Ex Parte Duffy

Patent Trial and Appeal Board

Nov 15, 2017

13727954 (P.T.A.B. Nov. 15, 2017)

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.
13/727,954 12/27/2012 Dean R. Duffy 71104US002 8556
32692 7590 11/17/2017
3M INNOVATIVE PROPERTIES COMPANY
PO BOX 33427
ST. PAUL, MN 55133-3427
EXAMINER
NELSON, KERI JESSICA
ART UNIT PAPER NUMBER
3772
NOTIFICATION DATE DELIVERY MODE
11/17/2017 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 DEAN R. DUFFY
Appeal 2016-005488
Application 13/727,954
Technology Center 3700
Before LINDA E. HORNER, STEVEN D.A. MCCARTHY, and
LYNNE H. BROWNE, Administrative Patent Judges.
BROWNE, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Dean R. Duffy (Appellant) appeals under 35U.S.C. § 134 from the
rejection of claims 1—6 and 8—20. We have jurisdiction under 35 U.S.C.
§ 6(b).
We affirm.
CLAIMED SUBJECT MATTER
The claims are directed to a filtering face-piece respirator having
strap-activated folded flange. Spec. 11. Claims 1,16, and 20 are
Appeal 2016-005488
Application 13/727,954
independent. Claim 1, reproduced below, is illustrative of the claimed
subject matter:
1. A filtering face-piece respirator that comprises:
(a) a mask body that comprises a major portion that
contains one or more layers of filter media and that has first and
second flanges located on opposing sides of the major portion,
the first and second flanges being capable of folding inwardly
towards the major portion; and
(b) a harness that comprises first and second straps that
each have first and second ends, the first and second ends being
secured to the first and second flanges, respectively, such that
there are two ends secured to each flange in a spaced apart
relationship so that the first strap has a first segment that follows
a path above a wearer’s ear and the second strap has a second
segment that follows a path below the wearer’s ear when the
respirator is being donned, wherein at least the second strap is
placed in tension when the respirator is donned, and wherein
such tension causes the first and second flanges to be folded
downwardly into contact with the major portion.
The prior art relied upon by the Examiner in rejecting the claims on
I. Claims 1—6, 8—16, and 18—20 stand rejected under 35 U.S.C.
§ 103(a) as unpatentable over Duffy and Andersson.
II. Claim 17 stands rejected under 35 U.S.C. § 103(a) as
unpatentable over Duffy, Andersson, and Chen.
REFERENCES
appeal is:
Andersson
Chen
Duffy
US 3,500,825 Mar. 17, 1970
US 6,394,090 B1 May 28, 2002
US 2010/0154805 A1 June 24, 2010
REJECTIONS
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Application 13/727,954
DISCUSSION
Rejection I
Appellant argues claims 1—6, 8—16, and 18—20 together. See e.g.
Appeal Br. 9. We select claim 1 as the illustrative claim, and claims 2—6,
8—16, and 18—20 stand or fall with claim 1. See 37 C.F.R. § 41.37(c)(l)(iv).
The Examiner finds that Duffy and Andersson disclose or suggest all
of the limitations of claim 1. See Final Act. 2—A. In particular, the Examiner
finds that Andersson discloses:
a harness that includes first and second straps (59, 60) that each
have first and second ends being secured to the first and second
flanges such that there are two ends secured to each flange in a
spaced apart relationship so that the first strap (59) has a first
segment that is capable of following a path above a wearer’s ear
when the cover is being donned and the second strap (60) has [a]
second segment that is capable of following a path below the
wearer’s ear when the cover is being donned.
Id. at 3 (citing Andersson Figs. 1—2; 3:74—75; 4:1—14, 41—55). The
Examiner reasons that it would have been obvious
to modify the harness of the respirator taught by Duffy to include
a second strap secured [to] the first and second flanges and
adapted to follow a path below the wearer’s ear when being
donned as taught by Andersson for the purpose of obtaining the
best possible fit of the respirator to the wearer’s face by having
multiple points of adjustment as well as providing a more secure
attachment of the respirator to the wearer’s face when worn.
Id.
Appellant contends that the proposed combination “does not teach or
suggest a harness that has a second strap having first and second ends that
are secured to first and second flanges as is recited in independent claims 1
and 20” because, “as can be seen in FIG. 2 of Andersson et al. . . ., the
strings 59, 60 (i.e., the alleged first and second straps) ‘run out freely from
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Application 13/727,954
each other at the ends of the cover and may be secured by knots
individually’ as shown in FIG. 2.” Appeal Br. 7 (citing Andersson 4:48—
51); see also Reply Br. 2. In support of this contention, Appellant argues
that “the strings 59, 60 of Andersson et al. do not have first and second ends
that are secured to the first and second alleged flanges 42 ‘such that there are
two ends secured to each flange in a spaced apart relationship . . Appeal
Br at 8; see also Reply Br. at 3.
Appellant’s argument is not responsive to the rejection as articulated
by the Examiner. As noted supra, the rejection proposes modification of
Duffy’s harness “to include a second strap secured [to] the first and second
flanges and adapted to follow a path below the wearer’s ear when being
donned.” Final Act. 10; see also Ans. 12. The rejection does not suggest
replacing Duffy’s first strap with two straps secured by knots or adding a
second two-piece strap wherein the pieces of the strap are secured in this
manner. Further, Appellant’s argument attacks the Andersson reference
separately. Nonobviousness cannot be established by attacking the
references individually when the rejection is predicated upon a combination
of prior art disclosures. See In re Merck & Co., 800 F.2d 1091, 1097, (Fed.
Cir. 1986). Moreover, we agree with the Examiner that “the claims do not
require that “the straps to be continuous such that they do not tie behind the
wearer’s head.” Ans. 12. Thus, even if the rejection proposed modifying
Duffy to include Andersson’s two-piece straps, Appellant’s arguments
would be unconvincing.1
1 We note that Duffy contemplates two-piece straps wherein each piece of
the strap is attached to a flange at one end and has a free end that is fastened
to the other piece. See Duffy 161.
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Application 13/727,954
Next, Appellant contends that “one of skill in the art would not be
motivated to modify the teachings of Duffy et al. with those of Andersson et
al. to produce the invention recited in these claims because the references
teach away from being combined as alleged.” Appeal Br. 9; see also Reply
Br. 3. In support of this contention, Appellant notes that “Duffy et al. is
designed to function with a single strap.” Id. However, Appellant’s do not
identify any portion of Duffy that criticizes, discredits, or otherwise
discourages the use of a second strap. We will not read into a reference a
teaching away from a proposed combination when no such language exists.
See Dystar Textifarben GmbH & Co. Deutschland KG. v. C.H. Patrick Co.,
464 F.3d 1356, 1364 (Fed. Cir. 2006).
In addition, Appellant contends that “the proposed modification of the
respirator of Duffy et al. changes its principle of operation.” Appeal Br. 11;
see also Reply Br. 6. In support of this contention, Appellant argues that a
principle of operation of Duffy’s mask is to use a single strap such that
downward force is provided by a fulcrum. See id. However, Appellant does
not identify where Duffy explains that producing downward force via a
fulcrum is a principle of operation of Duffy’s device. Although, Duffy
describes the use of a single strap and fulcrum in paragraph 53, Duffy does
not indicate that this is the only configuration capable of applying the
desired force. Moreover, in paragraph 53 Duffy credits the first and second
flanges with achieving the desired snug fit. Thus, Appellant’s argument that
the proposed modification would change the principle of operation of
Duffy’s respirator is unconvincing.
Finally, Appellant argues that the Examiner “has failed to provide any
rational underpinning to support the allegation that modifying the respirator
of Duffy et al. to include the string 60 of Andersson et al. would provide
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Application 13/727,954
more secure attachment of the respirator to the wearer’s face when worn.”
Appeal Br. 13—14; see also Reply Br 7. However, the Examiner supports his
reasoning by directing our attention to Andersson at column 4, lines 41—55,
which states:
When the net has been secured by welding in this way to
the blank according to FIG. 4, a sealing thread 58 is secured and
an upper and lower attachment string 59, 60 respectively is
secured to the rear wall near the crease lines 44, 45, that is the
upp[]er and lower edges of the rear wall. Due to the fact that the
shape of the cover in the operating position is fixed by the rear
wall and the two portions 42 respectively to the final tube form,
the attachment strings may run out freely from each other at the
ends of the cover and may be secured by knots individually as
shown in FIG. 2. In this way a very effective attachment of the
cover is enabled where the strength in the upper and lower
attachment string respectively may be adjusted to obtain the best
possible fitting of the cover to the face.
Andersson 4:41—55 (emphasis added). Thus, the Examiner’s reasoning is
based on underlying facts which provide a rational underpinning.
For these reasons, we sustain the Examiner’s decision rejecting claim
1, and claims 2—6, 8—16, and 18—20, which fall therewith.
Rejection II
Claim 17 depends from claim 16. Appeal Br. (Claims App.). The
Examiner finds that neither Duffy nor Andersson discloses or suggests first
and second straps that are ear loop straps as required by claim 17. See Final
Act. 11. The Examiner finds that Chen discloses “a harness that includes
first and second strap forming first and second ear loop straps (26, 26').” Id.
(citing Chen Fig. 2; 3:32-47; 4:48—51).
Appellant does not contest this finding. See Appeal Br. 15. Rather,
Appellant argues that Chen “does nothing to cure the deficiencies already
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Application 13/727,954
present in Duffy et al. and Andersson et al.” Id. As we find no such
deficiencies for the reasons discussed supra, Appellant’s argument is
unconvincing.
We sustain the Examiner’s decision rejecting claim 17.
DECISION
The Examiner’s rejections of claims 1—6 and 8—20 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). See 37 C.F.R.
§ 1.136(a)(l)(iv).
AFFIRMED
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