Ex parte Klingner

Board of Patent Appeals and Interferences

Feb 24, 1999

07890620 (B.P.A.I. Feb. 24, 1999)

Application for patent filed May 28, 1992.1
1
Paper No. 25
THIS OPINION WAS NOT WRITTEN FOR PUBLICATION
The opinion in support of the decision being entered today
(1) was not written for publication in a law journal and
(2) is not binding precedent of the Board.
UNITED STATES PATENT AND TRADEMARK OFFICE
_______________
BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
_______________
Ex parte THOMAS D. KLINGNER
______________
Appeal No. 95-1908
Application 07/890,6201
_______________
ON BRIEF
_______________
Before JOHN D. SMITH, PAK and KRATZ, Administrative Patent
Judges.
JOHN D. SMITH, Administrative Patent Judge.

DECISION ON APPEAL
This is an appeal pursuant to 35 U.S.C. § 134 from the
final rejection of claims 1 through 22.
Appeal No. 95-1908
Application 07/890,620
2
Claims 1 and 18 are representative and are reproduced
below:
1. A device discrete from and usable with protective
clothing or equipment worn by a user for detecting the
breakthrough of the protective clothing or equipment by a
contaminant, said device comprising: a reaction pad having
obverse and reverse sides, reagent means carried by said
reaction pad and responsive to the presence of the contaminant
for producing a visible indication, a barrier layer impervious
to said reagent means covering said reverse side of said
reaction pad, and attachment means coupled to said reaction
pad for removably mounting it between the user and the
protective clothing or equipment being tested so that in use
said obverse side is adjacent to the inside of the protective
clothing or equipment for exposure to a contaminant which
breaks through the protective clothing or equipment.

18. A method for detecting the breakthrough by a
contaminant of protective clothing or equipment worn by a
user, said method comprising the steps of: providing a pad
having obverse and reverse sides and carrying a reagent
responsive to the presence of the contaminant for producing a
visible indication, sealing the reverse side of the pad to
prevent escape of chemicals therefrom, and removably mounting
the pad between the user and the protective clothing or
equipment being tested so that the obverse side is adjacent to
the inside of the protective clothing or equipment for
exposure to a contaminant which breaks through the protective
clothing or equipment.
The reference of record relied upon by the examiner is:
Cukier 4,910,803 Mar. 27, 1990
Appeal No. 95-1908
Application 07/890,620
3
The appealed claims stand rejected for obviousness
(35 U.S.C. § 103) over Cukier.
We cannot sustain the stated rejection.
The subject matter on appeal is directed to a detection
device for testing gloves or other protective clothing or
equipment for breakthrough by a contaminant such as a
hazardous workplace chemical. The claimed device includes a
pad carrying a reagent which is responsive to the contaminant
for producing a color change. A barrier layer covers the
reverse side of the pad to prevent escape of the chemicals,
and an attachment means is coupled to the reaction pad for
removably mounting the pad between the user and the protective
clothing or equipment being tested. The attachment means may
take the form of an adhesive strip which is secured to the
barrier layer for attachment of the pad either to the skin of
the user or to the inside of the glove or other clothing. In
use, the obverse side of the pad is adjacent to the inside of
the protective clothing or equipment for exposure to a
contaminant which may break through the protective clothing or
equipment. Importantly, the device is claimed as “discrete
from” the protective clothing worn by the user or the
Appeal No. 95-1908
Application 07/890,620
See Cukier at column 4, lines 48-52 and column 6, lines 5 and 6.2
4
equipment used. In addition to claims to the device, the
appeal also presents claims to a method for detecting the
breakthrough by a contaminant of protective clothing or
equipment which, in effect, provide for the use of the pad
which is removably mounted between the user and the protective
clothing or equipment. See appealed claims 18 through 22.
As evidence of obviousness of the claimed invention, the
examiner relies on Cukier, which, as the examiner correctly
states, discloses apparel (clothing such as gloves or masks2
or condoms) made up of a composite material having layers of
impervious material and a layer which will detect the presence
of a bodily fluid. As emphasized by appellant in his brief,
however, the claims on appeal define a device which is
“distinct from” the clothing worn by the user and we agree
that the preambular claim language serves to distinguish the
claimed invention from Cukier's apparel.
Even if it is argued that the composite material (i.e.,
the material ultimately used to form the apparel) disclosed by
Cukier may be characterized as a “device” comprising a
Appeal No. 95-1908
Application 07/890,620
5
reaction pad carrying a reagent means in combination with a
barrier layer impervious to the reagent means, such a “device”
has no attachment means coupled to a reaction pad for
removably mounting the pad between a user and the protective
clothing or equipment being tested. Moreover, there is no
apparent reason presented why one of ordinary skill in the art
would have been motivated to provide such a “device” with an
attachment means as claimed. As appellant points out, the
presently claimed invention and Cukier are directed to
fundamentally different kinds of problems which are usable in
different types of applications, and which utilize different
operating mechanisms. Accordingly, the stated rejection of
the appealed claims cannot be affirmed.
Upon return of this application to the examiner, the
examiner should reconsider the record in light of the
admissions in the specification at pages 2, line 30 through
page 3, line 12 which discuss prior art efforts to measure
chemical breakthrough of protective gloves and clothing
utilizing cotton or cellulose pads attached under the gloves
or clothing to absorb chemicals which breakthrough the
protective material. These pads are said to be subsequently
Appeal No. 95-1908
Application 07/890,620
See Gunderson et al (Gunderson) “A Practical Study in Laboratory and3
Workplace Permeation Testing”, APPL. IND. HYG., Vol. 4, No. 12, ppg. 324-329,
particularly page 329, December 1989, a copy of which is attached to
appellant's brief as Exhibit B.
6
analyzed in a laboratory to determine whether any breakthrough
of chemical has occurred and to identify which chemicals have
broken through the protective clothing. Accordingly, the
prior art pads apparently do not carry reagent means as
required by the appealed claimed device. Since Gunderson3
teaches that methods are needed for detecting chemical
permeation through gloves and other protective garments in the
workplace, the question raised is whether or not one of
ordinary
skill in the art would have been led to provide the prior art
reaction pads with a reagent means responsive to the presence
of the contaminant for producing a visible indication for the
purpose of instantaneously alerting the wearer that the
protective glove or clothing has been breached. We decline to
exercise our discretion to impose a new rejection of the
appealed claims based on the prior art disclosures discussed
above. The examiner should reconsider the record in light of
Appeal No. 95-1908
Application 07/890,620
7
these disclosures and, ir appropriate, restate a rejection of
the claims on appeal.
The decision of the examiner is reversed.
REVERSED
JOHN D. SMITH )
Administrative Patent Judge )
)
)
)
CHUNG K. PAK ) BOARD OF
PATENT
Administrative Patent Judge ) APPEALS AND
) INTERFERENCES
)
)
PETER F. KRATZ )
Administrative Patent Judge )

JDS/cam
Emrich & Dithmar
300 South Wacker Drive
Chicago, IL 60606