Ex Parte Facer et alDownload PDFPatent Trial and Appeal BoardMar 22, 201711743716 (P.T.A.B. Mar. 22, 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. 11/743,716 05/03/2007 John M. Facer 63051US002 7412 32692 7590 03/24/2017 3M INNOVATIVE PROPERTIES COMPANY PO BOX 33427 ST. PAUL, MN 55133-3427 EXAMINER WOODWARD, VALERIE LYNN ART UNIT PAPER NUMBER 3771 NOTIFICATION DATE DELIVERY MODE 03/24/2017 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): LegalUSDocketing@mmm.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte JOHN M. FACER, AUDRA A. WILSON, and CHRISTOPHER P. HENDERSON1 Appeal 2015-005053 Application 11/743,716 Technology Center 3700 Before FRANCISCO C. PRATS, MELANIE L. McCOLLUM, and SHERIDAN K. SNEDDEN, Administrative Patent Judges. McCOLLUM, Administrative Patent Judge. DECISION ON APPEAL This is an appeal under 35U.S.C. § 134 involving claims to a mask body and to a respirator comprising a mask body. The Examiner has rejected the claims as obvious. We have jurisdiction under 35 U.S.C. § 6(b). We reverse. STATEMENT OF THE CASE Claims 1—4 and 8—22 are on appeal (App. Br. 1). Claims 1 and 11 are illustrative and read as follows (emphasis added): 1 Appellants identify the real party in interest as 3M Innovative Properties Company (App. Br. 2). Appeal 2015-005053 Application 11/743,716 I. A maintenance-free respirator that comprises: (a) a harness; and (b) a mask body that includes a sinus region and a primary filtering region and that comprises at least one nonwoven fibrous web, the at least one nonwoven fibrous web including a filtration layer, wherein at least a portion of the sinus region of the mask body has had an alteration to its intrinsic structure to significantly increase the pressure drop across the sinus region, the increase in pressure drop being achieved through an alteration to the intrinsic structure of the at least one nonwoven fibrous web without adding additional material or items to the mask body in the sinus region, and wherein the alteration of the intrinsic structure occurs over 5 to 25% of the total surface area of the sinus region and does not occur substantially outside the sinus region. II. The respirator of claim [ 1, wherein the mask body comprises a plurality of layers, and the intrinsic structure of the mask body is altered by bonding the plurality of layers together, wherein the mask body further comprises a predetermined pattern welded into portions of the sinus region], wherein the predetermined pattern comprises a trademark. Claims 1—4, 8—10, and 12—22 stand rejected under 35 U.S.C. § 103(a) as obvious over Kern et al. (US 5,701,893, Dec. 30, 1997) in view of Steindorf (US 8,091,550 B2, Jan. 10, 2012) (Final Act. 2). Claim 11 stands rejected under 35 U.S.C. § 103(a) as obvious over Kern in view of Steindorf and Begum (US 6,823,868 Bl, Nov. 30, 2004) (Final Act. 5). I The Examiner relies on Kern for disclosing a maintenance-free respirator 10 (Fig. 1) that comprises; a harness 16 and a mask body 12,14 that includes a sinus region 12 (upper, nasal, ribbed portion) and a primary filtering region 14 (lower, oral, non-ribbed portion . . .) that comprises at least one nonwoven fibrous web 80 including a filtration layer 84 . . . wherein at least a portion of the sinus region 12 of the mask body 12, 14 has had an alteration to its intrinsic structure 2 Appeal 2015-005053 Application 11/743,716 (ribs 25-32 . . . ) which does not occur substantially outside the sinus region 12 (see Fig. 1, Fig. 6). (Final Act. 2—3.) However, the Examiner finds that Kern “lacks detailed description as to the limitation that the alteration of the intrinsic structure occurs over 5-25% of the total surface area of the sinus region” {id. at 3). The Examiner relies on Steindorf for teaching “that thermal pattern bonding typically occurs over 10 to 30 % of the area of the respirator fabric to which it is applied” {id.). Therefore, the Examiner concludes that it would have been obvious “to modify the mask body of Kern so that the alteration occurs over 10 to 30% of the area as taught by Steindorf in order to provide a sufficient amount of bonding to provide a desired amount of rigidity, strechability and softness to the respirator” {id.). Issue Has the Examiner set forth a prima facie case that Kern and Steindorf suggest that the claimed alteration of the intrinsic structure occurs over 5 to 25% of the total surface area of the sinus region? Analysis The Examiner acknowledges that Kern “lacks detailed description as to the limitation that the alteration of the intrinsic structure occurs over 5- 25% of the total surface area of the sinus region” (Final Act. 3). Instead, the Examiner relies on Steindorf for teaching this feature {id.). We conclude that the Examiner has not set forth a prima facie case of obviousness. Kern discloses a “mask to help to eliminate the breathing of deleterious airborne substances” (Kern, col, 2,1. 67, to col. 3,1. 1). In particular, Kern discloses a mask having upper and lower portions, the layers of upper portion having “been welded ultrasonically at elongated weld 3 Appeal 2015-005053 Application 11/743,716 points 26, 28, 30, and 32 to provide a plurality of longitudinal elongated ribs along the length of the upper portion” (id. at col. 4,11. 9—12 & 39-45, & Figs. 1 & 4 A) Steindorf discloses “a face mask that includes a body portion . . . ha[ving] a baffle layer which dissipates energy of the impact of [a] splash and/or allows the fluid of [a] splash to more easily flow laterally away from the site of impact,” wherein the “baffle layer contains a plurality of projections or peaks extending from one or both of the outer or inner surfaces” (Steindorf, col. 2,11. 39-48). Steindorf also discloses that the “projections . . . may be formed by thermal pattern bonding the baffle layer” (id. at col. 6,11. 36—37). With “thermal pattern bonding,” Steindorf discloses that, “[tjypically, the percent bonding area varies from around 10 percent to around 30 percent of the area of the fabric laminate” (id. at col. 4,11. 16—24). Appellants argue that “the portions of Steindorf relied upon by the Examiner describe that thermal pattern bonding typically has a percent bonding area of 10-30% of the area to which it is applied. ... In other words, areas where thermal pattern bonding is applied have a percent bonding area of 10-30%.” (App. Br. 8.) We agree. (See also, Ans. 3, where the Examiner states “that Steindorf teaches 10-30 percent of the area of the fabric passed through the rollers.”) We understand the Examiner’s position that Steindorf does not teach applying thermal bonding to only a small bonding area and instead provides bonding at 10 to 30% of presumably the total surface area of the mask, including the sinus region (Ans. 3). However, we agree with Appellants that the Examiner does not adequately explain why it would have been obvious 4 Appeal 2015-005053 Application 11/743,716 to modify Kern, where bonding occurs within discrete areas to form ribs (Kern, col. 4,11. 39-45), to provide bonding over 5 to 25% of the total surface area of the sinus region (App. Br. 7—8). Conclusion The Examiner has not set forth a prima facie case that Kern and Steindorf suggest that the claimed alteration of the intrinsic structure occurs over 5 to 25% of the total surface area of the sinus region. We therefore reverse the obviousness rejection over Kern and Steindorf. II In rejecting claim 11, the Examiner relies on Kern and Steindorf as discussed above (Final Act. 5). In addition, the Examiner relies on Begum for teaching “markings 30 (Fig. 2) on a mask 14 which can be in the form of a trademark” (id.). The Examiner concludes that it would have been obvious “to modify the mask body of Kern so that the pattern is a trademark as taught by Begum, in order to add the function of promoting a company for advertising purposes” (id.). Issue Has the Examiner set forth a prima facie case that Kern, Steindorf, and Begum suggest that the claimed alteration of the intrinsic structure occurs over 5 to 25% of the total surface area of the sinus region? Analysis Claim 11 ultimately depends from claim 1. As discussed above, we conclude that the Examiner has not set forth a prima facie case that Kern and Steindorf suggest that the claimed alteration of the intrinsic structure occurs over 5 to 25% of the total surface area of the sinus region, as recited in 5 Appeal 2015-005053 Application 11/743,716 claim 1. In addition, we agree with Appellants that the Examiner has not set forth a prima facie case that Begum overcomes this deficiency (App. Br. 12). Conclusion The Examiner has not set forth a prima facie case that Kern, Steindorf, and Begum suggest that the claimed alteration of the intrinsic structure occurs over 5 to 25% of the total surface area of the sinus region. We therefore reverse the obviousness rejection over Kern, Steindorf, and Begum. REVERSED 6 Copy with citationCopy as parenthetical citation