Ex Parte Pasko et al

Patent Trials and Appeals BoardJan 8, 2019

13925532 - (D) (P.T.A.B. Jan. 8, 2019)

UNITED STA TES p A TENT AND TRADEMARK OFFICE APPLICATION NO. FILING DATE 13/925,532 06/24/2013 27939 7590 01/08/2019 Philip H. Burrus, IV Burrus Intellectual Property Law Group LLC 222 12th Street NE Suite 1803 Atlanta, GA 30309 FIRST NAMED INVENTOR Stephanie Pasko 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. BPMDL0035SP Dl (10328UD1) CONFIRMATION NO. 5074 EXAMINER HADEN, SALLY CLINE ART UNIT PAPER NUMBER 3732 MAIL DATE DELIVERY MODE 01/08/2019 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 Exparte STEPHANIE PASKO and ATIENO OUMA1 Appeal2018-006328 Application 13/925,532 Technology Center 3700 Before LYNNE H. BROWNE, JILL D. HILL, and LISA M. GUIJT, Administrative Patent Judges. HILL, Administrative Patent Judge. DECISION ON APPEAL STATEMENT OF THE CASE Stephanie Pasko and Atieno Ouma ("Appellants") appeal under 35 U.S.C. Â§ 134(a) from the Examiner's final decision rejecting claims 1-9 and 11-14. 2 We have jurisdiction under 35 U.S.C. Â§ 6(b). We REVERSE. 1 Appellants identify the real party in interest as the Assignee and Applicant Medline Industries, Inc. Appeal Br. 2. 2 Claim 10 has been canceled. Appeal Br. 22. Appeal2018-006328 Application 13/925,532 BACKGROUND Sole independent claim 1, reproduced below, illustrates the claimed invention, with a limitation italicized. 1. A gown, comprising: a non-woven fabric layer defining a body-covering portion comprising a neck opening between a front portion and a rear portion, wherein a front portion length is greater than a rear portion length and the rear portion defines an opening where the body covering terminates, the opening configured as a slit with a left side and a right side that abut, configured to assist a user in donning the gown; and one or more perforations extending across the rear portion at least partially between the opening and the neck opening, the one or more perforations being configured to tear and split the rear portion when the front portion is pulled away from the user. App. Br. 21 (Claims Appendix). REJECTI0NS 3 I. Claims 1, 2, 5-9, 12, and 14 stand rejected under 35 U.S.C. Â§ I03(a) as unpatentable over Graneto '934 (US D622,934 S, iss. Sept. 7, 2010), Matsushita (US 6,378,136 B2, iss. Apr. 30, 2002), and Graneto '638 (US D598,638 S, iss. Aug. 25, 2009). Final Act. 7. II. Claims 3, 4, and 13 stand rejected under 35 U.S.C. Â§ I03(a) as unpatentable over Graneto '934, Matsushita, Graneto '638, and Baucom (US 2010/0212063 Al, pub. Aug. 26, 2010). Final Act. 12. 3 The Examiner withdrew double patenting rejections of (1) claims 1-9 and 11 over copending Application No. 13/276,232, and (2) claims 1-7 over copending Application No. 13/925,598. Ans. 2. 2 Appeal2018-006328 Application 13/925,532 III. Claim 11 stands rejected under 35 U.S.C. Â§ I03(a) as unpatentable over Graneto '934, Matsushita, Graneto '638, and Lin (US 20090/0320177 Al, pub. Dec. 31, 2009). Final Act. 13. ANALYSIS Rejection I Regarding independent claim 1, the Examiner finds that Graneto '934 discloses, inter alia, a gown with a rear portion defining an "opening configured as a slit with a left side and a right side that abut (figs 2 and 4)." Final Act. 7. Appellants argue that the Examiner erred in finding that Graneto '934 discloses an opening configured as a slit with a left side and a right side that abut, arguing that the rear opening of Graneto '934 includes an overlap. Appeal Br. 14. Appellants provide the following annotated close-up of the right and left back members of Graneto '934 as they are attached at the gown's neck opening: Id.at 16. 3 Appeal2018-006328 Application 13/925,532 According to Appellants, attachment of the back members of Graneto '934 is to the left of the left back member edge, which extends all the way to the neck opening, which would require that "the two back members ... overlap. . . . Said differently, the right back member and the left back member must overlap beneath the attachment for the attachment to work." Id. The Examiner responds with an alternate interpretation of the attachment point of the gown of Graneto '934 as shown below in an annotated version of Figure 7 of Graneto '934. FIG. 7 / ' < \ Ans. 4. The Examiner contends that "even if Appellant's interpretation of the left and right sides is what Graneto intended, Graneto would still read on the [claim] limitation" because, " [ i] f the left and right sides are overlapping, then at least the outer surface of the right side is abutting the inner surface of the left side." Id. Appellants reply that "the claim recites a left side and a right side of a slit that abut, not planar portions of sides of a gown." Reply Br. 8. 4 Appeal2018-006328 Application 13/925,532 Appellants have the better argument. The Examiner's proffered attachment scenario for Graneto '934 is at best speculative, and Appellants' proffered attachment scenario would appear more reasonable. In addition, the claim indeed recites a slit having sides that abut. The ordinary meaning of the term slit can be defined as "a long narrow cut or opening" (https://www.merriam-webster.com/dictionary/ slit?utm_campaign=sd&utm_medium=serp&utm_source=jsonld), which meaning is consistent with use of the term in Appellants' Specification. The Examiner has not explained how the overlapping sides of Graneto '934 provide such a slit with sides, rather than surfaces, that abut. The remaining references do not cure this deficiency. Lacking such a disclosure, prima facie obviousness has not been established, and we do not sustain the rejection of claim 1. Claims 2-9 and 11-14 depend directly or indirectly from claim 1, and the rejections thereof are not sustained for the same reason. DECISION We REVERSE the rejections of claims 1-9 and 11-14 under 35 U.S.C. Â§ 103(a) as unpatentable over the applied references. REVERSED 5