Appeal No. 96-3446
Application 08/327,147
substantially the same; that of Spencer's declaration states:
I am familiar with the PRIMA SOFT dance tights sold by Mr. David Juniman of
Footloose Dancewear. I am also familiar with the usage and availability of tights in the
dance field. Prior to the introduction of the PRIMA SOFT tights by Mr. Juniman, it
was customary among dancers to modify a standard pair of footed
tights by cutting a slit or hole in each foot of the tights. The tights could then be
used as footed or footless tights interchangeably without having to completely change
the tights. However, the slit eventually caused runs in the tights which would then have
to be replaced.
The examiner takes the position that (answer, pages 8 to 9):
Applicant has admitted in the declarations of Score and Spencer that it is well known
for dancers to take footed dance tights and cut a hole or slit in the bottom thereof so as
to allow the dancer to wear the tight in a footed or footless manner while dancing. The
importance of the wearing of the tight in either manner allows for the dancer to continue
to wear the tight in both ballet and jazz dances. This affords the dancer the ability to
quickly move from one type of dance, such as ballet where the foot must be covered,
to another type of dance, such as jazz where the foot is left uncovered, without having
to change tights. As mentioned in the declarations of both Score and Spencer the
disadvantage of cutting the known type tights is that they eventually begin to run and
become unusable. Bounous et al. discloses forming a hole in the bottom of stockings, in
the manner as claimed, by using a circular knitting machine and forming a toe pocket
and also providing a collar about the hole to allow for the reinforcement of the formed
hole . . . . It would have been obvious to one of ordinary skill in the art to have formed
a pair of dance tights in the known manner, as defined in the declarations of Score and
Spencer, with a toe pocket and collar as disclosed in Bounous et al. so as to provide a
permanent opening in the bottom of the tights that would allow multiple use of the tights
without degradation in the manner of runs, pulls or holes caused by cutting of the knit
stitches. As to wearing of the tights for dancing, since the admitted prior art is
specifically designed for dancing, the wearing of the tights in the manner claimed would
have been an obvious method of use.
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