DECISION OF THE COMMISSIONER
STATUTORY - S 2(d) - New unobvious arrangement of Design Matter
The arrangement of the design on the textile material provides
reference structural points which are utilized in the manufacture
of garments. The difference from the prior art is not solely in
whatever intellectual or aesthetic appeal the design has, but also
in the advantages of the functional arrangement and purpose of the
design.
FINAL ACTION: Reversed
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This decision deals with a request for review by the Commissioner
of Patents of the Examiners Final Action, dated May 31, 1972, re-
jecting application 996,098. This application was filed on July 21,
1967 in the name of Jean Claude Boussac and is entitled "New types
of dresses and similar garments, fabric for their manufacture and
the manufactured garments obtained".
Mr F Poliquin presented his submission before the Patent Appeal
Board on December 5, 1972.
In his final action dated May 31, 1972, the Examiner rejected
the said application because the subject matter thereof was not
considered to be patentable over the prior art cited as follows:
American Patents
1,374,970 April 19, 1921 Weyand
2,997,801 August 29, 1961 Gottlieb
In the final action the Examiner stated that the subject matter
of the application disclosed a patterned fabric and a method for
the manufacture of garments from this fabric. He further stated
that it was not patentable because Weyand's and Gottlieb's patents
showed that prior art had taught how to arrange ornamentations of
a uniformly recurring design so as to achieve the desired arrangement of
those ornamentations on predetermined places on the garment. He pointed out
that the patents cited showed that individual Lengths of the recurring pattern
were so arranged that each length made up into a complete garment.
The Examiner further stated that, given the patents cited, there was no
innovation in the functional purpose by cutting out the fabric as set forth
in the application, to wit, by placing the pattern on the fabric, as deter-
mined by the design of the fabric.
He concluded that the only innovation of the fabric described in the appli-
cation was a certain decorative or aesthetic effect produced on the garment
by the stripes outlining geometric areas on the fabric.
He added that it is well established that the application of concepts
and decorative or aesthetic effects to fabric designs is not considered to
be patentable.
More particularly, the applicant's disclosure discloses a coloured fabric
which has a design woven into the warp and woof, which is based on the
structure and elements of the pattern of the garment or dress.
In the examples of the design given, the applicant's fabric has different
coloured stripes which determine certain positions and also produce aesthetic
effects both horizontally and vertically.
Page 2 of the applicant's disclosure states that the purpose of the
invention is to manufacture, for example, a short-length dress, that is,
one requiring a length of fabric measuring 110 cm between selvages and 140
cm in width between a certain ratio identified as R.
In the first example given, a front and a back of a dress can be cut out
from the area of fabric between the two selvages and the two ends of ratio R.
The front and back, when sewn together, make a complete dress.
In the second example given, a front and hald of a back can be cut out from
the area of fabric between the two selvages and the two ends of ratio R.
The front and the two halves of the back, when sewn together, make a complete
dress.
The applicant's fabric, as woven, has stripes of different colours and widths
running vertically or horizontally. These stripes provide and aesthetic
appeal and also serve as reference structural points used by the person who
places the pattern on the material or fabric for cutting out and making up
the desired pieces for a dress. The length of the fabric, that is, the length
of the piece, is determined beforehand in terms of the 110 cm required for
the short style in the first example. In the second example, it corresponds
to the width required for a front and half a back. The width of ratio R is
also determined beforehand and is based on the length required to cut out
two backs in the case of the first example or to cut put the length of the
pattern (110 cm) in the second example.
Some coloured stripes are so placed as to establish a very precise
reference point for laying out the pattern on the fabric. Because of
this reference point, the pieces can be sewn together precisely and
thereby even give the impression that a much more expensive manufacturing
method was used in the manufacture of the garment.
Claim 1 of the application reads as follows:
A fabric for the manufacture of garments such
as dresses, having stripes woven into the
warp and woof, some stripes being continued
into the material, the said stripes defining
the outline of distinct geometric areas in the
fabric, the said stripes and the said areas
forming a recurring pattern in the fabric along
the warp threads, individual lengths of pattern
in the fabric being arranged to form one full
length of a part of a garment in which the said
stripes give the appearance of dividers charac-
teristic of the full length of the said parts.
This claim is representative of the claims of the application. It does
not clearly describe or clearly attack the points which the applicant
describes as being his invention. This claim ~ntions that the designs
are formed of stripes woven into the warp and woof, that some stripes are
continued into the fabric, that the stripes define the outline of distinct
geometric areas in the fabric, that the said stripes and the said areas
form a recurring design in the fabric along the warp threads, that
the individual lengths of pattern in the fabric are arranged to form a
full length of a part of a garment and that the said stripes give the
appearance of dividers characteristic of the full length of the said parts.
No where does this claim establish the importance of the positions of
the various coloured stripes, their interrelationship, their relationship
to ratio R and the length of the fabric, that is, the space between the
selvages and the length of the pattern required for a short-length dress.
The claim submitted with the applicant's letter dated October 6, 1972
describes a fabric for the manufacture of garments that consists of various
coloured striped in the warp and woof, some of these stripes being
continued into the fabric, the stripes in combination with the rest of
the fabric creating distinct geometric areas in the fabric, areas having
border stripes whose outer edges define the outline of the areas, the said
areas producing in the fabric a recurring pattern along the warp threads,
individual lengths of this pattern being arranged to form full-length
parts of garments, in which parts the said stripes are arranged to give
the appearance of dividers characteristic of the full length of the said
parts .
This claim does not clearly establish the importance of the relation-
ship which, according to the disclosure, must exist between the
position of the various coloured stripes, their interrelationship and
their relationship to these stripes, ratio R, the pattern required for
cutting out a short-length dress and the length of the fabric, the
latter being the distance between the selvages.
Weyand's patent No 1,374,970 describes a fabric and a procedure for
manufacturing the fabric. This fabric is usually made up of ordinary
fabric on a bolt on which is printed some ornamentation that enhances
the appearance of a garment which uses the fabric of the invention in its
manufacture. The ornamentation is printed in a uniformly recurring pattern.
As stated in lines 28 to 31, page 1, column 1, "The uniformly recurring
ornamentations in each area or section do not in any way restrict or
define the outline of the finished garment"; the ornamentation does not
serve to define the outline of the pattern used for cutting out the garment.
It is true that some parts of the ornamentation may coicide with certain
parts of the garment once,it is cut out, but the purpose of the said
parts is not to establish that relationship. It should be further noted
that while the disclosure of the Weyant patent seems to attach a great
deal of importance to the printing of the fabric, it is not limited to
that process. At lines 12 to 27 of page 2, column 1 of the patent, it
mentions that the desired ornamentation may be produced by methods other
than printing. A modification might be of the type described in the
applicant's disclosure, that is, the colours might be obtained by weaving
them into the warp and woof threads.
Gottlieb's patent no 2,997,801 discloses a printed fabric and the
procedure for its manufacture. The main purpose of the invention
disclosed in the patent is to obtain from a one-yard long piece of
material only one skirt made out of three 120ø sections, with a hem
measuring from 206 to 216 inches. This is made possible by the fact
that the three sections of the skirt are printed precisely on one piece
of fabric of standard width. Other than the ratio between the sections
of the print, there is no specific relationship between the ends of the
print, the different colours and the two selvages of the fabric.
Neither of the patents cited discloses a fabric which is made at the
outset from a specific width between the selvages; the width is a ratio
of a pattern length that will be used later by the cutter in making a
dress. Furthermore, neither patent discloses a fabric which, in addition
to being of a specific width, also has different coloured stripes that
are arranged very precisely and between which a very specific ratio is
maintained. Nor do these patents demonstrate any need to maintain a very
specific ratio between the selvages, ratio R and the width of the
pattern that will be used by the cutter. Because of the special arrange-
ment of the stripes, selvages and ratio R, the cutter has only one way of
laying out the pattern before cutting.
In his submission the applicant stated that according to the standard
method, the composition of the woven coloured design is left entirely
up to the designer. According to this method, the fabric designed by
the designer is passed on to the dress maker or cutter who must, by trial
and error, relying on her eye, experience, taste and skill, determine
from which part of the fabric the piece to be made must be cut out.
The applicant adds that the great advantage of the invention described
rests on the very precise physical outline defined by the recurring ratios
in the fabric. He points out that once these ratios are established, it
is possible to create an infinite number of ornamentations by juggling the
number, width and colour of the various stripes making up the fabric. The
applicant is of the opinion that this rules out the possibility of
considering the subject matter of the application as being exclusively in
the decorative field.
The question of the design and print of a thing was discussed thoroughly.
Nonetheless, it was clearly established that a new print or design
arrnagement may be subject matter of a patent if that arrangement produces
a combination which has a functional arrangement and purpose. On the
other hand, this arrangement is not patentable if it produces only an
aesthetic, intellectual or literary appeal. In this application, the
Patent Appeal Board is of the opinion that the design of the print disclosed
in the disclosure of the application is of the type that has a functional
arrangement, and, furthermore, that the subject matter described in the
application is not disclosed in the patents cited.
It is therefore recommended that the Examiner's Final Action rejecting
the application be reversed.
J.F. Hughes
Acting Chairman
Patent Appeal Board
I concur with the findings of the Patent Appeal Board and reverse the
final action I am returning this application to the Examiner so that
this application can be pursued further.
Decision accordingly
A.M. Laidlaw
Commissioner of Patents
Representatives of the Applicant
Marion, Robic & Robic, Montreal, Qu‚bec
Dated at Ottawa, Ontario
this 13th day of March 1973