Ex Parte Baxter et al

Patent Trial and Appeal Board

Apr 6, 2016

11775386 (P.T.A.B. Apr. 6, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR
111775,386 07/10/2007
26158 7590 04/08/2016
WOMBLE CARLYLE SANDRIDGE & RICE, LLP
ATTN: IP DOCKETING
P.O. BOX 7037
ATLANTA, GA 30357-0037
Megan K. Baxter
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.
F66735 lOlOUS.l 4909
EXAMINER
MUROMOTO JR, ROBERT H
ART UNIT PAPER NUMBER
3765
NOTIFICATION DATE DELIVERY MODE
04/08/2016 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):
IPDocketing@WCSR. COM
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte MEGAN K. BAXTER and BRIDGOT ISENHOUR
Appeal2013-007970
Application 11/775,386
Technology Center 3700
Before LINDA E. HORNER, LYNNE H. BROWNE, and
MARK A. GEIER, Administrative Patent Judges.
HORNER, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Megan K. Baxter and Bridgot Isenhour (Appellants) 1 seek our review
under 35 U.S.C. § 134 of the Examiner's decision rejecting claims 1, 3-12,
and 14-21. We have jurisdiction under 35 U.S.C. § 6(b).
An oral hearing was held on March 30, 2016.
We REVERSE.
1 According to the Assignment Records of the USPTO, the real party in
interest is Proudest Monkey, LLC.
Appeal2013-007970
Application 11/775,386
CLAIMED SUBJECT MATTER
Appellants' claimed subject matter relates to "an abrasive resistant
garment worn by motorcyclists for protection against skin abrasion in the
event of a motorcycle accident." Spec. 1, 11. 2-3. Claim 1 is the sole
independent claim on appeal and is reproduced below.
1. A protective long underwear undergarment
consisting of a pant having an inseam, a waistband, a seat and a
pair of legs, each of the pair of legs having an outer leg seam,
said pant being made of at least one layer of abrasive resistant
fabric;
said pant further comprising a layer of abrasive resistant
fabric forming a reinforced knee area, said reinforced knee area
having a top edge and a bottom edge, said top edge disposed at a
predetermined distance below said inseam;
said pant further comprising a layer of abrasive resistant
fabric forming a reinforced seat area, said reinforced seat area
extending from said ,~1aistband and past said inseam; and
said reinforced knee area and said reinforced seat area and
said pant consisting of said abrasive resistant fabric, wherein said
abrasive resistant fabric consists of aramid fibers.
REJECTIONS
Appellants appeal from the Final Action, dated June 6, 2012, which
contained the following rejections:
1. Claims 1, 3-10, 14, and 16-21 2 under 35 U.S.C. § 103(a) as
unpatentable over Baxter (US 5,918,319, issued July 6, 1999) and
Vito (US 2005/0144698 Al, published July 7, 2005).
2 Although the statement of the ground of rejection omits claims 16 and 17,
the explanation of the rejection that follows includes findings and analysis as
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Application 11/775,386
2. Claims 11, 12, and 15 under 35 U.S.C. § 103(a) as unpatentable
over Baxter, Vito, and Sternberg (US 3,200,414, issued August 17,
1965).3
ANALYSIS
Claim 1 calls for a protective long underwear undergarment consisting
of a pant, where the pant is "made of at least one layer of abrasive resistant
fabric" and further comprises "a layer of abrasive resistant fabric forming a
reinforced knee area" and "a layer of abrasive resistant fabric forming a
reinforced seat area," and wherein the "abrasive resistant fabric consists of
aramid fibers." Appeal Br. 10, Claims App. The Specification describes,
"The undergarment 10 is made of a single material and reinforced along the
garment at certain locations. The reinforced areas have a double layer of
material. The garment material is preferably made of 100% aramid fibers,
preferably KEVLAR®." Spec. 4, 11. 7-9 (as amended on October 8, 2008).
We understand the language of claim 1, when read in light of the
Specification, to call for a pant made of at least one layer of 100% aramid
fibers, and the reinforced areas at the knee and seat to comprise another
layer of material also consisting of 100% aramid fibers.
to the subject matter of these claims. Final Act. 2, 4. As such, we
understand claims 16 and 17 to be included in the first ground of rejection
3 The Appeal Brief acknowledges that the Final Action includes this second
ground of rejection, but does include this ground in the grounds of rejection
to be reviewed on appeal and does not present any arguments contesting this
ground. Appeal Br. 2-3. We understand Appellants to rely on the
arguments presented against the first ground of rejection for the patentability
of claims 11, 12, and 15, which are subject to the second ground of rejection.
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Application 11/775,386
The Examiner found that Baxter discloses "a protective garment" 10
"preferably made of denim (woven) fabric 'F' to resemble conventional
denim jeans." Final Act. 2 (underlining omitted). The Examiner found that
"the entire inside of the garment 10 may be lined with the [abrasive-
resistant] fabric 11[] (the entire garment covers all the claimed locations)."
Id. (boldface and underlining omitted). The Examiner further found that
Figure 4 of Baxter discloses "the construction of a 'reinforced area' which is
woven or affixed to various areas of any garment including pants." Id. at 3.
The Examiner found that Baxter does not disclose that the abrasive
fabric 11 includes only aramid fibers, as called for in claim 1. Final Act. 6.
The Examiner relied on Vito to disclose a garment that uses 100% aramid
fiber fabric to form a high tensile strength fibrous material layer 14 to serve
as a reinforcement layer to provide added protection from various impact
forces and energy to protect the desired areas of the users. Id. at 7 (finding
that Vito teaches the reinforcement can be used in various types of gear,
apparel and pads). The Examiner determined that it would have been
obvious to replace the fabric layer 11 of Baxter, which includes materials in
addition to aramid, with the reinforcement layer 14 of Vito, which uses
100% aramid material, "to provide the user with impact force protection, as
needed." Id.
Appellants argue that the proposed modification would render Baxter
unfit for its purposes by removing the stretchability of Baxter's fabric.
Appeal Br. 6. Appellants further argue that "Vito appears not to disclose
100% aramid fibers to provide higher abrasion resistance" and that "there is
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Application 11/775,386
no motivation in Vito to remove the 100% aramid fiber layer from its
environment in conjunction with elastomeric layers 12A and 12B and utilize
such 100% aramid fibers alone." Reply Br. 2.
Neither Baxter nor Vito discloses a protective material layer formed
of 100% aramid fibers. Baxter discloses a garment 10, preferably made of
denim fabric, lined by fabric 11, to protect motorcyclists against abrasion
injury in the event of an accident. Baxter, col. 3, 11. 9-21. Baxter discloses
that "fabric 11 is constructed of one or more body yams 21 integrally knit or
woven with an elastic yam 22 and a high-performance yam 23." Id., col. 3,
11. 22-25. Baxter discloses that the body yam 21 is formed of nylon or
polyester fibers, the elastic yam 22 is preferably formed of spandex fibers,
and the high-performance yam 23 is preferably formed of loosely spun
aramid fibers, which are flat knit on the back side of fabric 11 that resides
against the wearer's skin, and are terry knit on the face side of fabric 11. Id.,
col. 3, 11. 25-36. Baxter describes:
Upon contacting an abrasive surface, the individual fibers of the
high-performance terried yam 23 move up, around, and over the
surface to absorb shock and snatch loads on the fabric. As the
outer denim fabric "F" wears away, the terry loops 23A maintain
their structure and function to disperse heat away from the area
being abraded. Preferably, the fabric 11 has a minimum 10%
stretch in both warp and fill directions, and a melting temperature
in excess of 600 degrees F.
Id., col. 3, 11. 37--45.
Vito discloses a material 10 "adapted to regulate vibration" that is
formed by "at least a first elastomer layer 12A and a layer of high tensile
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Application 11/775,386
strength fibrous material 14." Vito, para. 50. Vito describes that "[t]he first
elastomer layer 12A acts [as] a shock absorber by converting mechanical
vibrational energy into heat energy [and] [t]he high tensile strength fibrous
material layer 14 redirects vibrational energy and provides increased
stiffness to the material 10." Id., para. 52; see also id., para. 57 (describing
that "[t]he first elastomer layer 12A is preferably used to slow down impact
energy and to absorb vibrational energy and to convert vibrational energy
into heat energy") and para. 7 6 (describing that the high tensile strength
fibrous material 14 generally distributes impact energy).
The Examiner's rejection proposes to modify Baxter to replace fabric
11 with high tensile strength fibrous material layer 14 of Vito. The
Examiner has not provided an adequate explanation as to why one having
ordinary skill in the art would have been led to replace woven fabric 11 of
Baxter, which provides for comfort to the wearer when placed against the
wearer's skin, with relatively stiffer high tensile strength fibrous material
layer 14 of Vito. The Examiner explained in the Final Action that the reason
for the proposed modification is to "provide the user with impact force
protection, as needed." Final Act. 7. Baxter's fabric 11, however, as
discussed supra, provides for impact force protection in the event of an
accident. Further, Vito teaches a material 10 that consists of the
combination of elastomer layer l 2A and high tensile strength fibrous
material layer 14 to provide for protection from impact forces. The
Examiner has not explained why one having ordinary skill in the art, wishing
to possibly improve the impact force protection in Baxter, would have been
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Application 11/775,386
led to use only layer 14 of Vito, instead of material 10 of Vito, which
consists of both elastomer and aramid fibers, based on the teaching of Vito.
The Examiner further explained in the Answer that the reason for the
proposed modification is that "100% aramid fabrics are taught for providing
abrasion resistance in garments [and,] therefore[,] it would have been
obvious to modify the abrasion resistant patch of Baxter to be 100% aramid
to provide it with higher abrasion resistance." Ans. 3 (finding that "[b ]oth
Vito and Baxter clearly address abrasion resistance by using fabric patch
reinforcement"). Although Baxter teaches that aramid fibers are used for
their abrasion resistance (Baxter, col. 1, 11. 21--45), Baxter also teaches, as
discussed supra, weaving aramid fibers with other fibers for the comfort of
the wearer because fabric 11 of Baxter contacts the wearer's skin. We did
not find any explicit disclosure in Vito of the use of aramid fibers for
abrasion resistance, and the Examiner did not point us to any such disclosure
in the record. Rather, as discussed supra, Vito discloses a material formed
of a layer of aramid fibers combined with a layer of elastomer to regulate
vibrational energy and absorb and dissipate impact forces.
As such, the Examiner has not provided an adequate reasoning based
on rational underpinnings in either the Final Action or the Answer to explain
the proposed modification of Baxter with the teaching of Vito. For these
reasons, we do not sustain the rejection of claim 1, or its dependent claims
3-12 and 14-21, under 35 U.S.C. § 103(a).
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Application 11/775,386
DECISION
The decision of the Examiner to reject claims 1, 3-12, and 14-21 is
REVERSED.
REVERSED
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