Ex Parte Hurlock et al

Patent Trials and Appeals BoardMar 25, 2019

14139794 - (D) (P.T.A.B. Mar. 25, 2019)

UNITED STA TES p A TENT AND TRADEMARK OFFICE APPLICATION NO. FILING DATE 14/139,794 12/23/2013 103807 7590 03/27/2019 Intellectual Property Venture Group 3350 Shelby St., Ste. 200 Ontario, CA 91764-5556 FIRST NAMED INVENTOR Torrey Hurlock 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. 67009.300101 4915 EXAMINER LYNCH, MEGAN E ART UNIT PAPER NUMBER 3732 NOTIFICATION DATE DELIVERY MODE 03/27/2019 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): pfiler@ipvglaw.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte TORREY HURLOCK, WAYNE MURPHY, and RICK RUDDER Appeal2017-009702 1 Application 14/139,794 Technology Center 3700 Before: MICHAEL L. HOELTER, ANNETTE R. REIMERS, and BRENT M. DOUGAL, Administrative Patent Judges. DOUGAL, Administrative Patent Judge. DECISION ON APPEAL STATEMENT OF THE CASE Appellants appeal under 35 U.S.C. Â§ 134 from a final rejection of claims 9, 10, 13-17, 19, and 20. We have jurisdiction under 35 U.S.C. Â§ 6(b). We AFFIRM. 1 Appellants identify Innovate Squared, LLC, as the real party in interest. Appeal Brief filed 11/7/2016, (Appeal Br.) 3. Appeal2017-009702 Application 14/139,794 CLAIMED SUBJECT MATTER The claims are directed to a safety glove. Claims 9 and 16 are independent. Claim 9 is reproduced below: 9. A safety glove to wear on a human hand, wherein the hand conventionally has a palm, a backhand, and a plurality of fingers comprising at least two phalanxes, and wherein the glove is of a conventional material, the glove comprising: a unitary construct wherein said plurality of said glove finger sections each connect to said glove palm section and to said glove back section at a palmar digital crease; and a separation zone in each glove finger section of the glove made by controllably weakening the material of the glove such that all or part of respective said glove finger section is separable from the rest of the glove, wherein said separation zone retains a discernible thickness throughout, and wherein said separation zone is optically formed in the material, and further wherein said separation zone is formed with a laser. REFERENCES The prior art relied upon by the Examiner in rejecting the claims on appeal is: Brenning Locke Jeon us 4,131,952 US 8,454,580 B2 KR 100811863 Bl REJECTI0NS 2 Jan.2, 1979 June 4, 2013 Mar. 10, 2008 Claims 9, 10, 13, 16, 17, and 19 are rejected under 35 U.S.C. Â§ 103 as being unpatentable over Brenning and Locke. Claims 14, 15, and 20 are rejected under 35 U.S.C. Â§ 103 as being unpatentable over Brenning, Locke, and Jeon. 2 The rejection of claims 21 and 22 under 35 U.S.C. Â§ 112 is moot as those claims were cancelled. Appeal Br. 3. 2 Appeal2017-009702 Application 14/139,794 OPINION Claims 9, 10, 13, 16, 17, and 19 Appellants argue the rejections of claims 9, 10, 13, 16, 17, and 19 together. We select independent claim 9 as representative. See 3 7 C.F .R. Â§ 4I.37(c)(l)(iv). The Examiner finds that Brenning teaches a safety glove, including a weakened section or separation zone 36a that "can be directly 'incorporated into a molded glove."' Final Act. 7-8. However, the Examiner determines that Brenning does not teach an optically formed separation zone that is formed by a laser. Id. at 8. 3 The Examiner turns to Locke "for teaching the use of lasers to purposefully optically weaken a material." Id. The Examiner determines that: Id. it would have been obvious ... to have used a laser as taught by Locke to create the weakened section of the separation zone of Brenning in order to create a non-leaking separation zone that specifically retains a discernible thickness throughout (non- leaking) while continuing to be able to separate under a load/stress. The Examiner also determines that Locke is analogous art to the claimed invention because: "Locke is directed to a garment with a non- leaking tear path 140 that relies upon the use of a laser to create said tear 3 We note that Appellants and the Examiner also disagree on whether Brenning anticipates claim 9 under an interpretation that certain claim limitations are product-by-process limitations. See e.g. Final Act. 7-8, Appeal Br. 8-9. This is not the rejection before us. Thus, we do not ascertain whether the Examiner has established that the weakened section of Brenning necessarily includes all of the structural features that would be present in a weakened section produced by a laser to optically weaken a material. 3 Appeal2017-009702 Application 14/139,794 path." Id. at 4. The Examiner further finds that "[t]his is the exact same reasoning relied upon by applicant and this teaching applies seamlessly to the weakened portions of the glove of Brenning." Id. Appellants argue that Locke is "non analogous art and what it teaches is irrelevant." Appeal Br. 10. Appellants argue that the Examiner's finding that Locke is directed to a "garment" is error. Id. ( citing dictionary definitions of "garment"). The Examiner's finding that a "garment" "is anything capable of covering a user's body" is unsupported and cannot be sustained on the current record. Ans. 3. However, that finding alone does not render the Examiner's rejection error. The Federal Circuit has laid out two separate tests to determine whether a reference is analogous art to the claimed invention, i.e., whether one of ordinary skill in the art would even look to the teachings of Locke. In re Bigio, 381 F.3d 1320, 1325 (Fed. Cir. 2004). They are: "(1) whether the art is from the same field of [the inventor's] endeavor" and "(2) if the reference is not within the field of the inventor's endeavor, whether the reference still is reasonably pertinent to the particular problem with which the inventor is involved." Id.; see also In re Klein, 647 F.3d 1343, 1348 (Fed. Cir. 2011 ). Without fully addressing these two tests, Appellants argue that because Locke is not directed to a garment it is both "not in the field of [A]ppellants['] endeavor and it is not reasonably pertinent to the particular problem with which the [A]ppellant[s] was concerned." Appeal Br. 10. Appellants' argument appears to address the "field of endeavor" test, without addressing the "pertinent to the particular problem" test. As noted 4 Appeal2017-009702 Application 14/139,794 above, the Examiner determined that Locke is directed to "the exact same reasoning relied upon by [Appellants] and this teaching applies seamlessly to the weakened portions of the glove of Brenning." Final Act. 4. Thus, we are not informed of error in the Examiner's determination that Locke is reasonably pertinent to the particular problem with which the Appellants were concerned. For the first time in the Reply Brief, Appellants define the problem as "gloves that rip away safely if caught in machinery." Reply Br. 5. However, this does not accurately define the problem. As noted in Appellants' Specification, gloves that rip away safely if caught in machinery were already well known prior to Appellants' invention. Spec. 3: 15-5 :21. Appellants' concern appears to more accurately be related to reducing complexity and cost of manufacture (id. at 3:29, 4:31-5:1, 5:7-8) without using perforations (id. at 4:3-15) in gloves that rip away safely if caught in machinery. See also, id. at 5 :9-21. Thus, manufacturing methods of fabrics and textiles ( such as that taught by Locke) would be especially pertinent to the particular problem with which Appellants were concerned. 4 4 This is further supported by Appellants' Specification which teaches that Lasers are widely used in the textile and garment industries, but not in the manner the inventors use here. Lasers have been employed to cut clear through fabric, and frequently to cut clear through multiple stacked pieces at once. In contrast, the present inventors propose using a laser to controllably and very precisely surface treat materials, including knit and woven fabrics. Spec. 13:7-11. Locke is relevant to the textile industry. Further Appellants' Specification supports the Examiner's finding that one of skill in the art would have looked to the use of lasers in the textile and garment industries (such as 5 Appeal2017-009702 Application 14/139,794 For these reasons, we sustain the Examiner's rejection of claim 9. As noted above, claims 10, 13, 16, 17, and 19 stand or fall with claim 9. Claims 14, 15, and 20 Appellants argue that Jeon does not "cure[] the deficiencies of Brenning in view of Locke." Appeal Br. 11. As Appellants have not identified deficiencies in the Examiner's rejection, we sustain the rejection of claims 14, 15, and 20. DECISION The Examiner's rejections of claims 9, 10, 13-17, 19, and 20 are affirmed. No time period for taking any subsequent action in connection with this appeal may be extended under 37 C.F.R. Â§ 1.136(a). See 37 C.F.R. Â§ 1.136(a)(l )(iv). AFFIRMED Locke) when addressing the particular problem with which the Appellants were concerned. 6