Ex Parte Facer et al

Patent Trial and Appeal Board

Mar 22, 2017

11743716 (P.T.A.B. Mar. 22, 2017)

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.
11/743,716 05/03/2007 John M. Facer 63051US002 7412
32692 7590 03/24/2017
3M INNOVATIVE PROPERTIES COMPANY
PO BOX 33427
ST. PAUL, MN 55133-3427
EXAMINER
WOODWARD, VALERIE LYNN
ART UNIT PAPER NUMBER
3771
NOTIFICATION DATE DELIVERY MODE
03/24/2017 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 JOHN M. FACER, AUDRA A. WILSON,
and CHRISTOPHER P. HENDERSON1
Appeal 2015-005053
Application 11/743,716
Technology Center 3700
Before FRANCISCO C. PRATS, MELANIE L. McCOLLUM, and
SHERIDAN K. SNEDDEN, Administrative Patent Judges.
McCOLLUM, Administrative Patent Judge.
DECISION ON APPEAL
This is an appeal under 35U.S.C. § 134 involving claims to a mask
body and to a respirator comprising a mask body. The Examiner has
rejected the claims as obvious. We have jurisdiction under 35 U.S.C. § 6(b).
We reverse.
STATEMENT OF THE CASE
Claims 1—4 and 8—22 are on appeal (App. Br. 1). Claims 1 and 11 are
illustrative and read as follows (emphasis added):
1 Appellants identify the real party in interest as 3M Innovative Properties
Company (App. Br. 2).
Appeal 2015-005053
Application 11/743,716
I. A maintenance-free respirator that comprises:
(a) a harness; and
(b) a mask body that includes a sinus region and a primary filtering
region and that comprises at least one nonwoven fibrous web, the at least
one nonwoven fibrous web including a filtration layer, wherein at least a
portion of the sinus region of the mask body has had an alteration to its
intrinsic structure to significantly increase the pressure drop across the sinus
region, the increase in pressure drop being achieved through an alteration to
the intrinsic structure of the at least one nonwoven fibrous web without
adding additional material or items to the mask body in the sinus region, and
wherein the alteration of the intrinsic structure occurs over 5 to 25% of the
total surface area of the sinus region and does not occur substantially
outside the sinus region.
II. The respirator of claim [ 1, wherein the mask body comprises a
plurality of layers, and the intrinsic structure of the mask body is altered by
bonding the plurality of layers together, wherein the mask body further
comprises a predetermined pattern welded into portions of the sinus region],
wherein the predetermined pattern comprises a trademark.
Claims 1—4, 8—10, and 12—22 stand rejected under 35 U.S.C. § 103(a)
as obvious over Kern et al. (US 5,701,893, Dec. 30, 1997) in view of
Steindorf (US 8,091,550 B2, Jan. 10, 2012) (Final Act. 2).
Claim 11 stands rejected under 35 U.S.C. § 103(a) as obvious over
Kern in view of Steindorf and Begum (US 6,823,868 Bl, Nov. 30, 2004)
(Final Act. 5).
I
The Examiner relies on Kern for disclosing
a maintenance-free respirator 10 (Fig. 1) that comprises; a
harness 16 and a mask body 12,14 that includes a sinus region 12
(upper, nasal, ribbed portion) and a primary filtering region 14
(lower, oral, non-ribbed portion . . .) that comprises at least one
nonwoven fibrous web 80 including a filtration layer 84 . . .
wherein at least a portion of the sinus region 12 of the mask
body 12, 14 has had an alteration to its intrinsic structure
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Appeal 2015-005053
Application 11/743,716
(ribs 25-32 . . . ) which does not occur substantially outside the
sinus region 12 (see Fig. 1, Fig. 6).
(Final Act. 2—3.) However, the Examiner finds that Kern “lacks detailed
description as to the limitation that the alteration of the intrinsic structure
occurs over 5-25% of the total surface area of the sinus region” {id. at 3).
The Examiner relies on Steindorf for teaching “that thermal pattern
bonding typically occurs over 10 to 30 % of the area of the respirator fabric
to which it is applied” {id.). Therefore, the Examiner concludes that it
would have been obvious “to modify the mask body of Kern so that the
alteration occurs over 10 to 30% of the area as taught by Steindorf in order
to provide a sufficient amount of bonding to provide a desired amount of
rigidity, strechability and softness to the respirator” {id.).
Issue
Has the Examiner set forth a prima facie case that Kern and Steindorf
suggest that the claimed alteration of the intrinsic structure occurs over 5 to
25% of the total surface area of the sinus region?
Analysis
The Examiner acknowledges that Kern “lacks detailed description as
to the limitation that the alteration of the intrinsic structure occurs over 5-
25% of the total surface area of the sinus region” (Final Act. 3). Instead, the
Examiner relies on Steindorf for teaching this feature {id.). We conclude
that the Examiner has not set forth a prima facie case of obviousness.
Kern discloses a “mask to help to eliminate the breathing of
deleterious airborne substances” (Kern, col, 2,1. 67, to col. 3,1. 1). In
particular, Kern discloses a mask having upper and lower portions, the layers
of upper portion having “been welded ultrasonically at elongated weld
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Appeal 2015-005053
Application 11/743,716
points 26, 28, 30, and 32 to provide a plurality of longitudinal elongated ribs
along the length of the upper portion” (id. at col. 4,11. 9—12 & 39-45, &
Figs. 1 & 4 A)
Steindorf discloses “a face mask that includes a body portion . . .
ha[ving] a baffle layer which dissipates energy of the impact of [a] splash
and/or allows the fluid of [a] splash to more easily flow laterally away from
the site of impact,” wherein the “baffle layer contains a plurality of
projections or peaks extending from one or both of the outer or inner
surfaces” (Steindorf, col. 2,11. 39-48). Steindorf also discloses that the
“projections . . . may be formed by thermal pattern bonding the baffle layer”
(id. at col. 6,11. 36—37). With “thermal pattern bonding,” Steindorf discloses
that, “[tjypically, the percent bonding area varies from around 10 percent to
around 30 percent of the area of the fabric laminate” (id. at col. 4,11. 16—24).
Appellants argue that “the portions of Steindorf relied upon by the
Examiner describe that thermal pattern bonding typically has a percent
bonding area of 10-30% of the area to which it is applied. ... In other
words, areas where thermal pattern bonding is applied have a percent
bonding area of 10-30%.” (App. Br. 8.) We agree. (See also, Ans. 3, where
the Examiner states “that Steindorf teaches 10-30 percent of the area of the
fabric passed through the rollers.”)
We understand the Examiner’s position that Steindorf does not teach
applying thermal bonding to only a small bonding area and instead provides
bonding at 10 to 30% of presumably the total surface area of the mask,
including the sinus region (Ans. 3). However, we agree with Appellants that
the Examiner does not adequately explain why it would have been obvious
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Appeal 2015-005053
Application 11/743,716
to modify Kern, where bonding occurs within discrete areas to form ribs
(Kern, col. 4,11. 39-45), to provide bonding over 5 to 25% of the total
surface area of the sinus region (App. Br. 7—8).
Conclusion
The Examiner has not set forth a prima facie case that Kern and
Steindorf suggest that the claimed alteration of the intrinsic structure occurs
over 5 to 25% of the total surface area of the sinus region. We therefore
reverse the obviousness rejection over Kern and Steindorf.
II
In rejecting claim 11, the Examiner relies on Kern and Steindorf as
discussed above (Final Act. 5). In addition, the Examiner relies on Begum
for teaching “markings 30 (Fig. 2) on a mask 14 which can be in the form of
a trademark” (id.). The Examiner concludes that it would have been obvious
“to modify the mask body of Kern so that the pattern is a trademark as
taught by Begum, in order to add the function of promoting a company for
advertising purposes” (id.).
Issue
Has the Examiner set forth a prima facie case that Kern, Steindorf,
and Begum suggest that the claimed alteration of the intrinsic structure
occurs over 5 to 25% of the total surface area of the sinus region?
Analysis
Claim 11 ultimately depends from claim 1. As discussed above, we
conclude that the Examiner has not set forth a prima facie case that Kern and
Steindorf suggest that the claimed alteration of the intrinsic structure occurs
over 5 to 25% of the total surface area of the sinus region, as recited in
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Appeal 2015-005053
Application 11/743,716
claim 1. In addition, we agree with Appellants that the Examiner has not set
forth a prima facie case that Begum overcomes this deficiency (App. Br. 12).
Conclusion
The Examiner has not set forth a prima facie case that Kern, Steindorf,
and Begum suggest that the claimed alteration of the intrinsic structure
occurs over 5 to 25% of the total surface area of the sinus region. We
therefore reverse the obviousness rejection over Kern, Steindorf, and
Begum.
REVERSED
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