Bertil WERJEFELT et al.

Patent Trials and Appeals Board

Dec 7, 2021

2021002498 (P.T.A.B. Dec. 7, 2021)

UNITED STATES PATENT AND TRADEMARK OFFICE
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
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR ATTORNEY DOCKET NO. CONFIRMATION NO.
15/444,731 02/28/2017 Bertil R.L. WERJEFELT 8017 4815
39196 7590 12/07/2021
SHLESINGER, ARKWRIGHT & GARVEY LLP
5845 Richmond Highway, Suite 415
ALEXANDRIA, VA 22303
EXAMINER
CHWASZ, JADE R
ART UNIT PAPER NUMBER
2872
MAIL DATE DELIVERY MODE
12/07/2021 PAPER
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.
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte BERTIL R.L. WERJEFELT,
CHRISTIAN WERJEFELT, and ALEXANDER K. WERJEFELT
Appeal 2021-002498
Application 15/444,731
Technology Center 2800

Before JEFFREY B. ROBERTSON, GEORGE C. BEST, and
JANE E. INGLESE, Administrative Patent Judges.
ROBERTSON, Administrative Patent Judge.
DECISION ON APPEAL1
STATEMENT OF THE CASE
Pursuant to 35 U.S.C. § 134(a), Appellant2 appeals from the
Examiner’s decision to reject claims 1–6. Appeal Br. 5–15. We have
jurisdiction under 35 U.S.C. § 6(b). We reverse.

1 This Decision includes citations to the following documents: Specification
filed February 28, 2017 (“Spec.”); Non-Final Office Action entered May 13,
2020 (“Non-Final Act.”); Appeal Brief filed November 5, 2020 (“Appeal
Br.”); and Examiner’s Answer entered December 22, 2020 (“Ans.”).
2 “Appellant” refers to “applicant” as defined in 37 C.F.R. § 1.42. Appellant
identifies the named inventors as the real party in interest. Appeal Br. 2.
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CLAIMED SUBJECT MATTER
Appellant states the invention relates to an apparatus that enables an
operator to maintain visual contact with instruments or other sources of
visual data when smoke and/or particulate from a fire or other source has
entered the operator’s environment. Spec. 1, ll. 9–13. Claims 1 and 4,
reproduced below, are illustrative of the claimed subject matter (Appeal
Br. i–iii, Claims App. (emphases added to highlight key limitations at
issue)):
1. An emergency vision apparatus, comprising:
a) an inflatable enclosure being made of airtight material
and having an expanded form with an interior volume when
deployed and a deflated form when not in use;
b) first and second clear members disposed at respective
first and second ends of said first enclosure to enable a user to
see through said enclosure when expanded and observe a source
of information at a distal end of said enclosure while smoke or
other particulate matter is in the environment;
c) said enclosure including an opening configured for
insertion of a user's hand into an interior of said enclosure to
allow the user to operate a touch sensitive screen or hardware
visible through said second clear member disposed toward a
user; and
d) a sealable closure for closing said opening and sealing
said opening around the user's hand while disposed in the
opening to seal said interior volume from outside of said
enclosure; and
e) said sealable closure including a flexible first sheet and
a flexible second sheet, said first sheet is disposed over said
opening to cover said opening, said first sheet including a first
central portion with a first slit, said second sheet is disposed
overlying said first sheet, said second sheet including a second
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central portion with a second slit disposed transversely over
said first slit, said first slit and said second slit for allowing
insertion of the user’s hand into the interior of said enclosure.
4. An emergency vision apparatus, comprising:
a) an inflatable enclosure being made of airtight material
and having an expanded form with an interior volume when
deployed and a deflated form when not in use;
b) first and second clear members disposed at respective
first and second ends of said first enclosure to enable a user to
see through said enclosure when expanded and observe a source
of information at a distal end of said enclosure while smoke or
other particulate matter is in the environment;
c) said enclosure including wall opening configured for
insertion of a user's hand into the interior of said enclosure to
allow the user to operate a touch sensitive screen or hardware
visible through said second clear member disposed toward a
user; and
d) a sealable closure for closing said wall opening and
sealing said wall opening around the user's hand while disposed
in said wall opening to seal said interior volume from outside of
said enclosure; and
e) said sealable closure including a flexible tube with
first and second ends including first and second openings
disposed at respective said first and second ends, said first
opening encompassing said wall opening, said second opening
being configured to allow the user's thumb and index finger
together to extend through said second opening, said flexible
tube folds flat when empty of the user’s hand to seal off said
wall opening.
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REFERENCES
The Examiner relies upon the following prior art:
Name Reference Date
Walker et al.
(“Walker”)
US 5,976,871 Nov. 2, 1999
Werjefelt et al.
(“Werjefelt”)
US 8,705,189 B2 Apr. 22, 2014
Matthews et al.
(“Matthews”)
US 2012/0170873 A1 July 5, 2012
REJECTIONS
1. Claims 1–3 are rejected under 35 U.S.C. § 103 as being
unpatentable over Werjefelt and Walker. Non-Final Act. 4–6.
2. Claims 4–6 are rejected under 35 U.S.C. § 103 as being
unpatentable over Werjefelt and Matthews. Non-Final
Act. 6–8.
OPINION
Rejection 1
We confine our discussion to claim 1, which is sufficient for
disposition of this rejection.
The Examiner’s Rejection
In rejecting claim 1 as obvious over Werjefelt and Walker, the
Examiner found Werjefelt discloses an emergency vision apparatus
including an inflatable enclosure and a sealable closure having overlying
sheets with first and second slits, but Werjefelt does not disclose a first sheet
including a central portion with a first slit and a second sheet including a
central portion with a second slit. Non-Final Act. 4–5. The Examiner found
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Walker discloses panels of overlapping sheets including slits, where a slit in
one panel (made up of two overlapping sheets) is oriented transverse to a slit
in another panel (made up of two overlapping sheets). Id.
The Examiner determined it would have been obvious to modify the
pairs of two overlapping sheets of Werjefelt to be single sheets with a central
slit as taught by Walker to form a barrier that utilizes single sheets for the
insertion of a user’s hand, which simplifies sheet construction. Non-Final
Act. 5–6.
Appellant’s Arguments
Appellant argues, inter alia, that Werjefelt does not disclose sheets
having slits. Appeal Br. 6. Appellant argues that even if Werjefelt and
Walker were combined, there is insufficient reasoning to explain why a
person of ordinary skill in the art would have replaced the particular sheets
of Werjefelt with the panels of Walker in a manner that would render claim
1 obvious. Id. at 8–10.
Discussion
We are persuaded by Appellant’s arguments. The Examiner bears the
initial burden, on review of prior art or on any other ground, of presenting a
prima facie case of unpatentability. In re Oetiker, 977 F.2d 1443, 1445
(Fed. Cir. 1992). “‘[R]ejections on obviousness grounds cannot be sustained
by mere conclusory statements; instead, there must be some articulated
reasoning with some rational underpinning to support the legal conclusion of
obviousness.’” KSR Int’l Co. v. Teleflex Inc., 550 U.S. 398, 418 (2007)
(quoting In re Kahn, 441 F.3d 977, 988 (Fed. Cir. 2006)).
In this case, we agree with Appellant that Werjefelt does not disclose
slits. Werjefelt discloses overlapping elastic sheets, where a pair of sheets
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(18, 20) attached to one side of opening (12) have overlapping portions (32,
34), and another pair of sheets (22, 24) attached to the other side of opening
(12) have overlapping portions (44, 46). Werjefelt, col. 3, ll. 3–22; Figs.
4–6. As discussed above, the Examiner found a first slit was formed
between the first pair of sheets and second slits were formed between the
second pair of sheets. Ans. 4. The Examiner does not provide sufficient
support or explanation for how pairs of overlapping sheets produce a slit3
between each pair of sheets.
Although Walker discloses panels (83, 85) with slits (87) that are
arranged to form an angle relative to one another (Walker, col. 7, ll. 24–28;
Fig 10), as Appellant points out, such panels are spaced apart, and are not
overlying one another. Appeal Br. 9. The Examiner’s rationale that
combining Werjefelt with Walker would simplify sheet construction does
not provide sufficient reasoning as to how the combination of Werjefelt,—
which contrary to the Examiner’s position, does not disclose overlapping
sheets having slits—and Walker—which does not disclose overlapping
sheets—would arrive at the specific arrangement of flexible sheets and first
and second slits recited in claim 1.
As a result, we reverse the Examiner’s rejection of claims 1–3.

3 The Specification does not expressly define “slit.” A “slit” is defined as “a
long narrow cut or opening.” Slit Definition & Meaning – Merriam-
Webster, Merriam-Webster.com (Dec. 1, 2021), https://www.merriam-
webster.com/dictionary/slit. This definition is consistent with how the term
“slit” is used in the Specification. See Spec. 8, ll. 7–13.
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Rejection 2
We confine our discussion to claim 4, which is sufficient for
disposition of this rejection.
The Examiner’s Rejection
In rejecting claim 4 as obvious over Werjefelt and Matthews, the
Examiner found Werjefelt discloses an emergency vision apparatus
including an inflatable enclosure as recited in claim 4, with the exception of
a sealable closure including a flexible tube. Non-Final Act. 6–7. The
Examiner found Matthews discloses a sealable closure that includes a
flexible tube (30) with first and second ends (32 and 34) where the flexible
tube folds flat when empty of the user’s hand to seal off a wall opening. Id.
at 7–8.
The Examiner determined it would have been obvious to have
modified Werjefelt as taught by Matthews to include a self-sealing closure
so that the resilient member prevents passage of material unless desired by
the hand of a user. Non-Final Act. 8.
Appellant’s Arguments
Appellant argues, inter alia, that Matthews does not disclose a tube, or
a tube that folds flat when empty of the user’s hand. Appeal Br. 14.
Discussion
We are persuaded by Appellant’s arguments. At the outset, we
observe that, as discussed above, the Examiner appears to rely exclusively
on resilient material 30 disclosed in Matthews to correspond to the flexible
tube recited in claim 4. Non-Final Act. 7; Ans. 10. In this regard, we do not
see how a “second or rear piece 30 of generally flat resilient material” can
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constitute a tube.4 Matthews ¶ 18. To the extent the Examiner relies on the
combination of resilient pieces 28 and 30 disclosed in Matthews to constitute
the flexible tube recited in claim 1, we do not find such a combination of
separate pieces, which resemble flaps, to constitute a tube as recited in claim
4. See Matthews ¶ 18; Figs. 3–5.
We also agree with Appellant that the pieces 28 and 30 do not fold flat
when empty of the user’s hand as required in claim 4. Appeal Br. 14.
Although Figures 3 and 5 of Matthews show the pieces 28 and 30 in contact,
we do not discern any type of fold,5 and the Examiner’s citation of
paragraphs 17–20 of Matthews (Ans. 11) is insufficient to explain how this
limitation is met.
Accordingly, we reverse the Examiner’s rejection of claims 4–6.

4 A “tube” is defined as “any of various usually cylindrical structures or
devices: such as a: a hollow elongated cylinder.” Tube Definition &
Meaning – Merriam-Webster, Merriam-Webster.com (Dec. 1, 2021),
https://www.merriam-webster.com/dictionary/tube. This definition is
consistent with how the term “tube” is used in the Specification. See Spec.
10 ll. 18–21; Figs. 8–9.
5 A “fold” is defined as “a part doubled or laid over another part.” Fold
Definition & Meaning – Merriam-Webster, Merriam-Webster.com (Dec. 1,
2021), https://www.merriam-webster.com/dictionary/fold. This definition is
consistent with how the term “fold” is used in the Specification. See Spec.
10 ll. 21–22; Fig. 9.
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DECISION SUMMARY
In summary:
Claim(s)
Rejected
35 U.S.C. § Reference(s)/Basis Affirmed Reversed
1–3 103 Werjefelt, Walker 1–3
4–6 103 Werjefelt, Matthews 4–6
Overall
Outcome
1–6
REVERSED