a) as
unpatentable over Smith in view of Lopez (US 5,444,871, issued
Aug. 29, 1995, "Lopez '871").
2
Appeal 2017-011096
Application 14/214,776
3. Claims 1-8, 10, 11, and 17-20 are rejected under 35 U.S.C.
§ 103(a) as unpatentable over Smith in view ofNeckerman et al.
(US 4,752,972, issued June 28, 1988, "Neckerman").
4. Claim 9 is rejected under 35 U.S.C. § 103(a) as unpatentable over
Smith and Neckerman and further in view of Lopez et al. (US
5,561,861, issued Oct. 8, 1996, "Lopez '861").
Regarding rejection (1), Appellant argues claims 12, 15, and 16 as a
group (Br. 10). With respect to rejection (2), Appellant argues claims 13
and 14 as a group. Id. With regard to rejection (3), Appellant relies on
arguments for reversal of claims 1 and 1 7 and does not provide separate
arguments for claims 2-8, 10, 11, and 18-20. Id.; see also id. at 16-17.
With regard to rejection ( 4), Appellant presents no arguments with respect to
claim 9 over the arguments made with regard to rejection (3).
We select independent claim 12 as representative of the argued claims
grouping for rejection (1 ). Rejection (2) is discussed below with rejection
(1) for the reasons discussed below. We further select independent claims 1
and 17 as representative of the argued claims for rejections (3) and (4).
FINDINGS OF FACT & ANALYSIS
Rejections (1) and (2)
Smith's Figure 1, which illustrates a perspective view of a surgical
gown sleeve provided with a cuff assembly, is reproduced below.
3
Appeal 2017-011096
Application 14/214,776
Figure 1 illustrates features of the surgical gown sleeve including cuff
assembly 1 attached to the open end of sleeve 2 by sewing.
Smith's Figure 3, which illustrates a cross sectional view of the cuff
assembly of Figure 1, is reproduced below.
Figure 3 illustrates features of the cuff assembly 1 of Figure 1,
including liquid impervious material 8 within cuff envelope 3, which has an
inner wall 4 and outer wall 5.
Appellant argues, inter alia, that Smith fails to describe every element
recited in claim 12. In particular, Appellant asserts that Smith does not
disclose that: (i) "a seamless barrier layer is coupled to a knit layer to form a
4
Appeal 2017-011096
Application 14/214,776
sleeve"; and (ii) "[t]his sleeve extends distallyfrom a body coveringportion"
(Br. 11 ). Rather, Appellant argues that Smith's alleged seamless barrier
layer (liquid impervious material layer 8) is disposed within a cuff, which is
not a sleeve. Id. Appellant further argues that Smith's cuff "extends from
the sleeve (element 2), not a body covering portion as claimed." Id. at 12
( citing Smith Fig. 1; Spec. 3 :23-25).
The Examiner, however, finds that "[t]he entire sleeve or arm-
covering part (1 and 2) of Smith's medical gown extends distally away from
the body covering portion and comprises the knit layer 4 and seamless
barrier layer 8" (Ans. 9). The Examiner further finds that Smith's cuff
assembly 1 "alone may also be considered a sleeve ([based on definitions
that a 'sleeve' is] 'a part of a garment covering an arm' or 'a tubular part
(such as a hollow axle or a bushing) designed to fit over another part')." Id.
We find that the Examiner has not provided a persuasive explanation
as to how Smith describes that the disclosed sleeve, in its entirety, is formed
by coupling a seamless barrier layer to a knit layer. To the extent that the
Examiner determines that Smith's cuff 1 alone is encompassed by the
claimed "sleeve," we are not persuaded. The Examiner has not shown that
the coupling of Smith's layer 8 to knit layers 4 or 5 forms a medical gown
part "to form a "sleeve," as recited in the claims. Smith's cuff 1 covers only
the wrist (Smith 3 :41-54 ( describing that cuff envelope 3 will "comfortably
grasp ... at or about the wrist" and that suitable materials should be "non-
irritating to the surgeon's wrist"); Figs. 1, 3). We thus agree with Appellant
that Smith fails to describe every element recited in claim 12. Therefore, we
reverse rejection (1) to claim 12.
5
Appeal 2017-011096
Application 14/214,776
With respect to rejection (2), the Examiner does not rely on Lopez
'871 to cure the deficiencies set forth above regarding Smith's disclosure
(Ans. 3). Therefore, we reverse rejection (2) to claims 13 and 14.
Rejections (3) and (4)
The Examiner has the initial burden of establishing a prima facie case
of obviousness based on an inherent or explicit disclosure of the claimed
subject matter under 35 U.S.C. § 103. In re Oetiker, 977 F.2d 1443, 1445
(Fed. Cir. 1992) ("[T]he examiner bears the initial burden, on review of the
prior art or on any other ground, of presenting a prim a f acie case of
unpatentability."). To establish a prima facie case of obviousness, the
Examiner must show that each and every limitation of the claim is described
or suggested by the prior art or would have been obvious based on the
knowledge of those of ordinary skill in the art. In re Fine, 837 F.2d 1071,
1074 (Fed. Cir. 1988).
In this instance, the Examiner has not demonstrated that Smith teaches
or suggests attaching a seamless barrier layer to a circularly knit layer to
form the sleeve as required by claim 17. As set forth above in our analysis
of rejections (1) and (2), Smith's entire sleeve is not formed by coupling or
attaching a seamless barrier layer to a knit layer.
Furthermore, the Examiner has not shown that the limitation that a
laminated tubular layer defines a sleeve as recited in claim 1 was taught or
suggested by the cited prior art. Smith is deficient because the alleged
laminated tubular layer ( cuff assembly 1 ), which is formed by coupling
Smith's layer 8 to knit layers 4 or 5, only covers the wrist (Ans. 4; Smith
3:41-54; Figs. 1, 3). In the absence of a finding that the cited prior art
6
Appeal 2017-011096
Application 14/214,776
teaches or suggests extending Smith's cuff assembly 1 up to the shoulder,
we cannot sustain these rejections.
The Examiner does not rely on Neckerman to cure the deficiencies set
forth above regarding Smith's disclosure (Ans. 4, 6). Thus, Appellant has
persuasively argued that the facts and reasons relied on by the Examiner are
insufficient to establish a prima facie case of obviousness as to independent
claims 1 and 17. Therefore, we reverse rejection (3) to claims 1 and 17.
Furthermore, the Examiner does not rely on Lopez '861 to cure the
deficiencies set forth above regarding Smith's disclosure. Id. at 7.
Therefore, we reverse rejection ( 4) to claim 9.
Therefore, on this record, we reverse the Examiner's rejections.
DECISION
The Examiner's decision is reversed.
REVERSED
7