Ex Parte Turdjian

Patent Trial and Appeal Board

Jan 19, 2017

13317329 (P.T.A.B. Jan. 19, 2017)

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.
D-210 1816
EXAMINER
BATSON, VICTOR D
ART UNIT PAPER NUMBER
3677
MAIL DATE DELIVERY MODE
13/317,329 10/14/2011
7590 01/19/2017
MOLDEX-METRIC, INC.
10111 JEFFERSON BOULEVARD
CULVER CITY, CA 90232
Crest Turdjian
01/19/2017 PAPER
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.
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte CREST TURD JI AN
Appeal 2015-003240
Application 13/317,329
Technology Center 3600
Before LINDA E. HORNER, ANNETTE R. REIMERS, and
BRENT M. DOUGAL, Administrative Patent Judges.
HORNER, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Crest Turdjian (Appellant)1 seeks our review under 35 U.S.C. § 134
of the Examiner’s decision, as set forth in the Final Office Action, dated
February 25, 2014 (“Final Act.”), rejecting claims 1-11. We have
jurisdiction under 35 U.S.C. § 6(b).
We REVERSE.
1 Appellant identifies Moldex-Metric, Inc. as the real party in interest. Br. 1.
Appeal 2015-003240
Application 13/317,329
CLAIMED SUBJECT MATTER
Appellant’s claimed subject matter relates to “a clamp for adjustably
joining the ends of a strap.” Spec. 1. Claim 1 is the sole independent claim
and is reproduced below.
1. A combination of a clamp and flat strap for use with
a respirator mask for adjustably joining the ends of the flat strap
to adjust the fit of the respirator mask to the face of a user,
including
a flat strap having ends,
a clamping structure having top and bottom members,
at least one of the top and bottom members having a
groove extending from one side to the other side of the at least
one of the top and bottom members and with the groove for
receiving the ends of the flat strap so that first portions of the
ends of the flat strap are within the groove and at least one other
second portion of the ends of the flat strap extends outward from
the sides of the clamping structure,
complementary portions located on the top and bottom
members to align the top and bottom members together to
capture the first portions of the ends of the flat strap by friction
within the groove formed within the clamp and with the length
of the flat strap adjusted to be shorter or longer to adjust the fit
of the respirator mask by the at least one other second portion of
the ends of the flat strap that extend outward from the sides of
the clamping structure, and
means for locking the aligned top and bottom members
together while still allowing the adjustment of the length of the
flat strap to be shorter or longer to adjust the fit of the respirator
mask.
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Appeal 2015-003240
Application 13/317,329
REJECTIONS
The Final Action included the following grounds of rejection:
1. Claims 1-5 and 9-11 under 35 U.S.C. § 102(b) as anticipated by
Mathes (US 3,138,839, issued June 30, 1964).
2. Claims 6 and 8 under 35 U.S.C. § 103(a) as unpatentable over
Mathes and Voughlohn (US 2002/0020046 Al, published February
21,2002).
3. Claim 7 under 35 U.S.C. § 103(a) as unpatentable over Mathes and
Tyrrell (US 3,418,733, issued December 31, 1968).
ANALYSIS
First Ground of Rejection
The Examiner found that “Mathes discloses a combination of a clamp
(10) and flat strap (60 - col. 4, lines 2-4) for use with a respirator mask . . .”
as called for in independent claim 1. Final Act. 2. Appellant contends that
claim 1 is “directed to the use of the adjustable flat strap and clamp for use
with a respirator mask and is not a tie means in the same way as shown in
Mathes.” Br. 9; see also id. at 9-10 (Appellant arguing that the device of
Mathes is shown in combination with “a shoe lace and not a flat strap”).
Mathes discloses means 10 for securing the ends of tie means.
Mathes, col. 2,11. 25-27. Mathes shows the device 10 being used with “a
shoe lace 60.” Id. at col. 3,11. 34-35, Fig. 1 (emphasis omitted). Shoe lace
60 is depicted in Figure 1 of Mathes as being round. Mathes discloses that
“[t]he device of the invention can be used with tie means other than shoe
laces and the operation will be the same as that described hereinbefore.” Id.
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Appeal 2015-003240
Application 13/317,329
at col. 4,11. 2^1. We do not find any explicit disclosure of the use of device
10 of Mathes in combination with a flat strap, as recited in claim 1.
Although Mathes might suggest that device 10 could be used with tie means
other than the round shoe laces depicted in Figure 1, such disclosure is not
sufficient to demonstrate by a preponderance of the evidence anticipation of
the combination of a clamp and flat strap of claim 1. “A claim is anticipated
only if each and every element as set forth in the claim is found, either
expressly or inherently described, in a single prior art reference.” Verdegaal
Bros., Inc. v. Union Oil Co. of Cal., 814 F.2d 628, 631 (Fed. Cir. 1987).
Claim 1 also recites the top and bottom members are aligned together
“to capture the first portions of the ends of the flat strap by friction within
the groove formed within the clamp.” Br. 12 (Claims App.). The Examiner
found, with respect to claim 1, that Mathes discloses “at least one of the top
and bottom members having a groove (16, 24) extending from one side to
the other side of the at least one of the top and bottom members (see Fig. 2)
and with the groove for receiving the ends of the flat strap (see Fig. 1)” such
that when the top and bottom members (12, 14) are aligned together, the first
portions of the ends of the flat strap are captured by friction within the
groove. Final Act. 3 (citing Mathes, Fig. 1 and annotated Fig. 1 of Mathes
provided in Non-Final Office Action, dated May 30, 2013 (“Non-Final
Act.”) 4). The Examiner’s annotation explains that device 10 of Mathes has
“an opening through the at least one of the top and bottom members into the
groove [s]o that the ends of the strap can pass through the opening into the
groove and be locked in place.” Non-Final Act. 4.
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Appeal 2015-003240
Application 13/317,329
Appellant argues that “Mathes requires not only top and bottom
members, but an additional spherical element with a rough and outer surface
in order to operate properly.” Br. 9. Indeed, Mathes discloses inserting lace
ends through a hole in base 12, past spherical wedging element 54, and
through one of apertures 50 and 52 in cap 14. Mathes, col. 3,11. 37-43.
Mathes discloses the frictional engagement with the lace as follows:
The lace 60 is held tightly in place on the shoe 64 since any
tendency of the ends 66 and 68 of the lace 60 to be moved
downwardly through the apertures 50 and 52 and out through the
hole in the base 12 is prevented by spherical element 54 whose
surface is contacted by the laces as they tend to move outwardly
through the hole in the base 12 and the wedging element 54 is
urged into the hole and wedges the lace 60 between the element
54 and the surfaces 42 and 44 of the hole in the base 12 and thus
effectively prevents any accidental or inadvertent removal of the
lace relative to the body 10.
Id. at col. 3,11. 59-70 (emphasis omitted). Contrary to the Examiner’s
finding, the ends of the laces are not locked in place through frictional
engagement of the lace with the grooves 16 and 24. Rather, the ends of the
lace are prevented from movement by engagement of the lace with wedging
element 54 and surfaces 42 and 44 of the hole in base 12.
With regard to the grooves, Mathes discloses only that “[t]he ends of
the lace are then preferably placed in the recesses 16 and 24 to prevent them
from contacting the ground.” Id. at col. 3,11. 56-58 (emphasis omitted). We
find that this disclosure in Mathes is insufficient to support by a
preponderance of the evidence the Examiner’s finding that in Mathes, when
the top and bottom members are aligned together, they “capture the first
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Appeal 2015-003240
Application 13/317,329
portions of the ends of the flat strap by friction within the groove formed
within the clamp” as recited in claim 1. There is no explicit disclosure of
frictional engagement of the lace ends with the groove sufficient to capture
the ends of the lace, and it is not necessarily the case that such frictional
engagement occurs in Mathes. Further, we cannot discern sufficiently by
resort to the Figures of Mathes whether the complementary grooves 16 and
24 are dimensioned such that the lace ends are held in the grooves by
frictional engagement of the lace ends with the surfaces of the groove.
For these reasons, we do not sustain the rejection of independent
claim 1, or its dependent claims 2-5 and 9-11 under 35 U.S.C. § 102(b) as
anticipated by Mathes.
Second and Third Grounds of Rejection
In the second ground of rejection of dependent claims 6 and 8, the
Examiner proposed to modify Mathes with the teaching of Voughlohn to add
protrusions to one of the top and bottom members such that the protrusions
extend partially into the groove. Final Act. 6-7. The Examiner reasoned
that one having ordinary skill in the art would have been led to modify
Mathes in the manner claimed “to securely press the strap ends in the
clamp.” Id. at 7. In the third ground of rejection of dependent claim 7, the
Examiner proposed to modify Mathes with the teaching of Tyrrell to add
complementary protrusions and recesses within the groove of Mathes. Final
Act. 7-8. The Examiner reasoned that one having ordinary skill in the art
would have been led to modify Mathes in the manner claimed “to enhance
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Appeal 2015-003240
Application 13/317,329
the gripping of the strap ends in the clamp in order to prevent unwanted
removal.” Id. at 8.
The Examiner’s reasoning in the second and third grounds of rejection
to modify Mathes to add protrusions or complementary protrusions and
recesses within the groove appears to be based on a misunderstanding of
how the clamp of Mathes operates to tie down the lace ends. As explained
supra, the ends of the lace in Mathes are prevented from movement by
engagement of the lace with wedging element 54 and surfaces 42 and 44 of
the hole in base 12, not through frictional engagement of the lace ends with
the recesses 16 and 24. The Examiner’s reasoning is based on an
unsupported premise that the lace ends ffictionally engage with the recesses
in Mathes, and the Examiner thus proposes to modify Mathes to improve
this frictional engagement. Having found insufficient support in Mathes for
such frictional engagement, we find the Examiner’s reasoning is not based
on rational underpinnings. For these reasons, we do not sustain the rejection
under 35 U.S.C. § 103(a) of claims 6 and 8 as unpatentable over Mathes and
Voughlohn and of claim 7 as unpatentable over Mathes and Tyrrell.
DECISION
The decision of the Examiner to reject claims 1-11 is REVERSED.
REVERSED
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