and 1137 in Ray Howard. Mr. Axon felt whenever you were ready. Meet these courts. Good morning. My name is Robert Axon. I represent the appellant baby Merlin company in the in Ray Marine Howard. This is a case it was appeal from the patent trademark and appeal board involving a invention directed to a sleep suit for infants that are transitioning from swaddling to unswaddling, meaning from about two months old to a three month old. And claims 24 through 27 and claims 28 through, I mean 29 through 36 were rejected. What is the status of claim 28? It is it is allowed. But it put into independent format. And that's assuming no disturbance just by assumption of this question, no disturbance of the board's decision on this appeal
. Does it go back and you can get claim 28 issued or is that ship sailed? No. I believe we can still obtain that claim after this case has heard. I unfortunately, warmly this doesn't happen. Normally the claim is accepted and you would file a separate continuation application and try to go for the claims that were rejected. At the time this case was allowed, the client was much the size of the business was smaller and the default was that we should move forward with prosecuting the case and getting the claims that the client desired. So anyhow, the main issue here is that the viewed from the direction of looking forward, in other words from the viewpoint of somebody ordinary still in the art, without having any understanding of who is a person of ordinary skill in this area. I didn't really find any, was there any discussion of what kind of person would have ordinary skill in this area? No, you're on it and it's good question. I guess hypothetically somebody of ordinary skill in the art would be somebody who is familiar with sleepware perhaps or infant sleep. But that was never really discussed. It's not a particularly high level in this case though. No, you don't have to have a PhD in designing clothing or be a fashion artist or anything like that
. You're right. So I would agree with you on that this is a, what would look like, it appeared to be a very simple invention, which makes it more difficult. But the main premise here, the main point that I would like to make is that without any inkling of the problem here, I just should mention real quick, the problem that was solved here was identifying that infants have difficulty transitioning from a swaddle environment to a non-swaddle environment. That's first and foremost, none of the references were remotely recognized with that's even an issue. Number two, but you also recognize that if the actual structure claimed was obvious for other reasons, the fact that this particular problem of helping three month olds stay asleep despite their startling, the fact that that was not recognized to be connected with what they're wearing wouldn't save the claims. Yes, I agree with you on that point. But in this case, there was no, there's no prior art of a sleep suit in this configuration. Well, that really goes to your argument that the sleep suit is in the preamble as a limitation of the claim, right? Yes, yes it is. But if we reject that, that it keeps to me your claim is extremely broad and it's unclear to me such language as, for example, with respect to the second layer of material is located between the first layer of material and the third layer of material, which would typically be the case if one is numbering one through three. On at least the anterior portion of the suit, and at least corresponding to the shoulder area of the infant, which means it can be anywhere, right? As long as at least covers those two parts, it can cover the entire body. Yes
. And isn't that just what the prior art suits? No, there was no suit that had this layering. The prior art that was cited, there were two preferences. There's the Owen reference, which is a snow suit. And Ruford. Which is a swaddling apparatus used at the time the infant is worn. There has three layers, right? It does have three layers. And the middle layer is a heavier layer that... But it's in opposite to a suit. In other words, it's a cocoon
. It's in a encapsulation where an infant is encapsulated at the time of birth. But the examiner or the board didn't use the roofer for the suit. They used it for the three layers. Correct. They used it for the three layers for the wound. But the purpose doesn't matter, right? Again. Well, the permit... Assume you're not correct that the sleep suit and functional limitation are functional recitations in the preamble or not limitation. Putting aside the preamble, the preamble is with
... It covers infants beyond the age of swaddling. And it says sleep suit. If you look at the physical elements, there is a suit. It covers the sleeves, the legs. It has that ventilation, it has a student neckline. It has exposed hands and feet. And then it says it has layering. Just before we leave the preamble and let you get right back. You said something, I think, in the briefs about how at least part of the preamble was added in response to rejections
. Was that the post swaddling age or was that the sleep suit? The post swaddling age. Yes, yes. The sleep suit was part of the preamble ritual. Sleepwear, I'm sorry. Go back to what you were saying. So basically the examiner gave... In the board, agreed with the examiner. The only thing that was needed was that the fact that the one that was for warmth, and that you could transfer the concept of three layers from roofer into the configuration of Owen, and you arrive at the invention. And what's troubling about that is that the decision ignores completely the fact that the Howard recognized a very complex problem
. It seems to me one point you have may be a central point when we would decide the preamble business is that the examiner in the board gave one and only one reason why somebody might, with Owen in front of them, want to use a different material. And that is for warmth. And it seems hard to understand why somebody with what is after all a snowsuit, already warm, would even be thinking there was a warmth problem to solve. That's exactly right. And put that way, it has nothing to do with whether anybody was recognizing a potential benefit of helping the three-month-old sleep by providing a certain kind of sleepwear. This is exactly it. I mean warmth is not the issue. Wants doesn't solve the problem alone, and it's waiting, waiting in combination with ventilation, and that's what this invention is. So can I just ask on that on the waiting point? I'm not sure you've defined waiting or made an argument, at least, here about waiting, that gives that term some definition over and above the almost self-evident one, that something with masks, which most garments have, maybe even all garments have, is weighted. So what role does that play, and what is your understanding of what the term weighted means? Assuming here that we have claims, as we do, that don't call for weight to be localized to particular areas in contra distinction to other areas. That is, you need to cover the full body coverage for second layer
. Sure. The waiting, you know, it is found in the claims, for instance, in claim, for example, in claim 24, the second layer, because of its thicker than the first and the third, and the combination of all three together provides weighting, and it also provides bulk, which in the application itself, explains why it's difficult, at least for a three-month-old, to turn over on their stomach while they're sleeping, because there's waiting around their hips, and they can't lift their legs up and easily turn over. Once they get a little bit older, they get strong enough, they can't turn over, but at that time... Well, what does weighted mean, in a way that doesn't, that wouldn't cover anything at all that you put on the baby, which has weight? Well, remember, this is a three layers, single layer sandwich between an inner and an outer layer, and that's where the waiting is. That's what we consider the waiting. And so if it's not in that configuration, then if you're just wearing a single layer... To ask the same question, just try to understand that
. Why doesn't the waiting limitation read on all three layer garments? The reason... well, the reason it doesn't... In the sleepwear... I guess it comes back to, again, to the preamble in a sense, in the sleepwear.
.. Would it read on a snowsuit? Potentially, it could read on a snowsuit. But this is not a snowsuit, and the whole application is directed to... So, focusing just on the waiting. Yes. Why doesn't the waiting read on all three layer garments? It does read if it's a sleep suit, and it has all these other elements it would read on it. So, that's nothing beyond what the three layers add. That limit the waiting limitation has nothing to the limitation requiring that there be three layers. Correct. I mean, it does in the sense that it's added to provide explanation as to how this claim focuses this claim as to what the intent here is. And I understand that the physical properties of the claim are listed in the claim. So, anyway, I'm probably didn't answer that question, but I... Here's my concern. This comes up fairly quickly. It came up, for example, and it comes up frequently enough, where someone goes before an examiner with broadly written claims. The examiner rejects the claims. Goes to the board. The board says, read most reasonably broad fashion
. I mean, it does in the sense that it's added to provide explanation as to how this claim focuses this claim as to what the intent here is. And I understand that the physical properties of the claim are listed in the claim. So, anyway, I'm probably didn't answer that question, but I... Here's my concern. This comes up fairly quickly. It came up, for example, and it comes up frequently enough, where someone goes before an examiner with broadly written claims. The examiner rejects the claims. Goes to the board. The board says, read most reasonably broad fashion. These claims are... I rendered obvious by some combination of prior art. It seems to me there may be an invention with respect to some of these claims that would be... As 20.28 did, would emerge if you narrowed the claims by, for example, pointing out particular areas of the body where a weight should go. But it's hard to me to see why these claims are not so broad that they read on just about any suit that has three layers. I guess that's where the pellant believes the distinction is
. These claims are... I rendered obvious by some combination of prior art. It seems to me there may be an invention with respect to some of these claims that would be... As 20.28 did, would emerge if you narrowed the claims by, for example, pointing out particular areas of the body where a weight should go. But it's hard to me to see why these claims are not so broad that they read on just about any suit that has three layers. I guess that's where the pellant believes the distinction is. It's not intended, and if it's ever was to go... Given all the record here, this is limited strictly to sleep suits and infant sleep suits. There's no way that there's any intention to try to read the claims on a snowsuit. That's not... I mean, it's very clear. And it's difficult given the commercial embodiment, I assume, almost running out of time here, but it's difficult given the commercial embodiment to craft the claims more narrowly, at least at the time that this was written in 2004, 2005 timeframe, and by the time the appeal was filed. But it truly is
. It's not intended, and if it's ever was to go... Given all the record here, this is limited strictly to sleep suits and infant sleep suits. There's no way that there's any intention to try to read the claims on a snowsuit. That's not... I mean, it's very clear. And it's difficult given the commercial embodiment, I assume, almost running out of time here, but it's difficult given the commercial embodiment to craft the claims more narrowly, at least at the time that this was written in 2004, 2005 timeframe, and by the time the appeal was filed. But it truly is. It does cover what was intended here, which was a sleep suit that is remarked. I didn't even get to the secondary considerations, but it really shows that it functions and it provides very useful. And the sales have doubled months to month from the time the invention was introduced in 2008, 2009 timeframe to today, where it's now the standard for sleep wear recommended in stores such as babies are us and around the country. Anyway, thank you. Thank you, Ms. Ashe. I have a little first story here. Rebellion time. Thank you. Sorry. Good morning
. It does cover what was intended here, which was a sleep suit that is remarked. I didn't even get to the secondary considerations, but it really shows that it functions and it provides very useful. And the sales have doubled months to month from the time the invention was introduced in 2008, 2009 timeframe to today, where it's now the standard for sleep wear recommended in stores such as babies are us and around the country. Anyway, thank you. Thank you, Ms. Ashe. I have a little first story here. Rebellion time. Thank you. Sorry. Good morning. Make least a quote. In her briefing to the court, Ms. Howard has described her as an invention as an instant suit with waiting on the front side of the suit. And that's in her blue brief. I page 14 and the reply brief, page 3 to 4, page 6, page 8. The PTO has already allowed the claim to a suit with waiting just on the front, and that's claim 28. And it answers your question, yes, Ms. Howard can come back to the PTO after this court's decision. And if that claim is properly rewritten, unless the court tells us something different, it would be allowable. Can I ask you the question that I, one of the questions I asked Mr. Axon felt
. Make least a quote. In her briefing to the court, Ms. Howard has described her as an invention as an instant suit with waiting on the front side of the suit. And that's in her blue brief. I page 14 and the reply brief, page 3 to 4, page 6, page 8. The PTO has already allowed the claim to a suit with waiting just on the front, and that's claim 28. And it answers your question, yes, Ms. Howard can come back to the PTO after this court's decision. And if that claim is properly rewritten, unless the court tells us something different, it would be allowable. Can I ask you the question that I, one of the questions I asked Mr. Axon felt. The Examiner and the board said, if you start with Owen, there'd be a motivation to look for three layer material for warmth. And I have a trouble understanding how that's even a rational thing to say when you start with a snowsuit. Okay, first of all, we don't think Owen is limited to a snowsuit. Owen is a convertible garment. Well, but not convertible by replacing the material around the body. It's convertible from the sack to a footed fit. Right, but it's more border and that's it's preferably can be converted to a snowsuit. So it doesn't have to be converted necessarily to a snowsuit. It can be converted to another suit with leggings. Also, Owen doesn't tell you what fabric to use at all. So a person of ordinary skill in the art reading Owen would say, well, what fabric should I use? And would have every reason to go to a reference like Ruffer because Ruffer is all about keeping infants warm
. The Examiner and the board said, if you start with Owen, there'd be a motivation to look for three layer material for warmth. And I have a trouble understanding how that's even a rational thing to say when you start with a snowsuit. Okay, first of all, we don't think Owen is limited to a snowsuit. Owen is a convertible garment. Well, but not convertible by replacing the material around the body. It's convertible from the sack to a footed fit. Right, but it's more border and that's it's preferably can be converted to a snowsuit. So it doesn't have to be converted necessarily to a snowsuit. It can be converted to another suit with leggings. Also, Owen doesn't tell you what fabric to use at all. So a person of ordinary skill in the art reading Owen would say, well, what fabric should I use? And would have every reason to go to a reference like Ruffer because Ruffer is all about keeping infants warm. The whole discussion of the prior art and Ruffer is, you know, instance, need warmth, how do we do this, and then Ruffer's solution is a three layer garment. So I think there would be every reason for a person of ordinary skill in the art reading Owen, that doesn't disclose what fabric should go in. But it discloses something that other than by replacing the material right at the beginning is a snowsuit. Why would somebody think there's a warmth deficiency problem here to be self? It wouldn't necessarily think there's a warmth deficiency, but Owen doesn't tell you what fabric to use. It's completely silent. And anything that would serve as a snowsuit, which I think means it's warm, no? Already. So you read Owen and you say, okay, here's this convertible garment, which we don't think is limited to snowsuit, and then you say what fabrics should I use? And so why wouldn't you, a person of ordinary skill, knows about the art? Why wouldn't they look at art to say what fabric should I use for Owen? Owen doesn't tell you. You leave, you say, to use that. So I think a person would have every reason to go look at the art and see what are good fabrics for warmth. So the idea is even assuming, just to assume, that the fabric in Owen provides warmth, that there would still be some motivation to explore a range of possible warmth fabrics. Right, because Owen doesn't tell you what fabric to use
. The whole discussion of the prior art and Ruffer is, you know, instance, need warmth, how do we do this, and then Ruffer's solution is a three layer garment. So I think there would be every reason for a person of ordinary skill in the art reading Owen, that doesn't disclose what fabric should go in. But it discloses something that other than by replacing the material right at the beginning is a snowsuit. Why would somebody think there's a warmth deficiency problem here to be self? It wouldn't necessarily think there's a warmth deficiency, but Owen doesn't tell you what fabric to use. It's completely silent. And anything that would serve as a snowsuit, which I think means it's warm, no? Already. So you read Owen and you say, okay, here's this convertible garment, which we don't think is limited to snowsuit, and then you say what fabrics should I use? And so why wouldn't you, a person of ordinary skill, knows about the art? Why wouldn't they look at art to say what fabric should I use for Owen? Owen doesn't tell you. You leave, you say, to use that. So I think a person would have every reason to go look at the art and see what are good fabrics for warmth. So the idea is even assuming, just to assume, that the fabric in Owen provides warmth, that there would still be some motivation to explore a range of possible warmth fabrics. Right, because Owen doesn't tell you what fabric to use. So it's kind of like how are just presenting this as Owen already tells you make a warmth, no? And then, you know, it's ridiculous to go and put three layers on top of that, but Owen doesn't disclose what fabric to use. So I don't think there's anything unusual to look at the art as to what are appropriate fabrics. Even if you say Owen is my mistress, you would look for warm fabrics to use, and that's what referers about. These other arguments seem to be, Mr. Howard's argument seems to be that they're not analogous art, which you disagree with, when you look for both instant garments. And in terms of, so any how back to the scope of this claim, so claim 28th of Pat offices that is allowable, under the broadest reasonable interpretation, we say that this claim much broader, much broader than what Howard herself has said at her invention, and that it covers the three layers suit with leggings. If Ford has any questions, I won't talk about secondary considerations and rest on my brief. What do you understand to have been the inventive contribution of Owen over the prior art at that time? I recognize it's an old patent and an alien patent. I think Owen was focused on it being convertible. Right, if you'd either have leggings or not leggings. I should
. So it's kind of like how are just presenting this as Owen already tells you make a warmth, no? And then, you know, it's ridiculous to go and put three layers on top of that, but Owen doesn't disclose what fabric to use. So I don't think there's anything unusual to look at the art as to what are appropriate fabrics. Even if you say Owen is my mistress, you would look for warm fabrics to use, and that's what referers about. These other arguments seem to be, Mr. Howard's argument seems to be that they're not analogous art, which you disagree with, when you look for both instant garments. And in terms of, so any how back to the scope of this claim, so claim 28th of Pat offices that is allowable, under the broadest reasonable interpretation, we say that this claim much broader, much broader than what Howard herself has said at her invention, and that it covers the three layers suit with leggings. If Ford has any questions, I won't talk about secondary considerations and rest on my brief. What do you understand to have been the inventive contribution of Owen over the prior art at that time? I recognize it's an old patent and an alien patent. I think Owen was focused on it being convertible. Right, if you'd either have leggings or not leggings. I should. So, this court has no further questions, and particularly that secondary consideration. I'm happy to yield my time. Thank you. Owen, by the way, has a foot on it. And whether it's convertible or not, it appears to be directed to a sleep suit, I mean to a snowsuit. The biggest thing that is missing here is the fact that this inventor first identified the problem, and then figured out how to solve a very complex problem, which is how to put an instinct on its back for sleep in compliance with the American Academy of Pediatrics guidelines to avoid civs. Without using a swaddling device, without using rolls or blankets, and do so so that the startle reflex isn't initiated every 15 seconds and it wakes the baby, starles the baby, and so forth. In this case, the inventor was the only person to recognize that problem, and the inventor was the only person that recognized how to solve that problem. These references that were cited based on warmth give no guidance whatsoever to this problem. And in terms of warmth itself, the American pediatric guidelines say that warmth is overheating a baby from the interest and needs to be so somebody of ordinary still in the art would not readily look to warmth as something to solve a problem that nobody identified. Because it is not most sleep suits that are in the market at that time were single layer, they usually covered the feet, and were not intended to be in compliance with the guidelines so that they wouldn't be overheating
. Whereas in this case, the inventors went a countertuitive way, they put a lot of weight and material in there that you normally wouldn't see in a sleep suitance configuration, but at the same time they made sure the recventilation, scoot neck lying, exposed hands and feet so that there was a counterbalance to that and would allow the baby not to overheat. Can I ask you just one quick question. Is there anything in the intrinsic evidence that suggests what particular target points of incident, infant body would be proprioceptive? Yes, for me that was a new word. Yes, proprioceptive target points were mentioned in the patent application itself. What I mean is there medically some portion of the body that is proprioceptive and some other portions that are not? Yes, as far as I know based on what the inventor who is an expert in the area in pediatric care is that it's the shoulders and the hip areas are especially areas where the nerve endings are in an infant are immature and cause it to startle with there's no weight when they're sleeping on their back. I see a run out of time if you have any other questions or comments from other ones. Thank you so much