THE JANGER LIMITED

Patent Trials and Appeals Board

Feb 7, 2022

2021004440 (P.T.A.B. Feb. 7, 2022)

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. 15/111,651 07/14/2016 Guy Taylor MOHNP0106WOUS 4649 23908 7590 02/07/2022 RENNER OTTO BOISSELLE & SKLAR, LLP 1621 EUCLID AVENUE NINETEENTH FLOOR CLEVELAND, OH 44115 EXAMINER DURHAM, NATHAN E ART UNIT PAPER NUMBER 3732 NOTIFICATION DATE DELIVERY MODE 02/07/2022 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): ipdocket@rennerotto.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE ____________ BEFORE THE PATENT TRIAL AND APPEAL BOARD ____________ Ex parte GUY TAYLOR Appeal 2021-004440 Application 15/111,651 Technology Center 3700 ____________ Before JENNIFER D. BAHR, MICHAEL J. FITZPATRICK, and LISA M. GUIJT, Administrative Patent Judges. FITZPATRICK, Administrative Patent Judge. DECISION ON APPEAL Appellant, The Janger Limited,1 appeals under 35 U.S.C. § 134(a) from the Examiner’s final decision rejecting claims 1-3, 6, 16, and 19-24. We have jurisdiction under 35 U.S.C. § 6(b). An oral hearing was held January 24, 2022. We affirm. 1 “Appellant” refers to the applicant as defined in 37 C.F.R. § 1.42 and identifies itself as the sole real party in interest. Appeal Br. 2. Appeal 2021-004440 Application 15/111,651 2 STATEMENT OF THE CASE The Specification The Specification “relates to an improved hanging assembly or arrangement, especially for use with clothing and in particular jeans, shorts and trousers.” Spec. 1:9-10. The Claims Claims 1-3, 6, 16, and 19-24 are rejected. Final Act. 1. No other claims are pending. Id.; Appeal Br. 15-18. Claim 1 is illustrative and reproduced below. 1. A garment and hanger assembly comprising: a garment; a garment hanger having garment supporting means supporting the garment on the garment hanger; and attachment means attaching the garment hanger to the garment and retaining the garment on the garment hanger independently from the garment supporting means; the garment hanger further having: a rail engaging portion; and an aperture for receiving the attachment means; wherein the garment supporting means includes a deformable elongate member, an end of the elongate member distal from the rail engaging portion comprising a first part of a connection mechanism such that the deformable elongate member can be deformed back upon itself and connected to a second part of the connection mechanism of the hanger to form a releasable loop configured for holding the garment to the deformable elongate member; wherein the attachment means includes a flexible tie passing through the aperture in the garment hanger and connected to the garment, wherein the flexible tie has a length that enables the garment to be removed from the deformable Appeal 2021-004440 Application 15/111,651 3 elongate member for trying on the garment while the flexible tie retains the garment on the garment hanger; and wherein the releasable loop formed by the deformable member can be released to allow the garment to be tried on and later reattached to the garment and the deformable member reconnected, all while the flexible tie retains the garment on the garment hanger even when the loop is released. Appeal Br. 15-16. The Examiner’s Rejection The Examiner rejected all pending claims under 35 U.S.C. § 103 as unpatentable over WO 2011/086376 A1, published July 21, 2011 (“Coote”) and US 6,036,064, issued March 14, 2000 (“Tawil”). Final Act. 4. DISCUSSION Appellant argues against the rejection of claims 1-3, 6, 19-22, and 24 together. Appeal Br. 6-12. We choose claim 1 as representative of these claims. 37 C.F.R. § 41.37(c)(1)(iv). Appellant separately argues the rejection of claims 16 and 23. Id. at 12-14. Claims 1-3, 6, 19-22, and 24 The Examiner found that Coote teaches a garment and hanger assembly bearing most of the subject matter of claim 1 but “fails to disclose the garment hanger comprising an aperture and corresponding flexible tie for attaching the hanger to a garment.” Final Act. 4-5 (citing Coote Figs. 1-4). For those features, the Examiner turned to Tawil, finding that it “teaches a garment hanger (10) comprising an aperture (20) and a flexible tie (18, 22; ‘kimble tag’) that passes through the aperture and the garment in order to prevent removal of a garment from the hanger until after the garment has been purchased.” Id. at 5. The Examiner concluded: Appeal 2021-004440 Application 15/111,651 4 it would have been obvious to a person with ordinary skill in the art at the time the invention was made to have provided the hanger and garment combination of COOTE with an aperture and flexible tie, in light of the teachings of TAWIL, in order to prevent removal of the garment [from] the hanger until after purchase (especially considering that the connection mechanism can be releasable or “two-way” as noted within the third paragraph and last paragraph of page 9 of COOTE). Id. This is a classic case of obviousness based on a combination of prior art teachings. See, e.g., KSR Int’l Co. v. Teleflex Inc., 550 U.S. 398, 416 (2007) (“The combination of familiar elements according to known methods is likely to be obvious when it does no more than yield predictable results.” ). Appellant unpersuasively argues against the rejection using a divide and conquer strategy that, in this context, is contrary to law. See In re Merck & Co., 800 F.2d 1091, 1097 (Fed. Cir. 1986) (“Non-obviousness cannot be established by attacking references individually where the rejection is based upon the teachings of a combination of references.”). In that regard, Appellant erroneously argues patentability based on isolated teachings from Coote and Tawil instead of responding to what their disclosures fairly teach in combination. See Merck, 800 F.2d at 1097 (A reference “must be read, not in isolation, but for what it fairly teaches in combination with the prior art as a whole.”); see also In re GPAC Inc., 57 F.3d 1573, 1581 (Fed. Cir. 1995) (“In determining whether obviousness is established by combining the teachings of the prior art, the test is what the combined teachings of the references would have suggested to those of ordinary skill in the art.” (internal quotations omitted)). With respect to Coote, Appellant notes that it teaches (at least) two separate embodiments or arrangements, and (1) “according to the first arrangement, the skilled person is taught that the garment should stay on the Appeal 2021-004440 Application 15/111,651 5 hanger permanently, i.e. until the connector 18 is cut, which would render the hanger a disposable item that can not be used again” (Appeal Br. 8); and (2) “[a]ccording to the second arrangement . . . , the skilled person is taught to make the connector 18 readily releasable such that the end of the hanger can be easily and nondestructively separated from the connector 18, thereby to allow reuse of the hanger” (id. at 9). See also Reply Br. 1-2 (“If the skilled person wants to preclude removal of the garment from the hanger until after purchase, such as for security purposes, the skilled person will use the embodiment with the nonreleasable connection.”). Appellant then attacks the first arrangement in isolation, arguing “there is no reason to look to Tawil” because Coote “already teaches how to prevent removal of the garment from the hanger until after purchase,” specifically by employing Coote’s first arrangement. Appeal Br. 11. This argument is not persuasive. As acknowledged by Appellant, Coote also teaches the ordinarily skilled artisan there is benefit to making the hanger releasable from the garment without cutting its connector. Id. at 9; Coote 6:1-4, 9:12-15. And Tawil further teaches the same artisan an attachment mechanism for reliably securing a garment to a hanger in order to prevent removal of the garment from the hanger until after purchase. See Tawil 1:13-15 (identifying a need for “maintaining the accessories together with the garments until a sale takes place has presented problems”), 4:17-31 (“The accessory attachment mechanism . . . renders it more difficult to separate an accessory and certainly discourages customers or potential customers from removing the accessories since this would necessarily entail the destruction of the attachment device used to secure the accessory to the hanger.”). Appeal 2021-004440 Application 15/111,651 6 Equally unpersuasive is Appellant’s argument that attacks the second arrangement of Coote in isolation: According to the second arrangement of COOTE, the skilled person is taught to make the connector 18 readily releasable such that the end of the hanger can be easily and nondestructively separated from the connector 18, thereby to allow reuse of the hanger. When the connector 18 is released and the loop opened, the garment would no longer be retained on the hanger. There is no hint or suggestion that the hanger [sic, garment2] should remain connected to the hanger when the garment is removed therefrom. Appeal Br. 9 (emphasis added). But, as acknowledged by Appellant, Coote also teaches the ordinarily skilled artisan there is benefit to making the hanger “substantially unreleasable” from the garment. Appeal Br. 8; Coote 6:15-6, 9:12-13. And Tawil further teaches the same artisan an attachment mechanism for reliably securing a garment to a hanger in order to prevent removal of the garment from the hanger until after purchase. Tawil 1:13-15, 4:17-31. Appellant also attacks Tawil in isolation. In that regard, Appellant points out that Tawil teaches a hanger 10 that supports a coat and uses an aperture and flexible tie attachment means, not to further secure the coat, but to secure an accessory pair of gloves that are intended to be sold with the coat. Appeal Br. 10; Tawil Fig. 10. Appellant then argues that an ordinarily skilled artisan, looking to Tawil to improve upon Coote, would “use ties to secure accessories to the hanger” but not to secure a garment to be tried on. 2 See Ans. 5 (“How is the hanger to remain connected to the hanger? Is the appellant trying to state that ‘there is no hint or suggestion that the garment should remain connected to the hanger when the garment is being removed therefrom’[?]”). Appeal 2021-004440 Application 15/111,651 7 Appeal Br. 10-11 (emphasis added). The Examiner responds that the gloves in Tawil Figure 10 are nonetheless garments. Ans. 5-6. The Examiner then points out that “COOTE suggests that a hanger being non-removably secured to a garment (i.e. pants) is beneficial” and, thus, Tawil’s flexible tie could be applied to Coote’s otherwise removable pants. Id. at 6. The Examiner further points out that the prior art need not teach the same benefit as Appellant. Id. at 4 (“The fact that [A]ppellant has recognized another advantage (i.e. for trying on the garment) which would flow naturally from following the suggestion of the prior art cannot be the basis for patentability when the differences would otherwise be obvious.”); see also KSR, 550 U.S. at 420 (“Under the correct analysis, any need or problem known in the field of endeavor at the time of invention and addressed by the patent can provide a reason for combining the elements in the manner claimed.”). As mentioned at outset, none of these arguments is persuasive because each attacks an individual teaching, despite that “the test is what the combined teachings of the references would have suggested to those of ordinary skill in the art.” GPAC, 57 F.3d at 1581. Appellant also asserts that the Examiner’s combination fails to satisfy the following claim language: . . . wherein the flexible tie has a length that enables the garment to be removed from the deformable elongate member for trying on the garment while the flexible tie retains the garment on the garment hanger; and wherein the releasable loop formed by the deformable member can be released to allow the garment to be tried on and later reattached to the garment and the deformable member reconnected, all while the flexible tie retains the garment on the garment hanger even when the loop is released. Appeal 2021-004440 Application 15/111,651 8 Appeal Br. 11-12. Appellant does not explain this assertion other than to imply that the Examiner failed to give these limitations patentable weight. See id. at 12 (“[T]hese features cannot be considered as purely functional containing no patentable weight.”). The Examiner responds that patentable weight was given but draws a distinction between function and structure, stating “the prior art does not have to disclose the function of removing the garment from the deformable elongate member for trying on the garment, however the flexible tie must have a length that is capable of performing the claimed function.” Ans. 7. We agree with the Examiner’s interpretation of what the claim requires. The Examiner points to page 6 of the Final Action where the requisite finding was documented and points out the lack of any argument to the contrary in the Appeal Brief. See id. (quoting Final Act. 6.). We have considered Appellant’s arguments but they fail to apprise us of error. Accordingly, we affirm the Examiner’s rejection of claim 1, as well as that of claims 2, 3, 6, 19-22, and 24, which fall therewith. 37 C.F.R. § 41.37(c)(1)(iv). Claim 16 Independent claim 16 is directed to a method of hanging a garment involving a garment hanger assembly of substantially the same scope of claim 1. See Appeal Br. 16-17; see also id. at 12 (“Claim 16 is directed to a method of hanging a garment that shares the same special technical feature with claim 1.”). Although Appellant argues claim 16 under a separate heading, Appellant merely incorporates and repeats the same unpersuasive arguments as made for claim 1. Id. at 12. Accordingly, we affirm the Examiner’s rejection of claim 16. Appeal 2021-004440 Application 15/111,651 9 Claim 23 Claim 23 depends from claim 16 and recites “the further step of reattaching the deformable member to the garment after the releasable loop formed by the deformable member has been released to allow the garment to be tried on, all while the flexible tie retains the garment on the garment hanger even when the loop is released.” Appeal Br. 18. Although Appellant argues claim 23 under a separate heading, Appellant merely incorporates and repeats the same unpersuasive arguments as made for claims 1 and 16. See id. at 13-14 (“Certainly, in view of the foregoing comments, this additional step is neither disclosed or suggested by any reasonable combination of COOTE and TAWIL.”). Accordingly, we affirm the Examiner’s rejection of claim 23. DECISION SUMMARY In summary: Claim(s) Rejected 35 U.S.C. § Reference(s)/Basis Affirmed Reversed 1-3, 6, 16, 19-24 103 Coote, Tawil 1-3, 6, 16, 19-24 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