Martin EIFLER

Patent Trials and Appeals Board

Apr 26, 2021

2020002256 (P.T.A.B. Apr. 26, 2021)

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.
13/958,705 08/05/2013 Martin EIFLER 6580-P50084 1928
13897 7590 04/26/2021
Abel Schillinger, LLP
5929 Balcones Drive
Suite 300
Austin, TX 78731
EXAMINER
AUGHENBAUGH, WALTER
ART UNIT PAPER NUMBER
1782
NOTIFICATION DATE DELIVERY MODE
04/26/2021 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):
hmuensterer@abel-ip.com
mail@Abel-IP.com
PTOL-90A (Rev. 04/07)

UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte MARTIN EIFLER
Appeal 2020-002256
Application 13/958,705
Technology Center 1700
Before LINDA M. GAUDETTE, JAMES C. HOUSEL, and
BRIAN D. RANGE, Administrative Patent Judges.
RANGE, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Pursuant to 35 U.S.C. § 134(a), Appellant1 appeals from the
Examiner’s decision to reject claims 127, 129, 131, 135, 150, and 151. We
have jurisdiction under 35 U.S.C. § 6(b).
We REVERSE.

1 “Appellant” refers to “applicant” as defined in 37 C.F.R. § 1.42. Appellant
identifies the real party in interest as LOEWENSTEIN MEDICAL
TECHNOLOGY S.A. Appeal Br. 3.
Appeal 2020-002256
Application 13/958,705

2
CLAIMED SUBJECT MATTER2
Appellant describes the invention as relating to “medical functional
elements, particularly in breathing masks, CPAP devices, breathing devices,
hoses, sensors, moisturizers, and other medical/technical devices which are
in contact with patients.” Spec. ¶ 1. Appellant describes the inventive
devices as “configured to be easily cleanable.” Id. The Specification states
that injection molding a second material onto a first material prevents small
radii which could lead to dirt traps and inadequate cleaning. Id. ¶¶ 10–14,
18. Claim 127 is illustrative, and we reproduce it below while modifying the
formatting for readability and adding emphasis to a key recitation:
127. A medical/technical device comprised of at least a first
material and a second material which is different from the first
material,
wherein the medical/technical device is a patient interface in the
form of a mask or is at least one of a spherical joint, a spherical joint
receiving element, an exhaling system, a tape system, a tape clip, a
forehead padding, a forehead support, a nasal pillow, a moisturizer, a
connecting piece to a hose connection, a housing part of a breathing
device, a sound damping box of a breathing device, an oxygen
concentrator, a suction pump, a pulse oximeter or a sensor for a pulse
oximeter,
wherein the first and second materials are at least in part
connected to each other permanently and one or more free spaces
present in the first material are filled at least partially with the second
material, and wherein at least one of
(i) the second material has a higher hardness than the first
material,

2 In this Decision, we refer to the Final Office Action dated May 2, 2019
(“Final Act.”), the Appeal Brief filed August 1, 2019 (“Appeal Br.”), the
Examiner’s Answer dated November 29, 2019 (“Ans.”), and the Reply Brief
filed January 28, 2020 (“Reply Br.”).
Appeal 2020-002256
Application 13/958,705

3
(ii) more than one free space is present in the first material and
filled at least partially with the second material,
(iii) the one or more free spaces comprise spaces formed by
adjacent ribs of the first material,
(iv) the second material is embedded at least partially in the
first material.

Appeal Br. 20 (Claims App.). The second independent claim on appeal,
claim 150, is a method claim and recites manufacturing a device comprising
first and second materials “being at least in part connected to each other
permanently.” Id. at 22.
REFERENCES
The Examiner relies upon the prior art below in rejecting the claims
on appeal:
Name Reference Date
Bellm US 4,848,334 July 18, 1989
Frater et al. US 7,971,590 B2 July 5, 2011

REJECTIONS
The Examiner maintains3 the following rejections on appeal:
A. Claims 127, 129, 131, and 135 under 35 U.S.C. § 102(e) as
anticipated by Frater. Ans. 3.
B. Claims 150 and 151 under 35 U.S.C. § 103(a) as obvious over Frater
in view of Bellm. Id. at 5.

3 In the Answer, the Examiner withdraws the rejection under 35 U.S.C.
§ 102 of claims 140 and 141 as anticipated by Frater, the rejection under 35
U.S.C. § 103 of claims 139 and 143 as obvious over Frater, and the rejection
under 35 U.S.C. § 103 of claims 148 and 149 as obvious over Frater in view
of Bellm.
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Application 13/958,705

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OPINION
To resolve the issues before us on appeal, we focus on the Examiner’s
findings and determinations that relate to the error Appellant identifies.
Because we decide this appeal based on a limitation recited, in substance, by
each of independent claims 127 and 150, we focus our analysis on claim
127. This analysis is equally applicable to each of the independent claims
and, therefore, all of the dependent claims as well.
The Examiner rejects claim 127 as anticipated by Frater. Ans. 3–4.
Claim 127 recites first and second materials that “are at least in part
connected to each other permanently.” Appeal Br. 20 (Claims App.). The
Examiner finds that Frater teaches a first material (cushion 264) and a
second material (intermediate adapter portion 266) and finds “[t]he
connection between cushion 264 and intermediate adapter portion 266
shown in Fig. 21 is a mechanical snap fit, which is permanent as long as the
connection is not broken.” Ans. 4.
Appellant argues that the Examiner construes claim 127’s requirement
that the first and second materials are “connected to each other permanently”
too broadly. Appeal Br. 9–12; Reply Br. 2–4. We agree. The Specification
refers to the first and second materials as being permanently connected
during manufacturing. Spec. ¶¶ 16–18, 38–39, 72. This may be achieved by,
for example, injection molding both materials together. Id.
In contrast, Frater states that cushion 264 is detachable from the
intermediate adapter portion 266. Frater 16:18–43 (“Frame 262 may be
integrally formed with gusset portion 272 [of intermediate adapter portion
266], with cushion 264 detachably provided thereto.”). The Examiner agrees
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Application 13/958,705

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that the cushion is detachable by describing the connection as a “mechanical
snap fit.” Ans. 4. The Examiner nonetheless maintains that this “snap fit”
connection is permanent because the connection persists until the cushion
264 and intermediate adapter portion 266 are “intentionally disconnected.”
Ans. 9. By the Examiner’s reasoning, a button on a collared shirt is a
permanent connection. Given the context provided by the Specification,
however, claim 127 cannot reasonably be construed so broadly. See, e.g.,
Spec. ¶¶ 16–18, 38–39, 72 (explaining that permanent connection is formed
during manufacture such as injection molding).
Because the Examiner’s rejection relies on an overly broad claim
construction, the Examiner does not adequately establish that Frater teaches
two materials “connected to each other permanently” as claim 127 recites.
The Examiner’s treatment of other claims, including citing Bellm to support
the obviousness rejection, does not cure this error. Ans. 4–7 (citing Belm to
establish obviousness of injection molding). We, thus, do not sustain the
Examiner’s rejections.
DECISION SUMMARY
In summary:
Claims
Rejected
35 U.S.C. § Reference(s)/Basis Affirmed Reversed
127, 129,
131, 135
102(e) Frater 127, 129,
131, 135
150, 151 103(a) Frater, Bellm 150, 151
Overall
Outcome
127, 129,
131, 135,
150, 151

REVERSED