Ex Parte Krepel et alDownload PDFPatent Trial and Appeal BoardMay 31, 201813396839 (P.T.A.B. May. 31, 2018) Copy Citation UNITED STA TES p A TENT AND TRADEMARK OFFICE APPLICATION NO. FILING DATE 13/396,839 02/15/2012 32692 7590 06/04/2018 3M INNOVATIVE PROPERTIES COMPANY PO BOX 33427 ST. PAUL, MN 55133-3427 FIRST NAMED INVENTOR Kenneth J. Krepel UNITED STATES DEPARTMENT OF COMMERCE United States Patent and Trademark Office Address: COMMISSIONER FOR PATENTS P.O. Box 1450 Alexandria, Virginia 22313-1450 www .uspto.gov ATTORNEY DOCKET NO. CONFIRMATION NO. 68204US002 6705 EXAMINER SUL, DOUGLAS YOUNG ART UNIT PAPER NUMBER 3771 NOTIFICATION DATE DELIVERY MODE 06/04/2018 ELECTRONIC Please find below and/or attached an Office communication concerning this application or proceeding. The time period for reply, if any, is set in the attached communication. Notice of the Office communication was sent electronically on above-indicated "Notification Date" to the following e-mail address(es): LegalUSDocketing@mmm.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte KENNETH J. KREPEL, JIA HU, and JOHN M. PILGRIM Appeal2017-001543 Application 13/396,839 Technology Center 3700 Before JOHN C. KERINS, ARTHUR M. PESLAK, and SEAN P. O'HANLON, Administrative Patent Judges. KERINS, Administrative Patent Judge. DECISION ON APPEAL STATEMENT OF THE CASE Kenneth J. Krepel et al. ("Appellants") appeal under 35 U.S.C. § 134(a) from a final rejection of claims 1-19, 22, and 23. We have jurisdiction under 35 U.S.C. § 6(b ). We AFFIRM. Appeal2017-001543 Application 13/396,839 THE INVENTION Appellants' invention is directed to a respiratory component assembly. Claim 1, reproduced below, is illustrative: 1. A respiratory component assembly, comprising: a powered air purifying respirator (P APR) component having an interface surface comprising a first projection extending outwardly from the interface surface and a retention projection; and a wearable belt for supporting the P APR component having a longitudinal axis along a length of the belt and an interface portion comprising a rigid attachment element; wherein the rigid attachment element is fastened to a portion of the belt and includes one or more openings configured to receive the first projection, which is slidable within the opening(s), to releasably secure the P APR component to the belt, and wherein the retention projection inhibits slidable movement of the rigid attachment element within the openings when the P APR is secured to the belt. REJECTIONS The Examiner rejects: (i) claims 1, 3-5, 7, 10, 13, 15, 16, 22, and 23 under 35 U.S.C. § 102(b) as being anticipated by Hatmaker (US 2009/0314295 Al, published December 24, 2009); (ii) claims 2, 8, 9, 11, and 12 under 35 U.S.C. § I03(a) as being unpatentable over Hatmaker in view of Chang (US 2006/0058070 Al, published March 16, 2006); (iii) claim 14 under 35 U.S.C. § I03(a) as being unpatentable over Hatmaker in view of Chang and further in view of Taylor '800 (US 7,454,800 B2, issued November 25, 2008); 2 Appeal2017-001543 Application 13/396,839 (iv) claim 6 under 35 U.S.C. § 103(a) as being unpatentable over Hatmaker in view of Taylor '120 (US 7,819,120 B2, issued October 26, 2010); (v) claim 17 under 35 U.S.C. § 103(a) as being unpatentable over Hatmaker in view ofKrumin (US 4,534,063, issued August 6, 1985); and (vi) claims 18 and 19 under 35 U.S.C. § 103(a) as being unpatentable over Hatmaker in view of Hanna (US 5,226,625, issued July 13, 1993) and further in view of Goldenberg (US 5,697,538, issued December 16, 1997). ANALYSIS Claims 1, 3-5, 7, 10, 13, 15, 16, 22, and 23 -- 35 US. C. § 102(b) -- Hatmaker Appellants present arguments for independent claim 1, but present no separate arguments for the remaining claims subject to this rejection. The claims will be treated as a group, with claim 1 being representative. Claims 3-5, 7, 10, 13, 15, 16, 22, and 23 stand or fall with claim 1. See 37 C.F.R. § 4I.37(c)(l)(iv). The Examiner finds that Hatmaker discloses all limitations set forth in claim 1, including a first projection ( 46b) and a retention projection ( 46a), wherein the rigid attachment element (34) is fastened to a portion of the belt (32) and includes one or more openings (34b) configured to receive the first projection (46b), which is slidable within the opening(s), to releasably secure the P APR (10) component to the belt (32), and wherein the retention projection (46a) inhibits slidable movement of the rigid attachment element 1 1 In the event that further prosecution is pursued, consideration should be given as to whether this portion of the claim language is accurate. It appears 3 Appeal2017-001543 Application 13/396,839 within the openings when the P APR is secured to the belt (32). 2 Final Action, pages 2 and 3. Appellants contend that it is "mechanically impossible" for the device of Hatmaker to function as claimed, namely having the first projection slidable within the opening in the rigid attachment element to releasably secure the PAPR component to the belt, and having the retention projection inhibit slidable movement of the rigid attachment element within the openings when the P APR is secured to the belt. Appeal Brief, page 5. Appellants explain that, in Hatmaker, If the housing were to be moved laterally, pivot 46a prevents it from sliding to the left because it already touches the left end of its opening; pivot 46c prevents it from sliding to the right because it already touches the right end of its opening; and pivot 46b prevents it from sliding in either direction because it touches both sides of its opening. - If the housing were to be moved vertically, pivot 46a and pivot 46c both prevent it from that this language may have been intended to recite that the retention projection inhibits slidable movement of the first projection within the opening when the P APR is secured to the belt. 2 The Examiner also cites to a user manual authored by Bullard ("EV A Series Powered Air-Purifying Respirator Blower Assembly User Manual"), purportedly as evidence to support the Examiner's interpretation of the Hatmaker connection mechanism. Final Act. 14. Appellants object to the Examiner's reliance on Bullard on several grounds. Appeal Br. 5---6. There is no basis in the current record to conclude that Bullard constitutes evidence regarding the explicit or implicit disclosure of Hatmaker. To the extent that Bullard is more specific or otherwise different than Hatmaker, these differences are not part of the disclosure of Hatmaker. We therefore agree with Appellants that Bullard is irrelevant to the rejection of claim 1. It is noted that the rejection set forth on pages 2 and 3 of the Final Action and the explanation in the Answer do not rely on Bullard, nor does our analysis herein. 4 Appeal2017-001543 Application 13/396,839 sliding upward or downward because both pivots already contact the top and bottom of each of their respective openings. Appeal Brief, page 5. In other words, when all three projections in Hatmaker are engaged in their respective holes, the P APR device in Hatmaker would not be slidable relative to the belt. Even assuming Appellants are correct that the first projection ( 46b) in the device of Hatmaker would not be slidable when all three projections ( 46a, 46b, 46c) are engaged in their respective holes (34a, 34b, 34c ), the Examiner's position is that the projection ( 46b) is capable of sliding when the other two projections ( 46a, 46c) are not engaged in their respective holes (34a, 34c). See, e.g., Non-Final Office Action at page 14 and Examiner's Answer at page 13. Appellants later acknowledge that The Examiner proposes rotating the P APR device 180Q with respect to the belt to engage only the first lever pivot ( 46b) with one slot (34b) so that the first lever pivot ( 46b) would be vertically slidable within the slot (34b ). However, in this proposed configuration, the P APR of the Hatmaker device cannot be secured to the belt. For example, the Hatmaker device utilizes a plurality of lock levers to secure the P APR to the belt plate .... Reply Br. 3. Appellants continue, "the Hatmaker device cannot rotate the P APR device 180Q relative to the belt and secure the P APR device to the belt." Reply Br. 4. These assertions do not apprise us of Examiner error. According to Appellants' argument, the P APR component of Hatmaker is only "secured" to the belt when all three lever pivots are engaged with their respective openings, but the arguments do not explain a basis for this position. The Examiner finds that if the P APR component is rotated 180Q and connected at 5 Appeal2017-001543 Application 13/396,839 a single projection ( 46b ), the P APR component is releasably secured to the belt. Examiner's Answer, pages 2 and 13. Appellants' arguments do not provide any reason why manipulating the device in this manner does not fall within the scope of the claim language "one or more openings configured to receive the first projection, which is slidable within the opening(s), to releasably secure the P APR component to the belt." Appellants also have not presented any argument establishing that the device of Hatmaker is incapable of functioning in the manner described in the office action. The arguments, therefore, do not apprise us of error in the rejection. Appellants continue, the Examiner's proposed configuration cannot inhibit slidable movement, because only one lever pivot and lock lever is engaged with a hole - not a plurality. In other words, the Hatmaker device cannot rotate the P APR device 180° relative to the belt and secure the P APR device to the belt. It is mechanically impossible for the Hatmaker device to achieve what is claimed. Reply Brief, page 4. The above-quoted argument is to the effect that the device of Hatmaker cannot inhibit slidable movement when only one projection ( 46b) is secured, and the device of Hatmaker cannot slide when more than one projection is secured. The language of claim 1 does not require that the retention projection inhibits sliding while the first projection is slidable. Indeed, claim 1 cannot be interpreted as requiring that the retention projection inhibits sliding while the first projection is slidable, because, by its own terms, either the first projection is slidable or is inhibited from sliding. The claim plainly is referring to two different states as the component is being assembled or secured to the belt. Appellants' own 6 Appeal2017-001543 Application 13/396,839 disclosed device cannot, at the same time, have a first projection that is slidable, and have the retention projection inhibit sliding. Paragraphs 0056, 0057, and 0064 of the Specification and Figures 4e and 4f show that the first projection is slidable when the retention projection is not engaged, and is not slidable when the retention projection is engaged. The Specification states, in this regard, that When lower peripheral edge 50a contacts retention projection 35, the rigid retention element provides sufficient stiffness that the belt does not slide over retention projection 35, and the P APR component does not slide upward relative to the belt, when the belt is fastened to a user. Spec., para. 64. Giving the claim language its broadest reasonable interpretation consistent with the Specification, the portion of claim 1 that begins "wherein the retention projection inhibits slidable movement .... " is clearly a separate clause which defines a function that cannot occur while the first projection is slidable. Restated, the first projection slides in the opening(s) of the rigid attachment element until the retention projection inhibits sliding. As such, Appellants' argument that it is a mechanical impossibility for the retention projection (46a) of the Hatmaker device to inhibit sliding when only the first projection ( 46b) is engaged, even if true, is not commensurate in scope with claim 1. The anticipation rejection of claim 1 is therefore sustained. Claims 3- 5, 7, 10, 13, 15, 16, 22, and 23 fall with claim 1. Rejections (ii)-(vi) Appellants rely on the arguments submitted with respect to claim 1 in traversing these grounds of rejection. Appeal Br. 6. As noted above, we are 7 Appeal2017-001543 Application 13/396,839 not apprised of error in the Examiner's rejection of claim 1. As such, each of rejections (ii) through (vi) is sustained for the reasons presented above for claim 1. DECISION The rejections of claims 1-19, 22, and 23 are affirmed. No time period for taking any subsequent action in connection with this appeal may be extended under 37 C.F.R. § 1.136(a). AFFIRMED 8 Copy with citationCopy as parenthetical citation