Appeal 2006-2290
Application 10/278,190
On this record, we agree with Appellant that the Examiner has not
established the construction of Seiss’s masks and that the electrostatically
charged absorbent material is against the wearer’s face when worn. There is
no evidence in the record establishing the construction and materials in
FiltreteTM Air Filter Media or “Technostat” other than our notice that these
absorbent materials contain unspecified fibers which can be or are
electrostatically charged. In the absence of evidence of the construction and
materials, there is no basis to determine whether one of ordinary skill in this
art would have reasonably expected the wearer to place a layer of
electrostatically charged fibers prepared with FiltreteTM Air Filter Media or
“Technostat” against the face. There is also no evidence either or both of
FiltreteTM Air Filter Media or “Technostat” is/are are an electret meltblown
fabric as used in the masks of Reader.
Moreover, the Examiner looks to Reader to establish “comfort” for the
wearer, but the portions of the reference relied on in this respect show
embodiments which have a layer of other material between the electret
meltblown layer and the wearer’s face for that purpose. 4 We also do not
find teachings supporting the Examiner’s position in the disclosure in
Reader of the different general types of layers that can be combined with an
SMS laminate to form a mask or in the general information in the reference
with respect to face masks.
Accordingly, in the absence of evidence in the record supporting the
Examiner’s position a prima facie obviousness has not been established, and
4 We do not accept Appellant’s unsupported invitation to notice that, in
general, an electrostatic article placed in contact with skin is discomforting.
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