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                       COMMISSIONER'S DECISION

 

UNOBVIOUSNESS: Patentable Advance in the Art.

 

Manufacture of a panti-hose blank using only unidirectional rotary

knitting was found patentable over the prior art which uses undirect-

ional rotary knitting for the leg portions but changes to recipro-

catory knitting when forming the body portion of the garment blank.

Affidavits from experts indicated the result was unexpected.

 

FINAL ACTION: Modified.

 

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This decision deals with a request for review by the Commissioner

of Patents of the Examiner's Final Action dated July 12, 1973,

on application 038,715 (Class 66-91). The application was filed on

December 24, 1968, in the name of Martin R. Johnson et al, and is

entitled "Circular Knit Panti-Hose And Tights." The Patent Appeal

Board conducted a Hearing on April 30, 1975 at which Mr. G. Partington

represented the applicant.

 

This invention relates to a lower-body garment or panti-hose which is

knit in a single integral tubular form seamless throughout its length.

It is made by knitting a tubular garment blank on a circular knitting

machine. This is done by continuous unidirectional rotary knitting

from one end of the garment to the other, after which a slit is made to

form a waist opening.

 

In the Final Action the examiner refused the application for failing to

define any patentable subject matter over the teaching of the following

reference:

 

   U,S. Pat.        3,109,301    Feb. 5, 1963          Garrou et al

 

In that action the examiner stated (in part):

 

As was pointed out in the previous office action, Garrou

et al has disclosed substantially the method and product

set forth in the above claims, namely, the manufacture of

a seamless knit garment wherein all sub-parts are integ-

rally knit. The patent states that the knitting is

performed on a circular knitting machine beginning with

one leg portion and ending with the other. On page 2,

beginning at line 28, it is stated "the garments shown in

the drawings are shaded with lines which extend in the

direction of the knit wales in various portions of the

garment ". The shade lines are continuous. The wales thereof

extend through one leg portion into and through the pant

portion into and through the other leg portion.

 

The knitting technique employed by Garrou et al where it con-

cerns the crotch area and body gusset should not be seen

as teaching away from the method and product set forth in the

above rejected claims as applicant has contented. Rather,

what Garrou et al has done is superimpose on the basic method

of continuous rotary knitting a special technique to obtain

an improved crotch area and body gusset for his bifurcated

garment.

 

The allowability of claims 2 and 15 as stated, in the previous

office action has been reconsidered and these claims now

stand rejected for lack of invention in view of Garrou et al.

It is now held that undue emphasis was placed on the expression

"continuous unidirectional rotary knitting". As was pointed

out above, Garrou et al discloses a basic method of knitting

a seamless body garment knitted on a circular knitting machine.

He points out that by varying the number of complete courses

in the body panels (which is obtained by reciprocatory knitting)

the garment may be fashioned because variation of complete

courses will affect the width of the fabric. He points out

(page 4, last paragraph) that the size and shape may be changed

by varying the number of complete courses and thus implies

strongly that the final shape of the garment is a matter of

choice. The patentee further implies (page 5, 1st full paragraph)

that the use of stretch or non stretch yarns is also a matter

of choice.

 

It is held therefore that continuous unidirectional rotary

knitting of a garment as set forth in claims 2 and 15 is substantially

inherent in the Garrou et al method and product. The fact that

Garrou et al has followed a more sophisticated and therefore more

complex procedure does not imply that his procedure is not

readily adaptable to a more simple technique should such be

desired. What the applicant is in effect doing is omitting steps

from the Garrou et al procedure and thereby obtaining a correspond-

ing omission in the result namely a simplified product which is

desired by applicant.

 

The applicant in his responses to the Final Action dated January 8 and

January 9, 1974 stated (in part):

 

The Examiner is also believed to be in error, when in the same

paragraph, he states that the shade lines, in the patent drawings,

are continuous, in trying to anticipate the claimed limitation of

continuous wales. All the shade lines are not continuous. In any

event the shade lines show direction, not individual lines. The

wales are not believed to be continuous in the patent because they are

discontinued at the gore or suture lines 24, 25.

 

The Examiner is further believed to be in error in interpreting

Garrou to disclose a superimposition (of reciprocatory knitting?)

on a basic method of continuous rotary knitting. Garrou simply

 

   does not disclose a basic method of continuous rotary knitting

   (to provide a panty or panty-hose type garment). Nor does

   Garrou disclose superimposing any thing on rotary knitting.

   Reciprocatory knitting is alternated with rotary knitting in

   Garrou but not superimposed.

 

   The Examiner is again oelieved to be in error, this time in fail-

   ing to give due weight to the phrase "continuous unidirectional

   rotary knitting" as outlined on page 2, paragraph 2 of the Final

   Action. Contrary to the Examiner's belief, this phrase covers the

   essence of the invention. Nowhere in Garrou however, is this

   feature disclosed or suggested as being able to provide, on its

   own, an acceptable garment. Garrou only disclosed a garment made

   from a combination of rotary and reciprocatory knitting. Garrou

   may, as the Examiner suggests in this paragraph, show how to get

   variations in garment size. This is not surprising however since

   this is what Garrou's invention relates to. It is not seen that

   this has any relevance to the applicant's one-size garment however.

 

On page 2, paragraph 3, the Examiner states that "continuous unidir-

 ectional rotary knitting" of a garment is inherent in Garrou. This

   is not true. Garrou, if anything teaches the exact opposite, that

   is, to provide a satisfactory garment, more than continuous rotary

   knitting is required. In fact the Garrou cited patent moves

   further away from applicant's invention, when looked at in the light

   of Garrou's earlier patent.

 

   In the same paragraph, it is believed that the Examiner is in error

   in stating that the applicant has omitted steps from Garrou's

   method with a corresponding omission of result. It is submitted

   that applicant has instead substituted unobvious steps for certain

   of Garrou's steps with a totally new, useful and unexpected result.

 

 The purpose of applicant's invention is essentially, to provide a

   low cost, one-size, panty hose which is extremely simple and thus

   inexpensive to make. (See page 2, lines 21 to 28 of the disclosure.)

 

   The purpose of Garrou's et al invention on the other hand is to

   provide an improvement in two-legged garments, such as the panties

   illustrated, which improvement consists in being able to vary the

   width of the garment by including complete courses in the central

   body portion between the legs.

 

   Garrou's invention is an improvement on his earlier U.S. Patent

   2,962,884. Both patents require, as an essential part of the garment

   construction, a substantial portion of reciprocatory knitting.

 

   Applicant's invention, on the other hand, requires substantially all

   of the knitting to be rotary.

 

   Garrou thus is not particularly concerned with panty-hose, which have

   to be inexpensive to sell; he is not concerned with a one-size garment

   (in fact he is concerned with the exact opposite); and he is not

   concerned with a simple inexpensive garment, for otherwise he would

   not switch from rotary to reciprocatory to rotary to reciprocatory to

   rotary knitting. Such switches are time con uming and expensive.

   He is instead concerned with seamless, fashioned panties which can

   be made in different sizes.

 

The Garrou patent relates to knitted seamless two-legged lower garment,

such as tights or the like, and the method of making the same. This

garment is manufactured by knitting a tubular garment blank on a knitting

machine in which the leg portions are made by undirectional, rotary knitting,

with the gusset and body portions made by reciprocatory knitting. After

completion a slit is made for the waist opening. Use of reciprocating

knitting in the body portions serves to "fashion" the garment to enable it

to conform to a wide range of body sizes and shapes. Claim 1 of the Garrou

patent reads:

 

A seamless knit panty or the like comprising a pair of

seamless tubular legs of substantially equal lengths,

fashioned extensions knit integral with and extending

upwardly from each of said tubular legs, and a fashioned

body gusset knit integral with and interconnecting said

seamless tubular legs and said fashioned extensions, said

fashioned body gusset having a central portion extending

between said seamless tubular legs and defining a crotch area.

 

As stated above, this application relates to panti-hose comprising an upper

body portion to fit around the waist and the lower part of the trunk, and

a depending pair of legs knitted integrally with the body portion. It

is made by knitting a garment blank on a circular knitting machine by continuous

unidirectional rotary knitting from one end of the blank to the other. A

slit is made at the intermediate portion to form the waist opening. The

garment is then subjected to a "relaxing treatment effected under the action

of heat and moisture which develops the stretch qualities of the yarn and

enhances the capacity of the garments for elastic stretch and recovery."

 

The question to be resolved is whether the application is directed to a

patentable advance in the art in view of the cited reference.

 

At the Hearing the applicant emphasized that his use of undirectional

rotary knitting substantially throughout his garment blank is an advance

in the art which was not contemplated by Garrou. In the Final Action the

examiner stated "The fact that Garrou has followed a more sophisticated and

therefore more complex procedure does not imply that his procedure is not

readily adaptable to a core simple technique should such be desired." In

reviewing the Garrou patent we find that continuous rotary unidirectional

knitting is used in the leg portions of the garment. When the body area is

being formed the knitting is changed to reciprocatory motion to "fashion"

the garment, as well as to obtain a variation in the size. There is no

indication in the Garrou specification of using unidirectional rotary

knitting only to produce the complete garment blank.

 

The applicant submitted four affidavits from recognized experts in the knit-

ting industry from several different countries. Each of the affiants

indicated that nobody had ever before realized that a straight seamless tube

made by unidirectional circular knitting throughout could be used for panti-

hose in the manner envisaged by the applicant. Also submitted was a copy

of an agreement purportedly made by the owners of the Garrow patent to

enable them to utilize this invention.

 

A question about the continuity of the wales in Garrou was raised. The

Wales are comparable to the weft in flat weaving. In the Final Action the

examiner stated that Garrou shows wales extending through one leg portion,

into and through the panty portion and then into and through the other leg-

portion. In figure 4 of Garrou the shade lines indicate the wale direction.

This reveals interruptions at the gore lines 24 and 25 to indicate the boundary

of the reciprocatory knit portions of the garment. There may be continuous

wales in the body area indicated as 35, and probably some in the area

 indicated as 36, but these would be a small percentage of the total wales in

the garment blank.

 

The applicant emphasized that with unidirectional rotary knitting the time

required to make garment blanks is much less than with reciprocatory

knitting, which was employed by Garrou, This has resulted in considerable

commercial success for the applicant, some 5 million in sales, and $160,000

in royalties. In addition 31 firms in twelve countries have obtained a

licence from the applicant.

 

It is noted that claims 1 to 46 were in the application at the date of

the Final Report. These were cancelled and replaced by claims 1 to 36 in

the applicants response dated January 8, 1974 to the Final Action. At

the hearing the applicant presented new claims 1 to 43 to replace the previous

claims. The latest claim 1 reads:

 

A method of making a continuous seamless tube and a two-legged

garment therefrom, the garment having a pant portion and a

pair of integral legs, the pant portion enclosing a lower

part of a trunk and extending beneath a crotch of a wearer and

the pair of integral legs each terminating in a foot portion

having a closed toe, the pant portion having a waist opening

therein, which method includes:

 

a) knitting on a rotary knitting machine, as a contin-

uous tube, three integral tubular portions, namely:

a first leg portion having a toe portion is knit

substantially unidirectionally, an intermediate

portion for eventually forming the pant portion is

knit wholly unidirectionally and then a second leg

portion having a toe portion is knit substantially

unidirectionally, the seamless tube having knitted

Wales, all of which extend continuously throughout

the seamless tube; and

 

b) closing the toe portions of the seamless tube.

 

On considering the difference between the reference and that covered by

the proposed claim we find: "a first leg portion having a toe portion

is knit substantially unidirectionally, an intermediate portion for eventually

forming the pant portion is knit wholly unidirectionally and then a second

leg portion having a toe portion is knit substantially unidirectionally, the

seamless tube having knitted wales, all of which extend continuously through-

out the seamless tube;" Garrou uses unidirectional knitting for the leg

portions of his garment, but the body gusset is knitted by reciprocatory

movement.

 

At a result the majority of the Wales are interrupted at the gore lines which

indicates that the wales are not all extending continuously throughout the

seamless tube. The applicant recognized that the simpler technique of

unidirectional knitting throughout the blank enabled him to produce a

satisfactory garment in less time than that required by the prior art method.

 

In the Final Action the examiner stated that "Claim 1 is considered in-

complete. This claim, directed to a method of making a garment, merely

sets a method which results in a blank or closed tube." This comment

is applicable to proposed claim 1. At the Hearing the applicant indicated

that he would be agreeable to incorporate dependent claim 2 as part of

independent claim 1 to overcome this objection. Since the step of provid-

ing a waist opening is an essential feature in the production of the two-

legged garment found in the preamble of claim 1 this limitation must be

included in the claim.

 

In the opinion of the Board, a claim combining proposed claims 1 and 2

would overcome the art. We are fully satisfied that the claims before the

examiner at the time of Final Action were objectionable, and quite properly

refused. The Board however has been presented with the additional

affidavitory evidence, testifying to the unexpected results flowing from the

applicants invention (when fully defined). That invention has won wide

acceptance, and as indicated previously, thirty-one licenses under it have

been taken out by competitors. It has had early and extensive success

commercially. All of these considerations persuade us that inventive ingenuity

has been exercised.

 

As many of the proposed claims depend on claim 1, and the examiner has not

had an opportunity to evaluate them, we will not comment further on such

claims. Since the examiner did not at the time of writing the Final Action,

have access to the affidavits and articles submitted at the hearing, he will

need to consider these when assessing the other claims.

 

The Board is satisfied that a claim which would combine proposed claims 1

and 2 ought not be refused on the Garrou reference. We recommend that the

rejection of the application as a whole (as distinct from a rejection of the

original claims) on the art-cited be withdrawn, and that the application be

returned to the examiner for a further consideration of the patentability of

the latest proposed claims.

 Gordon A. Asher

 Chairman

 Patent Appeal Board

 

 I concur with the findings of the Patent Appeal Board, and refuse to

 allow the claims on file. The applicant has six months within which to

 appeal this decision under the provisions of Section 44 of the Patent

 Act or to amend the claims as suggested by the Board.

 

 Decision accordingly,

 

  A.M. Laidlaw

 Commissioner of Patents

 

Dated at Hull, Quebec

 this 16th, day of

 June, 1975

 

Agent for Applicant

 

 Alan Swabey  & Co.,

 Montreal, Quebec.

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