Dean Duffy et al.

Patent Trials and Appeals Board

Jan 21, 2021

2020003574 (P.T.A.B. Jan. 21, 2021)

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.
12/338,084 12/18/2008 Dean R. Duffy 65001US002 4849
32692 7590 01/21/2021
3M INNOVATIVE PROPERTIES COMPANY
PO BOX 33427
ST. PAUL, MN 55133-3427
EXAMINER
HICKS, VICTORIA J
ART UNIT PAPER NUMBER
3786
NOTIFICATION DATE DELIVERY MODE
01/21/2021 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,
SCOTT A. SPOO, and
THOMAS I. INSLEY
__________

Appeal 2020-003574
Application 12/338,084
Technology Center 3700
__________

Before CHARLES N. GREENHUT, MICHAEL L. HOELTER, and
ANNETTE R. REIMERS, Administrative Patent Judges.

GREENHUT, 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, 2, and 4–23. See Final Act. 1. Claim
3 has been canceled. See id. at 2. We have jurisdiction under
35 U.S.C. § 6(b).
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 3M Innovative
Properties Company. Appeal Br. 2.
Appeal 2020-003574
Application 12/338,084

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STATEMENT OF THE CASE
The claims are directed to a flat-fold filtering face-piece respirator.
Claim 1, reproduced below, is illustrative of the claimed subject matter:
1. A flat-fold filtering face-piece respirator that comprises:
a harness;
a mask body that has a perimeter including a periphery that
is adapted to contact a face of a wearer when the flat-fold filtering
face-piece respirator is in use, wherein the mask body is capable
of being folded flat into a folded condition for storage and
opened into a cup-shaped configuration for use, and that
comprises a filtering structure; and
first and second flanges that are disposed on first and
second sides of the mask body and joined to the mask body at
first and second lines of demarcation located on the first and
second sides of the mask body, wherein each of the first and
second flanges project both laterally and frontally from the mask
body when the mask body is in the folded condition, wherein the
first and second flanges are adapted to fold inward towards the
mask body during use of the flat-fold filtering face-piece
respirator by being rotated about an axis parallel to the first and
second lines of demarcation.

REFERENCES
The prior art relied upon by the Examiner is:
Name Reference Date
Herzberg US 4,966,140 Oct. 30, 1990
Reese US 5,553,608 Sept. 10, 1996

REJECTIONS
Claims 1, 2, 5–8, 14, 15, 17, and 20 are rejected under 35
U.S.C. § 102(b) as being anticipated by Reese. Final Act. 4.
Claims 4, 9–13, 18, 19, and 21–23 are rejected under 35 U.S.C.
§ 103(a) as being unpatentable over Reese. Final Act. 8.
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Application 12/338,084

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Claim 16 is rejected under 35 U.S.C. § 103(a) as being unpatentable
over Reese and Herzberg. Final Act. 14.

OPINION
Independent claim 1 requires, among other limitations, “each of the
first and second flanges project both laterally and frontally from the mask
body when the mask body is in the folded condition” (emphases added).
Independent claim 23 requires a similar limitation.
Appellant contests the Examiner’s finding that Reese discloses this
limitation. Appeal Br. 10, 14.
In the Answer, the Examiner responds that Reese’s Figure 2 discloses
the limitation at issue because paragraph 23 of the Specification defines the
term “frontally” as “extending away from the mask body perimeter when the
mask body is in a folded condition.” Ans. 15–16.
Appellant has the better position.
“[C]laims in an application are to be given their broadest reasonable
interpretation consistent with the specification and that claim language
should be read in light of the specification as it would be interpreted by one
of ordinary skill in the art.” In re Sneed, 710 F.2d 1544, 1548 (Fed. Cir.
1983).
The Specification provides the following definitions:
(a) the term “‘flange’ means a protruding part that imparts structural
integrity or strength to the body from which it protrudes;”
(b) the term “‘frontally’ means extending away from the mask body
perimeter when the mask body is in a folded condition;”
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Application 12/338,084

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(c) the term “‘line of demarcation’ means a fold, seam, weld line,
bond line, stitch line, hinge line, and/or any combination thereof;”
(d) the term “‘mask body’ means an air-permeable structure
. . . (including the seams and bonds that join layers and parts thereof
together);” and
(e) the term “‘perimeter’ means the outer edge of the mask body,
which outer edge would be disposed generally proximate to a wearer’s face
when the respirator is being donned by a person.” Spec. ¶¶ 22, 23, 28, 29, 31
(emphases added).
Appellant’s Figure 2 is reproduced below.

“FIG. 2 illustrates that the respirator 10 can have first and second flanges
30a and 30b located on opposing sides of the mask body 12” in which “[t]he
flanges 30a and 30b also extend frontally from the mask body 12 in that
they extend away from the perimeter 24a towards the front edge 22 of the
mask body 12 as noted by arrow y.” Spec. ¶ 48 (emphases added). The
Specification discloses that “[t]he mask body 12 also includes first and
second lines of demarcation 36a, 36b located on first and second sides of the
mask body 12.” Id. Thus, the disclosures from the Specification, consistent
with its definitions, preclude the lateral edges, along the lines of demarcation
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Application 12/338,084

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36a and 36b of Appellant’s mask body 12, from being interpreted as the
mask body perimeter.
Reese’s Figure 2 is reproduced below:

Figure 2 depicts a “mask 12 [that] includes filter body 28 with flaps 30 and
32 extending respectively from each side of filter body 28.” Reese 4:44–46.
Filter body 28 has multiple layers 36, 38, 40, and 42 that are bonded next to
lateral sides 50 and 52, which delimit bonded areas 50a and 52a of flaps 30
and 32, respectively. Id. at 6:45–53. The Examiner finds that filter body 28
corresponds to the recited mask body and flaps 30 and 32 correspond to the
recited flanges of claims 1 and 23. Final Act. 4, 12–13.
To the extent that the Examiner is relying only on definition (b) above
for the term “frontally” and finds lateral sides 50 and 52 of Reese’s filter
body 28 as being part of a mask body perimeter, such a construction for the
term “frontally” ignores definitions (c) and (e) above and how Appellant
uses the term, in relation to paragraph 48 of the Specification. That is, such
an interpretation of the term “frontally” would be reasonable only when
reading Appellant’s above definition (b) in isolation, which recites “from the
mask body perimeter.” Such a reading does not consider all of Appellant’s
defined terms as described in the Specification, which also includes the
terms “perimeter” and “line of demarcation” (definitions (c) and (e) above),
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Application 12/338,084

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and how the term “frontally” is used in the Specification (paragraph 48),
which effectively excludes the lateral sides of the mask body from being
interpreted as the mask body perimeter. Stated differently, this interpretation
of the term “frontally” is not in light of the Specification, which is used to
mean as extending away only from a top edge (i.e., perimeter 24a) and in the
y-direction with respect to the mask, as depicted in Appellant’s Figure 2.
In the Answer, the Examiner also asserts that Reese’s Figure 2
discloses the limitation at issue because Reese’s flanges (flaps 30 and 32)
adhere to the front surface of mask body (filter body 28) at bonded areas 50a
and 52a such that portions of the flanges (bonded areas 50a and 50b) extend
frontally from the mask body. Ans. 15–16 (citing Spec. ¶ 23).2 Here, it is
unclear whether the Examiner is taking into consideration the Specification’s
preclusion of the lateral sides of the mask body as being the perimeter, as
discussed above, and is only considering Reese’s top edge 44 of filter body
28 as being the perimeter. But even if that is the case, the Examiner’s
finding is also deficient for the following reason. The Examiner does not
appear to have considered definition (a) above, which requires that the
flange protrudes from the mask body, and definition (d) above, which
defines the mask body as including the bonded areas. A skilled artisan,
reading the Specification, would not consider Reese’s bonded areas 50a and
52a as the recited flange because those areas do not protrude from filter body
28, but rather, are part of the recited mask body because those areas are
bonded areas of filter body 28, as required by definitions (a) and (d) of the

2 The Examiner references paragraph 24 of the published application rather
than paragraph 23 of the filed Specification. Ans. 15–16.
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Application 12/338,084

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Specification. Thus, both of the Examiner’s determinations above result in
either a construction for the term “project[ing] . . . frontally from the mask
body” that is unreasonable, or ultimately, an incorrect finding that Reese
discloses this limitation.
As all of the Examiner’s rejections presently before us are predicated
on a construction of “frontally” that extends beyond the ambit of
reasonableness, we reverse the Examiner’s rejections on the record presently
before us.

CONCLUSION
The Examiner’s rejections are reversed.

DECISION SUMMARY
Claims
Rejected
35 U.S.C. § Reference(s)/Basis Affirmed Reversed
1, 2, 5–8,
14, 15, 17,
20
102(b) Reese 1, 2, 5–8,
14, 15, 17,
20
4, 9–13,
18, 19,
21–23
103(a) Reese 4, 9–13,
18, 19,
21–23
16 103(a) Reese, Herzberg 16
Overall
Outcome
1, 2, 4–23

REVERSED