Appeal 2006-3161
Application 10/687,228
1 DISCUSSION
2 We will not sustain the Examiner’s rejection of claims 10 to 19 under
3 the enablement requirement of the first paragraph of 35 U.S.C. § 112
4 because the Examiner has not established that a person of ordinary skill in
5 the art would not be able to make or use the claimed garment with non-
6 stretch fabric material without undue experimentation. In fact, the Examiner
7 has not even discussed undue experimentation. In addition, in our view a
8 person of ordinary skill in the art would know how to make a non-stretch
9 fabric material (See Appendix D to the Appeal Brief).
10 We will not sustain the Examiner’s prior art rejections because each
11 of the rejections relies on Kratz for teaching a stretch material in the outer
12 elbow portion of the garment. Even if we were to agree with the Examiner
13 that the mesh material disclosed in Kratz is a stretch material, such mesh
14 material is not disposed in the outer elbow portion of the garment.
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17 REVERSED
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21
22 jlb
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24 BACHMAN & LAPOINTE, P.C.
25 900 CHAPEL STREET
26 SUITE 1201
27 NEW HAVEN CT 06510
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Last modified: September 9, 2013