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 .
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.
Claim(s) 18-20, 22, 24-31, 34 and 35 is/are rejected under 35 U.S.C. 103 as being unpatentable over Bostock (US 2001/0015205 A1) in view of Perez (US 2021/0337897 A1) in further view of Brunson et al. (US 5,724,964)
Regarding claim 18, Bostock discloses: A face mask (50) comprising:
a central area (52) including a fabric material ([0053]-[0054] indicate that the central portion is filter media with stiffening means);
an area (54 56) extending laterally at least partially from the central area (see figures 11, 12), the area including a material connected to the central area at an interface section (where 54 and 56 meet 52 as shown in figure 1); and
wherein the mask includes an adhesive (as set forth in [0015], the device can be held on the user by adhesive); and
wherein a space between the interface section and the perimeter of the mask including the material is an intermediate area (see figures 11 and 12).
PNG
media_image1.png
356
480
media_image1.png
Greyscale
Bostock does not explicity disclose the area is elastic including an elastic material. Bostock does indicate in [0059] that the portions not made of filter media (54 and 56) can be formed of a wide variety of materials. Further, while Bostock discloses in [0015]: the device can be held on the user by adhesive Bostock is not explicit in where this would be located and specifically that it is provided on a bottom surface of the elastic material along at least a portion of a periphery of the face mask to form an adhesive sealing profile.
However Perez teaches that it is known to provide a mask 100 with an elastic area 140 (similar to that of 54 and 56 of Bostock) comprising an elastic material [0033].
It would have been obvious to have modified Bostock such that the area is elastic including an elastic material as taught by Perez for the benefit of using a known material along the periphery of the mask. In addition, the selection of a known material based on its suitability for its intended use supported a prima facie obviousness determination in Sinclair & Carroll Co. v. Interchemical Corp., 325 U.S. 327, 65 USPQ 297 (1945). See also In re Leshin, 277 F.2d 197, 125 USPQ 416 (CCPA 1960) (selection of a known plastic to make a container of a type made of plastics prior to the invention was held to be obvious)
Further, while Bostock discloses in [0015]: the device can be held on the user by adhesive Bostock is not explicit in where this would be located and specifically that it is provided on a bottom surface of the elastic material along at least a portion of a periphery of the face mask to form an adhesive sealing profile.
However, Brunson teaches it is known to place an adhesive around the periphery of a face mask towards the user (at periphery of mask) in order to form an adhesive profile (col. 16, lines 7-18)
It would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to have modified Bostock such that the adhesive is provided on a bottom surface of the elastic material along at least a portion of a periphery of the face mask to form an adhesive sealing profile as taught by Brunson for the benefit of a properly sealing the mask to the user with a skin friendly adhesive (col. 16, lines 7-9).
Regarding claim 19, Bostock as modified discloses the claimed invention substantially as claimed as set forth for claim 18 above. Bostock as modified further discloses wherein the intermediate elastic area has an elasticity greater than that of the central area (as modified by Perez the intermediate elastic are is stretchable [0033], while the central area of Bostock is stiffened [0053]-[0054] and thus it is the examiner’s position that the central area is less elastic than the intermediate elastic area).
Regarding claim 20, Bostock as modified discloses the claimed invention substantially as claimed as set forth for claim 18 above. Bostock as modified further discloses wherein the intermediate elastic area has an elasticity greater than that of the adhesive sealing profile (as set forth on [0027] of Perez the adhesive tape is kinesiology tape and is placed on the elastic material at the adhesive sealing profile and therefore the combination of the tape and the elastic material would have less elasticity than just the elastic material on its own).
Regarding claim 22, Bostock as modified discloses the claimed invention substantially as claimed as set forth for claim 18 above. Bostock as modified further discloses wherein the adhesive is made of a hydrogel (Brunson: col. 16, lines 7-9), or a plaster adhesive matrix.
Regarding claim 24, Bostock as modified discloses the claimed invention substantially as claimed as set forth for claim 18 above. Bostock does not explicitly disclose wherein a width of the elastic area is in a range of 10 to 50 mm. The examiner notes that Bostock contemplates different configurations for the central portion 52’ and elastic portions 54’ as shown in figure 9 and within figures 13. It would have been obvious to have made this modification to one having ordinary skill in the art before the effective filing date of the claimed invention to have modified the shape of the central portion/elastic portions as Bostock already contemplated this [0052]. Further, this configuration is an obvious matter of design choice by changing the shape of the central portion In re Dailey, 357 F.2d 669, 149 USPQ 47 (CCPA 1966).
Further, it would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to cause the device of Bostock to have a width of the elastic area is in a range of 10 to 50 mm since it has been held that “where the only difference between the prior art and the claims was a recitation of relative dimensions of the claimed device and a device having the claimed relative dimensions would not perform differently than the prior art device, the claimed device was not patentably distinct from the prior art device” Gardner v. TEC Syst., Inc., 725 F.2d 1338, 220 USPQ 777 (Fed. Cir. 1984), cert. denied, 469 U.S. 830, 225 SPQ 232 (1984). In the instant case, the device of Bostock would not operate differently with the claimed dimensions and the device would function appropriately having the claimed width dimensions. Further, applicant places no criticality on the range claimed.
Regarding claim 25, Bostock as modified discloses the claimed invention substantially as claimed as set forth for claim 18 above. Bostock as modified does not explicitly disclose wherein a width of the adhesive sealing profile is in a range of 2 to 25 mm.
However, it would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to cause the device of Bostock to have a width of the adhesive sealing profile is in a range of 2 to 25 mm since it has been held that “where the only difference between the prior art and the claims was a recitation of relative dimensions of the claimed device and a device having the claimed relative dimensions would not perform differently than the prior art device, the claimed device was not patentably distinct from the prior art device” Gardner v. TEC Syst., Inc., 725 F.2d 1338, 220 USPQ 777 (Fed. Cir. 1984), cert. denied, 469 U.S. 830, 225 SPQ 232 (1984). In the instant case, the device of Bostock as modified would not operate differently with the claimed dimensions and the device would function appropriately having the claimed width dimensions. Further, applicant places no criticality on the range claimed.
Regarding claim 26, Bostock as modified discloses the claimed invention substantially as claimed as set forth for claim 18 above. Bostock does not explicitly disclose wherein a width of the intermediate elastic area is in a range of 2 to 25 mm. The examiner notes that Bostock contemplates different configurations for the central portion 52’ and elastic portions 54’ as shown in figure 9 and within figures 13. It would have been obvious to have made this modification to one having ordinary skill in the art before the effective filing date of the claimed invention to have modified the shape of the central portion/elastic portions as Bostock already contemplated this [0052]. Further, this configuration is an obvious matter of design choice by changing the shape of the central portion In re Dailey, 357 F.2d 669, 149 USPQ 47 (CCPA 1966).
Further, it would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to cause the device of Bostock to have a width of the intermediate elastic area is in a range of 2 to 25 mm since it has been held that “where the only difference between the prior art and the claims was a recitation of relative dimensions of the claimed device and a device having the claimed relative dimensions would not perform differently than the prior art device, the claimed device was not patentably distinct from the prior art device” Gardner v. TEC Syst., Inc., 725 F.2d 1338, 220 USPQ 777 (Fed. Cir. 1984), cert. denied, 469 U.S. 830, 225 SPQ 232 (1984). In the instant case, the device of Bostock would not operate differently with the claimed dimensions and the device would function appropriately having the claimed width dimensions. Further, applicant places no criticality on the range claimed.
Regarding claim 27, Bostock as modified discloses the claimed invention substantially as claimed as set forth for claim 18 above. Bostock does not explicitly disclose wherein a width of the interface section is 25-35% of a width of the intermediate elastic area.
However, it would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to cause the device of Bostock to have a width of the interface section is 25-35% of a width of the intermediate elastic area since it has been held that “where the only difference between the prior art and the claims was a recitation of relative dimensions of the claimed device and a device having the claimed relative dimensions would not perform differently than the prior art device, the claimed device was not patentably distinct from the prior art device” Gardner v. TEC Syst., Inc., 725 F.2d 1338, 220 USPQ 777 (Fed. Cir. 1984), cert. denied, 469 U.S. 830, 225 SPQ 232 (1984). In the instant case, the device of Bostock would not operate differently with the claimed dimensions and the device would function appropriately having the claimed width dimensions. Further, applicant places no criticality on the range claimed.
Regarding claim 28, Bostock as modified discloses the claimed invention substantially as claimed as set forth for claim 18 above. Bostock as modified does not explicitly disclose wherein a thickness of the elastic material is in a range of 0.1 to 1.5 mm.
However, it would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to cause the device of Bostock to have a thickness of the elastic material is in a range of 0.1 to 1.5 mm since it has been held that “where the only difference between the prior art and the claims was a recitation of relative dimensions of the claimed device and a device having the claimed relative dimensions would not perform differently than the prior art device, the claimed device was not patentably distinct from the prior art device” Gardner v. TEC Syst., Inc., 725 F.2d 1338, 220 USPQ 777 (Fed. Cir. 1984), cert. denied, 469 U.S. 830, 225 SPQ 232 (1984). In the instant case, the device of Bostock would not operate differently with the claimed dimensions and the device would function appropriately having the claimed width dimensions. Further, applicant places no criticality on the range claimed.
Regarding claim 29, Bostock as modified discloses the claimed invention substantially as claimed as set forth for claim 18 above. Bostock as modified does not explicitly wherein the elastic area extends around the entire central area of the face mask.
However, Perez further discloses it is known for the elastic area 140 to extend around the entire central area 120 as shown in figures 2 and 3.
Therefore it would have been obvious to have made this modification to one having ordinary skill in the art before the effective filing date of the claimed invention to have modified the shape of the central portion as Bostock already contemplated this [0052]. Further, this configuration is an obvious matter of design choice by changing the shape of the central portion In re Dailey, 357 F.2d 669, 149 USPQ 47 (CCPA 1966).
Regarding claim 30, Bostock as modified discloses the claimed invention substantially as claimed as set forth for claim 29 above. Bostock as modified further discloses wherein the adhesive provided on the bottom surface of the elastic material extends around the periphery of the face mask, such that the adhesive sealing profile circumvents the face mask (Brunson: col. 16, lines 7-18).
Regarding claim 31, Bostock as modified discloses the claimed invention substantially as claimed as set forth for claim 18 above. Bostock further discloses a valve (64) arranged in the central area (see figures 11-12).
Regarding claim 34, Bostock as modified discloses the claimed invention substantially as claimed as set forth for claim 18 above. Bostock further discloses wherein the elastic material is connected to the fabric material of the central area in the interface section by sewing, through an adhesive, or a combination thereof [0060].
Regarding claim 35, Bostock as modified discloses the claimed invention substantially as claimed as set forth for claim 18 above. Bostock further discloses wherein the intermediate elastic area is separated from and not in contact with the face of a user (cup shaped as per [0049] and this is defined as off the face in [0045]).
Claim(s) 33 is/are rejected under 35 U.S.C. 103 as being unpatentable over Bostock (US 2001/0015205 A1) in view of Perez (US 2021/0337897 A1) in further view of Brunson et al. (US 5,724,964) in further view of Sakotic et al. (US 2020/0121515 A1).
Regarding claim 33, Bostock as modified discloses the claimed invention substantially as claimed as set forth for claim 18 above. Bostock does not explicitly disclose wherein the adhesive and/or the elastic material further comprises an anti-septic agent.
However, Sakotic teaches it is known to incorporate an antiseptic in an adhesive for skin (claim 25).
Therefore, it would have been obvious to have modified Bostock such that the adhesive and/or the elastic material further comprises an anti-septic agent as taught by Sakotic for the benefit of preventing bacterial growth.
Claim(s) 32 is/are rejected under 35 U.S.C. 103 as being unpatentable over Bostock (US 2001/0015205 A1) in view of Perez (US 2021/0337897 A1) in further view of Brunson et al. (US 5,724,964) in further view of Koehler (US 2012/0103339 A1).
Regarding claim 32, Bostock as modified discloses the claimed invention substantially as claimed as set forth for claim 31 above. Bostock does not explicitly disclose wherein the valve is attached to the central area by a snap-fit mechanism.
However, Koehler teaches it is known to attach a valve to a mask via snap fit [0015] [0026].
Therefore it would have been obvious wherein the valve of Bostock is attached to the central area by a snap-fit mechanism as taught by Koehler for the benefit of having a detachable and replaceable valve.
Claim(s) 18, 21 and 23 is/are rejected under 35 U.S.C. 103 as being unpatentable over Bostock (US 2001/0015205 A1) in view of Stahl (US 3,550,588) in further view of Brunson et al. (US 5,724,964).
Regarding claim 18, Bostock discloses: A face mask (50) comprising:
a central area (52) including a fabric material ([0053]-[0054] indicate that the central portion is filter media with stiffening means);
an area (54 56) extending laterally at least partially from the central area (see figures 11, 12), the area including a material connected to the central area at an interface section (where 54 and 56 meet 52 as shown in figure 1); and
wherein the mask includes an adhesive (as set forth in [0015], the device can be held on the user by adhesive); and
wherein a space between the interface section and the perimeter of the mask including the material is an intermediate area (see figures 11 and 12).
PNG
media_image1.png
356
480
media_image1.png
Greyscale
Bostock does not explicity disclose the area is elastic including an elastic material. Bostock does indicate in [0059] that the portions not made of filter media (54 and 56) can be formed of a wide variety of materials. Further, while Bostock discloses in [0015]: the device can be held on the user by adhesive Bostock is not explicit in where this would be located and specifically that it is provided on a bottom surface of the elastic material along at least a portion of a periphery of the face mask to form an adhesive sealing profile.
However Stahl teaches that it is known to provide a mask with an elastic area 10 (similar to that of 54 and 56 of Bostock) comprising an elastic material (col. 1, lines 29-30)
It would have been obvious to have modified Bostock such that the area is elastic including an elastic material as taught by Perez for the benefit of using a known material along the periphery of the mask. In addition, the selection of a known material based on its suitability for its intended use supported a prima facie obviousness determination in Sinclair & Carroll Co. v. Interchemical Corp., 325 U.S. 327, 65 USPQ 297 (1945). See also In re Leshin, 277 F.2d 197, 125 USPQ 416 (CCPA 1960) (selection of a known plastic to make a container of a type made of plastics prior to the invention was held to be obvious)
Further, while Bostock discloses in [0015]: the device can be held on the user by adhesive Bostock is not explicit in where this would be located and specifically that it is provided on a bottom surface of the elastic material along at least a portion of a periphery of the face mask to form an adhesive sealing profile.
However, Brunson teaches it is known to place an adhesive around the periphery of a face mask towards the user (at periphery of mask) in order to form an adhesive profile (col. 16, lines 7-18)
It would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to have modified Bostock such that the adhesive is provided on a bottom surface of the elastic material along at least a portion of a periphery of the face mask to form an adhesive sealing profile as taught by Brunson for the benefit of a properly sealing the mask to the user with a skin friendly adhesive (col. 16, lines 7-9)
Regarding claim 21, Bostock as modified discloses the claimed invention substantially as claimed as set forth for claim 18 above. Bostock as modified further discloses wherein the elastic material is selected from the group consisting of a thermoplastic elastomer, a hydrocolloid, and a medical grade synthetic rubber sheet (Stahl: col. 1, lines 29-30) or silicone sheet. While not explicit the examiner takes official notice that it is known to use medical grade materials when in contact with a user’s face. Thus it would have been obvious wherein the synthetic rubber is medical grade in order to avoid irritation at the user’s face.
Regarding claim 23, Bostock as modified discloses the claimed invention substantially as claimed as set forth for claim 18 above. Bostock as modified discloses wherein the elastic material is stretchable to a length being at least twice its extension in its resting state in all three dimensions, and return to its resting state upon relaxation. (Stahl: col. 1, lines 29-30) The examiner notes that synthetic rubber is listed as an appropriate material in applicant’s specification for the stretchiness (see page 11, line 21 of applicant’s disclosure). Therefore it is the examiner’s position that the prior art as modified has synthetic rubber as the material, the prior art would have the same characteristics claimed.
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure:
Hwan (KR 102231789 B1). The examiner notes the translation is relied upon below.
Hwan discloses: A face mask (figure 1) comprising:
a central area (45) including a fabric material (velcro as per page 4, paragraph 6);
an elastic area (10) extending laterally at least partially from the central area (see figure 1), the elastic area including an elastic material connected to the central area at an interface section (where 45 overlaps with 10 as shown in figure 1) (elastic deformation of material 10 is set forth in page 3, paragraph 3); and
wherein the area includes an adhesive (25, 20) provided on a bottom surface of the material (page 3, paragraphs 4-6) along at least a portion of a periphery of the face mask to form an adhesive sealing profile (see figure 1); and
wherein a space between the interface section and the adhesive sealing profile including the material is an intermediate area (see figure 1 which shows a space between where 45 overlaps with 10 and where 25, 20 are located).
PNG
media_image2.png
302
366
media_image2.png
Greyscale
Any inquiry concerning this communication or earlier communications from the examiner should be directed to VICTORIA MURPHY whose telephone number is (571)270-7362. The examiner can normally be reached M-F 8:00am-4:00pm.
Examiner interviews are available via telephone, in-person, and video conferencing using a USPTO supplied web-based collaboration tool. To schedule an interview, applicant is encouraged to use the USPTO Automated Interview Request (AIR) at http://www.uspto.gov/interviewpractice.
If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Kendra Carter can be reached at (571) 272-9034. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
Information regarding the status of published or unpublished applications may be obtained from Patent Center. Unpublished application information in Patent Center is available to registered users. To file and manage patent submissions in Patent Center, visit: https://patentcenter.uspto.gov. Visit https://www.uspto.gov/patents/apply/patent-center for more information about Patent Center and https://www.uspto.gov/patents/docx for information about filing in DOCX format. For additional questions, contact the Electronic Business Center (EBC) at 866-217-9197 (toll-free). If you would like assistance from a USPTO Customer Service Representative, call 800-786-9199 (IN USA OR CANADA) or 571-272-1000.
/VICTORIA MURPHY/Primary Patent Examiner, Art Unit 3785