Jasen Webb

Patent Trials and Appeals Board

Jun 24, 2021

2020006364 (P.T.A.B. Jun. 24, 2021)

UNITED STATES PATENT AND TRADEMARK OFFICE
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
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR ATTORNEY DOCKET NO. CONFIRMATION NO.
15/214,110 07/19/2016 Jasen L. Webb A157-0005US 3499
29150 7590 06/24/2021
LEE & HAYES, P.C.
601 W. RIVERSIDE AVENUE
SUITE 1400
SPOKANE, WA 99201
EXAMINER
HARMON, CHRISTOPHER R
ART UNIT PAPER NUMBER
1796
NOTIFICATION DATE DELIVERY MODE
06/24/2021 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):
lhpto@leehayes.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte JASEN L. WEBB
Appeal 2020-006364
Application 15/214,110
Technology Center 3600
Before BENJAMIN D. M. WOOD, WILLIAM A. CAPP, and
GEORGE R. HOSKINS, Administrative Patent Judges.
WOOD, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Pursuant to 35 U.S.C. § 134(a), Appellant1 appeals from the
Examiner’s December 2, 2019 Final Action rejecting claims 1–10, 13, 15–
19, and 21–24. See Final Act. 1 (Summary). Claims 11, 12, 14, and 20 have
been canceled. Appeal Br. 26, 28 (Claims App.). We have jurisdiction
under 35 U.S.C. § 6(b).
We affirm.

1 “Appellant” refers to the applicant as defined in 37 C.F.R. § 1.42.
Appellant identifies the real party in interest as A7 Fitness Inc. Appeal
Br. 3.
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CLAIMED SUBJECT MATTER
The claims are directed to “a garment comprising a grip surface on the
fabric.” Spec. ¶ 7. Claim 1, reproduced below, is illustrative of the claimed
subject matter:
1. An apparel comprising:
a garment comprising, at least one of, a shirt or a pant;
a grip area disposed on the garment, wherein the grip
area includes a plurality of gripping members, wherein the grip
area is configured to provide a frictional force on an object or
surface during an exercise,
the plurality of gripping members comprising a gripping
material configured to provide the frictional force on the object
or surface, in contact with the grip area,
the plurality of gripping members comprising an apparel
surface attached to the apparel and a grip surface,
the plurality of gripping members forming a surface
pattern of the grip area, wherein the surface pattern enables
breathability of the garment, wherein the plurality of gripping
members include a plurality of hexagonal gripping members
resulting in the grip surface pattern forming a honeycomb grip
pattern, wherein at least one of the plurality of hexagonal
gripping members define perforations that extend to an edge of
the at least one of the plurality of hexagonal gripping members.
REFERENCES
Name Reference Date
Bouza US 8,245,322 B1 Aug. 21, 2012
Baldino US 2014/0026285 A1 Jan. 30, 2014
Johnson US 2014/0223630 A1 Aug. 14, 2014
The Gripper Glove NPL2 Sept. 28, 2015

2 “The Gripper Glove” sales listing on Amazon.com;
http://www.amazon.com/Fit-Four-Weightlifting-Training-
Athletes/dp/BOOFKZS1YW.
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REJECTIONS
Claim(s) Rejected 35 U.S.C. § Reference(s)/Basis
1–10, 13, 15–19, 21–24 112(a) Written Description
1–10, 13, 15–19, 21–24 112(b) Indefiniteness
1–9, 13, 15–19, 21–24 103 Johnson, The Gripper Glove
10 103 Johnson, The Gripper Glove,
Bouza
18, 21–24 103 Baldino, Johnson
OPINION
Claims 1–10, 13, 15–19, and 21–24—§ 112(a)—Written Description
Appellant argues claims 1–10, 13, 15–19, and 21–24 as a group.
Appeal Br. 11–13. We select claim 1 as representative of the group, and
decide the appeal of this rejection on the basis of claim 1 alone. 37 C.F.R.
§ 41.37(c)(1)(iv).
The Examiner finds that the Specification fails to adequately describe
“wherein at least one of the plurality of hexagonal gripping members define
perforations that extend to an edge of the at least one of the plurality of
hexagonal gripping members.” Final Act. 2. The Examiner asserts that the
Specification “generally describes hexagonal gripping members with a hole
in a proximate middle (para. 64) however is not considered to extend to an
edge.” Id. According to the Examiner, “[w]hile ordinary consideration of
the term ‘edge’ may provide to fulfill the written description requirement,
other consideration [i.e.,] extending to one of the six side face edges of the
hexagonal shape is not fully supported by the originally filed papers.” Id.
Appellant disputes this finding. Relying primarily on the
embodiments depicted in Figures 1C and 3 of the Specification for written-
description support, Appellant asserts that the term “perforations” refers to
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“regions not covered by the gripping members 110 and 305 on the apparel,”
which “extend to an edge of the at least one of the plurality of hexagonal
gripping members.” Appeal Br. 11–13 (citing Spec. ¶ 65, Figs. 1C, 3); see
Reply Br. 4 (same).
We are not persuaded of Examiner error. First, the Specification does
not expressly define “perforations,” much less define them as regions not
covered by gripping members. And while the Specification does discuss
“perforations,” it is in connection with a different embodiment: one in
which the gripping surface comprises “large perforated patches of the
gripping material rather than multiple gripping members.” Spec. ¶ 64
(emphasis added).
Second, the excerpts from the Specification on which Appellant relies
as disclosing the claimed perforations do not, in fact, provide such support.
Of the two figures relied on as depicting the claimed perforations, only
Figure 1C is described as comprising a plurality of hexagonal gripping
members arranged in a honeycomb grip pattern, as claim 1 requires. Spec.
¶ 64. The Figure 1C embodiment is described as follows:
In the present embodiment, gripping areas 101 may comprise
multiple hexagonal gripping members 110, which may form a
honeycomb grip pattern. Holes disposed in a proximate middle
of each hexagonal member and gaps in between and
surrounding each hexagonal member may provide breathability
of the garment. This grip pattern may enable gripping areas
101 to cover large portions of garment 100 while typically
maintaining the breathability of the fabric from which garment
100 is made.
Spec. ¶ 64. The only “regions not covered by the gripping members 110”
described in this excerpt are “[h]oles disposed in a proximate middle of each
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hexagonal member” and “gaps in between and surrounding each hexagonal
member.” We agree with the Examiner that “‘holes’ . . . are reasonably
considered ‘perforations,’ given the plain and ordinary use of the term.”
Ans. 4. But, as the Examiner states, the described holes are “disposed in a
proximate middle of each hexagonal member” rather than “extend[ing] to an
edge of the at least one of the plurality of hexagonal gripping members.”
That is, it appears that each of the hexagonal gripping members depicted in
Figure 1C has a continuous outer wall such that no hole or perforation
extends to the outer wall.
As for the “gaps in between and surrounding each hexagonal
member,” Appellant has not provided support for the notion that one of
ordinary skill in the art would have considered these gaps to correspond to
the claimed perforations. Moreover, to do so would render part of the claim
superfluous. That is, gaps between hexagonal members necessarily “extend
to an edge” of the members on either side of the gap; they are essentially
defined as that region beyond the edge of the members. It would thus be
superfluous to also require the perforations to “extend to an edge of the at
least one of the plurality of hexagonal gripping members.” Construing a
claim in a way that renders a term superfluous is “a methodology [that our
reviewing court] has denounced.” Stumbo v. Eastman Outdoors, Inc., 508
F.3d 1358, 1362 (Fed. Cir. 2007). We also note that claim 5, which depends
indirectly from claim 1, further recites “a gap between each of the plurality
of hexagonal gripping members.” Thus, claim 5 is properly read to recite a
limitation in additional to the perforations recited in claim 1, making it that
much more difficult to interpret “perforations” as corresponding to the gaps.
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For the above reasons, we are not persuaded that the Examiner erred
in finding that claim 1 is not described adequately to demonstrate possession
of the invention of claim 1. Accordingly, we sustain the Examiner’s
rejection of claims 1–10, 13, 15–19, and 21–24 under 35 U.S.C. § 112(a).
Claims 1–10, 13, 15–19, and 21–24—§ 112(b)—Indefiniteness
For independent claims 1, 18, and 22, the Examiner determines that
“[i]t is not understood what is intended by ‘wherein at least one of the
plurality of hexagonal gripping members define perforations that extend to
an edge of the at least one of the plurality of hexagonal gripping members.’”
Final Act. 3. The Examiner’s position is that given the description in the
Specification of “hexagonal gripping members with a hole in a proximate
middle,” it is not understood how a perforation “extend[s] to any edge other
than a surface thereof.” Id. The Examiner also submits that it is not clear
how gripping members “define” perforations. Id.
In addition, for claim 18, the Examiner further determines:
[R]egarding the alternative limitations of claim 18, note that “at
least one of” a gap and a perforation which later includes the
newly added limitation which refers back to the perforation
seems to make the selection of the perforation. It is not clear if
the intended scope is to include an embodiment with a selection
of a gap only. Also note that “at least one of, a perforated patch
of the plurality of gripping members” (18:7–8) seems
inconsistent with the described perforated patch as an alternate
embodiment to a gripping member.
Final Act. 3.
Appellant does not specifically respond to the indefiniteness rejection
in the Appeal Brief. In the Reply Brief, Appellant largely relies on
arguments made in opposition to the written-description rejection. See, e.g.,
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Reply Br. 5 (stating that, “[a]s discussed above with respect to the rejections
under 35 U.S.C. § 112(a), the Specification provides support for ‘wherein at
least one of the plurality of hexagonal gripping members define perforations
that extend to an edge of the plurality of hexagonal gripping members,’ as
recited in independent claim 1.”). As discussed above, we found these
arguments unpersuasive. Further, we agree with the Examiner that it is
unclear what it means for a perforation to extend to an edge of at least one of
the hexagonal gripping members, and it is unclear what it means for a
hexagonal gripping member to “define” perforations. For these reasons, we
sustain the Examiner’s rejection of claims 1–10, 13, 15–19, and 21–24 as
indefinite.
Rejections Under 35 U.S.C. § 103
Claims 1–10, 13, 15–19, and 21–24 are rejected as being indefinite
under 35 U.S.C. § 112(b), discussed above. In view of the indefiniteness of
these claims, we find that it is not possible to ascertain their scope.
Accordingly, we find that the Examiner’s rejections of claims 1–10, 13, 15–
19, and 21–24 under 35 U.S.C. § 103 are necessarily based on speculation
and assumptions. See In re Steele, 305 F.2d 859, 862 (CCPA 1962) (“[W]e
do not think a rejection under 35 U.S.C. § 103 should be based on . . .
speculations and assumptions. . . . [I]t is essential to know what the claims
do in fact cover.”). Therefore, we summarily decline to sustain the
rejections of claims 1–10, 13, 15–19, and 21–24.
It should be understood, however, that our decision in this regard is
based solely on the indefiniteness of the claimed subject matter and does not
reflect the adequacy of the prior art evidence applied in support of the
rejection before us. Once definite claims are presented, the Examiner is free
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to apply the same, different, or additional prior art as the Examiner so
chooses.
CONCLUSION
The Examiner’s rejections are decided as follows:
DECISION SUMMARY
Claim(s)
Rejected
35
U.S.C. §
Reference(s)/Basis Affirmed Reversed
1–10, 13, 15–
19, 21–24
112(a) Written
Description
1–10, 13, 15–
19, 21–24

1–10, 13, 15–
19, 21–24
112(b) Indefiniteness 1–10, 13, 15–
19, 21–24

1–9, 13, 15–
19, 21–24
103 Johnson, The
Gripper Glove
1–9, 13, 15–
19, 21–24
10 103 Johnson, The
Gripper Glove,
Bouza
10
18, 21–24 103 Baldino, Johnson 18, 21–24
Overall
Outcome
1–10, 13, 15–
19, 21–24

TIME PERIOD FOR RESPONSE
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a). See 37 C.F.R.
§ 1.136(a)(1)(iv).
AFFIRMED