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and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114.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 October 27, 2025 has been entered.
Status of the Claims
As directed by the amendment received on October 27, 2025, claims 1-3, 7, 10, 22, 31, and 39 have been amended. Claims 4, 6, 8-9, 14, 19, 21, 25, 27-28, 30, 33, 35, and 38 were previously canceled. Accordingly, claims 1-3, 5, 7, 10-13, 15-18, 20, 22-24, 26, 29, 31-32, 34, 36-37, and 39 are currently pending in this application.
Response to Amendment
The amendments filed with the written response received on October 27, 2025, have been considered and an action on the merits follows. Any objections and rejections previously put forth in the Office Action dated May 5, 2025, are hereby withdrawn unless specifically noted below.
Claim Rejections - 35 USC § 112(b)
The following is a quotation of 35 U.S.C. 112(b):
(b) CONCLUSION.—The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the inventor or a joint inventor regards as the invention.
The following is a quotation of 35 U.S.C. 112 (pre-AIA ), second paragraph:
The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the applicant regards as his invention.
Claims 1-3, 5, 7, 10-13, 15-18, 20, 22-24, 26, 29, 31-32, 34, 36-37, and 39 rejected under 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), second paragraph, as being indefinite for failing to particularly point out and distinctly claim the subject matter which the inventor or a joint inventor (or for applications subject to pre-AIA 35 U.S.C. 112, the applicant), regards as the invention.
Claim 1 recites the limitation “an area/zone” at line 8. Due to the use of the slash, it is unclear if the limitation is attempting to alternatively claim area and zone (i.e., “area or zone”), or if the slash is meant to have some other meaning. Furthermore, if the terms are meant to be claimed in the alternative, it is unclear if the terms are meant to be interpreted differently from one another. Therefore, the metes and bounds of the claim are unclear, and the claim is rendered indefinite. Based on Applicant’s disclosure, it is suggested that the limitation instead read “an area”. For the purposes of examination, the limitation will be interpreted as best can be understood according to the suggested language above when applying prior art.
Claim 1 further recites the limitation “wherein the enclosed space […] is configured to filter aerosols down to at least 0.3 µm with little or no edge leaks” at lines 21-23. It is unclear if “down to at least” is attempting to claim a range of values, and if so, which direction he range is meant to extend relative to the claimed value. Furthermore, it is unclear to what measurement (e.g., diameter, radius, length, etc.) the value of 0.3 µm is meant to refer. Additionally, it is unclear what constitutes “little edge leaks”. Therefore, for at least these reasons, the metes and bounds of the claim are unclear, and the claim is rendered indefinite. It is suggested that the limitation instead read “wherein the enclosed space […] is configured to filter aerosols of at least 0.3 µm in diameter with no edge leaks”. For the purposes of examination, the limitation will be interpreted as best can be understood according to the suggested language above when applying prior art.
Claims 2-3, 5, 7, 10-13, 15-18, 20, 22-24, 26, 29, 31-32, 34, 36-37, and 39 are also rejected for being dependent on a rejected claim.
An effort has been made to identify all indefinite language with the pending claims. However, Examiner notes the above listing of 35 U.S.C. § 112 rejections may not be conclusive, and Applicant is required to review every claim for compliance to 35 U.S.C. § 112(b) so as to facilitate a clear understanding of the claimed invention and proper application of the prior art.
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.
Claims 1-3, 5, 12-13, 16-18, 20, 22, 24, 26, 29, 34, and 39, as best can be understood, are rejected under 35 U.S.C. 103 as being unpatentable over US 2016/0213959 to Barklow (hereinafter, “Barklow”) in view of US 2009/0277451 to Weinberg (hereinafter, “Weinberg”).
Regarding claim 1, Barklow teaches a face-gaiter mask comprising a tubular construction of fabric (See Barklow, Figs. 1-5; protective garment (144) is a tubular fabric construction; abstract claim 1), which is configured, in use, for an upper front center of the tubular construction to rest on an upper part of a user's nose, and for the tubular construction to extend down and drape over the user's nose, the user's mouth and the user's neck (See Barklow, Figs. 1-5; protective garment (144) is capable of being positioned on a hypothetical user as claimed); wherein the tubular construction includes a top seal (tubular garment (144) includes upper edge (126)), a front filter section (See annotated Fig. 2 of Barklow below; respiratory portion (122); Examiner notes that the term "section" is very broad and merely means "one of several components; a piece" (Defn. No. 1 of "American Heritage® Dictionary of the English Language, Fifth Edition" entry via TheFreeDictionary.com)), a rear section (See annotated Fig. 2 of Barklow below; rear section of protective garment (144)) and a bottom seal (bottom edge (128)), wherein an enclosed space is created between the top seal and the bottom seal (See Barklow, Figs. 2-5; enclosed space is created between upper edge (126) and bottom edge (128)), wherein in use the front filter section is located in front of the user's face and is configured to cover an area/zone into which the user breathes directly (See Barklow, Figs. 2-5; respiratory portion (122) is capable of being located on a hypothetical user as claimed and is capable of covering an area into which a hypothetical user breathes directly); wherein the front filter section includes at least two fabric layers, wherein the at least two fabric layers are configured to provide a predetermined level of filtration and resistance to airflow through the front filter section (See Barklow, Fig. 1; respiratory portion (122) includes at least outer filter (104) and inner filter (108) each being formed of fabric and being capable of providing a predetermined level of filtration and resistance to airflow therethrough; [0041]); wherein the top seal comprises a nose detail, wherein the nose detail extends from an upper edge of the front filter section and extends at least part way into the front filter section, wherein the nose detail defines a localized stiffener to an upper edge and upper circumference of an upper portion of the tubular construction (See Barklow, Figs. 1-5; top edge (126) includes nose pad (112) extending from upper edge of and at least partway into respiratory portion (122); nose pad (112) provides at least some stiffening to upper edge (126) and upper circumference of upper portion of tubular garment (144); [0046]) and facilitates correct alignment of the front filter section in use, wherein, in use the nose detail rests upon and aligns with the user's nasal bone (See Barklow, Figs. 2-5; nose pad (112) is capable of facilitating alignment of respiratory portion (122) and resting upon and aligning with a hypothetical user’s nasal bone); wherein the bottom seal is provided by a lower portion and a lower edge of the draping fabric, such that, in use, a sealing fit is created between the lower portion and the user’s upper torso or clothing (See Barklow, Figs. 2-5 and annotated Fig. 2 of Barklow below; bottom edge (128) is at lower edge of lower portion of draping fabric of protective garment (144), extends from respiratory portion (122), and is capable of draping across a hypothetical user as claimed to create a sealing fit inasmuch Applicant’s claimed invention creates a sealing fit), wherein the enclosed space defined within the draping fabric of the tubular construction is configured to filter aerosols with little or no edge leaks (See Barklow, Figs. 1-5; enclosed spaced formed by fabric of tubular garment (144) includes respiratory portion (122) in enclosed space and is capable of filtering hypothetical aerosols with no edge leaks).
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Annotated Fig. 2 of Barklow
That said, although Barklow appears to teach that the tubular garment is configured to filter aerosols down to at least 0.3 µm (See Barklow, Fig. 1; filter (106) of respiratory portion (122) is a HEPA or N95 filter; [0043]), Barklow is silent to a specific value. Therefore, Barklow is silent to the tubular garment being configured to filter aerosols down to at least 0.3 µm.
However, Weinberg, in a related filtering facemask art, is directed to a facial mask for filtering ambient air (See Weinberg, Fig. 1; abstract). More specifically, Weinberg teaches a filter material being configured to filter aerosols down to at least 0.3 µm (See Weinberg, Fig. 1; filter material (14) provide HEPA filtering down to at least 0.3 µm; [0066], [0090], [0093]).
It would have been obvious for one of ordinary skill in the art at the time of the effective filing date of the invention to use the filter material disclosed by Weinberg to form the filter layer of Barklow for a variety of reasons including for example, but not limited to, enabling a low particle penetration over a broad range of particle sizes including ultrafine particles while maintaining a low pressure inhalation and exhalation resistance (See Barklow, [0093]).
Regarding claim 2, the modified face-gaiter mask of Barklow (i.e., Barklow in view of Weinberg, as applied to claim 1 above) further teaches wherein the nose detail is a quadrilateral kite shaped detail in the front filter section (See Barklow, Figs. 1 and 4; nose pad (112) has a kite shape and is positioned in respiratory portion (122)), wherein the nose detail is configured to reduce the upper circumference of the upper portion of the face-gaiter mask and extends down from the upper edge of the front filter section (See Barklow, Figs. 1-5; nose pad (112) includes nose clip (110) having a quadrilateral kite shape which is capable of tightening a fit, i.e., reducing an upper circumference of the protective garment (144); [0045]), wherein upper and lower vertices and a vertical diagonal of the quadrilateral kite-shaped detail are configured such that in use the upper and lower vertices and the vertical diagonal align with the user's nasal bone (See Barklow, Figs. 1 and 4; nose pad (112) includes upper and lower vertices and vertical diagonal capable of aligning with a hypothetical user’s nasal bone).
Regarding claim 3, the modified face-gaiter mask of Barklow (i.e., Barklow in view of Weinberg, as applied to claim 1 above) further teaches wherein the nose detail is a visible feature on an exterior of the face-gaiter mask; or wherein the nose detail is concealed from exterior view but is visible from an interior of the face-gaiter mask (See Barklow, Figs. 1 and 4; nose pad (112) is concealed form exterior view but visible form interior of protective garment (144); giving importance to the term “or” in the claim, the prior art meets at least one of the listed alternative limitations and, therefore, meets the limitations of the claim).
Regarding claim 5, the modified face-gaiter mask of Barklow (i.e., Barklow in view of Weinberg, as applied to claim 1 above) further teaches wherein the top seal further comprises a nose seal proximate the upper edge of the front filter section, wherein the nose seal is arranged, in use, to create a sealing fit between the upper edge of the front filter section and the user’s face across the user's nose and alongside the user's nose (See Barklow, Figs. 1-5; nose pad (112) includes nose clip (110) proximate to upper edge (126) of respiratory portion (122); nose clip (110) is capable of creating a sealing fit between upper edge (126) of respiratory portion (122) across and alongside a hypothetical user’s nose), optionally wherein the nose seal comprises one or more deformable members, which is/are attached proximate to an upper edge of the front filter section substantially symmetrically relative to the nose detail (giving importance to the term “optionally” in the claim, the associated claim limitations do not necessarily need to be present to meet the requirements of the claim; therefore, the prior art meets the limitations of the claim).
Regarding claim 12, the modified face-gaiter mask of Barklow (i.e., Barklow in view of Weinberg, as applied to claim 1 above) further teaches wherein the front filter section includes an additional filter layer, wherein the additional filter layer occupies at least an upper portion of the front filter section (See Barklow, Fig. 1; respiratory portion (122) includes middle filter (106) extending into an upper portion of respiratory portion (122); filter (106) is formed of the filter material of Weinberg in the modified face-gaiter mask as discussed above).
Regarding claim 13, the modified face-gaiter mask of Barklow (i.e., Barklow in view of Weinberg, as applied to claims 1 and 12 above) further teaches wherein the additional filter layer is attached to an inner layer of the at least two layers; or wherein the additional filter layer is sandwiched between two of the at least two layers (See Barklow, Fig. 1; middle filter (106) is sandwiched between layers (104, 108) and attached to inner layer (108); filter (106) is formed of the filter material of Weinberg in the modified face-gaiter mask as discussed above).
Regarding claim 16, the modified face-gaiter mask of Barklow (i.e., Barklow in view of Weinberg, as applied to claims 1 and 12 above) further teaches wherein the additional filter layer extends substantially a full width and length of the front filter section of the face-gaiter mask (See Barklow, Figs. 1-5; middle filter (106) extends substantially the full width and length of respiratory portion (122); filter (106) is formed of the filter material of Weinberg in the modified face-gaiter mask as discussed above).
Regarding claim 17, the modified face-gaiter mask of Barklow (i.e., Barklow in view of Weinberg, as applied to claims 1 and 12 above) further teaches wherein the additional filter layer is made from one or more layers of fabric, wherein the fabric comprises multiple or blended yarns (See Barklow, Fig. 1; filter (106) is formed of the filter material of Weinberg in the modified face-gaiter mask as discussed above which includes at least two types of fibers; See Weinberg, [0049]-[0050])
Regarding claim 18, the modified face-gaiter mask of Barklow (i.e., Barklow in view of Weinberg, as applied to claims 1 and 12 above) further teaches wherein the additional filter layer is configured to catch aerosols smaller than 10µm (See Barklow, Fig. 1; filter (106) is formed of the filter material of Weinberg in the modified face-gaiter mask as discussed above which is capable of catching hypothetical aerosols of the claimed size; See Weinberg, [0066], [0090], [0093]); optionally smaller than 3 µm (giving importance to the term “optionally” in the claim, the associated claim limitations do not necessarily need to be present to meet the requirements of the claim; therefore, the prior art meets the limitations of the claim).
Regarding claim 20, the modified face-gaiter mask of Barklow (i.e., Barklow in view of Weinberg, as applied to claims 1 and 12 above) further teaches wherein the filter layer is made from non-woven fabrics, fleece type knitted fabrics or tight knitted fleece fabrics (See Barklow, Fig. 1; filter (106) is formed of the filter material of Weinberg in the modified face-gaiter mask as discussed above can be formed form a non-woven fabric; [0049]-[0050]); optionally wherein the additional filter layer is made from polyester, nylon or cellulose based yarns; fine gauge tight knitted wools; or non-woven fabrics made of very fine yarns such as cellulose, split polyester, split nylon and melt blown polypropylene (giving importance to the term “optionally” in the claim, the associated claim limitations do not necessarily need to be present to meet the requirements of the claim; therefore, the prior art meets the limitations of the claim).
Regarding claim 22, the modified face-gaiter mask of Barklow (i.e., Barklow in view of Weinberg, as applied to claim 1 above) further teaches wherein the at least two fabric layers are made integrally of the same fabric (layers (104, 108) are formed from the same fabric and form part of the completed protective garment (144); Examiner notes that the adjective term "integral" is very broad and has a definition of "[e]ssential or necessary for completeness; constituent" (Adjective Defn. No. 1 of "American Heritage® Dictionary of the English Language, Fifth Edition" entry via TheFreeDictionary.com)), wherein the layers are created by folding a sheet of fabric (Examiner notes that the layers being “made integrally” and “created by folding a sheet of fabric” are both product-by-process limitations; the resulting structure of the prior art, i.e., the two layers, meets the structural requirements of the claim limitation).
Regarding claim 24, the modified face-gaiter mask of Barklow (i.e., Barklow in view of Weinberg, as applied to claim 1 above) further teaches wherein the front filter section of the face-gaiter mask includes an inner layer, an outer layer and a filter layer sandwiched between the inner layer and the outer layer (See Barklow, Figs. 1-5; respiratory portion (122) includes middle filter layer (106) sandwiched between inner filter layer (108) and outer filter layer (104); middle filter layer (106) is formed of the filter material of Weinberg in the modified face-gaiter mask as discussed above), optionally wherein the inner layer is made from hygroscopic fabric (giving importance to the term “optionally” in the claim, the associated claim limitations do not necessarily need to be present to meet the requirements of the claim; therefore, the prior art meets the limitations of the claim).
Regarding claim 26, the modified face-gaiter mask of Barklow (i.e., Barklow in view of Weinberg, as applied to claims 1 and 24 above) further teaches wherein the outer layer is operable to protect the filter layer (See Barklow, Figs. 1-5; outer filter layer (104) is capable of protecting middle filter layer (106)); optionally wherein the outer layer is more porous than the filter layer such that any pathogen from the environment that is filtered by the face gaiter mask is likely to pass through outer layer and be held on the outer surface of the filter layer, and further optionally wherein the outer layer is made of a warp knit polyester (giving importance to the term “optionally” in the claim, the associated claim limitations do not necessarily need to be present to meet the requirements of the claim; therefore, the prior art meets the limitations of the claim).
Regarding claim 29, the modified face-gaiter mask of Barklow (i.e., Barklow in view of Weinberg, as applied to claim 1 above) further teaches wherein the rear section is joined along edges of the front filter section to form the tubular construction (See annotated Fig. 2 of Barklow above; rear section is joined along edges of respiratory portion (122) to form tubular construction of protective garment (144)); optionally wherein the rear section is made of a flexible and pliable material, ensures, in use, that the face gaiter mask can be pulled over the user's head (giving importance to the term “optionally” in the claim, the associated claim limitations do not necessarily need to be present to meet the requirements of the claim; therefore, the prior art meets the limitations of the claim).
Regarding claim 34, the modified face-gaiter mask of Barklow (i.e., Barklow in view of Weinberg, as applied to claim 1 above) further teaches wherein the rear section is made of a layered construction (See annotated Fig. 2 of Barklow above; rear section of protective garment (144) is formed by inner panel layer (100) and outer panel layer (102)); optionally wherein the layered construction includes at least two flexible and pliable materials (giving importance to the term “optionally” in the claim, the associated claim limitations do not necessarily need to be present to meet the requirements of the claim; therefore, the prior art meets the limitations of the claim).
Regarding claim 39, the modified face-gaiter mask of Barklow (i.e., Barklow in view of Weinberg, as applied to claim 1 above) further teaches wherein the lower edge of the draping fabric is tapered, wherein, in use, the lower edge of the neck seal rests against the user's upper torso or clothing to create the sealing fit between the lower edge and the user’s upper torso or clothing (See Barklow, Figs. 1-5; bottom edge (128) of tubular garment (144) is tapered and is capable of resting against a hypothetical user’s upper torso or clothing to create a sealing fit inasmuch as Applicant’s claimed invention creates a sealing fit).
Claims 7 and 10-11, as best can be understood, are rejected under 35 U.S.C. 103 as being unpatentable over Barklow in view of Weinberg, as applied to claims 1 and 5 above, and further in view of GB 2538298 to Case (hereinafter, “Case”).
Regarding claim 7, the modified face-gaiter mask of Barklow (i.e., Barklow in view of Weinberg, as applied to claims 1 and 5 above) is silent to wherein the nose seal includes two wedged inserts, where one insert is attached to each side of the nose detail; or wherein the nose seal comprises a single contoured insert, wherein a contour of the single contoured insert is configured such that in use the single contoured insert corresponds substantially with contours of the user's nose and cheek area, or wherein the single contoured insert is customized to conform with the contours of the user’s nose and cheek area using additive manufacturing and/or rapid manufacturing, such that in use the contoured insert conforms to the shape of the user's nose and cheek area.
That said, Case, in a related respiratory face mask art, is directed to a protective respiratory device such as a mask having a filter layer (See Case, Figs. 1-6; abstract). More specifically, Case teaches wherein the nose seal includes two wedged inserts, where one insert is attached to each side of the nose detail; or wherein the nose seal comprises a single contoured insert, wherein a contour of the single contoured insert is configured such that in use the single contoured insert corresponds substantially with contours of the user's nose and cheek area, or wherein the single contoured insert is customized to conform with the contours of the user’s nose and cheek area using additive manufacturing and/or rapid manufacturing, such that in use the contoured insert conforms to the shape of the user's nose and cheek area (See Case, Figs. 3 and 5; deformable spacer (18) includes contours capable of corresponding to contours of a hypothetical user’s nose and cheek area; page 8, line 24 – page 9, line 5; giving importance to the term “or” in the claim, the prior art meets at least one of the listed alternative limitations and, therefore, meets the limitations of the claim).
It would have been obvious for one of ordinary skill in the art at the time of the effective filing date of the invention to replace the nose seal of the modified face-gaiter mask of Barklow for the deformable spacer nose seal disclosed by Case for a variety of reasons including for example, but not limited to, providing a nose seal that provides a more comfortable and secure fit (See Case, page 6, lines 15-20).
Regarding claim 10, the modified face-gaiter mask of Barklow (i.e., Barklow in view of Weinberg and Case, as applied to claims 1, 5, and 7 above) further teaches wherein the nose seal comprises the single contoured insert which includes a recessed section and two convex sections (See Case, Fig. 5; deformable spacer (18) includes contour having recessed section (320) capable of corresponding with contours of a hypothetical wearer’s nose and cheek area and two convex sections (40)).
Regarding claim 11, the modified face-gaiter mask of Barklow (i.e., Barklow in view of Weinberg, as applied to claims 1 and 5 above) is silent to wherein the nose seal is manufactured from deformable foam.
That said, Case, in a related respiratory face mask art, is directed to a protective respiratory device such as a mask having a filter layer (See Case, Figs. 1-6; abstract). More specifically, Case teaches wherein the nose seal is manufactured from deformable foam (See Case, Figs. 3 and 5; deformable foam spacer (18) includes contours capable of corresponding to contours of a hypothetical user’s nose; page 8, line 24 – page 9, line 5).
It would have been obvious for one of ordinary skill in the art at the time of the effective filing date of the invention to replace the nose seal of the modified face-gaiter mask of Barklow for the deformable foam spacer nose seal disclosed by Case for a variety of reasons including for example, but not limited to, providing a nose seal that provides a more comfortable and secure fit (See Case, page 6, lines 15-20).
Claims 15 and 23, as best can be understood, are rejected under 35 U.S.C. 103 as being unpatentable over Barklow in view of Weinberg (as applied to claims 1 and 5 above with respect to claim 15, and as applied to claims 1 and 12 above with respect to claim 23), and further in view of US 2015/0059774 to Duffy (hereinafter, “Duffy”).
Regarding claim 15, the modified face-gaiter mask of Barklow (i.e., Barklow in view of Weinberg, as applied to claims 1 and 5 above) further teaches wherein the filter section includes an additional filter layer, the additional filter layer occupying at least an upper portion of the filter section (See Barklow, Fig. 1; respiratory portion (122) includes middle filter (106) extending into an upper portion of respiratory portion (122)), wherein the additional filter layer includes a bulbous body (See Barklow, Figs. 1 and 2-3; respiratory portion (122) includes bulbous portion spaced form a hypothetical wearer’s face).
That said, although Barklow includes a nose seal, i.e., nose clip (110), the modified face-gaiter mask of Barklow is silent to the additional filter layer having two upper pockets, wherein the pockets are configured to retain the nose seal relative to the nose detail.
However, Duffy, in a related respiratory face mask art, is directed to a filtering face-piece respirator having a harness and mask body that includes a multi-layer filtering structure (See Duffy, Figs. 1-2, 5, and 12; abstract). More specifically, Duffy teaches the additional filter layer having two upper pockets, wherein the pockets are configured to retain the nose seal relative to the nose detail (See Duffy, Figs. 1-2, 5, and 12; interior perimeter segments (24a) on either side of notch (52) are folded down to form two upper pockets capable of retaining nose clip (35)).
It would have been obvious for one of ordinary skill in the art at the time of the effective filing date of the invention to form the upper perimeter segments and pockets disclosed by Duffy on the respiratory portion of the modified face-gaiter mask of Barklow for a variety of reasons including for example, but not limited to, providing additional structure for securing and retaining the nose clip in a desired position in the mask structure.
Regarding claim 23, although the middle filter layer of the modified face-gaiter mask of Barklow is different than the inner and outer filter layers, the modified face-gaiter mask of Barklow (i.e., Barklow in view of Weinberg, as applied to claims 1 and 12 above) is silent to wherein each layer of the least two layers is made of different materials.
However, Duffy, in a related respiratory face mask art, is directed to a filtering face-piece respirator having a harness and mask body that includes a multi-layer filtering structure (See Duffy, Figs. 1-2, 5, and 12; abstract). More specifically, Duffy teaches wherein each layer of the least two layers is made of different materials (See Duffy, Fig. 4; inner (38) and outer (40) layers surrounding filtration layer (42) are different materials; [0057]-[0059]).
It would have been obvious for one of ordinary skill in the art at the time of the effective filing date of the invention to form the inner filter layer of the modified face-gaiter mask of Barklow from a different material than the outer filter layer as disclosed by Duffy for a variety of reasons including for example, but not limited to, providing a material on a user-facing side that is softer and more comfortable (See Duffy, [0057]-[0059]). As a result of the above modification, all layers of the modified face-gaiter mask of Barklow (i.e., Barklow in view of Weinberg and Duffy as described above) would be made of different materials.
Claims 36-37, as best can be understood, are rejected under 35 U.S.C. 103 as being unpatentable over Barklow in view of Weinberg (as applied to claims 1 and 34 above with respect to claim 36, and as applied to claim 1 above with respect to claim 37), and further in view of USPN 7,743,433 to Grove et al. (hereinafter, “Grove”).
Regarding claim 36, although the rear section of the face-gaiter mask of Barklow is formed of two layers, the modified face-gaiter mask of Barklow (i.e., Barklow in view of Weinberg, as applied to claims 1 and 34 above) is silent to wherein the layered construction includes the at least two flexible and pliable materials, at least one of the at least two flexible and pliable materials being non-porous.
However, Grove, in a related respiratory protective garment art, is directed to a neck dam collar for protective masks and hoods (See Grove, Figs. 1-3; abstract). More specifically, Grove teaches wherein the layered construction includes the at least two flexible and pliable materials, at least one of the at least two flexible and pliable materials being non-porous (See Grove, Figs. 4-5; inner material made of rubber which Applicant states as an acceptable non-porous material).
It would have been obvious for one of ordinary skill in the art at the time of the effective filing date of the invention to form the inner panel layer of the modified face-gaiter mask of Barklow from the rubber material disclosed by Grove for a variety of reasons including for example, but not limited to, providing a protective layer to inhibit penetration of undesirable aerosols and vapors such as biological agents or the like (See Grove, Col. 1, lines 21-25; Col. 3, lines 27-35).
Regarding claim 37, although the rear section of the face-gaiter mask of Barklow is formed of two layers, the modified face-gaiter mask of Barklow (i.e., Barklow in view of Weinberg, as applied to claim 1 above) is silent to wherein the rear section is made of impermeable fabric; optionally wherein the rear section includes a layer of polyurethane, natural rubber or synthetic rubber.
However, Grove, in a related respiratory protective garment art, is directed to a neck dam collar for protective masks and hoods (See Grove, Figs. 1-3; abstract). More specifically, Grove teaches wherein the rear section is made of impermeable fabric; optionally wherein the rear section includes a layer of polyurethane, natural rubber or synthetic rubber (See Grove, Figs. 4-5; inner material made of rubber which Applicant states as an acceptable impermeable material).
It would have been obvious for one of ordinary skill in the art at the time of the effective filing date of the invention to form the inner panel layer of the modified face-gaiter mask of Barklow from the rubber material disclosed by Grove for a variety of reasons including for example, but not limited to, providing a protective layer to inhibit penetration of undesirable aerosols and vapors such as biological agents or the like (See Grove, Col. 1, lines 21-25; Col. 3, lines 27-35).
Claims 31-32, as best can be understood, are rejected under 35 U.S.C. 103 as being unpatentable over Barklow in view of Weinberg, as applied to claims 1 and 29 above, and further in view of US 2018/0078797 to Bergman (hereinafter, “Bergman”).
Regarding claim 31, the modified face-gaiter mask of Barklow (i.e., Barklow in view of Weinberg, as applied to claims 1 and 29 above) is silent to wherein the rear section includes a resilient rear upper edge, which ensures the rear upper edge of the rear section fits snuggly against the user's head when the face-gaiter mask is worn.
However, Bergman, in a related respiratory face mask art, is directed to an earless filter mask (See Bergman, Figs. 1-2; abstract). More specifically, Bergman teaches wherein the rear section includes a resilient rear upper edge, which ensures the rear upper edge of the rear portion fits snuggly against the user's head when the face-gaiter mask is worn (See Bergman, Figs. 1-2; conforming band (150) encircles an upper circumference of the upper edges of the tubular mask when worn; conforming band (150) may be an elastic material and is capable of ensuring the rear upper edge of the rear section fits snuggly against a hypothetical user’s head when worn).
It would have been obvious for one of ordinary skill in the art at the time of the effective filing date of the invention to include the elastic conforming band disclosed by Bergman around the upper edge of the modified face-gaiter mask of Barklow for a variety of reasons including for example, but not limited to, securing and conforming the upper edge of the mask to the wearer’s face (See Bergman, [0027]).
Regarding claim 32, the modified face-gaiter mask of Barklow (i.e., Barklow in view of Weinberg and Bergman, as discussed with respect to claims 1, 29, and 31 above) further teaches wherein the upper edge includes an elasticated section, wherein a length of elastic is secured to the upper edge such that, in use, the upper edge of the rear section fits snuggly against the user's head (in the modified face-gaiter mask of Barklow, the upper edge of the mask includes elastic conforming band (150) of Bergman capable of securing the upper edge of the rear section against a hypothetical user’s head); optionally wherein at least the upper edge of the rear section is configured to stretch by at least 50% (giving importance to the term “optionally” in the claim, the associated claim limitations do not necessarily need to be present to meet the requirements of the claim; therefore, the prior art meets the limitations of the claim).
Response to Arguments
In view of Applicant’s amendment, the search has been updated, and new prior art has been identified and applied. Applicant’s arguments, filed October 27, 2025, with respect to the rejection of the claims under 35 USC 102 and 103 have been fully considered but are moot in view of the new grounds of rejection, as Applicant’s arguments appear to be drawn only to the newly amended limitations and previously presented rejections.
In response to Applicant's argument that the references fail to show certain features of the invention, it is noted that the features upon which Applicant relies (i.e., an entire tubular construction and/or space within the tubular construction being an active filter zone) are not recited in the rejected claim(s). Although the claims are interpreted in light of the specification, limitations from the specification are not read into the claims. See In re Van Geuns, 988 F.2d 1181, 26 USPQ2d 1057 (Fed. Cir. 1993). As discussed in the current grounds of rejection above, the tubular protective garment of Barklow includes the respiratory portion as part of the overall garment construction and positioned within the enclosed space formed by the tubular construction. Therefore, the enclosed space, which includes the respiratory portion of Barklow, is capable of filtering aerosols as required by the pending claims. Furthermore, top and bottom seals are capable of being made at the top and bottom edges of the tubular protective garment Barklow inasmuch as Applicant’s claimed invention creates a sealing fit at the top and bottom edges.
Conclusion
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/MATTHEW R MARCHEWKA/Examiner, Art Unit 3732