Ex Parte Blaszczykiewicz et al

Patent Trial and Appeal Board

Jan 25, 2018

12474744 (P.T.A.B. Jan. 25, 2018)

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.
12/474,744 05/29/2009 Thomas Blaszczykiewicz PTB-4398-1096 2159
23117 7590 01/29/2018
NIXON & VANDERHYE, PC
901 NORTH GLEBE ROAD, 11TH FLOOR
ARLINGTON, VA 22203
EXAMINER
HO, TAN-UYEN THI
ART UNIT PAPER NUMBER
3778
NOTIFICATION DATE DELIVERY MODE
01/29/2018 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):
PTOMAIL@nixonvan.com
pair_nixon @ firsttofile. com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte THOMAS BLASZCZYKIEWICZ and
JAMES V. NUTTY
Appeal 2016-007879
Application 12/474,744
Technology Center 3700
Before CHARLES N. GREENHUT, THOMAS F. SMEGAL, and
LISA M. GUIJT, Administrative Patent Judges.
GREENHUT, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Appellants appeal under 35 U.S.C. § 134 from a rejection of claims 1,
3-12, 14, 16-23, and 26-31.1 We have jurisdiction under 35 U.S.C. § 6(b).
We reverse.
1 The Examiner withdrew the rejection against claim 13. Ans. 2-3.
Appeal 2016-007879
Application 12/474,744
CLAIMED SUBJECT MATTER
The claims are directed to a medical headgear. Claim 1, reproduced
below, is illustrative of the claimed subject matter:
A headgear, comprising:
a first thermoformed headgear section inducting:
a first foam layer;
a first skin-facing fabric layer configured to contact a
user’s skin; and
a first outer fabric layer;
a second thermoformed headgear strap section connected to the
first thermoformed headgear section, the second thermoformed
headgear strap section including:
a second skin-facing fabric layer configured to contact a
user's skin;
a second outer fabric layer;
a second foam layer located between the second skin­
facing fabric layer and the second outer fabric layer, the second
foam layer having an outer surface; and
a layer of rigid material located between the second skin­
facing fabric layer and the second outer fabric layer, and adjacent
the second foam layer such that the layer of rigid material is in
contact with the outer surface of the second foam layer; and
a joint to connect the first thermoformed headgear section
to the second thermoformed headgear strap section,
wherein each of the first thermoformed headgear section
and the second thermoformed headgear strap section forms a
unitary laminate structure, and
wherein the second thermoformed headgear strap section
is configured to be attached to a face mask assembly.
REJECTIONS
Claims 1, 3, 9-12, 14, 16, 22, 23, and 26-31 are rejected under 35
U.S.C. § 103(a) as being unpatentable over Radney (US 7,296,575 Bl,
issued November 20, 2007), Blaszczykiewicz (US 6,861,379 Bl, issued
March 1, 2005), and Amarasinghe (US 7,188,620, issued March 13, 2007)
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Appeal 2016-007879
Application 12/474,744
Claims 4 and 17 are rejected under 35 U.S.C. § 103(a) as being
unpatentable over Radney, Blaszczykiewicz, Amarasinghe, and further in
view of Covelli (US 2007/0264462 Al, published November 15, 2007).
Claims 5, 6, 18, and 19 are rejected under 35 U.S.C. § 103(a) as being
unpatentable over Radney, Blaszczykiewicz, Amarasinghe, Covelli, and
Winningham (US 2009/0107514 Al, published April 30, 2009)
Claims 7, 8, 20, and 21 are rejected under 35 U.S.C. § 103(a) as being
unpatentable over Radney, Blaszczykiewicz, Amarasinghe, and Bader (US
5,817,041, issued October 6, 1998).
OPINION
Claims 1 and 14 are the independent claims before us. The
Examiner’s position regarding claim 1 is that Radney’s mention of “screen
printing” necessarily means or requires “thermoform[ing]” as recited in
claim 1. Ans. 12. Appellants correctly argue:
First, there is no disclosure in Radney that the screen printing
process requires an application of heat. Appellants contend that
screen printing can be performed without an application of
heat. . . . Further, the mere application of heat during a screen
printing process does not cause the process to become a
thermoforming process. If heat is used during a screen printing
process, it typically may be used to cure the ink or agent that was
transferred to the substrate. Such application of heat is not used
to permanently shape the substrate.
Reply. Br. 2-3. Thus, the rejection of claim 1 cannot be sustained on the
basis set forth by the Examiner.
To meet the “configured to extend over and/or around a crown”
limitation of claim 14 the Examiner assumes that the mask portion 36 of
Radney’s device can be mounted first with the portion 42’, specifically
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Appeal 2016-007879
Application 12/474,744
designed to engage the nape, passing over the crown en route to the nape.
Ans. 13. The Examiner’s attempt to conclude that Rodney’s device includes
a portion 42’ “configured to extend over and/or around a crown” without
any express or implicit disclosure of the capability of portion 42’ to extend
over and/or around a crown amounts to a finding of inherency. Although
subject to a burden-shifting framework, inherency findings carry with them a
high burden of proof: “the allegedly inherent characteristic [must]
necessarily flow[] from the teachings of the applied prior art.” MPEP
§2112. Appellants persuasively argue:
Radney does not appear to describe the manner of donning the
interface. However, Appellants wish to point out that typically
an interface of this nature would be donned by positioning the
central portion 40 on the user’s occiput while holding the mask
36 near the crown of the patient's head. Then, the user would
pull the mask 36 down into positioned over the user’s nose (while
still holding the central portion 40 on the user’s occiput).
Reply. Br. 4-5. Thus, while Radney’s device might be capable of satisfying
the recited functional language during the installation process, the Examiner
does not provide enough information to explain why it necessarily possesses
such a capability or configuration for providing it. Accordingly, we cannot
sustain the rejection of claim 14 on the basis set forth by the Examiner.
None of the remaining references are applied by the Examiner in a
manner that accounts for the deficiencies discussed above.
DECISION
The Examiner’s rejections are reversed.
REVERSED
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