Ex Parte Wallnewitz et alDownload PDFPatent Trial and Appeal BoardAug 26, 201612489698 (P.T.A.B. Aug. 26, 2016) Copy Citation UNITED STA TES p A TENT AND TRADEMARK OFFICE APPLICATION NO. FILING DATE 12/489,698 0612312009 23872 7590 08/29/2016 MCGLEW & TUTTLE, PC P.O. BOX 9227 SCARBOROUGH STATION SCARBOROUGH, NY 10510-9227 FIRST NAMED INVENTOR Oliver W ALLNEWITZ 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. 73379 2105 EXAMINER VASAT,PETERS ART UNIT PAPER NUMBER 3778 MAILDATE DELIVERY MODE 08/29/2016 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 OLIVER W ALLNEWITZ and KRISZTINA SOL TESZ Appeal2014-004882 Application 12/489,698 1 Technology Center 3700 Before STEFAN STAICOVICI, LYNNE H. BROWNE, and JAMES J. MAYBERRY, Administrative Patent Judges. ST AI CO VICI, Administrative Patent Judge. DECISION ON APPEAL STATEMENT OF THE CASE Oliver Wallnewitz and Krisztina Soltesz (Appellants) appeal under 35 U.S.C. § 134(a) from the Examiner's final decision rejecting under 35 U.S.C. § 112, first paragraph, claims 16 and 20 as failing to comply with the written description requirement and under 35 U.S.C. § 103(a) claims 1, 2, and 4--21 as being unpatentable over Kopacko (US 6,467 ,483 B 1, iss. Oct. 22, 2002) and Ogden (US 5,662,101, iss. Sept. 2, 1997).2 According to Appellants, the real party in interest is Drager Medical GmbH. Appeal Br. 1 (filed Aug. 30, 2013). 2 Claim 3 is cancelled. Id. at 35 (Claims App.). Appeal2014-004882 Application 12/489,698 Appellants' representative presented oral argument on Aug. 4, 2016. We have jurisdiction over this appeal under 35 U.S.C. § 6(b). SUMMARY OF DECISION We AFFIRM-IN-PART. INVENTION Appellants' invention relates to "[r]espiration systems[] used for noninvasive respiration of patients." Spec. i-f 3. Claims 1 and 16 are independent. Claim 1 is illustrative of the claimed invention and reads as follows: 1. A respiration system comprising: a breathing mask; a connection means embodied on the breathing mask for connecting the breathing mask to a flexible air tube; a forehead support; a band system for attaching the breathing mask and said forehead support to a head of a patient, said band system comprising a central forehead band, said central forehead band being connected to one of said breathing mask and said forehead support; a first attaching means arranged on said breathing mask and said forehead support for attaching the band system to one or more of the breathing mask and said forehead support, said forehead support being detachably connected to the breathing mask whereby the respiration system can be used for respirating patients both with and without said forehead support; and a second attaching means formed on said breathing mask for securing said central forehead band to said breathing mask with said forehead support disconnected from said breathing mask. 2 Appeal2014-004882 Application 12/489,698 ANALYSIS The Written Description Rejection The Examiner finds that "[t]here is lack of support in the [S]pecification and drawings for the limitation 'a securing element arranged on said breathing mask' recited in claim 16 and 'said securing element' recited in claim 20." Final Act. 2-3 (mailed Feb. 1, 2013). In response, Appellants contend that the "securing element" of claims 16 and 20 "refers to fixing means 9c, 10, 12 as discussed in paragraphs [0034] and [0037] of Appellant's [S]pecification." Appeal Br. 9. Appellants note that "forehead support 4 is connected to the securing element 9c, 10, 12 in one configuration of the breathing mask and the forehead support 4 is disconnected from the securing element 9c, 10, 12 in another configuration of the breathing mask." Id. at 10. The purpose of the written description requirement in 35 U.S.C. § 112, first paragraph, is to "'clearly allow persons of ordinary skill in the art to recognize that [the inventor] invented what is claimed."' Ariad Pharm., Inc. v. Eli Lilly & Co., 598 F.3d 1336, 1351 (Fed. Cir. 2010 (citing In re Gosteli, 872 F.2d 1008, 1012 (Fed. Cir. 1989)). "[T]he test for sufficiency is whether the disclosure of the application relied upon reasonably conveys to those skilled in the art that the inventor had possession of the claimed subject matter as of the filing date." Ariad, 598 F.3d at 1351. In this case, although there is no in haec verba requirement, nonetheless, newly added claim limitations must be supported in Appellants' disclosure. Claim 16 requires that "said central forehead band [7] [is] connected to said breathing mask [2] ... via said securing element." Appeal 3 Appeal2014-004882 Application 12/489,698 Br. 38 (Claims App.). Claim 20 does not explicitly recite a "securing element," but rather, includes a "securing element" by virtue of its dependency from claim 173, which recites, "wherein said central forehead band [7] engages said securing element." Id. at 39. Claim 20 also recites a "fixing means" for "fixing the forehead support [ 4] to the breathing mask [2]," as per claim 19 (from which claim 20 depends), and "for attaching said forehead band [7] of the band system." Id. Appellants are correct that the Specification describes loop 12 located at the upper end of breathing mask 2 as both an attaching means 9c for attaching forehead band 7 to breathing mask 2 and as a fixing means 10 for connecting forehead support 4 to breathing mask 2. See Reply Br. 2; see also Spec. i-fi-134, 36; Appellants' Drawings, Figs. 1, 4. Accordingly, as loop 12 is located at the upper end of breathing mask 2 and connects breathing mask 2 to forehead support 4 and to forehead band 7, when forehead support 4 is not used, the "securing element" of claims 16 and 20, i.e., loop 12, has support in Appellants' Specification. Therefore, for the foregoing reasons, we do not sustain the rejection under 35 U.S.C. § 112, first paragraph, of claims 16 and 20 as failing to comply with the written description requirement. 3 We note that the limitation "said securing element" in claims 1 7-20 lacks antecedent basis. 4 Appeal2014-004882 Application I2/489,698 The Obviousness Rejection Based Upon Kopacko and Ogden Claim 1 The Examiner finds that Kopacko discloses a respiration system including breathing mask I 0, connection means 20 for connecting breathing mask I 0 to a flexible air tube, forehead support 58, 56 detachably connected to mask I 0, and first attaching means 22, 24, 60 arranged on breathing mask IO and forehead support 58, 56 for attaching a band system to breathing mask IO. Final Act. 4 (citing col. 5, 1. 65---col. 7, 1. 40; Figs. IA, IB). The Examiner further finds that Kopacko' s respiration system "can be used for respirating patients both with and without said forehead support [58, 56]." Id (citing col. 4, 11. 23--43, col. 6, 11. 8-I9; Figs. IA, IB, 4). However, the Examiner finds that, Id. Kopacko does not explicitly disclose a band system for attaching the breathing mask to a head of a patient, said band system comprising a central forehead band, said central forehead band being connected to one of said breathing mask and said forehead support; and a second attaching means formed on said breathing mask for securing said central forehead band to said breathing mask with said forehead support disconnected from said breathing mask. Nonetheless, the Examiner finds that Ogden discloses a band system I I, for attaching mask assembly I to the head of a patient, that includes a central forehead band I 7 connected to mask assembly I via a slot. Id. at 5 (citing Ogden, col. 2, 1. 62---col. 3, 1. 24, Figs. I-3). The Examiner concludes that it would have been obvious for a person "of ordinary skill in the art at the time the invention was made to modify Kopacko with the band system and attachment means taught by Ogden to secure the breathing mask of Kopacko 5 Appeal2014-004882 Application 12/489,698 to patients having a wide variety of facial features in a secure and comfortable manner." Id.; see also Ans. 4--5. Appellants argue that neither Kopacko nor Ogden discloses a "second attaching means formed on a breathing mask for securing a central forehead band to the breathing mask with the forehead support disconnected from the breathing mask." Appeal Br. 11, 13; see also Reply Br. 3--4. According to Appellants, Kopacko does not disclose that "upwardly projecting strap retaining tab 23 is ever removed from the breathing mask 1 O" or that "forehead cushion 56 [is] detached from the upwardly projecting strap retaining tab 23." Appeal Br. 12. Appellants further contend that because Ogden's strap 17 is attached to rigid plate 9 (mounted to mask shell 3 at three locations A, B, and C via detents 39, 41, 43), Ogden's "slot receiving the top strap 1 7 . . . is not formed on the breathing mask as featured in the present invention" and as such, Ogden fails to disclose top strap 17 connected to rigid shell 3 when "rigid plate 9 [is] disconnected from [] rigid shell 3 as featured in the present invention." Id. at 13-14; Reply Br. 3--4. Although we appreciate that Kopacko does not disclose an attaching means formed on the breathing mask to attach a central forehead band and Ogden does not disclose a forehead support that can be disconnected from the breathing mask, nonetheless, we are not persuaded by Appellants' arguments as Appellants cannot show nonobviousness by attacking Kopacko and Ogden individually when the rejection as articulated by the Examiner is based on a combination of Kopacko and Ogden. See In re Merck & Co., 800 F.2d 1091, 1097 (Fed. Cir. 1986). In this case, the Examiner correctly finds that Kopacko's forehead support 58, 56 is detachably connected to mask 10 6 Appeal2014-004882 Application 12/489,698 and Ogden's forehead strap 17 is connected to mask assembly 1 via a slot at the top of rigid plate 9. See Ans. 4--5. Thus, the Examiner's rejection provides Ogden's slot at the top of Kopacko's mask 10 in strap retaining tab 23 and at the top of base plate 58 of forehead support 58, 56. See Ans. 8. The rejection further provides Ogden's side bands 13, 15 and central strap 17 with cap 19 such that the resulting respiration system of Kopacko, as modified by Ogden, includes "a central forehead band and a central slot for the central forehead band." Id. The Examiner's modification is an improvement to Kopacko's respiration system to add a central forehead band in the same way as taught by Ogden to lead to the predictable result of providing a more secure arrangement of the respiration system by "dispers[ing] the pressure of the face mask and limiting the effect of bed rolls and side-to-side movement of the patient's head" (see Ans. 7; see also Adv. Act. 2 (mailed June 6, 2013); Ogden, col. 1, 11. 9-37), and the modification is well within the skill of one having ordinary skill in this art. KSR Int 'l Co. v. Teleflex Inc., 550 U.S. 398, 417 (2007). As such, the respiration system of Kopacko, as modified by Ogden, includes lower and upper straps (Ogden's side straps 13, 15) that fix mask 10 via lower slots 22 and upper slots 24, 60, respectively, and central horizontal slots in both mask 10, at the top of strap retaining tab 23, and at the top of base plate 58 of forehead support 58, 56 for attaching central strap 17. Hence, merely because Ogden's strap 17 is attached to rigid plate 9, rather than rigid shell 3, of mask assembly 1 (see Appeal Br. 13-14; Reply Br. 4), is not persuasive of Examiner error, because obviousness does not 7 Appeal2014-004882 Application 12/489,698 require that all of the features of the secondary reference be bodily incorporated into the primary reference. In re Keller, 642 F.2d 413, 425 (CCPA 1981). Moreover, we agree with the Examiner that Ogden's plate 9 is part of mask assembly 1 because it is fixed to shell 3 via detents 3 9, 41, and 43. See Adv. Act. 2. Lastly, as Kopacko's strap retaining tab 23 of mask 10 overlies the patient's forehead, base plate 58 with forehead cushion 56 are removably attached to mask 10 via strap retaining tab 23, and Ogden's central strap 17 is connected to Kopacko' s mask 10 via dual slots in both strap retaining tab 23 of mask 10 and forehead support 58, 56, we agree with the Examiner "that the mask of Kopacko[, as modified by Ogden,] is capable of being worn without the forehead [support 58,] 56." Ans. 5; see also Kopacko, col. 7, 11. 23--40. Appellants have not persuasively argued otherwise. In conclusion, for the foregoing reasons, we sustain the rejection under 35 U.S.C. § 103(a) of claim 1 as being unpatentable over Kopacko and Ogden. Claims 2-15 Appellants argue that the combined teachings of Kopacko and Ogden fail to disclose: ( 1) "at least three attaching elements for attaching the band system to the breathing mask," as per claim 2 (see Appeal Br. 14--15); (2) a central forehead band lying in the central plane of symmetry of the breathing mask, as per claim 4 (see id. at 15-16); 8 Appeal2014-004882 Application 12/489,698 (3) connection means on the forehead band for attaching a front end of the forehead band to a rear end of the band system, as per claim 5 (see id. at 16-17 and Reply Br. 5); ( 4) an attaching element on the breathing mask for attaching the forehead band to the breathing mask, as per claim 6 (see Appeal Br. 17-18 and Reply Br. 5---6); (5) a snap connection fixing means, as per claims 7 and 8 (see Appeal Br. at 18-20); ( 6) a "fixing means" that is a part of the attaching means for attaching a central forehead band, as per claim 9 (see id. at 20-21 ); (7) an "attaching means and/or[] fixing means [] embodied as a loop or a slot," as per claim 10, because Kopacko's forehead cushion is not formed on a breathing mask that includes an attaching means for connecting a central forehead band (see Appeal Br. 21 ); (8) a hook, as per claim 11, because Kopacko's fixing means 58 does not have a hook (see id. at 21-22); (9) the forehead support and/or breathing mask made at least partly from plastic, as per claim 12 (see id. at 22-23); (10) a band system including "bands connected to one another with an end with a net or a surface element or a connecting piece," as per claim 13 (see id. at 23); (11) an elastic band system, as per claim 14 (see id. at 23-24); and (12) that the position of Kopacko's forehead cushion is adjusted relative to the breathing mask, as per claim 15 (see id. at 24; see also Reply Br. 7-8). 9 Appeal2014-004882 Application 12/489,698 We are not persuaded by Appellants' arguments because as the Examiner correctly finds, (1) with respect to claim 2, that Kopacko discloses four attaching elements 24 for attaching mask 10 to Ogden's band system, namely side straps 13, 15 (see Ans. 8 (citing Kopacko, Fig. 4)); (2) in regards to claim 4, that Ogden's strap 17 "lie[s] in the central plane of symmetry of the mask" (see Ans. 9 (citing Ogden, Fig. 2)); (3) as to claim 5, that Ogden's strap 17 includes a hook and loop connection for attaching a front end of the strap 17 to a rear end of the band system, i.e., skull cap 19 (see id.). Therefore, when the respiration device of Kopacko, as modified by Ogden, is used without forehead support 58, 56 the hook and loop connection of strap 17 would likewise attach a front end of the strap 17 to a rear end of the band system. See id. (citing Ogden, Fig. 1 ); ( 4) with respect to claim 6, that the respiration system of Kopacko, as modified by Ogden, includes a central horizontal slot (attaching element) at the top of strap retaining tab 23 of mask 10 for attaching central strap 1 7 when the respiration system is used without forehead support 58, 56 (see id. at 9-10); ( 5) in regards to claims 7 and 8, Kopacko discloses both positive and non-positive locking fixing means. See id. at 10. First, Kopacko discloses a detachable connection that removably connects forehead support 602 and mask 600 via protrusions 608 on forehead support 602 and slots 606 on strap retaining tab 604 of mask 600, hence forming a positive-locking fixing means. See id. (citing Kopacko, col. 10, 11. 8-31, Figs. 9 A, 9B); see also Final Act. 6. Second, we agree with the Examiner that Kopacko's base plate 10 Appeal2014-004882 Application 12/489,698 58 (with slots 60) shown in Figure IB forms the claimed "fixing means" as slots 60 of base plate 58 overlap slots 24 of strap retaining tab 23 to detachably/removably fix mask 10 to forehead support 58, 56 (see Ans. 1 O); (6) as to claim 9, that Kopacko's base plate 58 forms a part of the attaching means for attaching a central forehead band. More specifically, in addition to slots 60 of base plate 58, Kopacko's base plate 58, as modified by Ogden, includes a horizontal slot at the top for attaching Ogden's central forehead strap 17. See Ans. 11. Moreover, we do not agree with Appellants' argument that the claimed "fixing means" of claim 9 "is formed on a breathing mask" (see Appeal Br. 20) because claim 9 does not include such a limitation and limitations not appearing in the claims cannot be relied upon forpatentability (In re Self, 671F.2d1344, 1348(CCPA1982)); (7) with respect to claim 10, Kopacko discloses slots 24 in Figures IA, IB that constitute the claimed "attaching means" and slots 606 in Figures 9A, 9B that constitute the claimed "fixing means" (see Ans. 11, citing Kopacko, col. 10, 11. 8-24); (8) in regards to claim 11, Kopacko' s fixing means 606, 608 includes a hook portion (see Ans. 12, citing Kopacko, Figs. 9A, 9B); (9) as to claim 12, Kopacko discloses that forehead support 58, 56 is formed at least partly from a "urethane gel," a "thin plastic film," or a "viscoelastic polyurethane polymer" (see Ans. 12 (citing Kopacko, col. 7, 1. 40-col. 8, 1. 60)); (10) with respect to claim 13, Ogden's band system includes side bands 13, 15 and central band 1 7 that are all connected via cap 19 11 Appeal2014-004882 Application 12/489,698 (connecting piece) (see Ans. 12 (citing Ogden, col. 2, 1. 45---col. 3, 1. 24, Figs. 1-3)); (11) in regards to claim 14, Ogden discloses an elastic band system (see Ans. 12-13 (citing Ogden, col. 3, 11. 22-24)); and (12) as to claim 15, because Kopacko's forehead support 58, 56 is removably or fixedly attached to mask 10 via strap retaining tab 23, we agree with the Examiner that Kopacko' s forehead support is adjusted and "can be especially fixed, relative to the breathing mask (see Ans. 13 (citing Kapacko, Figs. IA, IB)). Lastly, we are not persuaded by Appellants' argument that the combined teachings of Kopacko and Ogden fail to disclose a central forehead band that is connected to an attaching means on the breathing mask when the forehead support is disconnected from the breathing mask. See Appeal Br. 21-24. As discussed supra, the respiration system of Kopacko, as modified by Ogden, includes lower and upper straps (Ogden's side straps 13, 15) that fix mask 10 via lower slots 22 and upper slots 24, respectively, and a top central horizontal slot in mask 10 via strap retaining tab 23 for attaching central strap 17 when forehead support 58, 56 is removed. In conclusion, for the foregoing reasons, we likewise sustain the rejection under 35 U.S.C. § 103(a) of claims 2-15 as being unpatentable over Kopacko and Ogden. Claim 16and17 Appellants argue that neither Kopacko nor Ogden discloses a forehead support that is used in a first configuration where the forehead support is 12 Appeal2014-004882 Application 12/489,698 attached to a breathing mask, and a central forehead band is connected to the forehead support via an attaching element, and in a second configuration, where the forehead support is disconnected from the breathing mask, and the central forehead band is connected to the breathing mask via a securing element. See Appeal Br. 25-29; see also Reply Br. 8-10. Appellants contend that Kopacko discloses "a single configuration wherein a forehead cushion 58 is connected to an upwardly projecting strap retaining tab 23." Appeal Br. 26. Thus, Appellants assert that Kopacko fails to disclose a central forehead band that is connected to forehead support 58, via an attaching element, in a first configuration, and to breathing mask 10, via a securing element, in a second configuration. See id. at 25. As such, according to Appellants, "Kopacko [] only discloses an attaching element [] arranged on a forehead cushion 58," but "[t]here is no securing element in Kopacko [] that is arranged on a breathing mask." Id. at 26. Appellants further argue that Ogden also fails to disclose "a securing element on the mask ... that connects [] top strap 1 7 to the mask when a forehead support is detached from the breathing mask." Id. at 27. Rather, in Ogden, Appellants assert that "top strap 17 ... is connected to the rigid plate 9." Id. at 28. We are not persuaded by Appellants' arguments because the respiration system of Kopacko, as modified by Ogden, includes lower and upper straps (Ogden's side straps 13, 15) that fix mask 10 via lower slots 22 and upper slots 24, 60, respectively, and central horizontal slots at the top of strap retaining tab 23 of mask 10 and at the top of detachable forehead support 58, 56 for attaching central strap 17. As such, the respiration device 13 Appeal2014-004882 Application 12/489,698 of Kopacko, as modified by Ogden, includes a first horizontal slot (attaching element) at the top of base plate 58 of forehead support 58, 56 and a second horizontal slot (securing element) at the top of strap retaining tab 23 of mask 10. In other words, Kopacko' s respiration device, as modified by Ogden, includes forehead support 58, 56 that is used in a first configuration where forehead support 58, 56 is attached to breathing mask 10, and central forehead band 17 is connected to forehead support 58, 56 via an attaching element, i.e., horizontal slot at the top of base plate 58, and in a second configuration, where forehead support 58, 56 is disconnected from breathing mask 10, and central forehead band 17 is connected to breathing mask 10 via a securing element, i.e., second horizontal slot at the top of strap retaining tab 23 of mask 10. Moreover, because Kopacko's forehead support 58, 56 is described as removably attached, we agree with the Examiner "that the mask of Kopacko as modified by Ogden ... is fully capable of use in a first configuration wherein the forehead support [58, 56] is connected [to the mask 10] and a second configuration wherein the forehead support [58, 56] is not connected to the mask [10]." Ans. 13; see also Kopacko, col. 7, 11. 33--40, Fig. lB. Lastly, we note that Appellants' reference to forehead support 23 of Kopacko is not commensurate with the Examiner's findings. See Appeal Br. 28 and Reply Br. 10. The Examiner finds that Kopacko's base plate 58 with cushion 56 constitutes the claimed "forehead support." See Final Act. 4 and Ans. 8, 14. 14 Appeal2014-004882 Application 12/489,698 In conclusion, for the foregoing reasons, we sustain the rejection of claim 16 over the combined teachings of Kopacko and Ogden. Claim 18, 19, and 21 Appellants argue that the combined teachings of Kopacko and Ogden fail to disclose: ( 1) connection means on the forehead band for attaching a front end of the forehead band to a rear end of a band system, as per claim 18 (see Appeal Br. 29-30 and Reply Br. 5); (2) a positive or non-positive locking fixing means, as per claim 19 (see Appeal Br. 30-31 ); and (3) a securing element that includes at least a portion of a detachable connection that engages a forehead support to connect the forehead support to the breathing mask in a first breathing configuration, as per claim 21 (see id. at 32-33). We are not persuaded by Appellants' arguments because as the Examiner correctly finds: (1) with respect to claim 18, that Ogden's strap 17 includes a hook and loop connection for attaching a front end of the strap 1 7 to a rear end of the band system, i.e., side bands 13, 15 and skull cap 19. See Ans. 14 (citing Ogden, Fig. 1 ). Therefore, when the respiration system of Kopacko, as modified by Ogden, is used without forehead support 58, 56, the hook and loop connection of strap 17 would likewise attach a front end of the strap 1 7 to a rear end of the band system, i.e., cap 19; 15 Appeal2014-004882 Application 12/489,698 (2) in regards to claim 19, that Kopacko discloses both positive and non-positive locking fixing means. See id. at 15. First, Kopacko discloses a detachable connection that removably connects forehead support 602 and mask 600 via protrusions 608 on forehead support 602 and slots 606 on strap retaining tab 604 of mask 600, hence forming a positive-locking fixing means. See id. (citing Kopacko, col. 10, 11. 8-31, Figs. 9 A, 9B); see also Final Act. 8. Second, we agree with the Examiner that Kopacko's base plate 58 (with slots 60) shown in Figure lB forms the claimed "fixing means" as slots 60 of base plate 58 overlap slots 24 of strap retaining tab 23 to detachably fix mask 10 to forehead support 58, 56 (see Ans. 15); and (3) as to claim 21, that Kopacko' s respiration device, as modified by Ogden, includes a securing element, i.e., horizontal slot at the top of strap retaining tab 23 of mask 10, that engages an attaching element, i.e., horizontal slot at the top of base plate 58, for attaching forehead support 58, 56 to breathing mask 10. See Final Act. 9. In conclusion, for the foregoing reasons, we sustain the rejection under 35 U.S.C. § 103(a) of claims 18, 19, and 21 as being unpatentable over Kopacko and Ogden. Claim 20 Claim 20 requires a "fixing means [that] is a snap-in or snap connection" and "forms a part of said attaching means for attaching said forehead band of the band system." Appeal Br. 39. The Examiner finds that, Kopacko in view of Ogden disclose snap-in or snap connections (fig. 9 A; col. 10, II. 8-31 ). Kopacko further discloses that the 16 Appeal2014-004882 Application 12/489,698 fixing means 58 further forms a part of said attaching means 60 for attaching a forehead band of the band system (fig. 1 B; col. 7, II. 33-40). Final Act. 6. Although we appreciate the Examiner's finding that Figure 9 A of Kopacko shows positive locking "fixing means" 606, 608 that detachably connect forehead support 602 and mask 600, we do not agree that said "fixing means" also "forms a part of said attaching means for attaching said forehead band of the band system," as required by claim 20. More specifically, Kopacko discloses positive locking "fixing means," namely snap connection 606, 608 that detachably connects forehead support 602 and mask 600. See Kopacko, Figs. 9A, 9B. The combined teachings of Kopacko and Ogden include a central horizontal slot at the top of mask 600 via strap retaining tab 604 for attaching Ogden's central forehead band 17. As such, Kopacko' s fixing means 606, 608 fails to constitute a "fixing means" that is "a snap-in or snap connection" and also "forms a part of said attaching means for attaching said forehead band of the band system." Accordingly, we do not sustain the rejection of claim 20 over the combined teachings of Kopacko and Ogden. SUMMARY The Examiner's decision to reject claims 16 and 20 under 35 U.S.C. § 112, first paragraph, as failing to comply with the written description requirement, is reversed. 17 Appeal2014-004882 Application 12/489,698 The Examiner's decision to reject claims 1, 2, and 4--21under35 U.S.C. § 103(a) as being unpatentable over Kopacko and Ogden is affirmed as to claims 1, 2, 4--19, and 21, and reversed as to claim 2 0. No time period for taking any subsequent action in connection with this appeal may be extended under 37 C.F.R. § 1.136(a)(l )(iv). AFFIRMED-IN-PART 18 Copy with citationCopy as parenthetical citation