Ex Parte Reaux

Board of Patent Appeals and Interferences

Mar 13, 2008

10872034 (B.P.A.I. Mar. 13, 2008)

UNITED STATES PATENT AND TRADEMARK OFFICE
__________

BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
__________

Ex parte BRIAN K. REAUX
__________

Appeal 2008-0787
Application 10/872,034
Technology Center 3700
__________

DECIDED: March 13, 2008
__________

Before TONI R. SCHEINER, DEMETRA J. MILLS, and LORA M. GREEN,
Administrative Patent Judges.

SCHEINER, Administrative Patent Judge.

DECISION ON APPEAL
This is an appeal under 35 U.S.C. § 134 from the final rejection of
claims 1-19 and 21. The claims stand rejected as obvious over the prior art.
We have jurisdiction under 35 U.S.C. § 6(b).
We affirm.
Appeal 2008-0787
Application 10/872,034

STATEMENT OF THE CASE
The present invention is directed to a protective covering for the face
and eyes (Spec. ¶ 2), essentially comprising an air permeable face mask
(Spec. ¶ 14), a flexible eye shield, including a transparent lens (Spec. ¶ 17),
and one or more releasably coupled transparent lens protectors (Spec. ¶ 22).
The claims stand rejected as follows:
1. Claims 1-4, 6-9, and 21 under 35 U.S.C. § 103(a) as unpatentable over
Reese (U.S. Patent 6,213,125 B1, April 10, 2001) in view of Wilson
(U.S. Patent 6,536,045 B1, March 25, 2003).

2. Claim 5 under 35 U.S.C. § 103(a) as unpatentable over Reese in view of
Wilson, and further in view of Hubbard (U.S. Patent 5,020,533, June 4,
1991).

3. Claim 10 under 35 U.S.C. § 103(a) as unpatentable over Reese in view
of Wilson, and further in view of Woods (U.S. Patent 5,592,698, January
14, 1997).

4. Claim 11 under 35 U.S.C. § 103(a) as unpatentable over Reese in view
of Wilson, and further in view of Moretti (U.S. Patent 4,076,373,
February 28, 1978).

5. Claims 12, 14, 15, 17, and 19 under 35 U.S.C. § 103(a) as unpatentable
over Reese in view of Wilson, and further in view of Hubbard.

6. Claims 13 and 18 under 35 U.S.C. § 103(a) as unpatentable over Reese
in view of Wilson and Hubbard, and further in view of Moretti.

7. Claim 16 under 35 U.S.C. § 103(a) as unpatentable over Reese in view
of Wilson and Hubbard, and further in view of Woods.

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Application 10/872,034

Although there are seven separate rejections of the claims, the
Examiner’s proposed combination of Reese and Wilson, as applied to claim
1, forms the basis of each rejection. Appellant does not present separate
arguments for any particular claim or rejection on appeal. Therefore, we
select claim 1 as representative of the claimed subject matter for the purpose
of deciding this appeal, and the remaining claims will stand or fall with
claim 1. 37 C.F.R. § 41.37(c)(1)(vii) (2006).
Claim 1 is representative, and reads as follows:
1. A face and eye covering device comprising:
a face cover configured for covering the nose and mouth
of a wearer, the face cover being air permeable to allow the
passage of air therethrough to facilitate breathing when worn
over the wearer’s nose or mouth;
a flexible eye shield coupled to the face cover, the eye
shield including a lens and a lens protector releasably coupled
to the lens; and wherein
at least a portion of the lens and lens protector are
transparent to allow visual perception therethrough.

FINDINGS OF FACT1
Reese
1. Reese describes a device “for protecting the face of a wearer . . . [which]
includes a gas pervious mask body having dimensions to fit over the nose and
mouth of the wearer. A shield, for example a transparent plastic member, may
be coupled to the gas pervious mask and is dimensioned to extend over the
eyes of the wearer and also to cover the gas pervious mask” (Reese, col. 2, ll.
8-14).

1 Abbreviated “FF”.
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2. “The mask component . . . comprise[s] any conventional mask body”
(Reese, col. 2, ll. 16-17).
3. The device is “designed to protect against splashed or sprayed liquids”
(Reese, col. 1, ll. 27-28), “hazardous infectious pathogens . . . nasal and oral
emissions, blood and the like” (Reese, col. 1, ll. 16-19), such as “medical and
dental care professionals are exposed to . . . on a daily basis” (Reese, col. 1, ll.
15-16).
4. The shield “may be constructed of any transparent, liquid-impermeable
and lightweight material, such as polyester, polycarbonate, and the like”
(Reese, col. 6, ll. 25-27). It is “either entirely transparent or includes a
transparent portion to allow a wearer to see through [the] shield” (Reese, col. 6,
ll. 30-31), i.e., the shield includes a lens portion.
5. The shield may include two parts, with an upper portion overlapping a
lower portion, and the upper and lower portions may be constructed from
different materials (Reese, col. 6, ll. 61-66). For instance, the lower portion
“may be constructed from a less rigid material for improved fit and more
freedom of movement” (Reese, col. 7, ll. 1-4).
6. The shield “is preferably flat to facilitate ease of manufacture, shipping,
storage, and disposal” (Reese, col. 6, ll. 23-25), but “is preferably scored or
creased to allow flexible movement of . . . arcuate lobes . . . [which] may be
folded back to protect the eyes of a wearer” (Reese, col. 6, ll. 54-57).
7. Reese does not describe “a lens protector releasably coupled to the lens”
as required by claim 1 on appeal.

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Wilson
8. Wilson teaches “[i]t is common practice to wear face shields in
environments where injury of the eyes or face may occur from contamination.
For example . . . in the operating room” (Wilson, col. 1, ll. 25-28). “In such
environments . . . it is most likely that any face protection lens being worn will
become covered with contaminants, which obscures the view” (Wilson, col. 1,
ll. 37-39), and cleaning the lens “is not always an option, especially for a
physician performing an operation who cannot stop for such cleaning”
(Wilson, col. 1, ll. 41-43).
9. Wilson teaches that one way to solve this problem is to cover the lens
portion of the face shield with multiple layers of releasable lens protectors.
Specifically, Wilson describes “an optical stack of laminated removable lenses
that may be affixed to a face shield. The stack includes . . . superposed
removable lenses adhesively affixed to one another, wherein each of the
removable lenses is held to each successive lens with a clear uninterrupted
adhesive layer interposed between each lens . . . [and each] lens has a removal
tab portion on one end . . . This allows the wearer of the face shield to quickly
. . . remov[e] the top lens and expos[e] a clean lens directly underneath”
(Wilson, col. 2, ll. 47-58).
10. “Although a particular face protector is depicted,” Wilson teaches that
“all face protectors, goggles and the like are contemplated” (Wilson, col. 3, ll.
41-43), and the “multiply transparent optical stack . . . can be easily applied to
any desired face protector” (Wilson, col. 4, ll. 59-61).
11. Combining a given face protector with removable lens protectors would
have been within the technical grasp of one of ordinary skill in the art.
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DISCUSSION
The question of obviousness is resolved on the basis of underlying
factual determinations including: (1) the scope and content of the prior art;
(2) the level of ordinary skill in the art; (3) the differences between the
claimed invention and the prior art; and (4) secondary considerations of
nonobviousness, if any. Graham v. John Deere Co., 383 U.S. 1, 17-18
(1966). “When there is a design need or market pressure to solve a problem
and there are a finite number of identified, predictable solutions, a person of
ordinary skill has good reason to pursue the known options within his or her
technical grasp. If this leads to the anticipated success, it is likely the
product not of innovation but of ordinary skill and common sense. In that
instance the fact that a combination was obvious to try might show that is
was obvious under § 103.” KSR Int’l Co. v. Teleflex Inc., 127 S.Ct. 1727,
1742 (2007).
The principal issue raised by this appeal is whether it would have been
obvious for one skilled in the art to apply Wilson’s laminated removable
lenses protectors to Reese’s flexible face shield, given the scope and content
of the prior art, the level of ordinary skill in the art, and the differences
between the claimed invention and the prior art.
We agree with the Examiner that “[i]t would have been obvious to one
of ordinary skill in the art . . . to provide the eye shield of Reese et al. with
the lens protector [ ] of Wilson et al. to achieve the advantage of maintaining
the lens free of contaminants and with an unobscured view” (Ans. 3), given
the fact that both Reese and Wilson are directed to face protectors used in
the same environments to protect medical/dental personnel from sprayed or
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spattered contaminants (FF 3, 8), while Wilson provides an instantaneous,
on-the-spot solution to the problem of reduced visibility from contaminants
(FF 8, 9), which can be applied to any face protector (FF 10).
We have considered Appellant’s arguments, presented through the
Reese Declaration,2 wherein Mr. Reese offers “several explanations as to
why one of ordinary skill in the art would not combine the lens stack of
Wilson et al. to the flexible face shield of Reese et al.” (Br. 7), but we are
not persuaded otherwise.
In particular, Mr. Reese argues that the face shields shown in
Wilson’s illustrations are “very large, thick, heavy, rigid shields, which in an
operating room environment, would be worn separately from any face mask”
(Decl. ¶ 5), and which “provide[ ] ample and non-flexible support for
applying several layers of the lens stack [ ] without adversely affecting the
underlying shield or the lens stack” (Decl. ¶ 5). According to Mr. Reese,
one skilled in the art would not have been motivated to apply the lens stack
to Reese’s “thin, lightweight, relatively flexible and comparatively delicate”
shield (Decl. ¶ 5), “[g]iven the number of film layers 30, 32, 34, 36, etc.
shown ([in] Fig. 4) and the disclosed thicknesses . . . [which] would greatly
exceed the thickness of the underlying shield, [and] which would be
undesirable” (Decl. ¶ 5).
We are not persuaded by this argument. First, Wilson teaches that his
removable lens stack can be applied to any face protector (FF 10), without

2 Declaration of of Mr. George D. Reese. (hereinafter “Decl.”), dated
February 22, 2006, submitted under the provisions of 37 C.F.R. § 1.132, and
resubmitted with the Appeal Brief.
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qualification, and one skilled in the art would have immediately recognized
the general applicability of Wilson’s protective strategy to any transparent
face protector. Second, the numerical designations 30, 32, 34, 36 in
Wilson’s Figure 4 do not mean that there are thirty or more layers in the lens
stack (as is evident from the fact that the “bottom-most film layer” is
designated 30) (Wilson, col. 4, l. 38). Moreover, it would have been within
the technical grasp of one skilled in the art to configure a stack of lens
protectors to complement any given face protector (FF 11).
Mr. Reese also argues that one skilled in the art would have been
“deterred from applying the lens stack of Wilson et al. to the face shield of
Reese et al. because of the temporary and disposable nature of the face
shield itself . . . [since] the face mask and shield combination could merely
be removed and disposed of when it became contaminated” (Decl. ¶ 5).
We disagree. One of the advantages of covering the lens portion of a
face shield with removable lens protectors is that it “allows the wearer of the
face shield to quickly . . . remov[e] the top lens and expos[e] a clean lens
directly underneath” (Wilson, col. 2, ll. 55-58; FF 9), without, for example,
interrupting an operation to clean the face protector (FF 8), or to exchange it
for another. Whether or not the face protector is discarded after an operation
is irrelevant.
Mr. Reese further argues that Reese’s face shield is “quite flexible
compared to the rigid lens of Wilson et al. and one skilled in the art would
not apply the lens stack [ ] of Wilson et al. to the shield [ ] of Reese et al.
because of the potential difficulty that may be involved in removing the
layers of the lens stack from such a flexible face shield” (Decl. ¶ 5).
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This argument is not persuasive. The claims do not require any
particular degree of flexibility - nor does Reese. Indeed, Reese teaches that
the lens portions of the face protector, while flexible, may be more rigid than
the lower part of the shield (FF 5). In any case, Wilson’s Figures show that
the removable lens protectors need not cover the entire face shield. (see e.g.,
Wilson’s Figure 2). Again, it would have been within the technical grasp of
one skilled in the art to configure a stack of lens protectors to complement
any given face protector (FF 11).
Finally, Mr. Reese argues that “application of the lens stack . . . would
be more difficult with the flexible face shield of Reese et al. such that those
skilled in the art . . . would be deterred from applying such a lens stack” and
“flexing or bending of the shield of Reese et al. might interfere with the
adherence of the lens stack [ ] on the shield” (Decl. ¶ 5).
This argument is not persuasive. As discussed above, the shield is
initially “preferably flat to facilitate ease of manufacture,” and “is preferably
scored or creased to allow flexible movement of . . . arcuate lobes . . . [which]
may be folded back to protect the eyes of a wearer” (Reese, col. 6, ll. 23-25 and
ll. 54-57). Thus, the flexibility of the shield would have no effect on the
application of the lens stack to the shield. Moreover, Mr. Reese has not
explained why bending the arcuate lobes back to protect the wearers eyes from
the sides would interfere with adhesion of the lens stack.
We find that the Examiner has provided sufficient evidence to
establish that the invention of claim 1 would have been obvious over the
cited prior art, which Appellant has not overcome by argument or evidence.
As discussed above, Appellant did not present separate arguments for any
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particular claim or rejection on appeal. Therefore, we selected claim 1 as
representative of the claimed subject matter for the purpose of deciding this
appeal, and determined that remaining claims 2-19 and 21 would stand or
fall accordingly.
SUMMARY
All seven of the Examiner’s rejections of the claims as unpatentable
under 35 U.S.C. § 103(a) 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)(1)(iv) (2006).

AFFIRMED

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