10528006 (B.P.A.I. Sep. 26, 2011)

Ex Parte Messier

Board of Patent Appeals and InterferencesSep 26, 2011

10528006 (B.P.A.I. Sep. 26, 2011)

UNITED STATES PATENT AND TRADEMARK OFFICE ________________ BEFORE THE BOARD OF PATENT APPEALS AND INTERFERENCES ________________ Ex parte PIERRE MESSIER ________________ Appeal 2010-008028 Application 10/528,006 Technology Center 3700 ________________ Before WILLIAM F. PATE III, LINDA E. HORNER and STEVEN D.A. McCARTHY, Administrative Patent Judges. McCARTHY, Administrative Patent Judge. DECISION ON APPEAL Appeal No. 2010-008028 Application No. 10/528,006 2 The Appellants appeal under 35 U.S.C. § 134 from the Examiner’s 1 final decision rejecting claims 1-9, 11-16 and 18-27. The Examiner rejects: 2 independent claims 1 and 9 under 35 U.S.C. § 102(b) as 3 being anticipated by Niemeyer (US 4,951,664, issued Aug. 28, 4 1990); and 5 dependent claims 2-8, 11-16 and 18-25 under 35 U.S.C. 6 § 103(a) as being unpatentable over Niemeyer and Rezuke (US 7 5,582,865, issued Dec. 10, 1996); and 8 dependent claims 26 and 27 under § 103(a) as being 9 unpatentable over Niemeyer, Rezuke and Dhanakoti (US 10 4,927,692, issued May 22, 1990). 11 Claims 10, 17, 28 and 29 are cancelled. We have jurisdiction under 35 12 U.S.C. § 6(b). 13 We REVERSE. 14 Claim 1 is illustrative of the claims on appeal: 15 1. A combination comprising: 16 a facemask having a periphery adapted to 17 abut a user’s face; and 18 a compressible gasket formed of a 19 breathable filtering material on said periphery of 20 said facemask adapted to provide an air path there 21 through and to sit between said periphery of said 22 facemask and a face of a user thereby filling any 23 space that may exist there between; 24 said facemask having an area for filtering air 25 which is interior to said periphery and not covered 26 by said gasket. 27 Claim 9 also recites a combination of a facemask and a compressible 28 gasket formed of a breathable material on the periphery of the facemask. 29 Appeal No. 2010-008028 Application No. 10/528,006 3 The Appellant contends that Niemeyer fails to describe a mask including a 1 compressible gasket formed of a breathable filtering material. (App. Br. 10-2 11.) The Appellant does not identify where either the term “formed” or the 3 term “breathable” is formally defined in the Specification. Nevertheless, the 4 Appellant provides persuasive evidence and reasoning to show that one of 5 ordinary skill in the art would understand the term “breathable” to indicate a 6 material having a relatively small resistance to airflow, that is, which causes 7 a relatively small air pressure differential across the material. (See App. Br. 8 12-13.) 9 The Specification states that: 10 For a facemask the difficulty in creating a seal 11 occurs between the skin and the mask for a range 12 of face sizes and shapes. Various different 13 technological means have been tried, for example 14 using, adhesive seals, flat and wide seals and 15 resilient material seals. The industry has oriented 16 its work on creating an airtight seal, however, the 17 pressure differential generated actually forces air 18 in the gaps between seal and skin thus bypassing 19 the air filter material. The electrostatic filter of the 20 present invention may be made of a spongy or 21 other breathable nonwoven material so as to 22 minimize the pressure differential, thus preventing 23 air from being forced through the gaps. 24 Spec. 2, ll. 6-13. In stating what the present invention is, the Appellant 25 appears to have disclaimed any interpretation of the term “formed” as used 26 in claims 1 and 9 broad enough to encompass compressible gaskets 27 including materials which contribute substantially to the pressure 28 differentials across the gaskets. 29 The Examiner finds that Niemeyer discloses a combination of a 30 facemask 10 and a compressible gasket 30 formed of a permeable on the 31 Appeal No. 2010-008028 Application No. 10/528,006 4 periphery of the facemask 10. (Ans. 3; see also Niemeyer, col. 4, ll. 26-32 1 and 59-62.) The strip 30 itself is made from an open-cell foam material. 2 (Niemeyer, col. 4, ll. 62-64.) Niemeyer teaches that a second portion of the 3 strip 30 facing away from the space enclosed by the filtering layer 16 of the 4 facemask 10 must allow air to be forced out of or absorbed into it during 5 compression and expansion. (Niemeyer, col. 4, l. 66 – col. 5, l. 6.) On the 6 other hand, the portion of the strip 30 facing toward the space enclosed by 7 the filtering layer 16 is covered by an elastic, hypoallergenic material 32 8 described as impermeable to particles as small as 5 m. (Niemeyer, col. 5, 9 ll. 7-20.) Since claims 1 and 9 each recite that the “compressible gasket” 10 must fill any space that may exist between the periphery of the facemask and 11 the face of the user, the combination of the strip 30 and the material 32, 12 rather than the strip 30 alone, must correspond to the recited “compressible 13 gasket” in order for Niemeyer to anticipate claims 1 and 9. 14 Niemeyer teaches that the material 32 “must also be soft, as indicated, 15 so that localized forces causing stretching are not transmitted so as to pull 16 and tighten the third material and cause it to overpower the conforming 17 characteristic of the second material and thereby allow leakage between 18 third material 32 and the facial skin of the wearer.” (Niemeyer, col. 5, ll. 21-19 27.) Niemeyer further teaches that the method for manufacturing 20 Niemeyer’s mask “insures impermeability of air during a breathing cycle 21 across the conforming mechanism and the sealing mechanism.” (Niemeyer, 22 col. 3, ll. 23-25.) In view of these teachings, the Examiner has not shown 23 that Niemeyer necessarily describes a combination of a facemask and a 24 compressible gasket formed of a breathable material on the periphery of the 25 facemask. (See App. Br. 15-17.) This is true even in light of Niemeyer’s 26 Appeal No. 2010-008028 Application No. 10/528,006 5 description of the material 32 as being impermeable to particles as small as 5 1 m. (See Ans. 3-4.) We do not sustain the rejection of claims 1 and 9 under 2 § 102(b) as being anticipated by Niemeyer. 3 The Examiner cites Rezuke for the teaching that the compressible 4 gasket of a mask may include active agents such as ion exchange resins. 5 (Ans. 4.) Rezuke does not remedy the deficiency in the disclosure of 6 Niemeyer for purposes of the rejection of claims 2-8, 11-16 and 18-25. We 7 do not sustain the rejection claims 2-8, 11-16 and 18-25 under § 103(a) as 8 being unpatentable over Niemeyer and Rezuke. 9 The Examiner cites Dhanakoti as teaching the use of a multi-layer 10 design in the application of electrostatic charges to a facemask. (See Ans. 11 6.) Dhanakoti does not remedy the deficiencies in the combined teachings 12 of Niemeyer and Rezuke for purposes of the rejection of claims 26 and 27. 13 We do not sustain the rejection claims 26 and 27 under § 103(a) as being 14 unpatentable over Niemeyer, Rezuke and Dhanakoti. 15 16 DECISION 17 We REVERSE the Examiner’s decision rejecting claims 1-9, 11-16 18 and 18-27. 19 20 REVERSED 21 22 23 24 MP 25