Ex Parte Terrell

Patent Trial and Appeal BoardNov 9, 2018

14095267 (P.T.A.B. Nov. 9, 2018)

UNITED STA TES p A TENT AND TRADEMARK OFFICE APPLICATION NO. FILING DATE 14/095,267 12/03/2013 49840 7590 11/14/2018 Atlanta Baker Donelson Intellectual Property Department Monarch Plaza, Suite 1600 3414 Peachtree Rd. A1LANTA, GA 30326 FIRST NAMED INVENTOR Kelley Terrell 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. 2170228-133 7752 EXAMINER QUINN, RICHALE LEE ART UNIT PAPER NUMBER 3732 NOTIFICATION DATE DELIVERY MODE 11/14/2018 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): atlip@bakerdonelson.com tdavis@bdbc.com ipdocketing@bakerdonelson.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte KELLEY TERRELL Appeal2018-003055 Application 14/095,267 Technology Center 3700 Before: STEFAN STAICOVICI, LEE L. STEPINA, and ARTHUR M. PESLAK, Administrative Patent Judges. STAICOVICI, Administrative Patent Judge. DECISION ON APPEAL STATEMENT OF THE CASE Kelley Terrell ("Appellant") appeals under 35 U.S.C. Â§ 134(a) from the Examiner's decision in the Final Office Action (dated Nov. 18, 2016, hereinafter "Final Act.") rejecting claims 1-11 under 3 5 U.S. C. Â§ 1 0 3 as being unpatentable over Anderson et al. (US 2009/0228083 Al, pub. Sept. 10, 2009, hereinafter "Anderson") and Curro et al. (US 7,682,686 B2, iss. Mar. 23, 2010, hereinafter "Curro"). We have jurisdiction under 35 U.S.C. Â§ 6(b). SUMMARY OF DECISION We REVERSE. Appeal2018-003055 Application 14/095,267 INVENTION Appellant's invention relates to medical gowns that provide access to a patient in conjunction with other medical equipment. Spec. 1, 11. 7-9. Claims 1, 4, and 7 are independent. Claim 1, reproduced below, is illustrative of the claimed subject matter: 1. A medical gown comprising: a front side; a back side, and a releasable seam joining at least a portion of said front side to a portion of said back side, said releasable seam including a first fastener portion coupled to one said side, said first fastener portion including two high strength loop type fasteners spaced apart from each other and a low strength loop type fastener positioned between said two high strength loop type fasteners, said releasable seam also including a second fastener portion coupled to the other said side, said second fasteners portion including hook type fasteners configured to releasable 1 mate with said high strength loop type fasteners and said low strength loop type fastener. ANALYSIS 2 Each of independent claims 1 and 4 recites, in relevant part, the limitations of "high strength loop type fasteners" and "a low strength loop type fastener." Appeal Br. 19, 20 (filed Apr. 20, 2017, hereinafter "Br") (Claims App.). Independent claim 7 recites, in relevant part, "a first fastener portion having a first bonding strength and a second fastener portion having a second bonding strength less than said first bonding strength." Id. at 20. 1 In this instance, we interpret the term "releasable" as "releasably" and consider this to be a typographical error. 2 As the Examiner's objection to the Drawings (see Final Act. 2-3) is a petitionable matter, the objection is not within the jurisdiction of the Board. See In re Mindick, 371 F.2d 892, 894 (CCPA 1967). 2 Appeal2018-003055 Application 14/095,267 The Examiner finds that Anderson discloses most of the limitations of the independent claims including, inter alia, high strength loop type fasteners 57 separated by garment material, but does not explicitly disclose that the garment material includes a low strength loop type fastener. Final Act. 3-5 (citing Anderson, para. 61, Fig. 3a). Nonetheless, the Examiner finds that Curro teaches a medical gown made from a garment material that forms a low strength loop type fastener. Id. at 5 ( citing Curro, col. 24, 11. 21-22, Fig. 12). The Examiner concludes that it would have been obvious to a person having ordinary skill in the art to "utilize the material as taught by Curro ... in order to provide a soft, comfortable, disposable medical gown." Id. (citing Curro, col. 1, 11. 44--45, col. 24, 11. 21-22). Appellant argues that the Examiner's rejection is not supported by evidence because the Examiner has not shown where the references disclose loop type fasteners having different strengths. Br. 7. Appellant asserts that the Examiner appears to be relying on a theory of inherency, but fails to "identify some basis in fact or articulate some reasoning at least tending to show that allegedly inherent subject matter necessarily (i.e., inevitably) flows from cited art." Id. The Examiner responds that "the prior art shows two distinct structures; a hook fastener portion that connects with a loop fastener portion and said hook fastener portion that connects with an exposed loop fabric surface fastener." Ans. 5. According to the Examiner, "evidence that a 'high' strength fastener and a 'low' strength fastener is achieved by a traditional hook and loop fasteners and garment material is found in the background of the appellants own specification." Id.; see also id. at 3--4 ( citing Spec. 4, 11. 8-10). 3 Appeal2018-003055 Application 14/095,267 Appellant's arguments are persuasive because the Examiner does not establish adequately that the applied prior art discloses loop type fasteners with different strengths. More specifically, the Examiner does not sufficiently explain why Curro' s exposed loop fabric surface fastener constitutes a low strength loop type fastener as compared to Anderson's loop type fastener that constitutes a high strength loop fastener. At the outset we agree with the Examiner's finding that because Anderson discloses a hook fastener portion that connects with a loop fastener portion 57 so that "seam 56 may be held closed" (see Anderson, para. 61 ), such a connection constitutes a high strength loop type fastener. See Final Act. 3. However, although Curro discloses a fastener structure that is different than that of Anderson's, namely, a hook fastener portion that connects with an exposed loop fabric surface fastener (see Curro, col. 21, 11. 56-59), the Examiner does not explain adequately why Curro's exposed loop fabric surface fastener constitutes a low strength loop type fastener as compared to Anderson's high strength loop type fastener discussed above. For example, Curro discloses that for absorbent articles having mechanical fasteners, such as a diaper, material web 1 "can be one of the components of a hook and loop fastener." Curro, col. 21, 11. 54--57. Thus, although Curro discloses using a diaper's web material as a portion of a fastener, this does not necessarily mean that Curro's web material constitutes a low strength loop type fastener, as called for by independent claims 1 and 4, or a fastener having a lower bonding strength, as called for by claim 7. Rather, as an artisan must be presumed to know something about the art apart from what the references disclose, one of ordinary skill in the fastener art would readily understand that a fastener on a diaper, or other article that 4 Appeal2018-003055 Application 14/095,267 uses the web as the main source of attachment, would form a high strength connection, that is, a "stable joining" of the fastener portions in order to secure the two portions together "to prevent the unwanted separation therebetween should the [user (baby)] tum, walk, sit-up, or otherwise move in a normal fashion." See Spec. 5, 11. 12-15. Moreover, although we appreciate the Examiner's reliance on Appellant's Specification to show that a traditional hook and loop fastener provides a stronger connection than the connection with a garment material, we note that there is no evidence of record that Curro' s web material 1 is the same as Appellant's garment material, and thus, necessarily provides the same lower (bonding) strength. See Ans. 3--4 ( citing Spec. 4, 11. 8-10). As such, for the foregoing reasons, the Examiner has not established by a preponderance of the evidence that Curro' s web 1 constitutes a low strength loop type fastener, as called for by independent claims 1 and 4, or a fastener having a lower bonding strength, as called for by claim 7. Thus, the Examiner has not provided a basis in fact and/ or technical reasoning to support reasonably that Curro' s web necessarily constitutes a "low strength loop type fastener" as compared to Anderson's "high strength loop type fastener." Accordingly, we do not sustain the rejection of claims 1-11 under 35 U.S.C. Â§ 103 as unpatentable over Anderson and Curro. DECISION The Examiner's decision to reject claims 1-11 is reversed. 5 Appeal2018-003055 Application 14/095,267 REVERSED 6