Ex Parte Duffy

Patent Trial and Appeal Board

Nov 17, 2017

13728008 (P.T.A.B. Nov. 17, 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.
13/728,008 12/27/2012 Dean R. Duffy 71317US002 6268
32692 7590 11/21/2017
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
11/21/2017 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 2016-005694
Application 13/728,008
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—20. We have jurisdiction under 35 U.S.C. § 6(b).
We affirm.
Appeal 2016-005694
Application 13/728,008
CLAIMED SUBJECT MATTER
The claims are directed to a filtering face-piece respirator having
rounded perimeter. Claims 1, 12, and 14 are independent. Claim 1,
reproduced below, is illustrative of the claimed subject matter:
1. A filtering face-piece respirator that comprises:
(a) a harness comprising an upper strap and a lower strap;
and
(b) a mask body that comprises a filtering structure that
has a top portion, a bottom portion, an upper perimeter segment,
a lower perimeter segment, a frontal line of demarcation, and first
and second bond lines, the first and second bond lines being
located on opposing sides of the mask body and joining the top
portion of the mask body to the bottom portion, the first and
second bond lines extending from the frontal line of demarcation
to the upper and lower perimeter segments, the upper and lower
perimeter segments, when the mask body is laid flat, comprising
an upper linear segment and a lower linear segment, respectively,
located between first and second curved portions located at
opposing ends of the upper and lower linear segments, the first
and second curved portions in each of the upper and lower
perimeter segments each extending from the respective upper or
lower linear segment to the first and second bond lines.
REFERENCES
The prior art relied upon by the Examiner in rejecting the claims on
appeal is:
Andersson
Bostock
US 3,500,825 Mar. 17, 1970
US 6,123,077 Sept. 26,2000
US 2010/0154805 A1 June 24, 2010Duffy
REJECTIONS
I. Claims 1—13 stand rejected under 35 U.S.C. § 103(a) as
unpatentable over Duffy, Andersson, and Bostock.
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Application 13/728,008
II. Claims 14 and 17—20 stand rejected under 35 U.S.C. § 103(a)
as unpatentable over Duffy and Bostock.
III. Claims 15 and 16 stand rejected under 35 U.S.C. § 103(a) as
unpatentable over Duffy, Bostock, and Andersson.
DISCUSSION
Rejection I
Appellant argues claims 1—13 together. See Appeal Br. 6—11. We
select claim 1 as the illustrative claim, and claims 2—13 stand or fall with
claim 1. See 37 C.F.R. § 41.37(c)(l)(iv).
The Examiner finds that Duffy, Andersson, and Bostock disclose or
suggest all of the limitations of claim 1. See Final Act. 2-4. In particular,
the Examiner finds that “Andersson discloses a mouth cover comprising a
harness and a mask body, wherein the harness includes an upper strap (59)
and a lower strap (60). Id. at 3 (citing Andersson Figs. 1—2; 3:74—75; 4:1—3,
41—55). The Examiner reasons that it would have been obvious
to modify the harness of the respirator taught by Duffy to further
include a lower strap 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.
Noting that Duffy “describes that the mask is designed to utilize only
one strap,” Appellant contends that Duffy “therefore, teaches away from
being modified to include two straps as alleged by the Examiner.” Appeal
Br. 8 ; see also Reply Br. 2. However, Appellant does not identify any
portion of Duffy that criticizes, discredits, or otherwise discourages the use
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Application 13/728,008
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
Textilfarben GmbH & Co. Deutschland KG. v. C.H. Patrick Co., 464 F.3d
1356, 1364 (Fed. Cir. 2006).
In addition, Appellant contends that “[modifying the mask of Duffy
et al. such that it includes two straps would change the principle of operation
of the mask by reducing or eliminating the downward force provided by the
fulcrum 76 when used with one strap.” Appeal Br. 9; see also Reply Br. 4.
However, Appellant does not identity 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.
Appellant concludes by contending that the Examiner “has failed to
provide any rational underpinning to support the allegation that including the
string 60 of Andersson et al. in the respirator of Duffy et al. would provide a
more secure attachment of the respirator to the wearer’s face when worn.”
Appeal Br. 10; see also Reply Br. 5.
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
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Application 13/728,008
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); see Final Act. 3. Thus, the
Examiner’s reasoning is based on underlying facts which provide rational
underpinning.
For these reasons, we sustain the Examiner’s decision rejecting claim
1, and claims 2—13 fall therewith.
Rejection II
Appellant argues claims 14 and 17—20 together. Appeal Br. 11—14.
We select independent claim 14 as the representative claim, and claims 17—
20 stand or fall with claim 14.
The Examiner finds that Duffy and Bostock disclose or suggest all the
limitations of claim 14. See Final Act. 8—10. In particular, the Examiner
finds that “Bostock discloses a respiratory protection device (10), wherein
the perimeter segments of the device may range from linear to curvilinear as
desired to achieve good fit to the wearer’s face.” Id. at 10 (citing Bostock
Figs. 1,3,4, 6—8; 7:40-65). Based on this finding, the Examiner reasons
that it would have been obvious
to construct the upper and lower perimeter segments of the
respirator taught by the combination of Duffy and Bostock such
that the first and second curved portions are located at opposing
ends of the upper and lower linear segments and extend to the
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Application 13/728,008
first and second bond lines since Applicant has not disclosed that
such a configuration solves any stated problem or is anything
more than one of numerous shapes or configurations a person
having ordinary skill in the art would find obvious for the
purpose of providing a perimeter segment to achieve a good fit
to the wearer’s face.
Id.
Appellant contends that “one of skill in the art would not be motivated
to modify the respirator of Duffy et al. with the respirator of Bostock et al. as
alleged because doing so would change the principle of operation of the
respirator of Duffy et al.” Appeal Br. 12. In support of this contention,
Appellant again argues that the principle of operation of Duffy is to provide
downward force via a fulcrum 76 and that relocating the attachment point of
Duffy’s strap 26 would change this principle of operation. See id. at 13.
Appellant’s argument is not responsive to the rejection as articulated
by the Examiner because the rejection does not propose relocating Duffy’s
strap 26. See Final Act. 8—10. Rather, as the Examiner explains “altering
the perimeter of the mask taught by Duffy such that the leading (free) edge
of the first and second flanges are configured to match the perimeter of the
mask body would only require that the flanges substantially follow the same
curvature or linear shape of the mask body.” Ans. 15.1 Thus, Appellant
does not apprise us of error.
Accordingly, we sustain the Examiner’s decision rejecting claim 14,
and claims 17—20 which fall therewith.
1 Moreover, even if we assume that the proposed modification would result
in relocation of Duffy’s strap 26, we are not convinced that such
modification would change the principle of operation of Duffy’s device. As
discussed supra, Duffy credits its flanges, as opposed to the placement of its
strap, as creating the desired snug fit.
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Rejection III
Appellant argues claims 15 and 16 together. See Appeal Br. 14—15.
We select claim 15 as the representative claim, and claim 16 falls with claim
15. Claim 15 requires a harness comprising “an upper strap and a lower
strap.” Id.
Appellant essentially repeats the argument that modifying Duffy in
view of Bostock would change the principle of operation of Duffy’s device.
See Appeal Br. 14—15. This argument is unconvincing for the reasons
discussed supra. In addition, Appellant again argues that modifying Duffy’s
device to include a lower strap would change the principle of operation of
Duffy’s device. See id. This argument is unconvincing for the reasons
discussed supra with respect to the rejection of claim 1.
Accordingly, we sustain the Examiner’s decision rejecting claim 15,
and claim 16 which fall therewith.
DECISION
The Examiner’s rejections of claims 1—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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