Friday, March 01, 2013

--modern-day women certainly do wear brassieres as --

From within Ex parte Westall

Appellant does not address, let alone
raise any substantive reason to question, the Examiner’s finding that
Abramson’s disclosure of a “brassiere” encompasses an outer garment such
as a sports bra, swimsuit top, or dancing bra. We are not persuaded by
Appellant’s conclusory assertions that a brassiere is only “an undergarment
that would not be confused with an outer garment.” Br. 8; see also 10, 13
and 14. To the contrary, modern-day women certainly do wear brassieres as
outer garments, be it for running, hiking, dancing or simply lounging. As
such, we find that Abramson teaches a breast support (shield) having a cuplike
inner concave surface and an outer convex surface that engages with a
close-fitting outer garment (brassiere) that is worn by a user to maintain the
support (shield) in a supporting position against the breast, as required by
claim 15. Accordingly, we sustain the Examiner’s rejection of claim 15, and
of claims 16-22 and 25 which fall with claim 15, as being anticipated by

Obvious design choice arises:

The Examiner further relied on In re Leshin, 277 F.2d 197 (CCPA
1960), for the holding that it is within the general skill of a worker in the art
to select a known material on the basis of its suitability for its intended use
as a matter of obvious design choice. See id. at 5. The Examiner explained
that an ordinary artisan “would have had the skill and knowledge to select
the level of rigidity and flexibility of the support material to provide the
desired support and protection as desired.”


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