11022379 (P.T.A.B. Mar. 20, 2013)

Ex Parte Kleman

Patent Trial and Appeal BoardMar 20, 2013

11022379 (P.T.A.B. Mar. 20, 2013)

UNITED STATES PATENT AND TRADEMARKOFFICE 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. 11/022,379 12/21/2004 INV001Angela M. Kleman KCX-896 (19875) 3622 22827 7590 03/20/2013 DORITY & MANNING, P.A. POST OFFICE BOX 1449 GREENVILLE, SC 29602-1449 EXAMINER DIXON, ANNETTE FREDRICKA ART UNIT PAPER NUMBER 3778 MAIL DATE DELIVERY MODE 03/20/2013 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 ANGELA M. KLEMAN __________ Appeal 2011-005634 Application 11/022,379 Technology Center 3700 __________ Before TONI R. SCHEINER, ERIC GRIMES, and SHERIDAN K. SNEDDEN, Administrative Patent Judges. SCHEINER, Administrative Patent Judge. DECISION ON APPEAL This is an appeal under 35 U.S.C. § 134 from the rejection of claims 1-20, directed to a protective face mask. The Examiner has rejected the claims on the grounds of anticipation and obviousness. We have jurisdiction under 35 U.S.C. § 6(b). App App 1. of a nose throu body away expo conf retai expo has a surfa expo elem elem eal 2011-0 lication 11 Claims 1 A face m a body p nose of a u of the use gh said bo portion, w from the sed surfac igured to c a fasteni ning said b an absor sed outer first side ces and a sed to eith ent is conf ent is capa Figure 3 05634 /022,379 ST -20 are pe ask, comp ortion con ser in ord r from the dy portion herein sa user when e facing to ontact the ng membe ody portio bent eleme surfaces of adjacent to second sid er the user igured for ble of abs of the pre ATEMEN nding and rising: figured to er to isolat environm and subs id body po worn, wh wards the face of th r attached n onto the nt located said body one of sa e opposite or the env retaining orbing at l sent Speci 2 T OF TH on appeal be placed e the mout ent such th equently e rtion has a erein said user and w e user whe to said bo face of a on at leas portion s id exposed to the firs ironment liquid, and east 3.5 gr fication is E CASE . Claim 1 over a mo h and the at respirat xhaled by n outer ex body porti herein sa n worn; dy portion user; and t one of sa o that the a inner and t side that , wherein s wherein ams of wa reproduce is represe uth and at at least pa ion air is d the user th posed sur on has an id inner su and confi id exposed bsorbent exposed is comple aid absorb said absorb ter. d below: ntative: least part rt of the rawn rough said face facing inner rface is gured for inner and element outer tely ent ent Appeal 2011-005634 Application 11/022,379 3 Figure 3 depicts a face mask 10 that meets the limitations of claim 1, showing the side of the mask that faces the wearer. Mask 10 has a body portion 12 with an inner surface 18 and an oppositely disposed outer surface 16 (not labeled in Figure 3). An absorbent element 22 is shown on the inner surface 18, but could also be on outer surface 16, or on both the inner and outer surfaces (Spec. 11: 2-6; 24-26). According to the Specification, “absorbent element 22 is capable of absorbing at least 3.5 grams of water so as to capture moisture vapor and/or condensation due to human respiration and perspiration so as to reduce or eliminate fogging of . . . eye wear and/or a face shield that may be worn” (id. at 10: 12-16). The Examiner relies on the following evidence of anticipation and obviousness: Baumann et al. US 5,706,804 Jan, 13, 1998 Dunshee et al. US 5,976,117 Nov. 2, 1999 McDowall et al. US 6,362,389 B1 Mar. 26, 2002 Foti US 6,375,724 B1 Apr. 23, 2002 Bostock et al. US 6,568,392 B1 May 27, 2003 The claims stand rejected as follows: I. Claims 1, 3-5, 8, 9, 11, 12, and 15 under 35 U.S.C. § 102(b) as anticipated by Baumann. II. Claims 2, 10, 16, 17, and 20 under 35 U.S.C. § 103(a) as unpatentable over Baumann and McDowall. III. Claims 1, 3, 6, 7, 9, 11, 13-15, 18, and 19 under 35 U.S.C. § 102(b) as anticipated by Bostock. IV. Claims 1, 3, 6, 8, 9, 11, 13, 15, and 19 under 35 U.S.C. § 102(b) as anticipated by Dunshee. Appeal 2011-005634 Application 11/022,379 4 V. Claims 2, 10, 16, 17, and 20 under 35 U.S.C. § 103(a) as unpatentable over Dunshee and McDowall. VI. Claims 1, 3, 6, 8, 9, 11, 13, 15, and 18 under 35 U.S.C. § 102(b) as anticipated by Foti. VII. Claims 2, 10, 16, 17, and 20 under 35 U.S.C. § 103(a) as unpatentable over Foti and McDowall. We reverse rejections I-V; affirm rejection VI with respect to claims 1, 3, 9, 11, 15, and 18, but reverse with respect to claims 6, 8, and 13; and affirm rejection VII. DISCUSSION Claim Construction As a preliminary matter, we note that the Examiner initially rejected claims 1-20 as indefinite under 35 U.S.C. § 112, second paragraph (Office Action mailed February 2, 2010, 3-4). Specifically, the Examiner required Appellant to clarify whether “the absorbent element only cover[s] a portion of the outer exposed surface . . . [or] [d]oes the absorbent element completely cover the outer exposed surface?” (id. at 4). The Examiner withdrew the indefiniteness rejection (Ans. 4) in response to Appellant’s argument that “the claims clearly require an outer exposed surface facing away from a user and an inner exposed surface facing towards a user. In order for such surfaces to be ‘exposed’ as required by the claims, the absorbent element would not cover the entirety of such surfaces” (App. Br. 7). We further note that this construction of the claim is entirely consistent with all of the Figures in the present Specification (see e.g., Figure 4, above). App App Baum over Figu 16, a mask col. 14 is micr redu addi to in mask can b col. all th abso eal 2011-0 lication 11 Claims 1 ann, and Baumann Figure 2 re 2 of Bau nd 18) tha while inh 2, l. 66 - co an outer c ofiber-con “The sur cing agent tion, “[t]he crease the 10” (id. a e increase 6, ll. 10-12 The Exa e element rbent elem 05634 /022,379 , 3-5, 8, 9 claims 2, and McDo of Bauma mann dep t cooperat ibiting the l. 3, l. 2). over layer taining lay face of eit . . . to inc fibers of [hydropho t col. 4, ll d by incor , 21-26). miner find s of claims ent (14) lo , 11, 12, an 10, 16, 17, wall. nn is repro icts “a fac e with eac passage o “Layer 12 . The pur ers 16 and her [12 or rease liqui mat 18 inc bicity and . 1-4), and porating a s that Bau 1, 3-5, 8, cated on a 5 I & II d 15 stand and 20 sta duced bel e mask 10 h other to f liquid th is a face- pose of lay 18” (id. a 14] may b d repellenc lude . . . su ] liquid re the “liquid surface en mann disc 9, 11, 12, t least one rejected nd rejecte ow: featuring allow gas rough the contacting ers 12 and t col. 3, ll e treated w y” (id. at rface ene sistance of resistanc ergy redu loses a fac and 15, pa of said ex as anticipa d as unpat four layer to pass thr mask” (Ba layer, wh 14 is to c . 24-26). ith a surf col. 3, ll. 3 rgy reduci the mat, a e . . . [of la cing agent e mask th rticularly posed inn ted by entable s (12, 14, ough the umann, ile layer ontain ace energy 8-40). In ng agents nd thus yer 16] ” (id. at at includes “an er (12) and Appeal 2011-005634 Application 11/022,379 6 exposed outer surfaces (18)” (Ans. 5). With respect to claims 2, 10, 16, 17, and 20, the Examiner finds that McDowall applies “a hydrophilizing surface treatment to cellulose fibers for the purpose of increasing the absorptive qualities of the cellulose fibers” (id. at 10), and concludes that it would have been obvious for one of ordinary skill in the art “to modify the absorbent element of Baumann to include a surfactant as taught by McDowall for the purpose of increasing the absorptive qualities of the facemask” (id.). However, we agree with Appellant that Baumann’s face mask does not anticipate the claimed face mask, at the very least because Baumann’s “layer 18 is not an ‘outer exposed surface’” (App. Br. 9), and there is no factual basis for the Examiner’s assertion “that layer 14 (so-called absorbent element) is even absorbent” (id.). On the contrary, Baumann discusses methods of increasing the liquid-repellency of each of the layers in its face mask. Moreover, we agree with Appellant that McDowall would not have given one of ordinary skill in the art a reason to increase the hydrophilic properties of any of the layers of Baumann’s face mask, as all of the layers in the face mask are disclosed as preferably hydrophobic. The rejection of claims 1, 3-5, 8, 9, 11, 12, and 15 as anticipated by Baumann is reversed, as is the rejection of claims 2, 10, 16, 17, and 20 as unpatentable over Baumann and McDowall. App App by B depi Figu devi porti 1-5), of th . . . m eal 2011-0 lication 11 Claims 1 ostock. Bostock cted in Fig re 2 is a cr ce 10, show on 12, a fi and “attac e same dev “At leas ust comp The Exa Bostock (12) tha environm (defined 05634 /022,379 , 3, 6, 7, 9 discloses ures 2 and oss-sectio n in its fo rst membe hment me ice in its t one of th rise filter m miner find discloses t has an ent) whe as the sp , 11, 13-1 a fold-flat 4, reprodu n of Bosto ld-flat for r 14 and a ans 18” (i open, read e central p edia” (id s that: a face ma outer e n worn o ace betwe 7 III 5, 18, and personal r ced below ck’s perso m for stor second m d. at col. 5 y-to-use c ortion, firs . at col. 9, sk (10), co xposed su n the fac en elemen 19 stand r espiratory : nal respira age, and “h ember 16” , l. 14). F onfiguratio t member ll. 25-27). mprising rface (ex e and an ts 12 and ejected as protection tory prote aving a c (Bostock igure 4 is a n. and secon a body po posed to inner su 14 as see anticipated device, ction entral , col. 5, ll. side view d member rtion the rface n in Appeal 2011-005634 Application 11/022,379 8 figure 2) oppositely disposed to said outer surface . . . ; an absorbent element (the combination of elements 14 and 16) located on the inner exposed surface of the body portion, where the absorbent element (the combination of elements 14 and 16) has a first side in contact with the inner exposed surface of the body portion and a second side opposite the first side and exposed to the user (Figure 2). Regarding the absorbent element, Bostock discloses the absorbent element is made of cellulose material (Column 8, Lines 5-25). Inherently, as the device of Bostock utilizes the same material as the Applicant, the device of Bostock would absorb at least 3.5 grams of water. (Ans. 6-7.) However, we find that members 14 and 16 are not located on the exposed inner surface of central portion 12, that is, neither element 14 nor element 16 has “a first side adjacent to . . . said exposed inner . . . surface” of central portion 12, except transiently in the fold-flat configuration shown in Figure 2. Rather, members 14 and 16 are extensions of the central portion 12. Moreover, we agree with Appellant that the Examiner has not established that “first and second members 14 and 16 provid[e] absorbent capacity, let alone the capability of absorbing at least 3.5 grams of water” as required by the claims (App. Br. 14), merely because they may be made from an unspecified form of cellulose. On the contrary, Bostock teaches that “[t]he first member may be formed . . . from a material which provides a moisture barrier” (Bostock, col. 9, l. 33). The rejection of claims 1, 3, 6, 7, 9, 11, 13-15, 18, and 19 as anticipated by Bostock is reversed. Appeal 2011-005634 Application 11/022,379 9 IV & V Claims 1, 3, 6, 8, 9, 11, 13, 15, and 19 stand rejected as anticipated by Dunshee, and claims 2, 10, 16, 17, and 20 stand rejected as unpatentable over Dunshee and McDowall. Dunshee discloses a wound dressing comprising a flexible sheet material comprising a backing and a pressure-sensitive adhesive covering at least a portion of the backing for adhering the sheet material to the skin, and an absorbent region having “a first surface opposite the backing adapted for contact with a wound and for facilitating cell regeneration in . . . the wound” (Dunshee, col. 1, ll. 32-58). We agree with Appellant that Dunshee’s wound dressing is not configured to be placed over a mouth and at least part of a nose in the manner of a respiratory face mask, as required by the claims. The Examiner does not rely on McDowall to cure this deficiency. The rejection of claims 1, 3, 6, 8, 9, 11, 13, 15, and 19 as anticipated by Dunshee is reversed, as is the rejection of claims 2, 10, 16, 17, and 20 as unpatentable over Dunshee and McDowall. VI Claims 1, 3, 6, 8, 9, 11, 13, 15, and 18 stand rejected as anticipated by Foti. Foti discloses a humidification and filtration mask with an open cell foam reservoir attached to the inner surface of the mask. The reservoir can hold a teaspoon of water, and is capable of absorbing moisture from expired air. Figure 1 of Foti is reproduced below: App App Figu foam 29-3 reser flexi irrita at co with (in F 8) an comp Note . . . eal 2011-0 lication 11 re 1 depict reservoir “A teasp 6, 53). In voir” (id. ble nature tion to the l. 2, ll. 37- The Exa an inner s igure 1, in d “an abso letely exp : 5 millilit Appellan designed t 05634 /022,379 s Foti’s hu 2 secured oon (5 mL addition, m at col. 2, ll is depicted skin by lo 40). miner find urface “co ner surfac rbent elem osed to th ers = 5 gra t contend o release w midificati to the inne ) of water oisture-ri . 58-60). along the ng term ex s, in relev nfigured to e contactin ent (2) lo e user, cap ms” (id. a s that abso ater and 10 on and filt r surface charges th ch expired “A coating facial edg posure to ant part, th contact t g the chin cated on th able of ab t 9). rbent elem disperse it ration mas of the pape e reservoi air “rech or liner o e of the m the wet pa at Foti dis he face of , and the n e inner ex sorbing 5 ent 2 of evenly th k 1, with r mask. r 2” (Foti, arges the m f plastic g ask to pre per of the closes a fa the user w asal bridg posed sur grams of w Foti is a roughout open cell col. 2, ll. ask and laze 8 of a vent mask” (id ce mask hen worn e)” (Ans. face and ater . . . “‘reservoir [the] pape . ’ r Appeal 2011-005634 Application 11/022,379 11 mask so to the extent water can be used to ‘charge’ such reservoir, the reservoir does not absorb the water but rather disperses it” (App. Br. 18). Appellant contends that “the mask is designed to ‘prevent irritation to the skin by long term exposure to the wet paper of the mask’ since the water is not absorbed by the reservoir but rather dispersed by such reservoir across other portions of the mask, hence causing the wet paper to result” (id.). This argument is not persuasive. Not only is the reservoir of Foti’s mask capable of absorbing 5 grams of water (as it must do before it can disperse it), Foti expressly teaches that the reservoir is capable of being charged by moisture-laden expired air (Foti, col. 2, ll. 58-60). Claims 6, 13, and 18 Dependent claims 6, 13, and 18 require that the absorbent element is located on the inner or outer exposed surface of the body portion “so as to form a perimeter bounding an area of said surface.” The Examiner finds that “the placement of the absorbent element (2) forms a perimeter bounding area” (Ans. 9). However, we agree with Appellant that Foti’s reservoir, i.e., element 2, “is located in the middle of the humidification mask” (id.), rather than forming a perimeter bounding an area of the inner surface. Accordingly, the rejection of the claims as anticipated by Foti is affirmed with respect to claims 1, 3, 8, 9, 11, and 15, and reversed with respect to claims 6, 13, and 18. VII Claims 2, 10, 16, 17, and 20 stand rejected as unpatentable over Foti and McDowall. Appeal 2011-005634 Application 11/022,379 12 These claims require that the absorbent element is “treated with a surfactant so as to increase the hydrophilic property of said absorbent element” (see e.g., claim 2). The Examiner concedes that Foti does not expressly disclose this limitation, but finds that McDowall teaches “applying a hydrophilizing surface treatment to cellulose fibers for the purpose of increasing the absorptive qualities of the cellulose” (Ans. 11). The Examiner concludes that it would have been obvious for one skilled in the art “to modify the absorbent element of Foti to include a surfactant as taught by McDowall for the purpose of increasing the absorptive qualities of the facemask” (id.). Appellant contends that Foti “is directed to a ‘humidifying filtration mask’ and is actually concerned with liquid dispersion. As such . . . Foti teaches away from combination with McDowall et al. in the manner suggested in the Office Action” (App. Br. 21). This argument is not persuasive. Foti’s reservoir is designed to absorb water, whether from an initial charging, or from moisture-laden expired air. We agree with the Examiner that it would have been obvious to enhance the absorptive capacity of the reservoir by conventional means, such as the surfactant taught by McDowall. The rejection of claims 2, 10, 16, 17, and 20 as unpatentable over Foti and McDowall is affirmed. SUMMARY I. The rejection of claims 1, 3-5, 8, 9, 11, 12, and 15 under 35 U.S.C. § 102(b) as anticipated by Baumann is reversed. II. The rejection of claims 2, 10, 16, 17, and 20 under 35 U.S.C. § 103(a) as unpatentable over Baumann and McDowall is reversed. Appeal 2011-005634 Application 11/022,379 13 III. The rejection of claims 1, 3, 6, 7, 9, 11, 13-15, 18, and 19 under 35 U.S.C. § 102(b) as anticipated by Bostock is reversed. IV. The rejection of claims 1, 3, 6, 8, 9, 11, 13, 15, and 19 under 35 U.S.C. § 102(b) as anticipated by Dunshee is reversed. V. The rejection of claims 2, 10, 16, 17, and 20 under 35 U.S.C. § 103(a) as unpatentable over Dunshee and McDowall is reversed. VI. The rejection of the claims under 35 U.S.C. § 102(b) as anticipated by Foti is affirmed with respect to claims 1, 3, 9, 11, 15, and 18, and reversed with respect to claims 6, 13, and 18. VII. The rejection of claims 2, 10, 16, 17, and 20 under 35 U.S.C. § 103(a) as unpatentable over Foti and McDowall is affirmed. 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 dm