Ex Parte Krepel et al

Patent Trial and Appeal Board

May 31, 2018

13396839 (P.T.A.B. May. 31, 2018)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
13/396,839 02/15/2012
32692 7590 06/04/2018
3M INNOVATIVE PROPERTIES COMPANY
PO BOX 33427
ST. PAUL, MN 55133-3427
FIRST NAMED INVENTOR
Kenneth J. Krepel
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.
68204US002 6705
EXAMINER
SUL, DOUGLAS YOUNG
ART UNIT PAPER NUMBER
3771
NOTIFICATION DATE DELIVERY MODE
06/04/2018 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):
LegalUSDocketing@mmm.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte KENNETH J. KREPEL,
JIA HU, and JOHN M. PILGRIM
Appeal2017-001543
Application 13/396,839
Technology Center 3700
Before JOHN C. KERINS, ARTHUR M. PESLAK, and
SEAN P. O'HANLON, Administrative Patent Judges.
KERINS, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Kenneth J. Krepel et al. ("Appellants") appeal under 35 U.S.C.
§ 134(a) from a final rejection of claims 1-19, 22, and 23. We have
jurisdiction under 35 U.S.C. § 6(b ).
We AFFIRM.
Appeal2017-001543
Application 13/396,839
THE INVENTION
Appellants' invention is directed to a respiratory component
assembly. Claim 1, reproduced below, is illustrative:
1. A respiratory component assembly, comprising:
a powered air purifying respirator (P APR) component having an
interface surface comprising a first projection extending outwardly from the
interface surface and a retention projection; and
a wearable belt for supporting the P APR component having a
longitudinal axis along a length of the belt and an interface portion
comprising a rigid attachment element;
wherein the rigid attachment element is fastened to a portion of the
belt and includes one or more openings configured to receive the first
projection, which is slidable within the opening(s), to releasably secure the
P APR component to the belt, and
wherein the retention projection inhibits slidable movement of the
rigid attachment element within the openings when the P APR is secured to
the belt.
REJECTIONS
The Examiner rejects:
(i) claims 1, 3-5, 7, 10, 13, 15, 16, 22, and 23 under 35 U.S.C.
§ 102(b) as being anticipated by Hatmaker (US 2009/0314295 Al, published
December 24, 2009);
(ii) claims 2, 8, 9, 11, and 12 under 35 U.S.C. § I03(a) as being
unpatentable over Hatmaker in view of Chang (US 2006/0058070 Al,
published March 16, 2006);
(iii) claim 14 under 35 U.S.C. § I03(a) as being unpatentable over
Hatmaker in view of Chang and further in view of Taylor '800 (US
7,454,800 B2, issued November 25, 2008);
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Application 13/396,839
(iv) claim 6 under 35 U.S.C. § 103(a) as being unpatentable over
Hatmaker in view of Taylor '120 (US 7,819,120 B2, issued October 26,
2010);
(v) claim 17 under 35 U.S.C. § 103(a) as being unpatentable over
Hatmaker in view ofKrumin (US 4,534,063, issued August 6, 1985); and
(vi) claims 18 and 19 under 35 U.S.C. § 103(a) as being unpatentable
over Hatmaker in view of Hanna (US 5,226,625, issued July 13, 1993) and
further in view of Goldenberg (US 5,697,538, issued December 16, 1997).
ANALYSIS
Claims 1, 3-5, 7, 10, 13, 15, 16, 22, and 23 -- 35 US. C. § 102(b) --
Hatmaker
Appellants present arguments for independent claim 1, but present no
separate arguments for the remaining claims subject to this rejection. The
claims will be treated as a group, with claim 1 being representative. Claims
3-5, 7, 10, 13, 15, 16, 22, and 23 stand or fall with claim 1. See 37 C.F.R.
§ 4I.37(c)(l)(iv).
The Examiner finds that Hatmaker discloses all limitations set forth in
claim 1, including a first projection ( 46b) and a retention projection ( 46a),
wherein the rigid attachment element (34) is fastened to a portion of the belt
(32) and includes one or more openings (34b) configured to receive the first
projection (46b), which is slidable within the opening(s), to releasably
secure the P APR (10) component to the belt (32), and wherein the retention
projection (46a) inhibits slidable movement of the rigid attachment element 1
1 In the event that further prosecution is pursued, consideration should be
given as to whether this portion of the claim language is accurate. It appears
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within the openings when the P APR is secured to the belt (32). 2 Final
Action, pages 2 and 3.
Appellants contend that it is "mechanically impossible" for the device
of Hatmaker to function as claimed, namely having the first projection
slidable within the opening in the rigid attachment element to releasably
secure the PAPR component to the belt, and having the retention projection
inhibit slidable movement of the rigid attachment element within the
openings when the P APR is secured to the belt. Appeal Brief, page 5.
Appellants explain that, in Hatmaker,
If the housing were to be moved laterally, pivot 46a prevents it
from sliding to the left because it already touches the left end of
its opening; pivot 46c prevents it from sliding to the right
because it already touches the right end of its opening; and
pivot 46b prevents it from sliding in either direction because it
touches both sides of its opening. - If the housing were to be
moved vertically, pivot 46a and pivot 46c both prevent it from
that this language may have been intended to recite that the retention
projection inhibits slidable movement of the first projection within the
opening when the P APR is secured to the belt.
2 The Examiner also cites to a user manual authored by Bullard ("EV A
Series Powered Air-Purifying Respirator Blower Assembly User Manual"),
purportedly as evidence to support the Examiner's interpretation of the
Hatmaker connection mechanism. Final Act. 14. Appellants object to the
Examiner's reliance on Bullard on several grounds. Appeal Br. 5---6. There
is no basis in the current record to conclude that Bullard constitutes evidence
regarding the explicit or implicit disclosure of Hatmaker. To the extent that
Bullard is more specific or otherwise different than Hatmaker, these
differences are not part of the disclosure of Hatmaker. We therefore agree
with Appellants that Bullard is irrelevant to the rejection of claim 1. It is
noted that the rejection set forth on pages 2 and 3 of the Final Action and the
explanation in the Answer do not rely on Bullard, nor does our analysis
herein.
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Application 13/396,839
sliding upward or downward because both pivots already
contact the top and bottom of each of their respective openings.
Appeal Brief, page 5. In other words, when all three projections in
Hatmaker are engaged in their respective holes, the P APR device in
Hatmaker would not be slidable relative to the belt.
Even assuming Appellants are correct that the first projection ( 46b) in
the device of Hatmaker would not be slidable when all three projections
( 46a, 46b, 46c) are engaged in their respective holes (34a, 34b, 34c ), the
Examiner's position is that the projection ( 46b) is capable of sliding when
the other two projections ( 46a, 46c) are not engaged in their respective holes
(34a, 34c). See, e.g., Non-Final Office Action at page 14 and Examiner's
Answer at page 13.
Appellants later acknowledge that
The Examiner proposes rotating the P APR device 180Q with
respect to the belt to engage only the first lever pivot ( 46b) with
one slot (34b) so that the first lever pivot ( 46b) would be
vertically slidable within the slot (34b ). However, in this
proposed configuration, the P APR of the Hatmaker device
cannot be secured to the belt. For example, the Hatmaker
device utilizes a plurality of lock levers to secure the P APR to
the belt plate ....
Reply Br. 3. Appellants continue, "the Hatmaker device cannot rotate the
P APR device 180Q relative to the belt and secure the P APR device to the
belt." Reply Br. 4.
These assertions do not apprise us of Examiner error. According to
Appellants' argument, the P APR component of Hatmaker is only "secured"
to the belt when all three lever pivots are engaged with their respective
openings, but the arguments do not explain a basis for this position. The
Examiner finds that if the P APR component is rotated 180Q and connected at
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a single projection ( 46b ), the P APR component is releasably secured to the
belt. Examiner's Answer, pages 2 and 13. Appellants' arguments do not
provide any reason why manipulating the device in this manner does not fall
within the scope of the claim language "one or more openings configured to
receive the first projection, which is slidable within the opening(s), to
releasably secure the P APR component to the belt." Appellants also have
not presented any argument establishing that the device of Hatmaker is
incapable of functioning in the manner described in the office action. The
arguments, therefore, do not apprise us of error in the rejection.
Appellants continue,
the Examiner's proposed configuration cannot inhibit slidable
movement, because only one lever pivot and lock lever is
engaged with a hole - not a plurality. In other words,
the Hatmaker device cannot rotate the P APR device 180°
relative to the belt and secure the P APR device to the belt. It is
mechanically impossible for the Hatmaker device to achieve
what is claimed.
Reply Brief, page 4.
The above-quoted argument is to the effect that the device of
Hatmaker cannot inhibit slidable movement when only one projection ( 46b)
is secured, and the device of Hatmaker cannot slide when more than one
projection is secured. The language of claim 1 does not require that the
retention projection inhibits sliding while the first projection is slidable.
Indeed, claim 1 cannot be interpreted as requiring that the retention
projection inhibits sliding while the first projection is slidable, because, by
its own terms, either the first projection is slidable or is inhibited from
sliding. The claim plainly is referring to two different states as the
component is being assembled or secured to the belt. Appellants' own
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disclosed device cannot, at the same time, have a first projection that is
slidable, and have the retention projection inhibit sliding. Paragraphs 0056,
0057, and 0064 of the Specification and Figures 4e and 4f show that the first
projection is slidable when the retention projection is not engaged, and is not
slidable when the retention projection is engaged. The Specification states,
in this regard, that
When lower peripheral edge 50a contacts retention projection
35, the rigid retention element provides sufficient stiffness that
the belt does not slide over retention projection 35, and
the P APR component does not slide upward relative to the belt,
when the belt is fastened to a user.
Spec., para. 64.
Giving the claim language its broadest reasonable interpretation
consistent with the Specification, the portion of claim 1 that begins "wherein
the retention projection inhibits slidable movement .... " is clearly a
separate clause which defines a function that cannot occur while the first
projection is slidable. Restated, the first projection slides in the opening(s)
of the rigid attachment element until the retention projection inhibits sliding.
As such, Appellants' argument that it is a mechanical impossibility for the
retention projection (46a) of the Hatmaker device to inhibit sliding when
only the first projection ( 46b) is engaged, even if true, is not commensurate
in scope with claim 1.
The anticipation rejection of claim 1 is therefore sustained. Claims 3-
5, 7, 10, 13, 15, 16, 22, and 23 fall with claim 1.
Rejections (ii)-(vi)
Appellants rely on the arguments submitted with respect to claim 1 in
traversing these grounds of rejection. Appeal Br. 6. As noted above, we are
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not apprised of error in the Examiner's rejection of claim 1. As such, each
of rejections (ii) through (vi) is sustained for the reasons presented above for
claim 1.
DECISION
The rejections of claims 1-19, 22, and 23 are affirmed.
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
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