Ex Parte 6735473 et al

Patent Trial and Appeal Board

Sep 28, 2017

90013593 (P.T.A.B. Sep. 28, 2017)

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.
90/013,593 09/25/2015 6735473 5274/1RE 9167
23460 7590 09/28/2017
LEYDIG VOIT & MAYER, LTD
TWO PRUDENTIAL PLAZA, SUITE 4900
180 NORTH STETSON AVENUE
CHICAGO, IL 60601-6731
EXAMINER
WILLIAMS, CATHERINE SERKE
ART UNIT PAPER NUMBER
3993
MAIL DATE DELIVERY MODE
09/28/2017 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 PRIOR ART LTD.1
Appellant, Patent Owner
____________________

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Technology Center 3900
____________________

Before DANIEL S. SONG, RAE LYNN P. GUEST, and
BRETT C. MARTIN, Administrative Patent Judges.

SONG, Administrative Patent Judge.

DECISION ON APPEAL

1 Prior Art Ltd. is the real party in interest (Appeal Brief (hereinafter “App.
Br.”) 1).
2 Issued May 11, 2004 (hereinafter “the ’473 patent”).
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The Patent Owner appeals under 35 U.S.C. §§ 134(b) and 306 from a
final rejection of claims 1–21. We have jurisdiction under 35 U.S.C.
§§ 134(b) and 306.
The invention is directed to a defibrillator enclosure having an alarm
(Spec., Title). Representative independent claims 1 and 15 read as follows
(App. Br. 12, 15, Claims App’x)3:
1. (Twice Amended) A protective defibrillator storage device
with an integral alarm system for warning others of a potential
cardiac arrest incident, the protective defibrillator storage device
comprising:
an enclosure comprising a plurality of wall sections, a top
section, a bottom section and a door, the wall sections, top
section, bottom section and door section defining an interior
compartment or sufficient size to house a defibrillator, the door
partially constructed of a translucent material allowing the
interior compartment to be viewed with the door closed;
alarm means connected to the enclosure;
an activation switch, the activation switch connected to the
enclosure and connected in circuit to the alarm means, the
activation switch positioned in operative relation to a wall
section and the door section of the enclosure such that the

3 The record indicates that the noted amendments to these and other claims
as set forth in the Patent Owner’s Appeal Brief, Claims Appendix, were
proposed by the Patent Owner in its “Reply to Office Action” filed January
6, 2017, in response to Final Office Action mailed November 8, 2016. The
Examiner’s Advisory Action mailed January 25, 2017, does not indicate
whether the proposed amendments to the claims are entered for the purposes
of appeal. However, the Patent Owner’s Appeal Brief and the Examiner’s
subsequent Answer appear to presume entry of the proposed claim
amendments. Thus, we decide the appeal based on the amended claims as
set forth in the Patent Owner’s Appeal Brief, Claims Appendix.
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opening of the door section closes the activation switch
activating the alarm means; and
a defibrillator mount connected to an interior surface of
the enclosure having at least one holding member comprising at
least one U-shaped bracket, the holding member positioning the
defibrillator within the interior compartment such that the
defibrillator can be readily viewed through the translucent
material of the door.

15. (Twice Amended) A protective defibrillator storage device in
combination with a defibrillator, the combination comprising:
an enclosure comprising a plurality of wall sections, a top
section, a bottom section and a door section, the wall sections,
top section, bottom section and door section defining an interior
compartment of sufficient size to house a defibrillator the door
partially constructed of a translucent material allowing the
interior compartment to be viewed with the door closed;
a defibrillator mount connected to an interior surface of
the enclosure having at least one open U-Shaped means for
mounting, said mounting means [holding member] positioning
the defibrillator within the interior compartment such that the
defibrillator can be viewed through the translucent material of
the door, the means for mounting contacting the defibrillator on
two or fewer sides; and
a defibrillator held by the defibrillator mount within the
interior compartment of the enclosure.

Independent claim 8 is similar to independent claim 1 except that it
recites a defibrillator in combination with the storage device and that the
defibrillator is “mounted onto a mount comprising one or more U-shaped
brackets.” (App. Br. 14, Claims App’x). Independent claim 22, which is
seemingly the broadest claim, recites a holding member that positions the
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defibrillator in the storage device so that it can be viewed (App. Br. 17,
Claims App’x).
The Examiner rejects various claims under 35 U.S.C. § 103(a) as
follows:
A. Claims 1, 2, 8, 9, 15–18, and 22–25 as unpatentable over
Eberspacher in view of Figh, Fudge, Russel and Shull, and in further
view of Haltof or Phaneuf (Final Rej. 10).
B. Claims 3–5, 10–12, 19–21, and 26–28 as unpatentable over
Eberspacher in view of Figh, and either Haltof or Phaneuf, and in
further view of Purssey (Final Rej. 13).
C. Claims 6 and 13 as unpatentable over Eberspacher in view of
Figh, and either Haltof or Phaneuf, and in further view of the admitted
prior art of Cartledge (US 3,644,920) (Final Rej. 15).
D. Claims 7 and 14 as unpatentable over Eberspacher in view of
Figh, and in further view of either Haltof or Phaneuf (Final Rej. 15).
E. Claims 1, 2, 8, 9, 15–18 and 22–25 as unpatentable over
Eberspacher in view of Wassil, and any one of Figh, Fudge, Russel
and Shull, and in further view of Haltof or Phaneuf (Final Rej. 16).
F. Claims 3, 4, 10, 11, 19, 20, 26 and 27 as unpatentable over
Eberspacher in view of Wassil and any one of Figh, Fudge, Russel
and Shull, and either Haltof or Phaneuf, and in further view of Purssey
(Final Rej. 20).
G. Claims 5, 12, 21, and 28 as unpatentable over Eberspacher in
view of Wassil, Figh, and either Haltof or Phaneuf, and in further
view of Purssey (Final Rej. 21).
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H. Claims 6 and 13 as unpatentable over Eberspacher in view of
Wassil, Figh, and either Haltof or Phaneuf, and Purssey and the
admitted prior art of Cartledge (Final Rej. 22).
I. Claims 7 and 14 as unpatentable over Eberspacher in view of
Wassil, Figh, and either Haltof or Phaneuf, and Purssey (Final Rej.
22).

We AFFIRM-IN-PART.

ANALYSIS
We note that only those arguments timely made in the brief of record
in this appeal have been considered. Other arguments not made or those not
properly presented to the Board have not been considered and are deemed to
be waived. See 37 C.F.R. § 41.37(c)(1)(iv).

Rejection A
Claims 1, 2, 8, 9, 15–18, and 22–25 stand rejected as unpatentable
over Eberspacher in view of Figh, Fudge, Russel, and Shull, and in further
view of Haltof or Phaneuf (Final Rej. 10). The Examiner relies on
Eberspacher as satisfying most of the limitations of these claims by its
disclosure of storage cabinet 106 for holding a portable defibrillator (and
other equipment) therein, but concedes that Eberspacher fails to disclose a
transparent door or an integral alarm system (Final Rej. 10). The Examiner
relies on Figh, Fudge, Russel, and Shull for “each individually disclos[ing]
enclosures with alarm systems and transparent doors for viewing contents.”
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(Final Rej. 10–12). Based on these findings, the Examiner concludes that it
would have been obvious to combine Eberspacher with one of the secondary
references:
in order to provide a cabinet for holding a defibrillator
with the ability to easily discern the contents of the cabinet
and in order to provide a clear indication that the cabinet
has been opened which is advantageous for deterring the
stealing of emergency equipment (as generally evidenced
by Figh and evidenced specifically for emergency
equipment by Fudge, Russell and Shull) in addition to
notifying pertinent personnel that their assistance is
needed (as evidenced by Fudge).
(Final Rej. 12).
The Examiner further relies on Haltof for disclosing a U-shaped
bracket for supporting hand held instruments, or Phaneuf for disclosing a U-
shaped defibrillator mount (Final Rej. 12–13; Ans. 5), and concludes that:
[I]t would have been obvious to incorporate the mount of
either Haltof or Phaneuf into the invention of Eberspacher
in view of Figh, Fudge, Russel and Shull . . . in order to
provide the combination with a mechanism to ensure that
the defibrillator would not fall from the cabinet when
opened and would remain secure until the user physically
removed the device from the enclosure.
(Final Rej. 13).
The Patent Owner does not dispute the findings of the Examiner as to
the specific disclosures in the references relied upon. However, the Patent
Owner argues that Eberspacher teaches away from providing an alarm so
that “the combination of Eberspacher with any of the alarm references is
inappropriate.” (App. Br. 5). According to the Patent Owner, the location
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of storage cabinet 106 in an emergency care facility, as taught by
Eberspacher, would have:
obviate[d] the need for any alarm on the defibrillator
enclosure as any pertinent personnel that would be
necessary to provide patient care would already be present
in the Eberspacher portable facility. An alarm also would
be unnecessarily distracting to the emergency care
providers in the Eberspacher portable facility. This would
be the case even if the alarm were merely provided to deter
theft as the alarm would also activate upon any authorized
use of the defibrillator. . . . In contrast, the claimed
invention is intended for use in non-hospital settings such
as planes and office buildings where notification of
removal of the defibrillator is highly desirable.
(App. Br. 5).
The Examiner finds, and we generally agree, that the Patent Owner’s
argument is unpersuasive because:
Any emergency care facility includes the use of alarms on
almost every device used with each patient. The alarms
have varied uses such as drawing attention to a particular
patient and/or vital sign. Additionally, deploying a
defibrillator in any setting is useful information to anyone
located near that patient including medical personnel. An
alarm that indicates the device has been removed from the
housing clearly indicates to anyone near the patient that
the device is ready and going to be used. . . . [and] an alarm
brings focus and attention to one particular patient during
a cardiac episode.
(Ans. 18).
Accordingly, we agree with the Examiner that “the fact that the
Eberspacher facility is a portable emergency facility does not teach away
from using an alarm on the cabinet housing the defibrillator.” (Ans. 19).
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While not relied upon, the evidence of indicates that alarms are used in other
similar contexts for the purpose of calling for attention and assistance (see
Fudge, col. 1, ll. 19–24 (“Such an alarm has the further advantage . . . of
calling general attention to the situation so that assistance may be summoned
even while the original discoverer is devoting attention to the extinguishing
or controlling the fire.”).
In addition, the Patent Owner does not adequately address the benefit
of deterring theft noted by the Examiner, whether such theft is by
unauthorized personnel, by patients, or even by the facility staff. Moreover,
the intended use or purpose of the claimed invention is immaterial. KSR
Int’l v. Teleflex, Inc., 550 U.S. 398, 419 (2007) (“In determining whether the
subject matter of a patent claim is obvious, neither the particular motivation
nor the avowed purpose of the patentee controls. What matters is the
objective reach of the claim.”).
As to the Examiner’s reliance on Haltof for teaching a U-shaped
bracket, the Patent Owner argues that a person of ordinary skill in the art
would have been discouraged from using the bracket of Haltof to hold a
defibrillator because it requires a latch to be disengaged from a recess that
can delay responders in using the defibrillator, which is in contrary to the
teachings of the ’473 patent that the defibrillator mount should allow for
quick removal (App. Br. 5–6 (citing Spec., col. 3, ll. 31–36)). The Patent
Owner’s argument is unpersuasive because, as the Examiner finds (Final
Rej. 23; see also Ans. 19), Haltof specifically discloses that “the release
motion . . . allows instrument . . . to be removed quickly and easily with one
hand.” (Haltof, col. 2, ll. 14–15). Accordingly, contrary to the Patent
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Owner’s assertion, Haltof makes clear that the instrument retained in its
bracket can be removed quickly and easily.
The Patent Owner further argues that because the Examiner’s
combination of Eberspacher with the secondary references “already provides
an enclosure with a door” that protects the defibrillator and helps maintain it
in position, there would have been no reason for a person of ordinary skill to
combine Eberspacher with the bracket of Haltof (App. Br. 6). However, as
the Examiner points out, the Patent Owner overlooks the articulated
rationale set forth in the Final Rejection, which is “to provide the
combination with a mechanism to ensure that the defibrillator would not fall
from the cabinet when opened and would remain secure until the user
physically removed the device from the enclosure.” (Ans. 19–20; Final Rej.
13). This articulated rationale is sufficient to support the legal conclusion of
obviousness. KSR, 550 U.S. at 418. In that regard, this articulated reason
for the combination is particularly applicable considering that the emergency
care facility of Eberspacher is portable/mobile.
As to the Examiner’s alternate reliance on the U-shaped defibrillator
mount (i.e., pivotable platform 72) of Phaneuf, the Patent Owner argues a
person of ordinary skill “would not be motivated to look at the teachings of a
relatively bulky mobile crash cart [disclosed in Phaneuf] that would be free
to roll around the interior of the portable facility during transport,
particularly by air” disclosed in Eberspacher (App. Br. 6). However, this
argument is unpersuasive, and we agree with the Examiner that:
Phaneuf teaches a readily accessible holding shape for the
defibrillator. One skilled in the art looking for a structure
for mounting a defibrillator would look to any device or
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compartment that holds/stores defibrillators. The fact that
the U-shaped mount is located on a crash cart does not
preclude the bracket from being used on and in other
locations.
(Ans. 20).
Moreover, the claims at issue do not limit the location of the recited
storage device.

Claims 1, 2, 15–18, and 22–25
As to these claims, the Patent Owner further asserts that the Examiner
“fails to explain” how the mount of Phaneuf holds the defibrillator “such
that it can be readily viewed through the translucent material of the door” as
generally required by these claims (App. Br. 6–7). However, the mount in
Phaneuf does not fully encapsulate the defibrillator, and as such, we agree
with the Examiner that “[t]he open top of the U-shape holder would make
the defibrillator visible through the glass window of a closed compartment”
(Ans. 21) such as those shown in Russell and Fudge.

Claims 15–18
As to these claims, the Patent Owner further argues that claim 15
utilizes means-plus-function language in reciting “open U-Shaped means for
mounting,” and thus, triggers the rebuttable presumption that § 112, sixth
paragraph, applies (App. Br. 7–8). The Patent Owner also points to the fact
that because this means-plus-function language replaces the structural
limitation “holding member,” its intent to invoke § 112, sixth paragraph, is
clearly established (App. Br. 8).
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The Examiner concludes that § 112, sixth paragraph, does not apply,
finding that the presumption that means plus function applies is rebutted
because “open U-shaped means for mounting” recites sufficient structure for
performing the claimed function of “mounting.” (Ans. 22). The Examiner
finds that:
[T]he actual U-shaped is what provides the mounting
function. There is no other structure provided in the ’473
patent specification that is responsible for the mounting
function, it is the actual U shaped that is the mounting
structure.
(Ans. 22; see also Ans. 23).
The Examiner’s analysis also states that “[i]t is the U-shaped nature of
the bracket that performs the actual mounting function of the structure”
(Ans. 23), relying on the Specification of the ’473 patent, which discloses
that “[i]n the preferred embodiment, the defibrillator mount 17 is a U-shaped
bracket.” (’473 patent, col. 5, ll. 31–32).
The Patent Owner disagrees and argues that the recitation “open U-
shaped”:
imparts a shape, but not any structure for performing the
recited function. A shape may describe a structure, but it
is not itself a structure. In this regard, it is significant that
the claim recites “U-shaped” not “U-shape”.
(App. Br. 8).
We do not agree with the Examiner’s claim interpretation, and
generally agree with the Patent Owner. As noted, the term “means” creates
a presumption that means-plus-function construction applies. TriMed, Inc.
v. Stryker Corp., 514 F.3d 1256, 1259 (Fed. Cir. 2008). While the Examiner
concludes that the recitation “open U-Shaped means” conveys enough
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structure so that means-plus-function construction does not apply, we
generally agree with the Patent Owner that this limitation recites the shape
of the structure or “means” but does not recite a structure itself, “means” not
being a known structure in the mechanical arts. The Examiner’s
interpretation is undermined by the Specification of the ’473, which as
noted, discloses “a U-shaped bracket” (’473 patent, col. 5, ll. 31–32
(emphasis added)). Indeed, even the Examiner’s own analysis finds that
“[i]t is the U-shaped nature of the bracket that performs the actual mounting
function of the structure.” (Ans. 23 (emphasis added)). In other words, the
structure disclosed in the Specification corresponding to the recited “means”
for performing the recited function of “mounting” is a “bracket.” Claim 15
further requires this “means,” i.e., bracket, be “U-shaped” instead of some
other shape. However, that does not mean this recited shape alone has
sufficient structure for performing the claimed function as the Examiner
interprets.
Accordingly, we agree with the Patent Owner that:
[W]hen properly construed this limitation requires first
and second retaining members having particular
configurations. This configuration includes having the
first retaining member angularly extending from the
interior surface toward the second retaining member and
the second retaining member arranged vertically adjacent
the first retaining member, extending substantially
perpendicular from the interior surface and having a
retaining lip angularly extending from the second retaining
member toward the first retaining member. The Final
Office Action does not identify where any of these features
are found in either Haltof or Phaneuf.
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(App. Br. 9; see also the ’473 patent, col. 3, ll. 36–44, col. 5, ll. 31–32, Figs.
2, 3).
Turning to Haltof, the hand release bracket disclosed therein is not an
equivalent structure to that disclosed in the ’473 patent in that the hand
release bracket of Haltof does not perform the claimed function of mounting
in substantially the same way as the structure disclosed in the ’473 patent.
Odetics, Inc. v. Storage Tech. Corp., 185 F.3d 1259, 1267 (Fed. Cir. 1999)
(“Structural equivalence under § 112, ¶ 6 is met only if the differences are
insubstantial, see Chiuminatta [Concrete Concepts, Inc. v. Cardinal Indus.,
Inc.], 145 F.3d [1303, 1308, (Fed. Cir. 1998)]; that is, if the assertedly
equivalent structure performs the claimed function in substantially the same
way to achieve substantially the same result as the corresponding structure
described in the specification.”).
In particular, a person of ordinary skill in the art would have
understood the defibrillator mount 17 disclosed in the ’473 patent as
performing the function of “mounting” the defibrillator by holding the same
between the angularly extending first retaining member and the
perpendicularly/horizontally extending second retaining member, the
angling of the first retaining member causing deflection thereof and holding
of the defibrillator (see generally, the ’473 patent, col. 3, ll. 36–44, col. 5, ll.
31–32, Figs. 2, 3).
In contrast, the hand release bracket 10 of Haltof performs the
function of mounting instrument 50 by encapsulating the same between base
11, sidewalls 14, and end wall 15, using latch 20 that is pivoted along pivot
21, the latch having catch 25 that interlocks with recess 51 provided in the
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mounted instrument (Haltof, col. 2, ll. 12–35, Figs. 1–4). The instrument is
not mounted by being held by an angled retaining member. Accordingly, in
view of these considerations, the hand release bracket disclosed in Haltof
does not perform the claimed function in substantially the same way as the
structure disclosed in the ’473 patent.
Pivotable platform 72 of Phaneuf which holds a defibrillator is
disclosed as comprising “a first half platform 76 and a second half platform
78 which are moveable in the directions indicated by arrows 80 away from
each other such that the platform may be sized to receive different
dimension monitor-defibrillators.” (Phaneuf, col. 4, ll. 47–51; Figs. 1, 2). In
that regard, a person of ordinary skill would readily appreciate that the
defibrillator is mounted on the platform merely by placing the defibrillator
thereon. Phaneuf does not teach that the defibrillator is held by biasing of
either half-platform towards the other, only that the platforms are movable to
size the platform 72. Correspondingly, in view of these considerations,
Phaneuf does not disclose a structure that performs the claimed function in
substantially the same way (a biased arm) as the structure disclosed in the
’473 patent.
Therefore, in view of the above analysis, we affirm Rejection A with
respect to claims 1, 2, 8, 9, and 22–25, but reverse with respect to claims 15–
18.

Rejection B
Claims 3–5, 10–12, 19–21, and 26–28 stand rejected as unpatentable
over Eberspacher in view of Figh, and either Haltof or Phaneuf, and in
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further view of Purssey (Final Rej. 13). The Patent Owner relies on the
arguments submitted with respect to Rejection A, and the dependency of
these rejected claims, for patentability (App. Br. 9). Accordingly, we affirm
Rejection B with respect to claims 3–5, 10–12, and 26–28, but reverse with
respect to claims 19–21 that ultimately depend from independent claim 15.

Rejection C
Claims 6 and 13 stand rejected as unpatentable over Eberspacher in
view of Figh, and either Haltof or Phaneuf, and in further view of the
admitted prior art of Cartledge (Final Rej. 15). Claims 6 and 13 recite “a
relay means and a remote alarm means.” (App. Br. 13, 15, Claims App’x).
The Patent Owner relies on the arguments submitted with respect to
Rejection A as applied to claims 1 and 8 for patentability and further argues
that teaching of self-sufficiency in Eberspacher teaches against needing a
remote alarm “for assistance from others outside the facility such as taught
by Cartledge.” (App. Br. 9). The Examiner disagrees, noting that Cartledge
is relied upon for the teaching of a relay circuit, and not the actual alarm or
the reason for the alarm, and a person skilled in the art would look to many
different alarm applications for the design and operation of the alarm (Ans.
25). Indeed, the evidence of record establishes that in addition to utilizing a
relay circuit in an alarm, remote alarms were also well-known (see
Cartledge, col. 2, ll. 22–26, 34–35; see also Figh, col. 4, ll. 12–17; Russel,
col. 3, ll. 19–23).

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Rejection D
Claims 7 and 14 stand rejected as unpatentable over Eberspacher in
view of Figh, and in further view of either Haltof or Phaneuf (Final Rej. 15).
The Patent Owner relies on the dependency of these rejected claims, as well
as the arguments submitted with respect to Rejections A and C, in asserting
patentability of these claims (App. Br. 9). Accordingly, having affirmed the
rejections of the claims upon which claims 7 and 14 depend, we affirm
Rejection D of claims 7 and 14.

Rejections E–G
The issues raised in these rejections are generally substantively
similar to those raised in Rejections A and B. Accordingly, the Patent
Owner relies on the arguments submitted with respect to Rejection A for
patentability (App. Br. 10). Thus, we affirm these rejections with respect to
claims 1–5, 8–12, 22–25, and 26–28, but reverse with respect to claims 15–
21 for the reasons discussed supra.

Rejection H
The issue raised in this rejection is similar to that raised in Rejection
C, the Patent Owner relying on the arguments submitted with respect to
Rejection C for patentability (App. Br. 10). Accordingly, as with Rejection
C, we affirm Rejection H.

Rejection I
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The issue raised in this rejection is similar to that raised in Rejection
D, the Patent Owner relying on the arguments submitted with respect to
Rejection D for patentability (App. Br. 10). Accordingly, as with Rejection
D, we affirm Rejection I.

CONCLUSIONS
The Examiner’s rejections are decided as follows:
1. Rejection A is AFFIRMED with respect to claims 1, 2, 8, 9,
and 22–25, but REVERSED with respect to claims 15–18.
2. Rejection B is AFFIRMED with respect to claims 3–5, 10–12,
and 26–28, but REVERSED with respect to claims 19–21.
3. Rejection C is AFFIRMED.
4. Rejection D is AFFIRMED.
5. Rejection E is AFFIRMED with respect to claims 1, 2, 8, 9, and
22–25, but is REVERSED with respect to claims 15–18.
6. Rejection F is AFFIRMED with respect to claims 3–4, 10, 11,
26, and 27, but is REVERSED with respect to claims 19–20.
7. Rejection G is AFFIRMED with respect to claims 5, 12, and
28, but is REVERSED with respect to claim 21.
8. Rejection H is AFFIRMED.
9. Rejection I is AFFIRMED.

Requests for extensions of time in this ex parte reexamination
proceeding are governed by 37 C.F.R. § 1.550(c). See 37 C.F.R. § 41.50(f).

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AFFIRMED-IN-PART

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PATENT OWNER:
LEYDIG VOIT & MAYER, LTD
Two Prudential Plaza, Suite 4900
180 North Stetson Avenue
Chicago, IL 60601-6731

THIRD PARTY REQUESTER:
SHUMAKER, LOOP & KENDRICK, LLP
First Citizens Bank Plaza
128 South Tryon Street, Suite 1800
Charlotte, NC 28202