Ex Parte Gammons et al

Board of Patent Appeals and Interferences

Feb 16, 2012

11459625 (B.P.A.I. Feb. 16, 2012)

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.
11/459,625 07/24/2006 Jeffery B. Gammons 06020-UPA 1693
56758 7590 02/16/2012
KNOX PATENTS
P.O. BOX 30034
KNOXVILLE, TN 37930-0034
EXAMINER
KOCH, GEORGE R
ART UNIT PAPER NUMBER
1745
MAIL DATE DELIVERY MODE
02/16/2012 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 BOARD OF PATENT APPEALS
AND INTERFERENCES
____________

Ex parte JEFFERY B. GAMMONS and CLIFFORD E. GAMMONS
____________

Appeal 2012-001197
Application 11/459,625
Technology Center 1700
___________

Before BRADLEY R. GARRIS, CHARLES F. WARREN, and
KAREN M. HASTINGS, Administrative Patent Judges.

HASTINGS, Administrative Patent Judge.

DECISION ON APPEAL

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Application 11/459,625

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Appellants seek our review under 35 U.S.C. § 134 of the Examiner’s
final decision rejecting claims 1-8 and 21-32. We have jurisdiction over the
appeal under 35 U.S.C. § 6(b).
We AFFIRM.
Claim 1 is illustrative of the subject matter on appeal (emphasis
added):
1. An apparatus for fusing, without an adhesive or solvent, an
agitator and a drape for containing a slush solution in a medical stirrer, said
apparatus comprising:
a base having an interface portion for receiving and supporting an
agitator, said agitator adapted for agitating the slush solution in the medical
stirrer;
a cylinder having a piston, said piston movable along an axis normal
to a surface of the agitator on said base;
a die having a surface for creating a fused area on a sheet and the
agitator, said sheet being the drape, said piston attached to said die opposite
said surface, said piston moving said die between a first position and a
second position, said first position of said die being with said die
immediately adjacent said base whereby said surface of said die presses said
sheet and the agitator against said base with a specified force for a specified
time, said second position of said die being away from said base such that
the agitator and said sheet are removable from between said die and said
base;
a heater in thermal contact with said surface of said die, said heater
maintaining said surface at a specified temperature; and
a controller in communication with said cylinder and said die, said
controller maintaining said specified force, said controller causing said
cylinder to apply said force for said specified time with said surface of said
die at said specified temperature when said die is in said first position
whereby said surface on said die fuses said sheet to said agitator;
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Application 11/459,625

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whereby the drape and the agitator are fused together at said fused
area by said surface pressing against the drape and the agitator with said
specified pressure at said specified temperature for said specified time.
The Examiner maintains, and Appellants appeal, the following
rejections:
a) Claims 1-8 and 21-32 under 35 U.S.C. § 102(b) as anticipated by
Hall (US 6,009,925 published Jan. 4, 2000);
b) Claims 1-8 and 21-32 under 35 U.S.C. § 103(a) as unpatentable
over the combined prior art of Hall and Fairies (US 5,457,962
published Oct. 17, 1995).

MAIN ISSUE ON APPEAL
Although Appellants present separate sections to argue each of
independent claims 1, 21, and 29 (App. Br. 9-11) and another section to
collectively argue the dependent claims together (App. Br. 14), the
arguments are essentially the same. Accordingly we select claim 1 as
representative, and address the main issue on appeal as:
Did the Examiner reversibly err in determining that the apparatus of
claim 1 is anticipated by Hall, because, as alleged by Appellants, there is no
teaching or suggestion of “fusing of the substrates [of Hall] at the claimed
specified temperature, which is the temperature maintained at the surface of
the die by the claimed heater”? (App. Br. 6)
We answer this question in the negative, and affirm all of the
rejections.
PRINCIPLES OF LAW
Although “[a] patent applicant is free to recite features of an apparatus
either structurally or functionally[,] . . . . choosing to define an element
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Application 11/459,625

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functionally, i.e., by what it does, carries with it a risk.” In re Schreiber, 128
F.3d 1473, 1478 (Fed. Cir. 1997). Where the Examiner establishes a
reasonable belief that a property or characteristic recited in the claims would
have been inherent to the apparatus, the burden of proof shifts to Appellants
to show that this characteristic or property is not possessed by the prior art.
Id.
ANALYSIS
We have thoroughly reviewed each of Appellants’ arguments for
patentability. However, we will sustain the Examiner’s rejections for
essentially those reasons expressed in the Answer, including the Response to
Argument section, and we add the following primarily for emphasis.
In reviewing the relevant facts of this case, we agree with the
Examiner that there is a reasonable belief that the hot die welding press of
Hall would have been capable of operating at temperatures capable of fusing
a drape to an agitator, as recited in each of independent claims 1, 21, and 29
(Ans. 3; see also Ans. 9).
Appellants discuss that the sterile medical drape may comprise
polyurethane and that the agitator may be polycarbonate (which is also a
thermoplastic) (e.g., Spec. para. [0007], [0008], [0023]). Hall teaches fusing
thermoplastic sheets, foils, laminates, etc., made of polyolefin, polyurethane,
vinyls, polyvinyl chlorides and other thermoplastic elastomers (Hall, col. 8,
ll. 15-30). Hall teaches his apparatus is useful for fusing materials of similar
or dissimilar material (id.), and may be used in medical products (e.g., col. 3,
ll. 54-60). Thus, it is reasonable to believe that the welding hot die platen
press of Hall has the capability to function as recited in each claim.
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Accordingly, Appellants’ contentions that the hot die apparatus of
Hall does not operate at the specified temperature(s) of the independent or
dependent claims, and that Hall discloses the fusing occurs by the high
energy provided by the energy generator versus the platens (App. Br. 12, 15;
Reply Br. 5-7) are unavailing, as the claims are all drawn to an apparatus
which need only be capable of being operated at temperatures capable of
fusing a drape to an agitator. The claims also use the open-ended language
of “comprising”, and thus do not preclude the additional resistance heater
energy generator of Hall. As the Examiner noted, the independent claims do
not even specify the material of the drape or agitator, or the temperature
(e.g., Ans. 13). The heated dies of Hall reasonably appear to be capable of
operating at temperatures capable of fusing a drape to an agitator.
Given the structural identity and similarity of the Hall’s platen die
fusing apparatus, to Appellants’ apparatus as claimed and disclosed
respectively, we determine that the Examiner was justified in concluding
that Hall anticipates claim 1. The hot die welding press of Hall appears
reasonably to have the capability of functioning as claimed. See, e.g., In re
Schreiber, 128 F.3d at 1478. Thus, the burden shifts to Appellants to prove
that the platen press of Hall is not capable of functioning as recited in claim
1. Id.
Appellants have provided no evidence, or any persuasive line of
technical reasoning explaining why the heated die press of Hall does not
have the claimed capabilities (see generally App. Br.; Reply Br.). Thus,
Appellants have not persuasively argued that the facts and reasons relied on
by the Examiner are insufficient to establish a prima facie case of
anticipation as to claim 1.
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Appellants have also provided no persuasive argument to rebut the
Examiner’s reasonable determination that it would have been obvious to use
the press of Hall to fuse a surgical drape and disc, as Fairies exemplifies that
it was known to use resistance or heat welding to fuse an agitator to a
surgical drape (e.g., Ans. 9, 15; App. Br. 18-27; Reply Br. 9-12). We find
no persuasive merit in Appellants’ argument that there is no reason to
combine these references and that the references do not teach all the claimed
features for reasons aptly stated by the Examiner (e.g., Ans. 15).
In light of these circumstances, the preponderance of the evidence
supports each of the Examiner’s rejections. Accordingly, we sustain each of
the rejections of the claims on appeal.
DECISION
The decision of the Examiner is affirmed.

No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a)(1).

AFFIRMED

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