Appeal 2006-2347
Application 10/245,350
(2) of the cloth encircles the pelvic region and that the two leg portions (10, 11)
encircle the legs of the wearer. Answer, p. 3.
The appellant distinguishes the device of Branch from the invention recited
in claims 1, 11, and 17 in two respects. First, the appellant argues that Branch does
not disclose a liquid impervious cloth for covering or encircling the legs of a
person. Rather, according to the appellant, Branch has only leg openings (10, 11).
Brief, p. 4.
We agree with the appellant. Claims 1, 11, and 17 recite: “a liquid
impervious cloth for covering … upper parts of the legs of a woman” (claim 1); “a
liquid impermeable cloth for partially encircling … adjacent leg portions of a
person” (claim 11); and “a cloth having a main body portion for encircling the
pelvic region and two leg portions for encircling adjacent leg portions of a person”
(claim 17). Although Branch discloses a panty having leg openings (10, 11), it
does not disclose that the cloth around the leg openings covers or encircles the legs
of the wearer. Rather, it appears that the openings (10, 11) allow the wearer to
insert her legs through the panties such that, when donned, the leg openings (10,
11) rest above the wearer’s legs. We admit that this is a close case, because the
determination of where on a particular person’s anatomy the leg openings (10, 11)
of Branch would fall would seem to vary from person-to-person. We note,
however, that the art draws a distinction between the hip-hugger-type panties
shown in Branch and boxer-type panties, in the nature of a short, that extend to
cover or encircle the wearer’s legs. As such, we find that the panty of Branch does
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