Ex Parte Watley

Patent Trial and Appeal BoardMay 17, 2013

11465922 (P.T.A.B. May. 17, 2013)

UNITED STATES PATENT AND TRADEMARK OFFICE ____________ BEFORE THE PATENT TRIAL AND APPEAL BOARD ____________ Ex parte BRUCE E. WATLEY ____________ Appeal 2011-002717 Application 11/465,922 Technology Center 3700 ____________ Before STEFAN STAICOVICI, MICHAEL C. ASTORINO, and ADAM V. FLOYD, Administrative Patent Judges. STAICOVICI, Administrative Patent Judge. DECISION ON APPEAL Appeal 2011-002717 Application 11/465,922 2 STATEMENT OF THE CASE Bruce E. Watley (Appellant) appeals under 35 U.S.C. § 134 from the Examiner’s decision finally rejecting under 35 U.S.C. § 102(e) claims 1-4 as anticipated by Beck (US 7,490,358 B1, issued Feb. 17, 2009) and under 35 U.S.C. § 103(a) claims 5 and 6 as unpatentable over Beck and Egnew (US 6,675,394 B2, issued Jan. 13, 2004). We have jurisdiction over this appeal under 35 U.S.C. § 6(b). INVENTION Appellant’s invention relates to a protective article of clothing for protecting the legs of a wearer from snake bites. Spec. 1, ll. 9-11 and fig. 1. Claim 1, the sole independent claim, is representative of the claimed invention and reads as follows: 1. A protective article of clothing adapted to prevent snake fangs from biting into the leg of a wearer, comprising: a leg portion having a plurality of elongated inserts made of material impervious to snake bites; a fabric layer having a plurality of elongated pockets therein having a first edge, a second edge, a front portion, and a back portion that receive the plurality of elongated inserts; and a longitudinal seam attached to the second edge of the front portion of a first pocket and attached to the back portion adjacent the first edge of a second pocket such that the second edge of the first pocket overlaps the first edge of the second pocket. SUMMARY OF DECISION We REVERSE. Appeal 2011-002717 Application 11/465,922 3 ANALYSIS Independent claim 1 requires “a longitudinal seam attached to the second edge of the front portion of a first pocket and attached to the back portion adjacent the first edge of a second pocket.” App. Br., Claims App’x. The Examiner found that “a seam connects a front portion of a first pocket [104] to a back portion of a second pocket [108] via webbing (112, 120) in an overlapping relation.” Ans. 3; see also, Beck, figs. 1 and 4. According to the Examiner “webbing (112, 120) defines a longitudinal seam.” Ans. 4. Appellant argues that, “webbing and seam are distinct and independent elements.” Reply Br. 5. According to Appellant, “[a] seam has an ordinary and customary meaning of ‘the line formed by the sewing together of two pieces.’” App. Br. 4. Thus, according to Appellant, although Beck teaches a seam between lower back armor 104, 108 and strap 120, Beck fails to teach a “seam,” as called for by independent claim 1. We agree. Appellant’s Specification does not expressly define the term “seam” or otherwise indicate that it is used in a manner other than its ordinary and customary meaning. An ordinary and customary meaning of the term “seam” that is most consistent with the Specification and the understanding of those of ordinary skill in the art is “1 a : the joining of two pieces (as of cloth or leather) by sewing usually near the edge . . . 3a : a line, groove, or ridge formed by the abutment of edges.” MERRIAM WEBSTER’S COLLEGIATE DICTIONARY (10th Ed. 1997). Here, Appellant’s Specification describes seams 38 as located adjacent a second side edge 26 in the front portion 28 of a first pocket 18 Appeal 2011-002717 Application 11/465,922 4 and adjacent a second edge 24 in the back portion 30 of a second pocket 18. Spec. 3, ll. 33-36 and fig. 2. In contrast, although Beck’s strap 120 joins armor parts 104, 108 in an overlapping relation, strap 120 does not join armor parts 104, 108 near their respective edge to form a line, groove, or ridge by the abutment of the edges. We thus agree with Appellant that Beck fails to teach a “seam,” as called for by independent claim 1. See Reply Br. 5. Therefore, we do not sustain the rejection of independent claim 1 and its dependent claims 2-4 under 35 U.S.C. § 102(e) as anticipated by Beck. With respect to the rejection of claims 5 and 6, the addition of Egnew does not remedy the deficiencies of Beck as described supra. Accordingly, we likewise do not sustain the rejection of claims 5 and 6 under 35 U.S.C. § 103(a) as unpatentable over Beck and Egnew. SUMMARY The decision of the Examiner to reject claims 1-6 is reversed. REVERSED mls