DETAILED ACTION
Notice of Pre-AIA or AIA Status
The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA .
Continued Examination Under 37 CFR 1.114
A request for continued examination under 37 CFR 1.114, including the fee set forth in 37 CFR 1.17(e), was filed in this application after final rejection. Since this application is eligible for continued examination under 37 CFR 1.114, and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114. Applicant's submission filed on 08/02/2025 has been entered.
Response to Amendment
The amendment filed 08/02/2025 has been entered. Claims 1, 3-4, 7, 9, and 13-16 remain pending in the application. Applicant’s amendments to the claims have overcome the objections and 112(b) rejections previously set forth in the Final Rejection mailed 04/22/2025.
Response to Arguments
Applicant's arguments filed 08/02/2025 (hereafter “Remarks”) have been fully considered but they are not persuasive.
The argument on page 9 that Seeto and Sakurai do not disclose a second deformable material line has been considered but is moot because the new ground of rejection does not rely on exclusively on the references applied in the prior rejection of record for any teaching or matter specifically challenged in the argument. Please refer to the updated rejection below.
The argument on page 11 that Vasiliev’s triangle structure differs from the claimed invention in regard to the plurality of triangle patterns as claimed in addition to the claimed performance, has been considered, but is not persuasive. Applicant's arguments do not comply with 37 CFR 1.111(c) because they do not clearly point out the patentable novelty which he or she thinks the claims present in view of the state of the art disclosed by the references cited or the objections made. Further, they do not show how the amendments avoid such references or objections.
Information Disclosure Statement
Acknowledgement is made to Applicant’s lack of an Information Disclosure Statement submission.
Claim Rejections - 35 USC § 103
In the event the determination of the status of the application as subject to AIA 35 U.S.C. 102 and 103 (or as subject to pre-AIA 35 U.S.C. 102 and 103) is incorrect, any correction of the statutory basis (i.e., changing from AIA to pre-AIA ) for the rejection will not be considered a new ground of rejection if the prior art relied upon, and the rationale supporting the rejection, would be the same under either status.
The following is a quotation of 35 U.S.C. 103 which forms the basis for all obviousness rejections set forth in this Office action:
A patent for a claimed invention may not be obtained, notwithstanding that the claimed invention is not identically disclosed as set forth in section 102, if the differences between the claimed invention and the prior art are such that the claimed invention as a whole would have been obvious before the effective filing date of the claimed invention to a person having ordinary skill in the art to which the claimed invention pertains. Patentability shall not be negated by the manner in which the invention was made.
The factual inquiries for establishing a background for determining obviousness under 35 U.S.C. 103 are summarized as follows:
1. Determining the scope and contents of the prior art.
2. Ascertaining the differences between the prior art and the claims at issue.
3. Resolving the level of ordinary skill in the pertinent art.
4. Considering objective evidence present in the application indicating obviousness or nonobviousness.
Claims 1, 9, and 13-16 are rejected under 35 U.S.C. 103 as unpatentable over Seeto (CA 2410260 A1), hereafter Seeto in view of Sakurai (US 2020/0163392), hereafter Sakurai, further in view of Vasiliev et al. (US 2018/0353782 A1), hereafter Vasiliev, and further in view of Orofino (US 2015/0306432), hereafter Orofino..
Regarding Claim 1, Seeto discloses a mask comprising: a first layer in the shape of polygon (fig. 5 shows the top view of side wall 34 (fig. 1), page 10 line 15, side walls are a tetragonal shape),
including an upper side, a bottom side and two short sides (see annotated fig. 2 below, upper side is 12, short sides are 16 and 18, bottom side is annotated), wherein the first layer is an isosceles trapezoid in a folded state (fig. 5, the same is shown in a folded state and the top layer is an isosceles trapezoid in shape, page 4 lines 3-4), and a deformable material line is arranged on the first layer (deformable member 40, fig. 5, page 5, lines 15-16; 40 is located adjacent to upper contact region 12 on the first layer);
a third layer in the shape of polygon, including an upper side and a bottom side and at least two short sides (34 and 36 sidewalls are the same shape, fig. 2; the mask collapses down to a tetragonal shape in fig. 5),
in which an angle formed between the bottom side of the first layer and either of two short sides is the same as an angle between the bottom side of the third layer and any one of two short sides of the third layer (fig. 5, the sidewalls 34 and 36 are superimposed in this view and thus are the same size and shape);
and a second layer, having an accordion-like folding structure, wherein the accordion-like folding structure is in a folded structure and composed of alternate mountain folding lines and valley folding lines (Pleats 32 fig. 2 are folded in an accordion-like way; pg. 10 lines 11-12; a pleat is defined as “a fold in cloth made by doubling material over on itself” Merriam-Webster), of which a mountain folding line refers to a peak shape while comparing to a valley folding line (fig. 2, see annotated figure, the mountain-shape peaks are extending away from the mask body while the valley-shaped folds retreat into the mask body) ,
the mountain folding lines and the valley folding lines are parallel to the upper sides and the bottom sides of the first layer and the third layer (the pleats are folded in alternating directions, parallel to each other, pg. 10 lines 11-12),
the accordion-like folding structure has an upper side and a bottom side, in which the upper side of the accordion-like folding structure is joined to the bottom side of the first layer and the bottom side of the accordion-like structure is joined to the bottom side of the third layer (pg. 6 lines 25-26 states that pleats 32 are contiguous with side walls 34 and 36; the upper side of the accordion-like folding structure is facing internally to the mask body, which is joined to the bottom side of the first layer, also facing internally to the mask body; see fig. 2),
the left and right sides of the accordion-like folding structure are respectively sandwiched between at least two short sides of the first layer and the third layer (Fig. 3; pg. 10 lines 12-13, the pleats 32 are secured by the side welds at the ends of the parallel fold lines),
the second layer is sandwiched between the first layer and the third layer when the mask is stored (Fig. 3; pg. 10 lines 14-16 pleats, sidewalls fold down to a compact tetragonal shape for ease of storage and portability),
and location of the second layer is close to the bottom of the first layer and the third layer (the respirator is constructed with the pleated filter material set away from the wearer’s face, page 9 lines 6-8; refer to annotated fig. 2),
wherein the first layer, the second layer and the third layer form a closed bag with an opening on the upper side (fig. 1 the mask forms a pocket, page 11, claim 1 line 3),
and when the opening is opened, the accordion-like folding structure of the second layer is propped up and expanded inside the mask to form a space for a mouth and nose (fig. 1; upper facial contact region 12 positions over the wearer’s nose and cheeks, lower facial contact region 14 positions under the wearer’s chin, thus encompassing the wearer’s mouth and nose; page 11, claim 2)
wherein the upper side of the first layer is configured to be in contact with a base of the nose and a zygomatic part of a user (upper facial contact region positions over the wearer’s nose and cheeks, page 11, claim 2 lines 3-4)
and the upper side of the third layer is configured to be in contact with the user's jaw when wearing the mask (lower facial contact region 14 positions under the wearer’s chin, page 11, claim 2 lines 4-5), and the deformable material line arranged on the first layer is more suitable for habit of users (claim 3, page 11, the deformable material contours to the wearer’s nose and cheeks),
a first deformable material line (deformable member 40, fig. 5, page 7, lines 15-16) located on the first layer and adjacent to the upper side of the first layer (deformable member 40 is located adjacent to upper contact region 12, page 7 lines 15-16) which is configured to increase the fitness between the mask and the base of the nose and the zygomatic area of the user when wearing the mask (claim 3, page 11, the deformable material contours to the wearer’s nose and cheeks).
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Seeto does not explicitly disclose that an angle formed by an isosceles trapezoidal bottom side of the first layer and the two short side of the first layer is from 90°-140°.
However, Fig. 5 shows the mask in the shape of a trapezoid where the angle formed between either of the side welds 16,18 and the bottom side (refer to annotated figure below) is clearly greater than 90 degrees (i.e., the mask is not a rectangle, where the angle is 90 degrees), which creates a range of possible angles, wherein the angle created must be greater than 90° but less than 180°, as an angle of 180° would render the shape unclosed and undefined. Though prior art drawings are not interpreted as depicting scale, unless specified, the description of the article pictured can be relied on, in combination with the drawings, for what they would reasonably teach one of ordinary skill in the art (MPEP 2125.)
It would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to modify the angle from 90° to <180° to 90° - 140°, as the applicant appears to have placed no criticality on the claimed range (see par. 0035) and since it has been held that “[i]n the case where the claimed ranges ‘overlap or lie inside ranges disclosed by the prior art’ a prima facie case of obviousness exists”. In re Wertheim, 541 F.2d 257, 191 USPQ 90 (CCPA 1976); In re Woodruff, 919 F.2d 1575, 16 USPQ2d 1934 (Fed. Cir. 1990).
Seeto does not explicitly disclose wherein the mountain-shaped folding lines and the valley-shaped folding lines in the accordion-like folding structure are in an isometric arrangement. It is not clear from the disclosure or the figures in Seeto if the pleats are isometric, interpreted by the examiner to mean that each pleat has the same dimension.
Sakurai teaches a pleated mask which has the option of having equal up-down width as an option compared to varying width (fig. 3, [0046]).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to fold the pleats of Seeto’s mask into mountain-shaped folding lines and valley-shaped folding lines in the accordion-like folding structure in an isometric arrangement as taught by Sakurai as equally spaced pleats was a known alternative to unequally spaced pleats in the art; and, as taught by Sakurai, equal pleats results in a mask which expands evenly when opened to apply to a user’s face [0046]).
The now modified Seeto is silent as to whether the accordion-like folding structure comprises an odd number of folding lines.
Considering that the alternative to an odd number of folding lines is an even number of folding lines, to would have been obvious to one skilled in the art at the time of invention to try creating a mask with an odd number of folding lines. There is a reasonable expectation of success that a mask with an odd number of folding lines would expand and cover the mouth and nose of a wearer, as well as fold flat, to provide a high filtration surface area and a comfortable fit, whether the number of folding lines is even or odd. The rationale to support a conclusion that the claim would have been obvious is that "a person of ordinary skill has good reason to pursue the known options within his or her technical grasp. If this leads to the anticipated success, it is likely that product [was] not of innovation but of ordinary skill and common sense. In that instance the fact that a combination was obvious to try might show that it was obvious under § 103." KSR, 550 U.S. at 421, 82 USPQ2d at 1397. See MPEP 2143. Further, the applicant does not appear to place any criticality on why the number of folding lines should be odd, just that they should be odd in number (specification pars. 0038-0039).
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The modified Seeto is silent on the second layer having a plurality of triangle patterns, wherein the triangle patterns are arranged adjacently between the mountain folding lines and the valley folding lines and in opposite directions to each other, and any side of each of the plurality of triangle patterns is parallel to the mountain folding line or the valley folding line, whereby positions of the plurality of triangle patterns stabilize the accordion-like folding structure, maintain the smoothness of breathing, and are not easy to collapse.
Vasiliev teaches a folded mask (fig. 3) which provides a second layer (center portion of mask body 12, fig. 4 [0076])that provides a plurality of triangle patterns (fig. 4, adjacent triangle patterns 32a-d, par. 0082, lines 1-19), wherein the triangle patterns are arranged adjacently (the triangle patterns 32a-d are positioned next to each other on the mask body 12 as seen in fig. 4) between the mountain folding line and the valley folding line (the triangle patterns are formed between lines of demarcation 22, where the line of demarcation is defined in par. 0036 as including a fold, and the connecting lines between upper panel 161 and lower panel 162, which are foldable, par. 0079; fig. 3 shows the mask in a folded state, par. 0085), in opposite directions to each other (fig. 4, the interstitial space between the triangles forms an opposite adjacent triangle and the triangles above the center line of demarcation 22 are opposite the triangle below it), and any side of each of the plurality of triangle patterns is parallel to the mountain folding line or the valley folding line (fig. 4 depicts at least one side of each of the triangle patterns as parallel to the line of demarcation; though prior art drawings are not interpreted as depicting scale, unless specified, the description of the article pictured can be relied on, in combination with the drawings, for what they would reasonably teach one of ordinary skill in the art (MPEP 2125.)), whereby the positions of the triangle patterns stabilize the accordion-like folding structure , maintain smoothness of breathing, and are not easy to collapse (the triangle structures provide an improved collapse resistance, which avoids the user needing to remove the mask to correct an indentation, or collapse, in the mask body [0007] and [0009]).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to add the triangle patterns as taught by Vasiliev to Seeto’s mask for the benefit of a mask structure which resists collapse and avoids the user removing the mask to fix the indented mask.
The now further modified Seeto remains silent on a second deformable material line.
Orofino teaches a second deformable material line (fig. 1, mask 11 has a first deformable material line at 14 and a second at 24, par. 0041) wherein the second deformable material line is located on the third layer and is adjacent to the upper side of the third layer (fig. 1, 14 is located at an analogous location to upper side of the third layer) which is configured to increase the fitness between the mask and the user’s jaw when wearing the mask (item 14 is configured to conform that material to the chin and jaw of a user, par. 0041).
Orofino teaches that their invention with a second malleable member makes the mask fit better and more comfortable, which helps the user wear the mask properly to reduce the risk of contamination (par. 0006).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to include a second deformable member located adjacent to the upper side of the third layer to the mask of Seeto as taught by Orofino, so that the mask would provide a better and more comfortable fit to the user, which ensures that the mask is worn properly and reduce the risk of contamination.
Regarding Claim 9, the modified Seeto discloses a mask of claim 1, but does not expressly disclose that the angle of the mask is 115 degrees.
Seeto states that the side welds support the mask away from the face of the user and prevent the mask from collapsing (pg. 8, lines 23-25). Changing the angle of the side welds relative to the bottom side of the mask from a rectangular preform would change both the length of the side weld as well as affect the fit of the opening of the mask. Changing the length of the side welds would alter the structural integrity of the mask. Changing the width of the mask by varying the angle of the side welds would affect the fit of the mask opening to the user’s face. This side weld angle is thus a results effective variable. It has been held that where the general conditions of the claims are disclosed in the prior art, finding the optimum or workable ranges involves only routine skill in the art (see MPEP 2144.05.II.A). Optimization of ranges of parameters within prior art ranges or through routine experimentation is not sufficient to patentably distinguish the invention over prior art (MPEP 2144.05). Furthermore, it appears that the applicant has not placed any criticality on the specific angle other than it is 115° (specification par. 0036).
Therefore, it would have been obvious to one having ordinary skill in the art at the time of the invention to modify the trapezoidal shape of Seeto’s mask by making the angle 115° as a matter of routine optimization since it has been held that “where the general conditions of a claim are disclosed in the prior art, it is not inventive to discover the optimum or workable ranges by routine experimentation." In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955).
Regarding Claim 13, the modified Seeto discloses a mask of claim 1, wherein the first layer, the third layer and the second layer are folded from the same piece of material (Fig. 1, pg. 6 lines 25-26 states that pleats 32 are contiguous with sidewalls 34, 36).
Regarding Claim 14, the modified Seeto discloses a mask of claim 1, further comprising at least one fixed strip engaged to two sides of the mask and configured to fix the mask to the user when wearing the mask (fig. 1, headband 20, neckband 26 are fixed to the mask, and hold the mask on the wearer’s head and neck, pg. 7, lines 6-7)
Regarding Claim 15, the modified Seeto discloses a mask of claim 1, wherein the polygon is a closed shape and the total sides of the polygon of the first layer or the polygon of the third layer is greater or equal to 4 (Fig. 5 shows side wall 34 (noted in fig. 1). Pg. 10, line 15 as a tetragonal shape; a tetragon is a four-sided closed shape).
Regarding Claim 16, the modified Seeto discloses a mask of claim 15, wherein the closed shape comprises at least two equal length sides (Fig. 5 shows side wall 34 (fig. 1). Pg. 10, line 15 tetragonal shape, the sides 16 and 18 appear to be of equal length). Though prior art drawings are not interpreted as depicting scale, unless specified, the description of the article pictured can be relied on, in combination with the drawings, for what they would reasonably teach one of ordinary skill in the art (MPEP 2125).
Claims 3 and 4 are rejected under 35 U.S.C. 103 as unpatentable over Seeto, Sakurai, Vasiliev, and Orofino, and further in view of Koros et al. (US 2018/0343938 A1), hereafter Koros.
Regarding Claim 3, the modified Seeto discloses a mask of claim 1, wherein the accordion-like folding structure from top to bottom consists of folding lines which includes the bottom sides of the first layer and the third layer (fig. 1, pleats 32 pg. 8 lines 26-27).
However, Seeto states that a plurality of pleats may be used and the preferred number of pleats is four, but does not discuss the number of folds comprising a pleat, only that pleats are folded (pg. 7, line 5). Thus, they are silent on whether there are 5, 7, or 9 folding lines.
Koros teaches a mask with a base layer wherein the accordion-like folding structure from top to bottom comprising an odd number of folding lines (fig. 1a, base layer 120 has 3, 4, or 5 pleats where the number of pleats is defined by the number of folds, par. 0048). Koros further teaches that pleats (or folds) allow the mask to expand, and when the mask is expanded, ventilation gaps are opened which allows exhaled air to better disperse (par. 0050).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to include 5 folding lines in the mask of Seeto as taught by Koros, for the benefit of allowing the mask to expand which gives the wearer the benefit of better exhaled air dispersion. It appears that the applicant has placed no criticality which requires the specific number of folding lines, other than “3, 5, 7 or 9 folding lines can provide a better mouth and nose accommodating space” (par. 0038-0039).
Regarding Claim 4, the modified Seeto discloses a mask of claim 3, wherein the accordion-like folding structure from top to bottom consists of 5 folding lines which includes the bottom sides of the first layer and the third layer (Koros fig. 1a, base layer 120 may have 5 pleats where the number of pleats is defined by the number of folds, par. 0048).
Claim 7 is rejected under 35 U.S.C. 103 as unpatentable over Seeto, Sakurai, Vasiliev, and Orofino, further in view of Smith et al (2017/0080368), hereafter Smith.
Regarding Claim 7, the modified Seeto teaches a mask of claim 1, but is silent regarding the interval width between an individual mountain folding line and an adjacent valley folding line is 0.5 to 6 cm.
Smith teaches that the filter material may have 1-2 pleats per inch (par. 0091) depending on the application for the filter material. When used in a face mask, the filter media may be folded to increase the surface area of the filter (par. 0100). Smith defines pleats as folds at parallel score lines (par. 0079, lines 6-8), meaning that 1-2 pleats per inch converts to fold lines every ½ - 1 inch, or every 1.3 - 2.6 cm. Folding the filter to have pleats within this range would provide a uniform thickness of the folded filter material, as stated above.
It would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to modify the pleats from Seeto to 1.3-2.6 cm as taught by Smith, in order to have a uniform thickness of the folded filter material, as the applicant appears to have placed no criticality on the claimed range of 0.5 - 6 cm (see par. 0039). It has been held that “[A] prior art reference that discloses a range encompassing a somewhat narrower claimed range is sufficient to establish a prima facie case of obviousness." In re Peterson, 315 F.3d 1325, 1330, 65 USPQ2d 1379, 1382-83 (Fed. Cir. 2003). See also In re Harris, 409 F.3d 1339, 74 USPQ2d 1951 (Fed. Cir. 2005) (MPEP 2144.05.I).
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure. Weinberg (US 2009/0277451 A1) teaches a layered mask formed from a trapezoid shape (figs. 4 and 5) where the sides are created from a pre-formed rectangle by sealing the edges into a trapezoid (par. 0064, lines 4-8). They teach that this is an economical way to manufacture a flat fold mask (par. 0067 lines 1-4). They also teach that the shape of the mask, having the filter material folded at the distal end and integrally sealed at the edges, results in no side openings at the perimeter of the mask. The trapezoidal layers with sealed and supportive side welds maintains the integrity of the sealed concave shape of the respiratory mask against the user’s face (par. 0067). The sealed edges at the sides of the mask are thus formed for two reasons: to support the mask as a cantilever, holding the mask material away from the mouth and nose of the user (par. 0065), and to allow the upper edges of the trapezoids to form a seal with the user’s face (par. 0067, lines 9-10).
Any inquiry concerning this communication or earlier communications from the examiner should be directed to SARA K. TOICH whose telephone number is (703)756-1450. The examiner can normally be reached M-Th 7:30 am - 4:30 pm, every other F 7:30-3:30 ET.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Brandy S. Lee can be reached on (571) 270-7410. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/SARA K TOICH/Examiner, Art Unit 3785
/JASON A FLOHRE/Supervisory Patent Examiner, Art Unit 4100