JERRY WARRA et al.

Patent Trials and Appeals Board

Jul 30, 2020

2019006473 (P.T.A.B. Jul. 30, 2020)

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.
15/389,467 12/23/2016 JERRY S. WARRA WARRA01NPDIV 9468
25287 7590 07/30/2020
GEORGE LAWRENCE BOLLER
P.O. Box 530518
LIVONIA, MI 48153
EXAMINER
ANNIS, KHALED
ART UNIT PAPER NUMBER
3732
MAIL DATE DELIVERY MODE
07/30/2020 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 JERRY S. WARRA and LINDA E. WARRA
____________

Appeal 2019-006473
Application 15/389,467
Technology Center 3700
____________

Before MICHELLE R. OSINSKI, LISA M. GUIJT, and LEE L. STEPINA,
Administrative Patent Judges.

OSINSKI, Administrative Patent Judge.
DECISION ON APPEAL

STATEMENT OF THE CASE
Appellant1 appeals under 35 U.S.C. § 134(a) from the Examiner’s
decision rejecting claims 1–12. We have jurisdiction over the appeal under
35 U.S.C. § 6(b).
We REVERSE.

1 We use the term “Appellant” to refer to “applicant” as defined in 37 C.F.R.
§ 1.42. Appellant identifies the real parties in interest as Jerry S. Warra and
Linda E. Warra. Appeal Br. 2.
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THE CLAIMED SUBJECT MATTER
Claim 1, the sole independent claim, is reproduced below.
1. A facemask comprising:
a mask body comprising a concave posterior surface
which has a shape for anterior placement over at least a person’s
forehead, eyes, cheeks, nose and mouth;
the mask body having a superior margin, an inferior
margin, a right lateral margin disposed laterally to the right
beyond the eyes, cheeks and mouth and extending between the
superior margin and the inferior margin, and a left lateral margin
disposed laterally to the left beyond the eyes, cheeks and mouth
and extending between the superior margin and the inferior
margin;
the right lateral margin comprising a right wall which
a) extends laterally outward to the right from the concave
posterior surface, b) comprises a right handgrip laterally spaced
from the concave posterior surface and large enough for grasping
by a person’s right hand, and c) has a posterior surface extending
from the concave posterior surface at an angle to the concave
posterior surface which is greater than a straight angle;
the left lateral margin comprising a left wall which
a) extends laterally outward to the left from the concave posterior
surface, b) comprises a left handgrip laterally spaced from the
concave posterior surface and large enough for grasping by a
person’s left hand, and c) has a posterior surface extending from
the concave posterior surface at an angle to the concave posterior
surface which is greater than a straight angle; and
a seal disposed on the concave posterior surface and
extending along the superior margin between the right and left
margins for sealing the mask body to a person's forehead.

EVIDENCE
The Examiner relied on the following evidence in rejecting the claims
on appeal:
Hundhausen US 3,555,559 Jan. 19, 1971
Brown US 5,014,353 May 14, 1991
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REJECTIONS
I. Claims 1–12 stand rejected under 35 U.S.C. § 112(b) as being
indefinite. Final Act. 5–6.
II. Claims 1 and 4 stand rejected under 35 U.S.C. § 102(a)(1)(2) as
anticipated by Hundhausen. Id. at 6–8.
III. Claims 3 and 5–8 stand rejected under 35 U.S.C. § 103 as
unpatentable over Hundhausen. Id. at 8–9.
IV. Claims 2 and 9–12 stand rejected under 35 U.S.C. § 103 as
unpatentable over Hundhausen and Brown. Id. at 9–11.
OPINION
Rejection I
Claim 1 recites, in relevant part, that the right and left lateral margin
each comprise a wall that “has a posterior surface extending from the
concave posterior surface at an angle to the concave posterior surface which
is greater than a straight angle.” Appeal Br. 17 (Claims App.). The
Examiner determines that this language renders the claim indefinite because
“it is unclear what the metes and bounds [are that] the [Appellant] is
claiming” and “it is unclear what the [Appellant] is claiming because the
language is ambiguous.” Final Act. 6. The Examiner takes the position that
the Specification does not clearly explain the claimed elements, including
the claimed angle. Ans. 3.
The Specification describes that “the right lateral margin comprises a
right wall which extends to the right of the concave interior of the mask
body which fits over the first person’s face” and “the left lateral margin
comprises a left wall which extends to the left of the concave interior of the
mask body which fits over the first person’s face.” Spec. ¶ 48. The
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Specification further describes that “[i]n Figures 1–4 those walls are the
elephant’s ears which are spaced laterally outward of the concave interior of
the mask body.” Id. The Specification additionally describes that Figure 3
“shows that the concave interior of the mask body has a concave posterior
surface,” as well as “that the right wall which contains the right handgrip has
a posterior surface extending from the posterior surface of the concave
interior of the mask body” and that “the left wall which contains the left
handgrip has a posterior surface extending from the posterior surface of the
concave interior of the mask body.” Id. ¶ 49; Amendment (Dec. 12, 2018).
The Specification further describes that “[t]he angle at which the posterior
surface of each wall extends from the posterior surface of the concave
interior of the mask body is greater than a straight angle, and is in fact
significantly greater.” Spec. ¶ 49. Appellant argues that Figures 1–4, as
well as paragraphs 48 and 49, illustrate the claimed elements, and that the
Specification allows “one of ordinary skill in the art to unambiguously
understand [c]laim 1”. Reply Br. 3.2
An angle is defined as “[t]he figure formed by two lines diverging
from a common point” or, more appropriately where the claim refers to
“surface[s]” being at a particular angle relative to each other, “[t]he figure
formed by two planes diverging from a common line.” The American

2 We remind Appellant of the requirement to conduct all business with the
Office with decorum and courtesy. See 37 C.F.R. § 1.3 (“Applicants and
their attorneys or agents are required to conduct their business with the
United States Patent and Trademark Office with decorum and courtesy.”).
Appellant’s discourteous tone with respect to the Primary Examiner and
Supervisory Patent Examiner (see, e.g., Reply Br. 2–4, 6) do not advance
Appellant’s interests, nor assist the Board in reaching a decision on the
merits.
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Heritage Dictionary of the English Language (5th ed. 2020). The claim
refers to (i) the angle between the posterior surface of the right wall and the
concave posterior surface of the mask body and (ii) the angle between the
posterior surface of the left wall and the concave posterior surface of the
mask body. The concave posterior surface is clearly “[c]urved like the inner
surface of a sphere.” The American Heritage Dictionary of the English
Language (5th ed. 2020) (defining “concave”). Because the concave
posterior surface is curved, one of ordinary skill in the art would understand
it would be necessary to identify a tangent plane to the concave posterior
surface for purposes of determining the claimed angle.
The claim refers to the angle at which the posterior surface of the wall
“extend[s] from the concave posterior surface” (Appeal Br. 17 (Claims
App.)), and one of ordinary skill in the art would understand that the relevant
area of the concave posterior surface for which a tangent plane must be
identified is the portion of the concave posterior surface from which the
posterior surface of the right or left wall extends (i.e., where the right and
left wall intersect the mask body). One of ordinary skill in the art can then
determine the figure formed by that identified tangent plane and a plane of
the posterior surface of the right or left wall so as to determine the claimed
angle. We note that although the posterior surface of each of the right and
left walls is depicted as generally planar in Figure 3, there is no requirement
in the claims that this be the case. In the case of a curved right or left wall,
one of ordinary skill in the art would understand it would also be necessary
to identify a tangent plane to any curved posterior surface of the right of left
wall for purposes of determining the claimed angle.
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In light of the foregoing, we determine that one of ordinary skill in the
art would understand what is claimed—that (i) “an angle” (i.e., one angle)
between a plane of the posterior surface of the right wall and a tangent plane
of the concave posterior surface (at a point where the right wall intersects the
mask body) be greater than a straight angle (i.e., greater than 180º) and (ii)
“an angle” (i.e, one angle) between a plane of the posterior surface of the left
wall and a tangent plane of the concave posterior surface (at a point where
the left wall intersects the mask body) be greater than a straight angle (i.e.,
greater than 180º). Accordingly, we do not sustain the rejection of claim 1,
or claims 2–12 which depend therefrom, under 35 U.S.C. § 112(b) as being
indefinite on this aforementioned basis.
The Examiner also rejects claims 6–8 as being indefinite because
these claims “recite ‘each wall’ which has insufficient antecedent basis in
the claims.” Final Act. 6. The Examiner adds that “the claims are claiming
multiple surfaces and walls” and “[i]t is beneficial to the [E]xaminer and the
public to clarify which ‘each wall’ the [Appellant] is claiming.” Ans. 4.
Appellant argues that because “[c]laim 1, from which [c]laim 6 depends,
recites only ‘a right wall’, ‘a left wall’, and no other wall” then “[a]ccording
to accepted principles of English grammar, ‘each wall’ (mentioned in
[c]laim 6) can refer only to the right wall and the left wall recited in [c]laim
1.” Appeal Br. 12–13. We agree with Appellant that the use of “each wall”
in claims 6–8 would be reasonably understood by those of ordinary skill in
the art to refer to the only two walls recited in claim 1, from which claims 6–
8 indirectly depend.
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For these reasons, we do not sustain the rejection of 6–8 under
35 U.S.C. § 112(b) as being indefinite on this second basis identified by the
Examiner.
Rejection II
The Examiner finds that Hundhausen discloses all of the limitations of
claim 1, including, among other things:
right/left lateral margins (14R, 14L) comprising a right/left wall
or edge defined by the outermost edge of the lateral margin,
which a) extends laterally outward to the right/left from the
concave posterior surface (See Fig. 2) , b) comprises a right/left
handgrip (16R and 16L) laterally spaced from the concave
posterior surface and large enough for grasping by a person’s
right/left hands (See Figs. 1–2 and Col. 2, lines 3–4), and c) has
a posterior surface facing the wearer when worn extending from
the concave posterior surface of the interior of the mask body
(10) at an angle to the concave posterior surface which is greater
than a straight angle as clearly shown in Fig. 2.
Final Act. 7. The Examiner includes an annotated reproduction of Figure 2
of Hundhausen to illustrate what the Examiner considers to be the angle
recited in the claims. Ans. 5. The Examiner’s annotated version of
Hundhausen’s Figure 2, entitled Figure A, is reproduced below.

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Hundhausen’s Figure 2 depicts a sectional view of a hand-held guard.
Hundhausen 1:43–44. The Examiner’s annotated version, entitled Fig. A,
includes annotations, among other things, indicating what the Examiner
determines to be the“[c]oncave posterior surface (facing the wearer),” the
“[r]ight/left margins,” the “[p]osterior surface (facing the wearer),” and the
“straight angle.” Ans. 5.
Appellant does not challenge the Examiner’s identification of right
and left margins in Hundhausen’s hand-held guard because the Examiner-
identified “continuations of the more anterior concave interior portion of the
mask body . . . will inherently possess a small laterally outwardly extending
component.” Appeal Br. 14. Appellant, however does challenge the
Examiner’s determination that these continuations have a posterior surface
facing the wearer and extending from the concave posterior surface of the
interior of the mask body “at an angle to the concave posterior surface which
is greater than a straight angle.” Id. More specifically, Appellant argues
that one of ordinary skill “would understand that the right and left ‘walls’
simply continue the concavity of ‘the interior of the mask body (10).’” Id.
Because the Examiner-identified “walls” simply continue the
concavity of the interior of the mask body, the angle of the posterior surface
of the Examiner-identified walls to the concave posterior surface of the mask
body from which the Examiner-identified walls extend would appear to be a
straight angle (i.e., 180º), rather than an angle that is greater than a straight
angle. The Examiner has not adequately explained how the Examiner’s
annotation indicative of an “angle” in Examiner-annotated Figure A (Ans. 5)
is representative of an angle between a posterior surface of a wall of a lateral
margin and the concave posterior surface of the mask body. Consequently,
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the Examiner has not adequately explained how Hundhausen discloses walls
of the right and left lateral margins each having a posterior surface (facing
the wearer) extending from the concave posterior surface of the mask body
(facing the wearer) at an angle which is greater than a straight angle.
Accordingly, we determine that the Examiner’s finding that
Hundhausen discloses right and left lateral margins each comprising a wall
which has a posterior surface extending from the concave posterior surface
of the mask body at an angle which is greater than a straight angle is
insufficiently supported. We do not sustain the rejection of claim 1, or claim
4 which depends therefrom, under 35 U.S.C. § 102(a)(1)(2) as anticipated by
Hundhausen.
Rejections III and IV
The rejections of claims 2, 3, and 5–12 rely on the Examiner’s
insufficiently supported finding that Hundhausen discloses right and left
lateral margins each comprising a wall which has a posterior surface
extending from the concave posterior surface of the mask body at an angle
which is greater than a straight angle. Final Act. 8–11. The Examiner does
not explain how the additional articulated reasoning and/or the addition of
Brown might cure this underlying deficiency. Accordingly, we do not
sustain the rejections, under 35 U.S.C. § 103, of claims 3 and 5–8 as
unpatentable over Hundhausen; and claims 2 and 9–12 as unpatentable over
Hundhausen and Brown.

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CONCLUSION
In summary:
Claims
Rejected
35 U.S.C. § Reference(s)/Basis Affirmed Reversed
1–12 112(b) Indefiniteness 1–12
1, 4 102(a)(1)(2) Hundhausen 1, 4
3, 5–8 103 Hundhausen 3, 5–8
2, 9–12 103 Hundhausen, Brown 2, 9–12
Overall
Outcome
1–12

REVERSED