Ex Parte Hofmann

Patent Trial and Appeal Board

Jul 15, 2013

10559095 (P.T.A.B. Jul. 15, 2013)

UNITED STATES PATENT AND TRADEMARK OFFICE
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BEFORE THE PATENT TRIAL AND APPEAL BOARD
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Ex parte MARIANNE HOFMANN
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Appeal 2011-007314
Application 10/559,095
Technology Center 3700
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Before PHILLIP J. KAUFFMAN, BARRY L. GROSSMAN, and
BART A. GERSTENBLITH, Administrative Patent Judges.

GERSTENBLITH, Administrative Patent Judge.

DECISION ON APPEAL

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STATEMENT OF THE CASE
Marianne Hofmann (“Appellant”) appeals under 35 U.S.C. § 134 from
the Examiner’s decision rejecting claims 22, 25-28, and 31-40. We have
jurisdiction under 35 U.S.C. § 6(b).
The Claimed Subject Matter
Claims 22, 39, and 40 are the independent claims on appeal. Claim 22
is representative of the claimed subject matter and is reproduced below.
22. A hood, in particular for a clothing item for
protective and military purposes, such as an NBC protective
suit, said hood comprising:
a hood body having a peripheral edge defining a face
opening, said face opening being constructed and arranged for
receiving a respirator;
a peripheral elastic hem attached to said peripheral edge,
said peripheral elastic hem being constructed and arranged to
extend around said face opening, said peripheral elastic hem
having an inner face and an outer face; and
a plurality of peripheral sealing elements conjoined to the
inner face of said peripheral elastic hem, said plurality of
peripheral sealing elements comprised of elastofibers and being
constructed and arranged for closeout abutment against and
around the respirator received by said face opening, wherein the
individual sealing elements are in substantially parallel
arrangement with each other, wherein the sealing elements abut
the respirator linearly, and wherein the sealing elements project
or protrude from the hem.
App. Br. 30 (Claims App’x, Claim 22). Independent claim 39 is directed to
a clothing item comprising, inter alia, “a plurality of peripheral sealing
elements . . . said plurality of peripheral sealing elements comprised of
elastofibers.” Id. at 32-33 (Claims App’x, Claim 39). Independent claim 40
is directed to a method for closing out the transition between two portions of
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clothing items by using an elastic hem comprising, inter alia, “providing a
plurality of sealing elements in the form of elastofibers; and conjoining said
plurality of sealing elements with the inner face of said hem.” Id. at 33
(Claims App’x, Claim 40).
References
The Examiner relies upon the following prior art references:
Pampuch US 4,174,710 Nov. 20, 1979
Wood GB 2,078,491 Jan. 13, 1982
Rejections
The Examiner makes the following rejections:
I. Claims 22, 27, 28, 32, 35, 37, 39, and 40 are rejected under 35
U.S.C. § 102(b) as anticipated by Pampuch;
II. Claims 25, 26, 31, 33, and 34 are rejected under 35 U.S.C.
§ 103(a) as unpatentable over Pampuch; and
III. Claims 36 and 38 are rejected under 35 U.S.C. § 103(a) as
unpatentable over Pampuch and Wood.
SUMMARY OF DECISION
We REVERSE.
OPINION
Rejection I
The Examiner found that Pampuch discloses each and every element
of claims 22, 27, 28, 35, 37, 39, and 40. Ans. 3-6. In particular, the
Examiner found that one of the embodiments disclosed in Pampuch includes
providing the inside surface of the elastic band with surrounding laterally
spaced ribs of an elastic construction. Id. at 4. The Examiner found that the
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disclosure of elastic ribs thus included disclosing elastofibers because elastic
inherently includes elastofibers. Id. (“and a plurality of peripheral sealing
elements conjoined to the inner face of said peripheral elastic hem (see
column 2, lines 12-16), said plurality of peripheral sealing elements
comprised of elastofibers and being construed (inherent due to elastic
material construction), and arranged for abutment”) (emphasis added). The
Examiner further explained that Appellant’s Specification allegedly
discloses that the sealing elements are made of elastic, “which would include
the elastic band of Pampuch.” Id. at 12. The Examiner found that the
Specification discloses fibers formed from natural rubber as an example of
elastomeric fibers (id. at 13), and that elastic is an elastomeric formed from
natural rubber (id. at 14). The Examiner thus found that Pampuch discloses
sealing elements formed of elastofibers. Id. at 14.
Appellant raises several arguments in response to this rejection
including, inter alia, that Pampuch does not disclose the type of material
used to form the ribs on the inside surface of the elastic band. App. Br.
16-18. Appellant contends that the Examiner’s finding is based on several
assumptions including at least that the ribs are formed of an elastic material
and that said elastic material comprises elastofibers, neither of which is
disclosed by Pampuch. See id.
A determination that a claim is anticipated under 35 U.S.C. § 102(b)
involves two analytical steps. First, we interpret the claim language, where
necessary, giving the claims their broadest reasonable interpretation in light
of the Specification. In re Crish, 393 F.3d 1253, 1256 (Fed. Cir. 2004).
Second, we compare the construed claim to a prior art reference to determine
whether “each and every limitation is found either expressly or inherently in
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[that] single prior art reference.” Id. The elements in the reference “must be
arranged as in the claim . . . but this is not an ‘ipsissimis verbis’ test.” In re
Bond, 910 F.2d 831, 832 (Fed. Cir. 1990). Further, an Examiner’s factual
finding regarding what a reference discloses must be supported by a
preponderance of the evidence. See In re Caveney, 761 F.2d 671, 674 (Fed.
Cir. 1985) (“preponderance of the evidence is the standard that must be met
by the PTO in making rejections”); see also In re Oetiker, 977 F.2d 1443,
1449 (Fed. Cir. 1992) (Plager, J., concurring) (“In rejecting an application,
factual determinations by the PTO must be based on a preponderance of the
evidence, and legal conclusions must be correct.”).
Pampuch is directed to a connection between two different parts of a
protective covering, such as a mask and protective suit. Pampuch, col. 1, ll.
5-7. Pampuch describes in detail a first embodiment shown in the sole
Figure provided, in which “an elastic band 5 that serves as the connection or
joint between” the suit and mask. Id. at col. 1, ll. 55-58. In one
embodiment, Pampuch discloses that the inside surface of the elastic band
overlaps and engages ribs 2 of the mask and produces a gas-tight joint. Id. at
col. 1, l. 67 – col. 2, l. 7 (“In order to join suit 4 to the mask 1, the elastic
connecting band 5, which forms part of the suit, is drawn forward over the
ribs 2 of the mask and also over the rib 3. As a result, rib 3 is securely held
in groove 5c to connect the suit and mask, and the smooth inside surface of
the elastic band overlaps and engages ribs 2 of the mask with a certain
contact pressure and thus produces, in association with the labyrinth-like ribs
2 and 2a, a gas-tight joint between the suit and mask.”).
The Examiner relied upon a second embodiment in which Pampuch
discloses that “[a]n additional form of construction made in accordance with
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this invention is one in which the inside surface of the elastic band is also
provided with surrounding laterally spaced ribs.” Id. at col. 2, ll. 12-15.
This one sentence constitutes the entirety of Pampuch’s disclosure with
respect to the ribs on the inside surface of the elastic band. This one
sentence, quite simply, does not identify the material used to form the ribs—
it does not identify whether the material is elastic or otherwise.1 In light of
the sparse discussion of the ribs on the inside surface of the elastic band
(which the Examiner relied upon as disclosing the peripheral sealing
elements of the claims), the Examiner’s finding that the ribs are elastic is not
supported by a preponderance of the evidence.2
Accordingly, we do not sustain rejection I.3
Rejections II and III
In rejecting dependent claims 25, 26, 31, 33, and 34 (Rejection II),
and 36 and 38 (Rejection III), the Examiner relied upon the same finding
with respect to Pampuch that we discussed in Rejection I. Accordingly, for
the reasons we explained in the context of Rejection I, we do not sustain
Rejections II and III.

1 Nor, for that matter, does Pampuch disclose the material used to construct
ribs 2, 2a, or 3 of the first embodiment.
2 Because of this finding, we need not decide whether an elastic material
inherently includes elastofibers.
3 As noted above, each independent claim calls for the sealing elements to
comprise or be in the form of elastofibers.
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DECISION
We REVERSE the Examiner’s decision rejecting claims 22, 25-28,
and 31-40.

REVERSED

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