Ex Parte Gebrewold et al

Patent Trial and Appeal Board

Feb 26, 2013

11553082 (P.T.A.B. Feb. 26, 2013)

UNITED STATES PATENT AND TRADEMARK OFFICE
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BEFORE THE PATENT TRIAL AND APPEAL BOARD
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Ex parte YONAS GEBREWOLD and THOMAS J. XUE
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Appeal 2011-003739
Application 11/553,082
Technology Center 3700
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Before DONALD E. ADAMS, FRANCISCO C. PRATS, and
ULRIKE W. JENKS, Administrative Patent Judges.

ADAMS, Administrative Patent Judge.

DECISION ON APPEAL
This appeal under 35 U.S.C. § 134 involves claims 1-15 (App. Br. 2;
Ans. 2). We have jurisdiction under 35 U.S.C. § 6(b).
STATEMENT OF THE CASE
The claims are directed to a respirator (claims 1-14) and a method of
making a respirator (claim 15). Claims 1 and 6 are representative and are
reproduced in the Claims Appendix of Appellants’ Brief.
Appeal 2011-003739
Application 11/553,082

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Claims 1-5, 7-10, and 13-15 stand rejected under 35 U.S.C. § 103(a)
as unpatentable over the combination of Sustello
1
and Melville.
2

Claims 6, 11, and 12 stand rejected under 35 U.S.C. § 103(a) as
unpatentable over the combination of Sustello, Melville, and Tate.
3

We affirm.
ISSUE
Does the preponderance of evidence on this record support a
conclusion of obviousness?
FACTUAL FINDINGS (FF)
FF 1. We adopt the Examiner’s findings concerning the scope and content
of the prior art (Ans. 3-7), and repeat the following for emphasis.
FF 2. Examiner relies on Melville “solely for the teaching of a skewed
nose-contacting surface for a better fit which is more comfortable to the user
and provides better ergonomics” (Ans. 8; id. at 9 (Melville suggests “a nose
foam [that conforms] to the typical human user by providing the teaching of
a skewed angle α…. The Melville reference solves the problem of providing
a nose foam which closely fits the typical user’s contours, especially around
the nose region”)).
ANALYSIS
The claims were not separately argued and therefore stand or fall
together. Claims 1 and 6 are representative.
Melville suggests a “protective eyeshade device … used by golfers
while on a golf course fairway to protect the wearer from golf balls in flight”
(App. Br. 6). While Appellants recognize that Melville’s “device … has a

1
Sustello, US 2007/0039620 A1, published February 22, 2007.
2
Melville, US 3,952,331, issued April 27, 1976.

3
Tate, Jr., US 4,037,593, issued July 26, 1977.

Appeal 2011-003739
Application 11/553,082

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nose piece that overlies the boned portion of the wearer’s nose,” Appellants
contend that the “cushioning elements [of Melville’s device] … are
positioned on the eyewear in the area of the brow and temples” and are,
therefore, “off-set 90° relative to how a nose foam would be positioned on a
respirator mask,” as taught by Sustello (id. at 6-7). Therefore, Appellants
contend that “any configuration of the impact-absorbing materials of
Melville could not be properly applied to a nose foam on a respiratory mask
because the impact element is oriented at an entirely different position (and
for an entirely different purpose)” (id. at 7). We are not persuaded.
As Appellants recognize, “Sustello describes a face mask [e.g., a
respirator] that has a visco-elastic member that is positioned to be alignable
with the bridge of a user’s nose and is shaped so as to extend over the
junction between the user’s nose and the user’s cheeks” (id. at 5-6; FF 1).
While Melville is not directed to a respirator, Melville suggests a device that
comprises “a skewed nose-contacting surface for a better fit which is more
comfortable to the user and provides better ergonomics” about the nose
region of a user’s face (FF 1-2; Cf. Reply Br. 3
4
). Therefore, the
combination of Sustello and Melville suggests a respirator with a skewed
nose-contacting surface that provides a better and more comfortable fit for
the user.
For the foregoing reasons we are not persuaded by Appellants’
contention that Melville “is not in the same field of endeavor as applicants’
invention” or is non-analogous to Sustello (App. Br. 7-8). Appellants’

4
Appellants’ Reply Brief is not numbered. Therefore, we refer to page
numbers in the Reply Brief as if the Reply Brief was numbered sequentially
starting with the first page.
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device and the device of Sustello relate to devices, respirators, that are worn
on the face of users. While Melville’s device relates to a protective
eyeshade, Melville suggests a structure for the nose-contacting surface of a
device, which is worn on the face and provides a comfortable fit for the user
about the nose region of the user’s face. Therefore, notwithstanding
Appellants’ contentions to the contrary, a person of ordinary skill in this art
would have considered a device, such as Melville’s, which is worn on the
face, when considering the structure of devices that are worn on the face of a
user to provide the device with a comfortable fit about the nose region of the
user’s face (Cf. App. Br. 7-8).
Having found no deficiency in the combination of Sustello and
Melville, we are not persuaded by Appellants’ contention that Tate fails to
make up for the deficiency in the combination of Sustello and Melville
(App. Br. 8).
CONCLUSION OF LAW
The preponderance of evidence on this record supports a conclusion
of obviousness. The rejection of claim 1 under 35 U.S.C. § 103(a) as
unpatentable over the combination of Sustello and Melville is affirmed.
Claims 2-5, 7-10, and 13-15 are not separately argued and fall together with
claim 1. The rejection of claim 6 under 35 U.S.C. § 103(a) as unpatentable
over the combination of Sustello, Melville, and Tate is affirmed. Claims 11
and 12 are not separately argued and fall together with claim 6.
Appeal 2011-003739
Application 11/553,082

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TIME PERIOD FOR RESPONSE
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a).

AFFIRMED

cdc