Mark Magidson et al.

Patent Trials and Appeals Board

Sep 25, 2020

13999345 - (D) (P.T.A.B. Sep. 25, 2020)

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.
13/999,345 02/13/2014 Mark Magidson D-195 6774
11058 7590 09/25/2020
Moldex - Metric, Inc.
10111 W. Jefferson Blvd
Culver City, CA 90232
EXAMINER
LOUIS, LATOYA M
ART UNIT PAPER NUMBER
3785
NOTIFICATION DATE DELIVERY MODE
09/25/2020 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):
charless@moldex.com
gloriab@moldex.com
joepaunovich@quinnemanuel.com
PTOL-90A (Rev. 04/07)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________

Ex parte MARK MAGIDSON and CREST TURDJIAN

Appeal 2020-000905
Application 13/999,345
Technology Center 3700
____________

Before MICHAEL C. ASTORINO, KENNETH G. SCHOPFER, and
BRADLEY B. BAYAT, Administrative Patent Judges.

SCHOPFER, Administrative Patent Judge.

DECISION ON APPEAL
Pursuant to 35 U.S.C. § 134(a), Appellant1 appeals from the
Examiner’s decision to reject claims 1–24. We have jurisdiction under
35 U.S.C. § 6(b). A hearing was held on September 11, 2020.
We REVERSE.

1 We use the word “Appellant” to refer to “applicant” as defined in 37
C.F.R. § 1.42. Appellant identifies the real party in interest as Moldex-
Metric, Inc. Appeal Br. 2.
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BACKGROUND
The Specification discloses that “[t]he present invention relates to a
pleated filtering face piece respirator and in particular to a pleated filtering
face piece respirator formed from a plurality of layers and with the
individual layers serving different functions.” Spec. 1.
CLAIMS
Claims 1 and 17 are the independent claims on appeal and recite:
1. A method of making a flexible pleated filtering face piece
respirator to be worn on the face of a wearer, having an overall
structure of continuous, adjacent and unopposed pleats to allow
the face piece to expand and contract to any facial movement,
and for providing filtering including the following steps,
providing at least one layer of flexible plastic material
formed from openwork flexible plastic material that provides
support and for providing a plurality of perforations for allowing
for the free passage of air through the openwork plastic,
providing a layer of filter material for filtering impurities
in the air,
positioning the at least one layer of flexible plastic
material formed from openwork flexible plastic material and the
layer of filter material for filtering impurities in the air to lie one
on top of the other to form a multilayer of flexible plastic material
and filter material where the flexible plastic material provides
support for the filter material,
providing a pleater for pleating sheet material into pleated
material having an overall structure of continuous, adjacent and
unopposed pleats,
moving the multilayer of flexible plastic material and filter
material to the pleater,
pleating the multilayer of flexible plastic material and
filter material to form a pleated composite layer of flexible
plastic material and filter material having an overall structure of
continuous, adjacent and unopposed pleats,
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providing male and female molding members having a
mold configuration conforming generally to the contours of the
face of the wearer,
moving the pleated composite layer of flexible plastic
material and filter material, between the male and female
molding members, and
pressing the male and female molding members together
to form the pleated filtering face piece respirator to the desired
configuration by molding the at least one layer of openwork
flexible plastic material to form a support layer to carry the layer
of filter material and having an overall structure of continuous,
adjacent and unopposed pleats to allow the face piece to expand
and contract to any facial movement.
17. A flexible pleated molded filtering face piece respirator to
be worn upon the face of a wearer having an overall structure of
continuous, adjacent and unopposed pleats to allow the face
piece to expand and contract to any facial movement and for
providing filtering including,
at least one layer of moldable flexible plastic material
formed from openwork flexible plastic material that provides
support and for providing a plurality of perforations for allowing
for the free passage of air through the openwork plastic,
a layer of moldable filter material for filtering impurities
in the air,
the at least one layer of flexible plastic material formed
from openwork flexible plastic material and the layer of filter
material for filtering impurities in the air lying one on top of the
other to form a moldable multilayer of flexible plastic material
and filter material where the flexible plastic material provides
support for the filter material, and
wherein the moldable multilayer of flexible plastic
material and filter material are pleated into pleated material and
molded to form the pleated filtering face piece respirator to a
desired configuration wherein the at least one layer of openwork
flexible plastic material forms a support layer to carry the layer
of filter material and having an overall structure of continuous,
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adjacent and unopposed pleats to allow the face piece to expand
and contract to any facial movement.
Appeal Br., Claims App. 1–2, 4–5.
REJECTIONS
1. The Examiner rejects claims 1–3, 7–10, and 14–16 under 35 U.S.C.
§ 103(a) as unpatentable over Turdjian2 in view of Gebrewold,3 Kern,4
Rocklitz,5 and Reese.6
2. The Examiner rejects claims 4–6 and 11–13 under 35 U.S.C. § 103(a) as
unpatentable over Turdjian in view of Gebrewold, Kern, Rocklitz, Reese,
Westwood,7 and Braun.8
3. The Examiner rejects claims 17, 18, 23, and 24 under 35 U.S.C. § 103(a)
as unpatentable over Turdjian in view of Gebrewold and Reese.
4. The Examiner rejects claim 19 under 35 U.S.C. § 103(a) as unpatentable
over Turdjian in view of Gebrewold, Reese, and Kern.
5. The Examiner rejects claims 20–22 under 35 U.S.C. § 103(a) as
unpatentable over Turdjian in view of Gebrewold, Reese, Kern,
Westwood, and Braun.
DISCUSSION
We are persuaded by Appellant’s argument that the Examiner has not
established that the proposed combinations of art would result in a method

2 Turdjian, US 2006/0266364 A1, pub. Nov. 30, 2006.
3 Gebrewold et al., US 2009/0078265 A1, pub. Mar. 26, 2009.
4 Kern et al., US 5,701,893, iss. Dec. 30, 1997.
5 Rocklitz, US 2010/0078379 A1, pub. Apr. 1, 2010.
6 Reese et al., US 5,553,608, iss. Sept. 10, 1996.
7 Westwood, US 2011/0123775 A1, pub. May 26, 2011.
8 Braun et al., US 5,763,078, iss. June 9, 1998.
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or apparatus in which a multilayer of flexible plastic material and filter
material are pleated so as to form a structure with continuous, adjacent, and
unopposed pleats.
In rejecting each of independent claims 1 and 17, the Examiner relies
on a combination of Turdjian and Gebrewold to result in a mask with a
pleated multilayer flexible plastic support and filtering structure. See Final
Act. 3, 5–6. For example, with respect to claim 17, the Examiner finds that
Turdjian teaches a molded filtering face piece respirator with a layer of
moldable flexible openwork plastic and a layer of moldable filtering
material, wherein the layer of plastic and layer of filtering material lie
together to form a moldable multilayer. Id. at 3. The Examiner
acknowledges that Turdjian does not teach that the moldable multilayer
material is pleated. Id. The Examiner then finds and determines:
Gebrewold teaches in fig. 4 pleating (58) a multiplayer (51a, 51b,
52). It would have been obvious to one of ordinary skill in the
art at the time the invention was made to manufacture the
multilayers of Turdjian with at least one pleat as taught by
Gebrewold to aide in accommodating wearer movements as
disclosed by Gebrewold in [0002] lines 1-5.
Id.
Appellant argues that the combination does not disclose or suggest a
pleated plastic material that forms a support layer for carrying the filter
material. Appeal Br. 13. In support, Appellant asserts that Turdjian does
not teach any pleated support plastic layer and to the extent that Gebrewold
teaches a respirator with pleated material, the pleated material is separate
from Gebrewold’s disclosed support structure. Id. at 15.
We agree with Appellant. Specifically, we find that the Examiner has
not adequately explained how a person of ordinary skill in the art would
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have arrived at the claimed structure of a combined plastic support and
filtering layer that is pleated based on the relied upon evidence and without
the benefit of impermissible hindsight. We agree with Appellant that
Gebrewold discloses a separate and distinct support structure from the
pleated filtering structure. See Appeal Br. 16. Specifically, Gebrewold
discloses a respirator that is the combination of two separate parts: a filtering
layer as shown in Figure 4 and a support structure as shown in Figure 5.
Gebrewold discloses that prior art masks use an open-work plastic mesh to
support a filtration layer and that such prior art masks “were lacking in an
ability to dynamically respond to wearer jaw movement.” Gebrewold ¶ 11.
To overcome this deficiency, Gebrewold discloses a mask that includes a
support structure with “first and second transversely-extending members and
a filtering structure that includes a pleat that is capable of expanding when
first and second transversely-extending members of the support structure
move away from each other.” Id. Gebrewold provides for movement of the
support structure by constructing it using a “living hinge” where moveable
transversely extending support members meet. Id. ¶ 59. Further, Gebrewold
explicitly discloses that “[t]he support structure is a part or assembly that is
not integral to (or made from) the filtering structure.” Id. ¶ 61.
Based on this disclosure, Gebrewold clearly distinguishes the support
structure from the pleated filtering structure and discloses that those
structures are not connected. See also Appeal Br. 16. One of ordinary skill
would understand that Gebrewold’s support structure does not include a
pleat and instead includes a hinge to accommodate facial movement.
Further, the Examiner has not cited to any further disclosure in Gebrewold
that teaches or suggests that the support structure might include a pleat.
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Thus, given that Gebrewold specifically distinguishes prior art masks with
an open-work plastic used in conjunction with a filtering layer and provides
for separate support and filtering structures to overcome the deficiencies of
such prior art masks, we agree with Appellant that the Examiner has not
established that the proposed combination would result in an apparatus
including a pleated moldable multilayer of flexible plastic material as
required by claim 17.
In response to Appellant’s argument related to the above, the
“Examiner notes that the cover webs [of Gebrewold] helps [sic] keep the
filter material 52[ ]encased and are thus supportive.” Ans. 10. The
Examiner, however, does not explain adequately why one of ordinary skill in
the art would have recognized that Gebrewold’s cover webs intended “to
capture any fibers that could come loose” (Gebrewold ¶ 59) provide the
support required by claims 1 and 17. And we fail to see why one of ordinary
skill in the art would have recognized that benefit from Gebrewold’s cover
webs given Gebrewold’s clear teaching of separate support and filtering
structures and Gebrewold’s comparison between such a support structure
and the use of open-work plastic material for support in prior art masks.
Based on the foregoing and because the Examiner does not rely on
any additional evidence or further reasoning that would cure the deficiency
discussed above, we do not sustain the rejections of independent claims 1
and 17. We also do not sustain the rejections of the dependent claims for the
same reasons because the Examiner does not rely on any of the other cited
references to remedy the deficiency in Gebrewold.
CONCLUSION
We REVERSE the rejections of claims 1–24.
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In summary:
Claims
Rejected
35 U.S.C. § Basis Affirmed Reversed
1–3, 7–10,
14–16
103(a) Turdjian,
Gebrewold,
Kern, Rocklitz,
Reese
1–3, 7–
10, 14–
16
4–6, 11–13 103(a) Turdjian,
Gebrewold,
Kern, Rocklitz,
Reese,
Westwood,
Braun
4–6, 11–
13
17, 18, 23, 24 103(a) Turdjian,
Gebrewold,
Reese
17, 18,
23, 24
19 103(a) Turdjian,
Gebrewold,
Reese, Kern
19
20–22 103(a) Turdjian,
Gebrewold,
Reese, Kern,
Westwood,
Braun
20–22
Overall
Outcome
1–24

REVERSED