Ex Parte Rothermel

Patent Trial and Appeal Board

Nov 1, 2018

14355679 (P.T.A.B. Nov. 1, 2018)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR
14/355,679 05/01/2014 Justin Edward Rothermel
24737 7590 11/05/2018
PHILIPS INTELLECTUAL PROPERTY & STANDARDS
465 Columbus A venue
Suite 340
Valhalla, NY 10595
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.
2011P01469WOUS 6659
EXAMINER
BOECKER, JOSEPH D
ART UNIT PAPER NUMBER
3782
NOTIFICATION DATE DELIVERY MODE
11/05/2018 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):
patti. demichele@Philips.com
marianne.fox@philips.com
katelyn.mulroy@philips.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte JUSTIN EDWARD ROTHERMEL
Appeal2018-000440
Application 14/355,679
Technology Center 3700
Before STEVEN D.A. McCARTHY, WILLIAM A. CAPP, and
JEREMY M. PLENZLER, Administrative Patent Judges.
PLENZLER, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Appellant seeks our review under 35 U.S.C. § 134 of the Examiner's
Decision rejecting claims 1-7 under 35 U.S.C. § 102 as being anticipated by
Sprinkle (US 2004/0182398 Al, published Sept. 23, 2004). We have
jurisdiction under 35 U.S.C. § 6(b ).
We AFFIRM.
Appeal2018-000440
Application 14/355,679
CLAIMED SUBJECT MATTER
Claim 1 is independent, with claims 2-7 depending therefrom. Claim
1 is reproduced below:
1. A patient interface that is structured to be engaged with
the face of a patient and to provide a flow of breathing gas to an
airway of the patient, the patient interface comprising:
a faceplate assembly that is structured to be connected
with a source of breathing gas and that comprises at least a first
support which comprises a post;
a resilient cushion connected with the faceplate assembly
and structured to form a seal between the face of the patient and
the faceplate assembly; and
a strap apparatus that is structured to extend around at
least a portion of the patient's head, the strap apparatus
comprising a strap and at least a first clip, the at least first clip
being mountable on an end of the strap, the at least first clip and
the end of the strap each being alternatively directly
connectable with the post to enable the patient interface to be
mounted on the patient.
OPINION
The Examiner finds that Sprinkle teaches each limitation recited in
claim 1. Final Act. 2-3. The only finding disputed by Appellant is directed
to whether Sprinkle discloses the "end of the strap ... being ... directly
connectable with the post to enable the patient interface to be mounted on
the patient." Appeal Br. 2--4; Reply Br. 2-3. Appellant provides an
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Application 14/355,679
annotated version of Sprinkle' s Figure 11, reproduced below for discussion
purposes.
The figure reproduced above is Sprinkle' s Figure 11, which illustrates a
strap and connector for a nasal mask in an unconnected condition, including
Applicant's annotations indicating the relative width of various components
depicted.
The Examiner finds, for example, that Sprinkle' s strap 82 corresponds
to the recited "strap," connector 94 corresponds to the recited "first clip,"
and shell connector 84 corresponds to the recited "post." Final Act. 2-3.
The Examiner finds that "[ t ]he end of the strap is capable of being directly
connected with the post through by threading through opening 88 of shell
connector 84 (i.e. the first support)." Id. at 3.
Appellant responds, noting the width of the strap is the distance
between "X" and "Y" and the width of the connector receiving the strap is
the distance between "A" and "B" in the annotated figure. Appeal Br. 2.
Appellant contends that "the width of the strap [is] significantly wider than
the space between the two side arms (85)" and "the opening that is provided
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Appeal2018-000440
Application 14/355,679
in the strap connector (94) to accommodate therein the strap (82) is far larger
still." Id. at 4. Appellant argues that
Id.
[i]f the strap (82) were to be receivable in the opening (88) in
the shell connector (84) ... the opening (88) that would have
been provided by the designer would have been of at least the
same width as the distance between the two dot-dash lines A
and B, which the opening (88) clearly is not.
Initially, we note that we agree with Appellant that the Sprinkle' s
figures show the general relative size between the various components.
Indeed, Sprinkle describes the relative size of various components shown in
the figures consistent with that understanding. See, e.g., Sprinkle ,r 44 ("The
retaining flange 7 4 may be of the same or substantially the same material
thickness as the tongue 72."), ,r 58 ("The size of this gap 114, that is, the
distance between the end portion 112 of the tab 10 on the strap connector 94,
and the outer leg 102 of the loop 96, is slightly less than the combined length
of the cross arm 86 and the tab 90 on the shell connector 84.").
Even if the width of opening 88 is less than the width of strap 82, that
does not mean strap 82 cannot be secured through opening 88. Figure 9 of
Sprinkle is reproduced below for reference.
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Appeal2018-000440
Application 14/355,679
102 92
20
.... --. .· ....... ·~ ,.., ...,,.,... ........
'' .. '~<-;:(;{?=~::: =:i=: ,'.: '. :: : :J
Fig.9
Figure 9 is a fragmentary section view of the strap and connector shown
above in the annotated version of Sprinkle' s Figure 11. Although not
labeled in Figure 9, opening 88 is depicted as the region extending along
arm 85. The width of opening 88 is illustrated in Figure 9 as substantially
greater than the thickness of strap 82. The preponderance of the evidence
before us supports the Examiner's finding that strap 82 is capable of being
threaded through opening 88. See Final Act. 3; see also Ans. 2-3 1 ("The
mere fact that strap 82 may be somewhat wider than opening 88 would not
preclude the fitting of strap 82 through opening 88, particularly when strap
82 is resilient.").
Although Appellant contends that Sprinkle "is silent as to the material
properties ('resilient' or otherwise) of the strap 82" (Reply Br. 2), that is not
an accurate representation of Sprinkle' s disclosure. Strap 82 in Sprinkle is
flexible. Sprinkle explains, for example, that strap 82 is secured to inner leg
1 Every page in the Answer is labeled as "Page 1," our reference to page
numbers in the Answer begins with the first instance of "Page 1."
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Appeal2018-000440
Application 14/355,679
98 "by folding over and connecting with a hook and loop fastener for
adjustability." Sprinkle ,r 51. Moreover, the cross-hatching used in the
illustration from Figure 9 of Sprinkle appears consistent with a cloth or
fabric. See MPEP § 608.02(IX). Appellant also contends that because
Sprinkle "does not state that the strap 82 is 'removable' from the strap
connector 94 .... [T]he strap 82 cannot be directly connected with the shell
connector 84." Reply Br. 3. This, too, is unpersuasive because, as noted
above, Sprinkle expressly states that strap 82 is "fold[ ed] over and
connect[ ed] with a hook and loop fastener" (Sprinkle ,r 51 ), which means
that strap 82 can also be unconnected and unfolded, allowing strap 82 to be
removed from shell connector 84.
For at least these reasons, we are not apprised of Examiner error.
DECISION
We AFFIRM the Examiner's decision to reject claims 1-7 under 35
U.S.C. § 102.
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a)(l )(iv).
AFFIRMED
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