Ex Parte RobinsonDownload PDFPatent Trial and Appeal BoardJun 21, 201711827882 (P.T.A.B. Jun. 21, 2017) Copy Citation United States Patent and Trademark Office 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 APPLICATION NO. FILING DATE FIRST NAMED INVENTOR ATTORNEY DOCKET NO. CONFIRMATION NO. 11/827,882 07/13/2007 Paul Robinson H28488-MOR03334P02640US 1987 93730 7590 06/23/2017 HONEYWELL/WOOD PHILLIPS Patent Services 115 Tabor Road P.O. Box 377 MORRIS PLAINS, NJ 07950 EXAMINER WOODWARD, VALERIE LYNN ART UNIT PAPER NUMBER 3771 NOTIFICATION DATE DELIVERY MODE 06/23/2017 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): ksanderson@woodphillips.com patentservices-us @ honey well, com docketing @ woodphillips .com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte PAUL ROBINSON Appeal 2015-007579 Application 11/827,882 Technology Center 3700 Before LINDA E. HORNER, ANNETTE R. REIMERS, and NATHAN A. ENGELS, Administrative Patent Judges. HORNER, Administrative Patent Judge. DECISION ON APPEAL STATEMENT OF THE CASE Paul Robinson (Appellant)1 seeks our review under 35 U.S.C. § 134(a) of the Examiner’s decision, as set forth in the Final Office Action dated August 14, 2014 (hereinafter “Final Act.”), rejecting claims 1, 2, 8, and 10-13.2 We have jurisdiction under 35 U.S.C. § 6(b). We AFFIRM. 1 Appellant identifies Morning Pride Manufacturing, L.L.C. and Honeywell International, L.L.C. as the real parties in interest. Appeal Brief 1 (dated January 20, 2015) (hereinafter “Appeal Br.”). 2 Claims 3-7, 9, and 14 are canceled. Final Act. 2. Appeal 2015-007579 Application 11/827,882 CLAIMED SUBJECT MATTER Appellant’s claimed subject matter relates to “a connection adapter ... for use with a face piece of an emergency/rescue breathing apparatus and an oxygen/air-powered resuscitation/inhalation device.” Spec., para. 3. Claims 1, 8, 10, and 13 are independent. Claim 1 is illustrative of the subject matter on appeal and is reproduced below. 1. A connection adapter for use with a face piece of an emergency/rescue breathing apparatus and an oxygen/air- powered resuscitation/inhalation device, the face piece having an oxygen/air supply connection for a fitment of the emergency/rescue breathing apparatus, the oxygen/air-powered resuscitation/inhalation device having an oxygen/air ventilation port to deliver an oxygen/air flow to a victim of respiratory failure, the connection adapter comprising: a body; an oxygen/air port on the body and configured to engage the oxygen/air ventilation port to direct an oxygen/air flow between the connection adapter and the oxygen/air-powered resuscitation/inhalation device; and a face piece connection located on the body facing opposite from the oxygen/air port and configured to engage the oxygen/air supply connection on the face piece to direct an oxygen/air flow between the face piece and the oxygen/air- powered resuscitation/inhalation device; and wherein the oxygen/air port comprises a threaded male connection. Appeal Br. 15 (Claims App.). 2 Appeal 2015-007579 Application 11/827,882 REJECTIONS3 The Final Office Action includes the following rejections: 1. Claims 10 and 12 stand rejected under 35 U.S.C. § 102(b) as anticipated by Ansite (US 4,494,538, issued January 22, 1985). 2. Claim 1 stands rejected under 35 U.S.C. § 103(a) as unpatentable over Ansite and Price (US 4,022,202, issued May 10, 1977). 3. Claim 2 stands rejected under 35 U.S.C. § 103(a) as unpatentable over Ansite, Price, and Muller et al. (US 2003/0217752 Al, published November 27, 2003) (“Muller”). 4. Claims 8 and 11 stand rejected under 35 U.S.C. § 103(a) as unpatentable over Ansite and Muller. 5. Claim 13 stands rejected under 35 U.S.C. § 103(a) as unpatentable over Ansite and Swann et al. (US 5,640,952, issued June 24, 1997) (“Swann”). ANALYSIS First Ground of Rejection Appellant argues the claims subject to the first ground of rejection as a group. Appeal Br. 5-6. We select claim 10 as representative of the group, with claim 12 standing or falling with claim 10. 37 C.F.R. § 41.37(c)(l)(iv). Claim 10 is directed to a “hands free ventilation system” comprising “a face piece of an emergency/rescue breathing apparatus . . . wherein the face piece 3 The Examiner withdrew a rejection of claims 10-12 under 35 U.S.C. § 101 and § 33(a) of the America Invents Act as being directed to or encompassing a human organism. Ans. 3. 3 Appeal 2015-007579 Application 11/827,882 comprises an oxygen/air supply connection for a fitment of the emergency/rescue breathing apparatus.” Appeal Br. 16 (Claims App.). Appellant argues the Examiner erred in rejecting claim 10 as anticipated by Ansite, because, according to Appellant, the circular inlet opening of Ansite’s gas mask 22 is not an “oxygen/air supply connection for a fitment of any other part of the gas mask” and, thus, Ansite does not disclose a face piece that includes “an oxygen/air supply connection for a fitment of the emergency/rescue breathing apparatus.” Appeal Br. 6. The Examiner finds that Ansite’s oxygen/air supply connection 22 is “capable of use for a fitment of the emergency/rescue breathing apparatus” because it is “capable of receiving a fitment (such as a cap or other breathing apparatus, for example).” Final Act. 3—4 (Examiner noting that the claim language does not positively recite the fitment); see also Ans. 3—4 (Examiner stating that “[sjince the fitment is not part of the scope of the claimed structure, Ansite need not expressly disclose this feature in order to anticipate the claim limitation”). The question presented in the appeal of this rejection is what structure is required by the recitation in claim 10 of “an oxygen/air supply connection for a fitment of the emergency/rescue breathing apparatus.” The Specification describes an emergency/rescue breathing apparatus in the form of a Self-Contained Breathing Apparatus (SCBA) 11 that includes a face piece or mask 12 and a regulator connector 17 that provides an oxygen/air supply connection for use with a fitment 16 in the form of an oxygen/air regulator. Spec, para. 18 (describing Figure 1). The 4 Appeal 2015-007579 Application 11/827,882 Specification describes that “when the regulator 16 is removed from the face piece 12, the regulator connection 17 is made available for connection to another fitment” (e.g., face piece connection 42 of connection adapter 40). Id. at para. 21. The Specification further describes that oxygen/air supply connection 17 on face piece 12 “can also be used with other types of fitments, such as for example, an air purifying filter device” wherein “face piece 12 could be the face piece of an Air Purifying Respirator (APR) or a Powered Air Purifying Respirator (PAPR) to which the air purifying filter device of the APR or PAPR is connected to supply a purified oxygen/air flow.” Id. at para. 23. Thus, Appellant’s Specification defines “emergency/rescue breathing apparatus” broadly as a SCBA, APR, or PAPR, and the structure of the oxygen/air supply connection could be formed in any manner that renders it capable of use with a fitment of a regulator or filter device. Id. Ansite discloses a mask assembly 10 for use with a portable ventilator/resuscitator 30 that can be “connected to a patient’s gas mask in the manner indicated in F[igure] 1.” Ansite, col. 2,11. 10-12, Abstract, Fig. 1. Ansite describes that “[t]he gas mask shown in F[igure] 1 is of the type which may be worn by U.S. Army field personnel” and “is provided with a filter 20 having an end wall 22 provided with a circular inlet opening.” Id. at col. 2,11. 16-21. “[TJhere is customarily a one-way valve between the filter 20 and the mask 18 which permits air to be drawn into the mask by the patient through the filter opening 22 and to be exhaled only through the exhalation valve 26.” Id. at col. 2,11. 24-28. In Ansite, the 5 Appeal 2015-007579 Application 11/827,882 mask assembly 10 includes a connector tube means 32 that terminates in a flange having a conical outer surface 34, which may be inserted into the aperture in the end wall 22 and then compressed until the shoulder 36 passes the edge of the aperture to create a snap fit airtight relationship. Id. at col. 3, 11. 37^19, Fig. 3. Thus, Ansite’s filter opening 22 is capable of use with a fitment (i.e., connector tube means 32) of Ansite’s mask assembly 10 to form a snap fit airtight relationship. If Ansite’s filter opening 22 is capable of use with Ansite’s mask assembly fitment, then the Examiner’s finding that this filter opening 22 also is capable of use with a fitment of another breathing apparatus (e.g., an emergency/rescue breathing apparatus, such as a SCBA, APR, or PAPR) is reasonable. Appellant’s argument that Ansite’s filter opening 22 is not for a fitment of an emergency/rescue breathing apparatus because Ansite does not explicitly disclose using the filter opening 22 with any other part of the gas mask is not persuasive because it fails to structurally distinguish filter opening 22 from the claimed oxygen/air supply connection. Simply because Ansite does not disclose, for example, use of filter opening 22 with a regulator of a SCBA or with a filter of an APR or PAPR, does not demonstrate a structural difference between filter opening 22 and an oxygen/air supply connection specifically configured for such a fitment. As noted by the Examiner (Final Act. 4, Ans. 3—4), claim 10 does not positively recite the fitment. Further, claim 10 does not recite any specific structural attributes of a fitment of the emergency/rescue breathing apparatus, with which the claimed oxygen/air supply connection must be capable of being 6 Appeal 2015-007579 Application 11/827,882 used, that would structurally distinguish the claimed connection from the opening 22 of Ansite. For these reasons, Appellant has not demonstrated error in the rejection of claim 10. Accordingly, we sustain the rejection of claim 10, and claim 12 which falls with claim 10, under 35 U.S.C. § 102(b) as anticipated by Ansite. Second Ground of Rejection In the rejection of independent claim 1, the Examiner proposes to modify Ansite’s oxygen/air port (at 62 where the connector tube 32 meets tubing 40 of device 30) of connection adapter 32 to include a threaded male connection, as taught by Price, “to provide a sufficiently tight sealing means between the connection adapter body and the ventilation device.” Final Act. 5-6. The Examiner explains that “Ansite does not provide any description of what type of connection is provided between adapter 32 and inhalation/exhalation valve 62 connected to hose 40” and that “[ljacking any details as to the type of connection, one of skill in the art would look elsewhere for suitable connection types.” Ans. 4. The Examiner determines that one of ordinary skill in the art would have been led to use a threaded connection, which is disclosed in Price as a suitable means for connecting a connection adapter 46 and a valve body 2, “to provide a suitable choice of an air tight type of connection allowing for air to pass through the valve and adapter into the mask.” Id. at 5. Appellant argues that the Examiner’s reasoning is insufficient because nothing in the prior art “suggests in any way that the threads of Price would be any kind of improvement over the connection between the hose 40 and 7 Appeal 2015-007579 Application 11/827,882 the adapter 32 of Ansite.” Appeal Br. 7 (“It is simply not rational to modify a structure to provide a function that the structure already possesses, particularly if the already existing function will not be improved”). Appellant’s argument fails to recognize the functional approach explained by the Supreme Court in KSR Int’l Co. v. Teleflex Inc., 550 U.S. 398, 417 (2007) that “when a patent ‘simply arranges old elements with each performing the same function it had been known to perform’ and yields no more than one would expect from such an arrangement, the combination is obvious.” (Internal citation omitted). Appellant further asserts that the prior art does not show that Price’s threaded connection would be “appropriate for use for connection with a hose 40” or “provide a sufficiently tight sealing means with a host [sic] (40) such as disclosed in Ansite.” Appeal Br. 7-8. We agree with the Examiner’s finding that the threaded connection of Price would be suitable for use in Ansite, as the connection in Price is used to connect an adapter to a valve body in the same manner and in the same environment that the Examiner proposes to use a threaded connection to connect the adapter 32 of Ansite to valve body 62. As such, Appellant has not demonstrated error in the Examiner’s second ground of rejection. Accordingly, we sustain the rejection of claim 1 under 35 U.S.C. § 103(a) as unpatentable over Ansite and Price. Third Ground of Rejection Claim 2 depends from claim 1 and further recites “wherein the face piece connection comprises a male bayonet connection surrounded by a gasket.” Appeal Br. 15 (Claims App.). Appellant reiterates the arguments 8 Appeal 2015-007579 Application 11/827,882 presented in support of the patentability of claim 1 as a basis for reversal of the rejection of dependent claim 2 as unpatentable over Ansite, Price, and Muller. For the reasons discussed supra, we do not find error in the Examiner’s rejection of claim 1. Appellant further argues that the Examiner’s reason for modifying the connection adapter 32 of Ansite with a bayonet connection, as disclosed in Muller, lacks rational underpinning. Appeal Br. 8. Specifically, Appellant contends that nothing in the prior art “suggests that a male bayonet connection would in any way be a ‘quicker means to connect’ than the snap fit connector 34 already disclosed in Ansite” or “that the bayonet connection of Muller would in any way be a more fluid tight seal.” Id. Appellant contends that Ansite’s snap fit connection is airtight and requires only a single motion to achieve a connection, which is quicker than a bayonet connection, which requires axial and twisting motion. Id. at 9. Both Ansite’s snap fit connection and Muller’s bayonet connection were known means to connect elements in the field of the invention to achieve airtight seals. Ansite, col. 2,11. 43—49, Muller, para. 19. The Examiner’s proposed replacement of Ansite’s snap fit connection with Muller’s bayonet connection would have been nothing more than “the mere substitution of one element for another known in the field” to yield a predictable result. KSR, 550 U.S. at 416. See also Ans. 6 (Examiner stating that “the two types of connections are obvious variants, at least for the reason that the different types of connection are art[-]recognized equivalents which yield the same predictable result of providing a quick and secure 9 Appeal 2015-007579 Application 11/827,882 means for connecting devices to a respiratory mask”). Further, as noted by the Examiner, although the bayonet connection may not be quicker to effect a connection than the snap fit connection of Ansite, Muller’s bayonet connection may provide a more secure connection than a snap fit because the bayonet connection cannot be disconnected accidentally by simple axial motion. Ans. 6 (Examiner noting that the motivation provided for the modification “is not to provide a quicker means to connect, but rather is ‘to provide a sufficiently quick yet secure means to connect the device to the face piece while insuring a fluid tight seal.’”) (Emphasis added) (Internal citation omitted). For these reasons, Appellant has not demonstrated error in the third ground of rejection. Accordingly, we sustain the rejection of claim 2 under 35 U.S.C. § 103(a) as unpatentable over Ansite, Price, and Muller. Fourth Ground of Rejection Appellant relies on the arguments presented in support of the patentability of claim 10 as a basis for seeking reversal of the rejection of dependent claim 11. Appeal Br. 10. For the reasons discussed supra, we do not find error in the Examiner’s rejection of claim 10. Appellant further presents the same arguments in support of the patentability of claims 8 and 11 over Ansite and Muller as presented in support of the patentability of claim 2 over Ansite, Price, and Muller. Appeal Br. 10-11 (Appellant arguing that the Examiner’s reason to modify Ansite to replace its snap fit connection with Muller’s bayonet connection lacks rational underpinning). For the reasons discussed supra in our analysis of the third ground of rejection, we likewise do not find error in the 10 Appeal 2015-007579 Application 11/827,882 Examiner’s rejection of claims 8 and 11. Accordingly, we sustain the rejection of claims 8 and 11 under 35 U.S.C. § 103(a) as unpatentable over Ansite and Muller. Fifth Ground of Rejection Appellant argues that the Examiner erred in rejecting method claim 13 because the proposed modification “is clearly contrary to the disclosure of Ansite which is specifically intended to be connected to the gas mask 18 without removing the filter 20.” Appeal Br. 12; see also id. at 13 (Appellant arguing that removing filter 20 would render gas mask 18 unsuitable for its intended purpose). Appellant’s argument misconstrues the Examiner’s proposed modification. The Examiner did not propose to modify the gas mask 18 of Ansite. Rather, the Examiner’s rejection proposes, based on the explicit suggestion in Ansite that its ventilation device 30 can be used with different types of gas masks (see Ansite, col. 2,11. 28-34), that it would have been obvious to use Ansite’s ventilation device 30 with a gas mask of the type disclosed in Swann, i.e., a mask used with a regulator, hose, and air tank of an emergency breathing apparatus. Final Act. 8 (Examiner describing that the modification would “allow Ansite’s ventilator/resuscitator to be used to ventilate a person wearing a gas mask of the type taught [in] Swann to increase the variety of types of masks the method can be applied to”); see also Ans. 7. We agree with the Examiner’s finding that “the intended purpose of Ansite’s ventilator/resuscitator 30 is to ventilate a victim wearing a gas mask 11 Appeal 2015-007579 Application 11/827,882 quickly, without having to remove a gas mask, if worn, which would delay help to the victim.” Ans. 7. In particular, even though Ansite’s assembly 10 includes a nasal mask 12, Ansite does not suggest that the victim’s gas mask 18 be removed and the nasal mask 12 be used in its place. Rather, Ansite teaches that if the victim already is wearing a gas mask 18, then the assembly 10 is connected directly to the opening 22 in the gas mask 18 and “thus does not require the rescuer to remove the gas mask of a patient who is wearing one.” Ansite, col. 3,11. 24-50. The proposed modification to use Ansite’s ventilator/resuscitator 30 to ventilate a victim wearing a gas mask of the type disclosed in Swann does not frustrate, but rather furthers, the intended purpose of Ansite. See id. Appellant further contends that the Examiner’s reliance on the suggestion in column 2 of Ansite that its ventilation device 30 could be used with other gas masks is in error because there is no disclosure in Swann that inlet 18 “could also be used for exhalation purposes.” Reply Br. 2. Indeed, Ansite suggests that its assembly “may be associated with other forms of gas masks provided with an inlet, which inlet could also be utilized for exhalation purposes.” Ansite, col. 2,11. 31-34. However, “[a] person of ordinary skill is also a person of ordinary creativity, not an automaton.” KSR, 550 U.S. at 421. While the statement in Ansite suggests another type of gas mask with which Ansite’s assembly could be used, it does not confine or constrain the assembly to use with only such gas masks. KSR, 550 U.S. at 420 (“Common sense teaches, however, that familiar items may have obvious uses beyond their primary purposes, and in many cases a person of 12 Appeal 2015-007579 Application 11/827,882 ordinary skill will be able to fit the teachings of multiple patents together like pieces of a puzzle”). In fact, Ansite’s gas mask 18 does not contain such an inlet, and Ansite teaches “means to block the exhalation valve 26” of gas mask 18. Ansite, col. 2,11. 50-54. Further, Swann teaches that in instances in which exhaustion of the supply of air from an air tank of a supplied respirator system or malfunction of a respirator system occurs, personnel such as firefighters may be in need of a breathing system supplemental to the supplied respiratory system for supplying breathable filtered air to the user. Swann, col. 1,11. 42-57. Ansite’s ventilator/resuscitator 30 is portable and provides such breathable air. Thus, we find no error in Examiner’s proposed modification to use the ventilator/resuscitator 30 of Ansite to ventilate a victim wearing a gas mask of the type disclosed in Swann. Accordingly, we sustain the rejection of claim 13 under 35 U.S.C. § 103(a) as unpatentable over Ansite and Swann. DECISION The rejections of claims 1, 2, 8, and 10-13 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). See 37 C.F.R. § 1.136(a)(l)(iv). AFFIRMED 13 Copy with citationCopy as parenthetical citation