Ex Parte Tuffery

Patent Trial and Appeal BoardSep 12, 2017

13278439 (P.T.A.B. Sep. 12, 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. 13/278,439 10/21/2011 Swan Tuffery H0030480 4341-11001 6773 14941 7590 09/14/2017 HONEYWELL/CONLEY ROSE Honeywell International Inc 115 Tabor Road EXAMINER FERREIRA, CATHERINE M PO Box 377 MORRIS PLAINS, NJ 07950 ART UNIT PAPER NUMBER 3765 NOTIFICATION DATE DELIVERY MODE 09/14/2017 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): patentservices-us @ honey well, com dallaspatents@dfw.conleyrose.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte SWAN TUFFERY Appeal 2016-002277 Application 13/278,43 91 Technology Center 3700 Before LINDA E. HORNER, MICHAEL L. HOELTER, and JEFFREY A. STEPHENS, Administrative Patent Judges. HORNER, Administrative Patent Judge. DECISION ON APPEAL STATEMENT OF THE CASE Swan Tuffery (Appellant) seeks our review under 35 U.S.C. § 134(a) of the Examiner’s decision rejecting claims 1-13 and 21-27. Final Office Action (September 25, 2014) (hereinafter “Final Act.”). Claims 14-20 are canceled. Id. at 2. We have jurisdiction under 35 U.S.C. § 6(b). We REVERSE. 1 Appellant identifies Honeywell International Inc. as the real party in interest. Amended Appeal Brief 3 (May 4, 2015) (hereinafter “Appeal Br.”). Appeal 2016-002277 Application 13/278,439 CLAIMED SUBJECT MATTER Appellant’s claimed subject matter relates to “[encapsulated protective suits.” Spec. 14. Claims 1, 8, and 21 are independent. Claim 1 is representative of the subject matter on appeal and is reproduced below. 1. An encapsulated protective suit, comprising: an external air flow hose coupled to the suit; a skin; a filter incorporated in the skin of the protective suit; and a seal, wherein when the seal is intact, air does not flow through the filter; and wherein the seal is coupled by a tearable weld to one of an outside of the filter or an outside of the protective suit skin, wherein after the tearable weld has been tom, air passes through the filter to an interior of the protective suit. Appeal Br. 31 (Claims Appendix). EVIDENCE The Examiner’s decision relies upon the following evidence: Poulsen et al. (“Poulsen”) US 4,460,392 July 17, 1984 Suda US 4,901,370 Feb. 20, 1990 Friberg et al. (“Friberg”) US 5,201,309 Apr. 13, 1993 Bums et al. (“Bums”) US 6,076,571 June 20, 2000 Avery et al. (“Avery”) US 2003/0192103 Al Oct. 16, 2003 Culler et al. (“Culler”) US 7,631,364 B2 Dec. 15,2009 Yoder et al. (“Yoder”) US 8,476,604 B2 July 2, 2013 Brookman WO 2006/012475 A2 Feb. 2, 2006 2 Appeal 2016-002277 Application 13/278,439 REJECTIONS The Final Office Action includes the following rejections: 1. Claims 1, 2, 4, 5, 7-9, 11-13, and 27 stand rejected under 35 U.S.C. § 103(a) as unpatentable over Culler, Friberg, Suda, and Poulsen. 2. Claim 3 stands rejected under 35 U.S.C. § 103(a) as unpatentable over Culler, Friberg, Suda, Poulsen, and Bums. 3. Claim 6 stands rejected under 35 U.S.C. § 103(a) as unpatentable over Culler, Friberg, Suda, Poulsen, and Avery. 4. Claim 10 stands rejected under 35 U.S.C. § 103(a) as unpatentable over Culler, Friberg, Suda, Poulsen, and Yoder. 5. Claims 21-26 stand rejected under 35 U.S.C. § 103(a) as unpatentable over Culler, Friberg, Suda, Poulsen, Brookman, and Bums. ANALYSIS First Ground of Rejection: Claims 1, 2, 4, 5, 7-9, 11-13, and 27 as unpatentable over Culler, Friberg, Suda, and Poulsen With regard to independent claim 1, the Examiner finds that Culler discloses an encapsulated protective suit comprising an external air flow hose coupled to the suit and a skin, Friberg discloses a filter with an adhesive area, Suda discloses a filter incorporated in the skin of a protective suit, and Poulsen discloses a seal 16 coupled to the outside of a filter with a tearable weld. Final Act. 3-5. The Examiner determines that it would have been obvious to modify the suit of Culler: by constmcting a filter as taught by Friberg, the filter incorporated into the skin of the protective suit as taught by Suda and a tearable weld and a seal to prevent air from flowing through 3 Appeal 2016-002277 Application 13/278,439 the filter when not desired as taught by Poulsen in order to provide selective protection from harmful environmental factors when the hose is detached from the suit. Id. at 5. The Examiner makes similar findings to support a determination of obviousness of independent claim 8. Final Act. 6 (finding, inter alia, Poulsen discloses a first seal coupled by a tearable weld to the exterior face of the filter and a second seal coupled to the interior of the material or the interior face of the filter). Appellant contests the Examiner’s finding that element 16 of Poulsen is a seal coupled by a tearable weld to the filter. Appeal Br. 17-18. Appellant argues that “element 16 is a covering layer which spans the top surface of the filter disc 10, but not its sides” and that it “acts to divert malodourous gas flow exiting the ostomy bag.” Id. at 18. Appellant further contests the Examiner’s reason to combine, arguing that “given the very different purpose and manner of operation of Poulsen,” it would not have been obvious to combine the teachings of Poulsen with Culler, Friberg, and Suda. Id. at 16-17. In response, the Examiner newly identifies protecting cover 34 as the claimed seal “providing a weld line 36 tightly welded to the exterior surface with a weakening line, 3 8” and with “a tab to be used to grip the cover and tear the layer at the weakening line.” Ans. 5 (citing Poulsen, col. 5,11. 32- 47). Appellant argues in reply that “[element 34 of Poulsen, however, is not a seal at all, and does not perform the same functionality as the required seal of the present invention.” Reply Br. 7. Appellant contends that “element 34 of Poulsen is merely a temporary cover for holding carbon filter particles in the filter sheet during transport” and “does not perform or teach 4 Appeal 2016-002277 Application 13/278,439 sealing functionality at all (and thus certainly does not teach the required airflow control via seal state).” Id.', see also Appeal Br. 18-19 (Appellant making same arguments preemptively). Appellant further argues that because Poulsen’s protecting cover 34 is not disclosed for use as an air-tight seal, “there would clearly be no obvious reason to combine in the suggested manner.” Appeal Br. 18. Claim 1 recites “a seal” and further recites that “when the seal is intact, air does not flow through the filter.” Appeal Br. 31 (Claims Appendix). We understand “seal,” when interpreted in light of the claim language and Appellant’s Specification, to refer to an air-tight barrier. See, e.g., Spec. 124 (describing that the term seal may be used to refer to a structure that establishes a barrier between the exterior and interior of the suit and blocks flow into and out of the filter). Claim 1 further recites that “the seal is coupled by a tearable weld to one of an outside of the filter or an outside of the protective suit skin.” Appeal Br. 31 (Claims Appendix). Claim 8 similarly recites “a first seal coupled by a tearable weld to one of the exterior of the suit skin or the exterior face of the filter.” Id. at 33. Poulsen discloses gas-tight layers 14, 16 (Fig. 1) and 14, 24 (Fig. 2) that are adhered to the exterior and interior surfaces of filter 10. Poulsen, col. 3,11. 22-25, 46^47, col. 4,11. 9-11, 51-56. Poulsen also discloses a protecting cover 34, which is disclosed as being made of the same kind of film as the wall 22 of the ostomy bag. Id. at col. 5,11. 32-34. Poulsen teaches that the cover 34 is welded or pasted to the wall 22 of the bag to encapsulate the filter 28 during transport to prevent carbon particles that fall out from the filter sheet 10 from dirtying the bag. Id. at col. 5,11. 26-37. Poulsen does not disclose using the film of protecting cover 34 as a seal to 5 Appeal 2016-002277 Application 13/278,439 create a gas-tight barrier or otherwise prevent air from passing through the filter. In fact, Poulsen does not disclose what kind of film is used for the ostomy bag and thus, what kind of film is employed for the cover 34. Further, the Examiner has failed to make any findings in this regard to support by a preponderance of the evidence that Poulsen’s protecting cover 34 is gas-tight such that it is a seal. Still further, the Examiner has failed to provide adequate reasoning to explain why a person having ordinary skill in the art would have been led, in view of Poulsen’s teaching of using a protecting cover 34 to prevent carbon particles from an ostomy bag filter from dirtying the bag during transport, to use such a protecting cover on the filter of the modified encapsulating protective suit of Culler. The Examiner’s reasoning, i.e., “to provide selective protection from harmful environmental factors when the hose is detached from the suit” (Final Act. 5) does not explain what would have led a person of ordinary skill to employ a protective cover in the manner of a seal. For these reasons, we do not sustain the first ground of rejection of independent claims 1 and 8, and their dependent claims 2, 4, 5, 7, 9, 11-13, and 27 as unpatentable over Culler, Friberg, Suda, and Poulsen. Second through Fourth Grounds of Rejection Claims 3 and 6 depend from claim 1, and claim 10 depends from claim 8. These dependent claims are rejected as being unpatentable over the same combination of prior art teachings as claims 1 and 8, and further in view of one of Bums, Avery, and Yoder. We do not sustain the rejections of 6 Appeal 2016-002277 Application 13/278,439 dependent claims 3, 6, and 10 for the same reasons discussed supra with regard to the rejection of independent claims 1 and 8. Fifth Ground of Rejection Independent claim 21 is directed to a protective suit and recites “a first seal, wherein when the first seal is intact, air does not flow out through the filter from an interior of the protective suit.” Appeal Br. 34 (Claims Appendix). The Examiner finds that Poulsen’s connecting layer 14 is the claimed “first seal.” Final Act. 9. The Examiner further relies on Brookman to teach a protective suit operable to be coupled to a powered air purifying respirator and an emergency breathing apparatus, and Bums to disclose that when the first seal is breached, external air is received from the filter into the interior of the suit. Id. at 10. Appellant contests the Examiner’s finding that Poulsen discloses the first seal. Appeal Br. 27-28. In particular, Appellant contends that Poulsen’s connecting layer 14 is not disclosed as being breached so that external air may pass through the filter into the suit. Id. at 28 (Appellant arguing that “in Poulsen gas flows outward from the ostomy bag, passing through the filter before existing to atmosphere in order to deodorize”). We agree with Appellant’s reading of Poulsen. Poulsen discloses that connecting layer 14 has an opening of the same size and outline as opening 12 in filter disc 10. Poulsen, col. 4,11. 1-3. Poulsen describes that when the filter is to be used, a hole is pricked through covering layer 16 opposite opening 12 and through the ostomy bag, such that gases exit the bag passing through the corresponding opening in connecting layer 14 and enter the filter disc 10 through opening 12. Id. at col. 4,11. 23—29. Thus, when connecting 7 Appeal 2016-002277 Application 13/278,439 layer 14 is intact, it does not prevent air from flowing out through the filter, as recited in claim 21. Further, it is the ostomy bag, not connecting layer 14, which is breached allowing gas to pass through the filter. For these reasons, we do not sustain the Examiner’s rejection of independent claim 21, and its dependent claims 22-26, as unpatentable over Culler, Friberg, Suda, Poulsen, Brookman, and Bums. DECISION The decision of the Examiner rejecting claims 1-13 and 21-27 is reversed. REVERSED 8