Ex Parte Chua et al

Patent Trials and Appeals Board

Jun 27, 2019

14271493 - (D) (P.T.A.B. Jun. 27, 2019)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
14/271,493 05/07/2014
117928 7590 06/27/2019
Medline Industries, Inc.
c/o Gurr Brande & Spendlove PLLC
491 E Riverside Drive
Suite 4B
Saint George, UT 84790
FIRST NAMED INVENTOR
Mark Spencer Chua
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
ATTORNEY DOCKET NO. CONFIRMATION NO.
26519 1021
EXAMINER
KOZAK, ANNE M
ART UNIT PAPER NUMBER
3732
MAIL DATE DELIVERY MODE
06/27/2019 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 MARK SPENCER CHUA, MICHAEL SEEFELDT,
and FRANCIS CZAJKA 1
Appeal2018-007379
Application 14/271,493
Technology Center 3700
Before: ANNETTE R. REIMERS, JILL D. HILL, and LEE L. STEPINA,
Administrative Patent Judges.
STEPINA, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Appellant appeals under 35 U.S.C. § 134 from the Examiner's
decision to reject claims 1, 3---6, 9-12, 14--17, and 19-24. We have
jurisdiction under 35 U.S.C. § 6(b).
We reverse.
1 The Appeal Brief indicates that Appellant, Medline Industries, Inc., is the
real party in interest. Br. 3.
Appeal2018-007379
Application 14/271,493
CLAIMED SUBJECT MATTER
Appellant's disclosure "relates generally to protective garments, and
more particularly to protective apparel for use in medical environments, such
as surgical environments." Spec. ,r 1. Claim 1, reproduced below, is
illustrative of the claimed subject matter:
1. A protective apparel system defining a barrier between an
external space and an internal space, the apparel system
compnsmg:
a sterile, reusable helmet comprising a transparent portion
and a rigid barrier portion, separate from the transparent portion,
wherein the rigid barrier portion comprises an exterior surface
exposed to the external space and an interior surface exposed to
the internal space;
a fan connected with the helmet;
a sterile disposable body portion; and
a sterile, flexible disposable protective barrier connecting
the lower portion of the helmet and the body portion;
wherein the helmet is adapted to cover at least a part of a
head of a wearer; and
wherein the disposable body portion is adapted to cover at
least a part of a body of the wearer.
Br. 22 (Claims App.).
REFERENCES
The prior art relied upon by the Examiner in rejecting the claims on
appeal is:
Dillon et al. US 2008/0202509 Al Aug. 28, 2008
("Dillion")
Czajka et al. US 2012/0240316 Al Sept. 27, 2012
("Czajka")
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Appeal2018-007379
Application 14/271,493
REJECTION
Claims 1, 3-6, 9-12, 14--17, and 19-24 are rejected under 35 U.S.C.
§ 103 as unpatentable over Dillon and Czajka.
OPINION
The Examiner finds that Dillon discloses most of the elements recited
in claim 1, including a helmet comprising "a rigid barrier portion ( e.g. 14,
15, 10), separate from ([see] Fig. 7) the transparent portion (11), wherein the
rigid barrier portion (e.g. 14, 15, 10) comprises an exterior surface (e.g.
surface of 14, 15) exposed (e.g. 14, 15[,] [see] Fig. 7) to the external space."
Final Act. 3. The Examiner relies on Czajka only to teach that certain
components such as those recited in claim 1 can be provided in a sterile
state. Id. at 4.
Appellant contends that the components of Dillon the Examiner finds
correspond to the exterior surface exposed to an external space (knobs 14
and 15) do not qualify as a barrier portion as required by claim 1. Br. 9.
Appellant argues that the Examiner has identified no single element that
satisfies the requirement in claim 1 that the recited portion (i) is rigid, (ii) is
a barrier, (iii) has an exterior surface, and (iv) has an interior surface. Id. In
this regard, Appellant states:
Id.
An [E]xaminer may not reject the claim by pointing to a
collection of different portions of a helmet, saying: Here is a
rigid portion, and here is another portion that forms a barrier;
while this other portion over here is exposed to the external
space, and another portion is exposed to the internal space. Yet,
this is exactly what Examiner Kozak has consistently done with
claim 1 of this application.
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Appeal2018-007379
Application 14/271,493
The Examiner "notes that the claims do not require that the exterior
surface (which has been cited as a surface of knobs 14, 15) provide an
overall barrier structure for the device." Ans. 4. The Examiner further
states:
Knob 14 can be used to adjust a length and width of a portion of
the helmet (see Para. [0026] of Dillon) and knob 15 can be used
to adjust a damper positioned within the vicinity of an air outlet
into a helmet (see Para. [0026] of Dillon) and to control the
degree of air blockage and air flow direction (see Para. [0037] of
Dillon). It is unclear how these knobs, in accordance with the
Merriam-Webster definition provided by the Appellant and
agreed upon by the Examiner of a barrier as meaning "something
that blocks or is intended to block passage," would not be
considered a "barrier" since they either completely block passage
(in the case of knob 14) or are capable of being adjusted to block
passage (in the case of knob 15).
Ans. 4--5 (emphases added). Thus, the Examiner finds that the ability of
knobs 14 and 15 to adjust the fit of helmet 10 and to adjust the position of a
damper to vary airflow means that these components can be considered a
barrier portion as recited in claim 1.
We disagree with the Examiner that knobs 14 and 15 can reasonably
be considered to be a barrier portion as recited in claim 1. The Examiner
does not identify any evidence of record supporting a finding that knobs 14
and 15, themselves, perform any type of barrier function. Rather, the
Examiner finds that knobs 14 and 15 control other structure that performs a
barrier function. Ans. 4--5. Assuming the Examiner's finding on this point
is correct, the fact that knobs 14 and 15 control other components that may
be considered barriers does not support a finding that either of knobs 14 and
15 is a barrier portion as recited in claim 1. Accordingly, we do not sustain
the rejection of claim 1 as unpatentable over Dillon and Czajka.
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Appeal2018-007379
Application 14/271,493
Each of independent claims 16, 20, and 23 recites an element
substantially similar to the one discussed above regarding claim 1. See
Appeal Br. 22, 24, and 25 (Claims App.). Accordingly, we do not sustain
the rejection of claims 16, 20, and 23 as unpatentable over Dillon and
Czajka. All the remaining claims on appeal depend from one of the above-
noted independent claims, and we likewise do not sustain the rejection of
these claims as unpatentable over Dillon and Czajka.
DECISION
The Examiner's rejection of claims 1, 3-6, 9-12, 14--17, and 19-24 is
reversed.
REVERSED
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