JERRY WARRA et al.Download PDFPatent Trials and Appeals BoardJul 30, 20202019006473 (P.T.A.B. Jul. 30, 2020) 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. 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. Appeal 2019-006473 Application 15/389,467 2 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 Appeal 2019-006473 Application 15/389,467 3 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 Appeal 2019-006473 Application 15/389,467 4 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. Appeal 2019-006473 Application 15/389,467 5 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. Appeal 2019-006473 Application 15/389,467 6 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. Appeal 2019-006473 Application 15/389,467 7 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. Appeal 2019-006473 Application 15/389,467 8 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, Appeal 2019-006473 Application 15/389,467 9 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. Appeal 2019-006473 Application 15/389,467 10 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 Copy with citationCopy as parenthetical citation