NIKE, Inc.

Patent Trials and Appeals Board

Jul 24, 2020

15391187 - (D) (P.T.A.B. Jul. 24, 2020)

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.
15/391,187 12/27/2016 LUKE A. PEZZIMENTI 268448/11-1956US03CON 1021
78342 7590 07/24/2020
SHOOK, HARDY & BACON L.L.P.
(NIKE, INC.)
INTELLECTUAL PROPERTY DEPARTMENT
2555 GRAND BLVD.
KANSAS CITY, MO 64108-2613
EXAMINER
HOEY, ALISSA L
ART UNIT PAPER NUMBER
3732
NOTIFICATION DATE DELIVERY MODE
07/24/2020 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):
IPDocket@shb.com
docket.shb@clarivate.com
nike_docketing@cardinal-ip.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte LUKE A. PEZZIMENTI, LINDSEY V.J. MARTIN, and
IRENA ILCHEVA
Appeal 2019-003160
Application 15/391,187
Technology Center 3700
Before BENJAMIN D. M. WOOD, LISA M. GUIJT, and
PAUL J. KORNICZKY, Administrative Patent Judges.
WOOD, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Pursuant to 35 U.S.C. § 134(a), Appellant1 appeals from the
Examiner’s February 22, 2018 Final Action rejecting claims 17 and 19–21.
See Final Act. 1. Claims 1–16 and 18 have been withdrawn from
consideration. Appeal Br. 23 (Claims App.). We have jurisdiction under
35 U.S.C. § 6(b).
We AFFIRM.

1 “Appellant” refers to the applicant as defined by 37 C.F.R. § 1.42.
Appellant identifies the real party in interest as Nike, Inc. Appeal Br. 3.
Appeal 2019-003160
Application 15/391,187

2
CLAIMED SUBJECT MATTER
The claims are directed to a cold weather vented garment. Claim 17,
reproduced below, is illustrative of the claimed subject matter:
17. A garment comprising:
a garment forming panel adapted to cover an upper body
portion of a wearer when the garment is in an as-worn
configuration;
wherein the garment forming panel comprises:
(1) an inner layer configured to face the wearer when the
garment is in the as-worn configuration;
(2) an outer layer configured to be exposed to an external
environment when the garment is in the as-worn configuration;
(3) one or more seams that join the inner layer and the outer
layer, wherein each seam of the one or more seams is defined by
a first edge and a second edge;
(4) at least one chamber formed between the inner layer and
the outer layer that holds and contains a thermally insulating fill
material, wherein the thermally insulating fill material comprises
at least one of down and a synthetic fiber; and
(5) at least one perforation located between the first edge and
the second edge of at least one seam of the one or more seams,
wherein the at least one perforation extends through the at least
one seam of the one or more seams, through the inner layer, and
through the outer layer.
REFERENCES
Name Reference Date
Chavannes US 2,851,390 Sept. 9, 1958
Donzis US 4,370,754 Feb. 1, 1983
Johnson US 2010/0291825 A1 Nov. 18, 2010

Appeal 2019-003160
Application 15/391,187

3
REJECTIONS
Claims Rejected 35 U.S.C. § Reference(s)/Basis
17 and 19–21 Double Patenting U.S. App. 15/140,214
17 and 19–21 Double Patenting U.S. App. 15/255,603
17, 19, 21 103 Donzis and Chavannes
20 103 Donzis, Chavannes, and
Johnson
OPINION
Double-Patenting Rejections
Appellant has not responded to: (1) the Examiner’s provisional
rejection of claims 17 and 19–21 on the ground of non-statutory double
patenting over claims 17, and 19–21 of co-pending Application No.
15/140,214;2 and (2) the Examiner’s provisional rejection of claims 17 and
19–21 on the ground of non-statutory double patenting over claims 1–20 of
co-pending Application No. 15/255,603. Therefore, Appellant has waived
any argument of error, and we summarily sustain these rejections. See In re
Berger, 279 F.3d 975, 984, 985 (Fed. Cir. 2002) (holding that the Board did
not err in sustaining a rejection under 35 U.S.C. § 112, second paragraph,
when the applicant failed to contest the rejection on appeal).
Claims 17, 19, and 21—Rejected as
Unpatentable over Donzis and Chavannes
The Examiner finds that Donzis teaches independent claim 17
substantially as claimed except for a thermally insulating fill material
comprising at least one of down and a synthetic fiber held within the at least
one chamber. Final Act. 4–5 (citing Donzis, 4:56–68, 6:27–50, 7:15–29,
Figs. 2–4). For the insulating-fill-material limitation, the Examiner finds

2 This application has issued as U.S. Pat. No. 10,362,820.
Appeal 2019-003160
Application 15/391,187

4
that “Chavannes teaches chambers filled with air and also glass fiber, which
is a synthetic fiber.” Id. at 6 (citing Chavannes, 5:1–11, Figs. 7, 8). The
Examiner made similar findings for independent claim 21. Id. at 6–7. The
Examiner determines that it would have been obvious to one of ordinary
skill in the art to add synthetic fiber to Donzis’ pressurized air chambers,
“since the addition of synthetic fiber in the air chambers acts not only as a
filter catching dirt and dust particles brought in via the air into the chambers,
but additionally keeps the chambers front and back walls separated from
each other during impact.” Id. at 6.
Appellant disputes, inter alia, the Examiner’s proposed reasons to
combine Donzis with Chavannes. Appellant asserts that Donzis already
addresses the problem of maintaining the front and back walls of its air
chambers separated by forming the walls from fluid-impervious fabric and
filling the chambers with pressurized air. Appeal Br. 13. Appellant further
asserts that because Donzis’ air chambers are sealed from the external
environment, “there is no need for a filter because there is no way for dust to
travel inside the chambers of Donzis.” Id. at 15. Appellant also argues that
adding filter materials to Donzis’ chambers “would actually obstruct the
fluid flow between the fluidly communicating chambers of Donzis due to
their nature of having fibers packed close enough to trap dust particles.” Id.
We do not sustain this rejection. First, we agree with Appellant that
one of ordinary skill in the art would not have added synthetic fibers to
Donzis’ air chambers to filter air entering the chambers. Unlike the
individual compartments in Chavannes’ fabric, which have openings both in
the inside layer and outside layer of the compartment to permit air to flow
through the compartment (Chavannes, 4:61–5:7), Donzis’ air chambers are
Appeal 2019-003160
Application 15/391,187

5
sealed and pressurized, thus preventing air flowing into the chambers from
the atmosphere (Donzis, 5:51–57, 6:27–50). Thus, there is no incoming air
to filter.
Second, we are not persuaded that one of ordinary skill in the art
would have added Chavannes’ synthetic fibers to Donzis’ air chambers to
keep the front and back walls of the chambers separated during impact.
Donzis’ system keeps the front and back walls of the chambers separated—
i.e., prevents “bottoming out” (id. at 2:60–61)—by connecting the
pressurized air chambers with constricted fluid passageways to provide a
“natural valving” to partially restrict fluid flow between chambers as
external force is applied. Id. at 3:11–17. Thus, impact protection is
provided when the impacted air chambers expel air at a controlled rate into
adjacent chambers. The Examiner has not cited to evidence suggesting that
this process would be improved if synthetic fibers are placed within the
chambers, and it is not self-evident that such would be the case. For
example, as Appellant suggests (Reply Br. 5), the fibers may unduly restrict
air flow between passages.
Claim 20—Rejected as Unpatentable over Donzis, Chavannes, and Johnson
The Examiner’s rejection of claim 20 relies on the combination of
Donzis and Chavannes rendering unpatentable claim 17, from which claim
20 depends. As set forth above, we are not persuaded that one of ordinary
skill in the art would have combined Donzis and Chavannes for the reasons
set forth by the Examiner. Accordingly, we likewise are not persuaded that
claim 20 is unpatentable over Donzis, Chavannes, and Johnson.
Appeal 2019-003160
Application 15/391,187

6
CONCLUSION
The following table summarizes our disposition of the rejections at
issue in this appeal:
DECISION SUMMARY
Claims
Rejected
35 U.S.C. § Reference(s)/Basis Affirmed Reversed
17, 19–21 Double Patenting 17, 19–21
17, 19–21 Double Patenting 17, 19–21
17, 19, 21 103 Donzis, Chavannes 17, 19, 21
20 103 Donzis, Chavannes,
Johnson
20
Overall
Outcome
17, 19–21

TIME PERIOD FOR RESPONSE
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)(1)(iv).
AFFIRMED