Ex Parte Grove et al

Patent Trial and Appeal Board

Mar 15, 2013

10843636 (P.T.A.B. Mar. 15, 2013)

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.
10/843,636 05/04/2004 Corey M. Grove DAM 596-03 4854
24211 7590 03/18/2013
US ARMY SOLDIER AND BIOLOGICAL CHEMICAL COMMAND
OFFICE OF THE CHIEF COUNSEL/IP TEAM (BLDG E4435)
5183 BLACKHAWK ROAD
APG, MD 21010-5424
EXAMINER
DIXON, ANNETTE FREDRICKA
ART UNIT PAPER NUMBER
3778
MAIL DATE DELIVERY MODE
03/18/2013 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 COREY M. GROVE, DAVID M. CARETTI, and
STEPHEN E. CHASE
__________

Appeal 2011-005393
Application 10/843,636
Technology Center 3700
__________

Before TONI R. SCHEINER, ERIC GRIMES, and JEFFREY N.
FREDMAN, Administrative Patent Judges.

GRIMES, Administrative Patent Judge.

DECISION ON APPEAL
This is an appeal under 35 U.S.C. § 134 involving claims to a hood
system to improve gas mask protection, which have been rejected for
obviousness. We have jurisdiction under 35 U.S.C. § 6(b). We affirm in
part.
STATEMENT OF THE CASE
The Specification states that “[m]ilitary and commercial
chemical/biological masks fall into three general categories: negative
Appeal 2011-005393
Application 10/843,636

2
pressure, positive pressure, and self-contained” (Spec. 1:17-18), each of
which has drawbacks: negative pressure masks tend to leak (id. at 2:3-8);
positive pressure masks offer better protection, although an increased
breathing rate “can exceed the flow rate of the blower causing a negative
pressure in the mask,” resulting in leakage (id. at 2:15 to 3:2); and self-
contained systems offer the best protection but are limited in capacity,
heavy, and bulky (id. at 3:18 to 4:2).
The Specification discloses “providing an enhanced protection to a
user by adding a separate filter-blower system to a chemical/biological hood.
The filter-blower system provides overpressure to the hood system only.
This makes the overpressure independent of the wearer’s respiration.” (Id.
at 4:23 to 5:3.) That is, the “hood is fixed over or to the outer face seal of
the mask” (id. at 5:24-25), “so that over-breathing which pulls outside air
into a chemical/biological mask is not possible as the hood remains under a
positive pressure” (id. at 5:17-18).
Claims 25, 26, 28-31, 33, 36-39, and 41-44 are on appeal. Claims 25
and 43 are representative:
25. A chemical-biological protection hood system for improving the
protection afforded by a chemical-biological mask having a face seal, said
hood system comprising:
a hood for surrounding the head of the wearer;
a filter; and
a blower attached to said hood and connected to said filter for blowing
air through said filter and blowing filtered air only to an inside of said hood
and providing an overpressure only around said face seal of said chemical-
biological mask; said hood being fitted to or attached to said mask when in
use by the wearer; and wherein said overpressure that is created by said
blower is created independent of the wearer’s respiration, and is independent
and separate from the filtered air being supplied to the interior of said mask.
Appeal 2011-005393
Application 10/843,636

3

43. A chemical-biological protection system, comprising:
a chemical-biological protection mask having outer edges;
a chemical-biological protection hood fitted around said outer edges
of said chemical-biological mask;
a filter and blower connected to said hood for blowing filtered air only
into said hood and providing an overpressure only around said outer edges
of said mask, and wherein said overpressure that is created by said blower is
created independent of the wearer’s respiration, and is independent and
separate from the filtered air being supplied to the interior of said mask.

The claims stand rejected under 35 U.S.C. § 103(a) as follows:
• Claims 25, 26, 28, and 41-43 based on Kwiedorowicz1 and Avery2
(Answer 4);
• Claim 29 based on Kwiedorowicz, Avery, and Beaussant3 (Answer
6); and
• Claims 30, 31, 33, 36-39, and 44 based on Kwiedorowicz, Avery,
and Altshuler4 (Answer 7).
The Examiner finds that “Kwiedorowicz discloses a hood (1) having a
chemical biological mask (2), wherein the hood surrounds the head of a
wearer and is separate and independent from the breathing of the wearer”
(id. at 4), and discloses “the need of the wearer to ventilate the hood without
completely doffing the hood” (id. at 5), which is “accomplished by the
removal and replacement of hook and loop fasteners” (id.).

1 Kwiedorowicz et al., US Staturory Invention Registration H863, Jan. 1,
1991.
2 Avery et al., US 6,948 191 B2, Sept. 27, 2005.
3 Beaussant, US 4,741,332, May 3, 1988.
4 Altshuler et al., US 6,752,146 B1, June 22, 2004.
Appeal 2011-005393
Application 10/843,636

4
The Examiner acknowledges that Kwiedorowicz does not disclose a
hood comprising the blower and filter recited in claim 25 (id.), but finds that
“Avery teaches a self-contained habitable and contaminate free environment
having a ventilated suit-hood combination,” where the ventilation is
accomplished by a blower and filter (id.). The Examiner concludes that it
would have been obvious “to modify the hood of Kwiedorowicz to include a
pressurized gas source and blower, as taught by Avery for the purpose [of]
providing a contaminate free environment for a wearer to ventilate the hood
in the mist [sic, midst] of a hazardous environment, while wearing a
chemical biological mask and hood combination” (id. at 5-6).
We agree with the Examiner that the system of claim 25 would have
been obvious based on Kwiedorowicz and Avery. Kwiedorowicz discloses
“a chemical protective hood having a cap portion with a face piece opening
in which is received a face piece having a periphery to which the cap portion
is fixed in sealed relation” (Kwiedorowicz, col. 1, ll. 50-53). The “chemical
protective hood . . . fits over a gas mask[,] portions of which project through
a face piece portion [ ] of the hood” (id. at col. 2, ll. 28-30).
Kwiedorowicz discloses that “[f]requently it is desirable to ventilate
the hood without completely doffing the hood” (id. at col. 1, ll. 63-64). “In
order to allow the person wearing the hood to retain the hood in place while
ventilating the hood, . . . the cape portion can be pulled up and adhered to
VELCRO hook patches” (id. at col. 2, ll. 56-61). Thus, Kwiedorowicz’s
hood is ventilated by pulling part of it up to allow ambient air to enter.
Avery discloses a protective suit that “can be a fully enveloping
protective garment such as a chemical suit or . . . a partially protective
Appeal 2011-005393
Application 10/843,636

5
garment such as a smoke hood and tunic” (Avery, col. 3, ll. 2-9). In one
embodiment, Avery’s suit “includes a body portion 50 that generally
envelops the torso 24 of wearer 26 and a preferably integrally formed hood
52 that generally envelops the head 28” (id. at col. 3, ll. 18-20). Avery
discloses that “[a]ir from the outer environment is drawn into the filters 36
interfacing with the outer environment. Filtered air is delivered from the
filters 36 to the hood portion 52 of suit 20 via blower 34 and conduit 46.”
(Id. at col. 3, ll. 47-51.)
Avery discloses that “supplying breathing air to an outlet in the suit’s
hood or head portion and [ ] exhausting air from the suit through a non-
return valve located below the wearer’s neck . . . provides a comfort-
enhancing airflow stream through the suit” (id. at col. 2, ll. 5-10). Avery
discloses that its suit includes “a partial flow restriction between the hood
portion and the body portion” and “provide[s] a comfort-enhancing
airstream and reduced measured CO2 levels without employing a face piece”
(id. at col. 2, ll. 32-33, 54-55).
We agree with the Examiner that, based on these disclosures, it would
have been obvious to modify Kwiedorowicz’s hood to include a blower and
filter as in Avery’s protective suit. Such a modification would have been
obvious in order to provide ventilation (a “comfort-enhancing airstream,” in
Avery’s words) without allowing potentially contaminated ambient air to
enter, as is required with Kwiedorowicz’s hood. Avery expressly discloses
that its system can be embodied in “a partially protective garment such as a
smoke hood and tunic” (Avery, col. 3, ll. 2-9), which would have made it
Appeal 2011-005393
Application 10/843,636

6
obvious to a skilled worker to combine its filtered-air ventilation with
Kwiedorowicz’s protective hood-and-cape system.
Appellants argue that “by ‘ventilation’ Kwiedorowicz means opening
the hood so outside air can enter to cool the interior of the hood for the
comfort of the wearer” (Reply Br. 85). By contrast, Appellants argue, they
have “invented a hood which remains independently pressurized with
filtered air from a blower/filter system that is independent from the gas mask
filters and the wearer’s respiration. Over-pressurization with filtered air is
not ventilation as described by Kwiedorowicz.” (Id. at 8-9.)
This argument is not persuasive. Claim 25 does not require any
specific interface between the claimed hood system and a mask. The same
is true of claim 42. The combination of Kwiedorowicz’s hood and Avery’s
filter/blower meets the structural requirements of claims 25 and 42, and
therefore it is reasonable to conclude that the system made obvious by the
prior art is capable of functioning as recited in the claims. Although the
prior art may have suggested combining the claimed elements for a different
reason than Appellants combined these elements, that does not make the
combination nonobvious. See KSR Int’l Co. v. Teleflex Inc., 550 U.S. 398,
419-20 (2007) (“[A]ny need or problem known in the field of endeavor at
the time of invention and addressed by the patent can provide a reason for
combining the elements in the manner claimed.”).

5 The Examiner designated the rejection in the Answer as a new ground of
rejection because of the additional explanation provided regarding the reason
for combining the cited references (Answer 4). Appellants responded in the
Reply Brief to the reasoning in the Answer.
Appeal 2011-005393
Application 10/843,636

7
Appellants also argue that “Avery discloses a personal containment
system which comprises a suit encapsulating the entire body of the wearer.
. . . The entire suit including the hood portion is pressurized using clean,
filtered, breathable air.” (Reply Br. 9.) Appellants argue that “the
ventilation described in Kwiedorowicz is completely unrelated to the
encapsulating suit of Avery. Kwiedorowicz is ventilating its hood with
outside ambient air in a low-risk environment to make it more comfortable
for the wearer.” (Id. at 11.) Appellants argue that the references would not
have suggested modifying Kwiedorowicz’s hood with Avery’s filter/blower
because the purpose of the filter/blower is to provide clean air to the user’s
entire body and head, while the purpose of Kwiedorowicz’s ventilation is to
provide outside ambient air under the user’s hood (id.).
This argument is not persuasive. Avery discloses that its filter/blower
provides air not only for breathing but that “exhausting air from the suit
through a non-return valve located below the wearer’s neck . . . provides a
comfort-enhancing airflow stream through the suit” (Avery, col. 2, ll. 5-10).
Thus, it would have been obvious to use Avery’s filter/blower to provide
breathable air, to provide ventilation, or both.
Finally, Appellants argue that “the combination of Kwiedorowicz and
Avery does not teach or suggest a hood having its own filter and blower
directing filtered into the hood to independently overpressurize the hood
with clean air” (Reply Br. 12).
We disagree. Kwiedorowicz teaches a hood that is used in
combination with a separate gas mask (Kwiedorowicz, col. 2, ll. 28-30).
The addition of Avery’s filter/blower to Kwiedorowicz’s hood would result
Appeal 2011-005393
Application 10/843,636

8
in a hood having a filter/blower that provides air for ventilation, and which
is used in combination with a gas mask that provides air for breathing.
Thus, the combined references would have made obvious a hood system
having a filter and a blower that provides air that is independent and separate
from the filtered air being supplied to the interior of the mask.
We therefore affirm the rejection of independent claims 25 and 42.
Claims 26, 28, and 41 fall with claim 25 because they were not argued
separately. 37 C.F.R. § 41.37(c)(1)(vii).
We also affirm the rejection of claim 29 under 35 U.S.C. § 103 based
on Kwiedorowicz, Avery, and Beaussant (Answer 6), and the rejection of
claims 30, 31, 33, and 36-39 under 35 U.S.C. § 103 based on Kwiedorowicz,
Avery, and Altshuler (Answer 7) because Appellants have waived additional
arguments based on Beaussant or Altshuler (see Appeal Br. 10, Reply Br.
14-15).
Claim 43 differs from claims 25 and 42, however, in that claim 43
requires both a hood and a mask as part of the claimed system, and requires
that the “hood [is] fitted around said outer edges of said . . . mask” (claim
43). We agree with Appellants that the prior art would not have made
obvious the hood system defined by claim 43.
Specifically, as to claim 43, we find persuasive Appellants’ argument
that, in the claimed system, the “hood is attached to the mask in such a way
as to provide an overpressure around the mask, i.e., to seal the periphery of
the mask to the face with overpressurized filtered air being blown directly
into the hood which is attached around the mask’s face seal” (Reply Br. 14).
Appeal 2011-005393
Application 10/843,636

9
Kwiedorowicz’s hood “fits over a gas mask[,] portions of which
project through a face piece portion 2 of the hood. Projecting portions of the
gas mask include eye lenses 3 and 4, a canister 6, a voicemitter 7 and a vent
8.” (Kwiedorowicz, col. 2, ll. 29-32.) Kwiedorowicz discloses that its hood
includes a cap portion 11 and a face piece portion 2; the “face piece 2 is
sealed completely around its periphery 14 to the border of the opening 12” in
the cap portion (id. at col. 2, ll. 39-42). Thus, Kwiedorowicz’s hood
includes a face piece portion that overlies the gas mask when the hood is in
use rather than being “fitted around said outer edges of said . . . mask” as
required by claim 43.
The Examiner’s rejection (Answer 4-5) does not provide a persuasive
reason for modifying Kwiedorowicz’s hood to include this limitation of
claim 43. Likewise, with respect to claim 44, the Examiner does not provide
a persuasive reason why this limitation would have been obvious based on
Altshuler (Answer 9). We therefore reverse the rejection of claim 43 as
obvious based on Kwiedorowicz and Avery, and the rejection of claim 44 as
obvious based on Kwiedorowicz, Avery, and Altshuler.
SUMMARY
We affirm the rejection of claims 25, 26, 28, 41, and 42 under 35
U.S.C. § 103(a) based on Kwiedorowicz and Avery; the rejection of claim
29 under 35 U.S.C. § 103 based on Kwiedorowicz, Avery, and Beaussant;
and the rejection of claims 30, 31, 33, and 36-39 under 35 U.S.C. § 103(a)
based on Kwiedorowicz, Avery, and Altshuler.
Appeal 2011-005393
Application 10/843,636

10
We reverse the rejection of claim 43 under 35 U.S.C. § 103(a) based
on Kwiedorowicz and Avery, and the rejection of claim 44 under 35 U.S.C.
§ 103(a) based on Kwiedorowicz, Avery, and Altshuler.
TIME PERIOD FOR RESPONSE
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 IN PART

lp