Ex Parte Robinson et alDownload PDFPatent Trial and Appeal BoardDec 17, 201512230777 (P.T.A.B. Dec. 17, 2015) Copy Citation 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. 12/230,777 09/04/2008 John Robinson 0107/0053 4417 135866 7590 12/18/2015 LAW OFFICE OF LOUIS WOO 717 NORTH FAYETTE STREET ALEXANDRIA, VA 22314 EXAMINER MEHTA, BHISMA ART UNIT PAPER NUMBER 3763 MAIL DATE DELIVERY MODE 12/18/2015 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 JOHN ROBINSON and ALAN STEC ____________ Appeal 2013-008842 Application 12/230,7771 Technology Center 3700 ____________ Before KENNETH G. SCHOPFER, TARA L. HUTCHINGS, AMEE A. SHAH, Administrative Patent Judges. SCHOPFER, Administrative Patent Judge. DECISION ON APPEAL This is an appeal under 35 U.S.C. § 134 involving claims to underbody blankets and methods of making underbody blankets. The Examiner rejected the claims as anticipated or obvious. We have jurisdiction under 35 U.S.C. § 6(b). We AFFIRM. 1 According to Appellants, the real party in interest is Smiths Medical ASD, Inc. App. Br. 3. Appeal 2013-008842 Application 12/230,777 2 STATEMENT OF THE CASE Background According to Appellants, “[t]he present invention relates to convective warming blankets and more particularly to an underbody blanket for warming the upper torso or upper body of a patient.” Spec. ¶ 1. The Claims Claims 1–4, 6, and 7 are on appeal.2 Claim 1 is the only independent claim on appeal and reads as follows. 1. An underbody blanket for supporting an upper body of a patient, comprising: an inflatable structure having a head portion, a body portion, and two arm portions, said head portion being connected to said body portion, a corresponding one of said arm portions extending from each side of said body portion, said body portion having uninflated area that extends into said arm portions for supporting upper torso and arms of the patient, said head portion having an uninflated area for supporting head of the patient, respective sets of apertures formed along sections of the inflatable structure that bound the uninflated area of said body portion. App. Br. 15. The Rejections 1. The Examiner maintains that claims 1 and 4 are unpatentable under 35 U.S.C. § 102(b) as anticipated by Gammons.3 2. The Examiner maintains that claim 3 is unpatentable under 35 U.S.C. § 103(a) over Gammons in view of Matta.4 2 Claims 5 and 8–22 are pending in this application, but they are not on appeal. See App. Br. 5. Also, the rejection of claim 2 has been withdrawn. See Ans. 3. 3 Gammons et al., US 2003/002329A1, pub. Jan. 30, 2003. 4 Matta, US 6,238,427 B1, iss. May 29, 2001. Appeal 2013-008842 Application 12/230,777 3 3. The Examiner maintains that claim 6 is unpatentable under 35 U.S.C. § 103(a) over Gammons in view of Anderson.5 4. The Examiner maintains that claim 7 is unpatentable under 35 U.S.C. § 103(a) over Gammons in view of Augustine.6 DISCUSSION 1. Anticipation: Gammons Appellants raise separate arguments with respect to claims 1 and 4. Thus, we address these claims separately below. Claim 1 With respect to claim 1, Appellants argue that Gammons does not disclose the following claimed elements: 1) an underbody blanket that has arm portions extending from each side of the body portion; 2) an uninflated area in the body portion; and 3) an area of the body portion that extends into the arm portions for supporting the upper torso and arms of the patient. App. Br. 11–12. For the reasons set forth below, we are not persuaded by Appellants’ arguments. We find that Appellants’ arguments relate to two main issues. The first issue is whether Gammons’ sheets 104 and 906 may be considered uninflated areas under the broadest reasonable interpretation of the claim. We find that these sheets may be considered uninflated areas for the reasons provided by the Examiner. See Ans. 10–12. Specifically, we find that Gammons discloses that sheets 104 and 906 are not inflated and are attached to the inflatable tube 102 to form an inflated therapy device. Gammons 5 Anderson et al., US 5,773,275, iss. June 30, 1998. 6 Augustine et al., US 6,544,283 B2, iss. Apr. 8, 2003. Appeal 2013-008842 Application 12/230,777 4 ¶ 47. We find that under the broadest reasonable interpretation of the claim, Gammons inflated therapy device is an inflatable structure with uninflated body and head portions. We find that Appellants’ arguments are based on an unduly narrow interpretation of the claim requiring the uninflated areas include upper and lower sheets sealed together so that no air can enter that area. See App. Br. 12. The claims do not explicitly require this structure for the uninflated areas and we are not persuaded that the description of Figures 1 and 2 in the Specification provides a limiting definition of the term “uninflated area.” See Reply Br. 1–2 (citing Spec. ¶ 14). The second issue is whether Gammons’ device may be considered an underbody blanket and whether sheet 906 can be considered any portion of the claimed device because it is a cover sheet and is not intended to be used under the patient. See id. at 2–3. We agree with the Examiner’s responses regarding this issue. See Ans. 8–10. Specifically, we find that the broadest reasonable interpretation of claim 1 requires only that the device be capable of performing the claimed function of supporting an upper body, torso, and arms of a patient. We agree with the Examiner that Gammons’ device is capable of performing this function, and thus, it may be interpreted to be an underbody blanket as claimed. See id. at 10 Based on the foregoing, we determine that the Examiner established a prima facie showing of anticipation, which Appellants fail to rebut. Accordingly, we affirm the rejection of claim 1. Claim 4 With respect to claim 4, Appellants argue, “[t]here is no uninflated area for the tube device of Gammons, let alone a lower edge of the body portion, or arm portions that surround the uninflated area in the Gammons Appeal 2013-008842 Application 12/230,777 5 tube.” App. Br. 12. We find Appellants’ argument unpersuasive. As discussed above, we find that Gammons’ device does include uninflated areas. Beyond this, we find that Appellants have not persuasively explained any error in the Examiner’s interpretation of this claim or the application of Gammons’ device to the claim. Accordingly, we affirm the rejection of claim 4. 2. Gammons in view of Matta With respect to claim 3, Appellants argue: Given that neither Gammons nor Matta discloses a convective blanket, much less an underbody convective blanket that has a body portion with an uninflated area, the combination of Gammons and Matta, if such combination is even feasible, yields nothing similar to the claimed subject matter of claim 3. The rejection of claim 3 as being obvious over Gammons and Matta is therefore submitted to be without merit and not sustainable. App. Br. 13. We find that this argument does not persuasively explain how the Examiner erred in rejection claim 3 as obvious. Accordingly, we affirm the rejection of claim 3. 3. Gammons in view of Anderson With respect to claim 6, Appellants argue: So as not to contradict her earlier position with respect to her interpretation of Gammons, the examiner has relied upon Anderson to show two flaps 138a and 138b. Appellants submit that the examiner has misinterpreted elements 138a and 138b of Anderson as flaps, when in fact those elements are ties that have sufficient length to reach and tie to an opposing tie (see Fig. 2 and column 4, lines 29-30). The rejection of claim 6 is therefore submitted to be without merit and not sustainable. Appeal 2013-008842 Application 12/230,777 6 App. Br. 13. We agree with the Examiner that Andersons’ elements 138a and 138b may be considered flaps that are located at each arm portion and are capable of covering a patient’s arms. See Ans. 13. We are not persuaded that these elements may not be considered as the claimed flaps simply because Anderson describes them as ties that are intended to be tied together. Accordingly, we affirm the rejection of claim 6. 4. Gammons in view Augustine With respect to claim 7, Appellants argue Augustine’s bib is not placed at an uninflatable area and that a person skilled in the art would not have combined the bib of Augustine’s blanket with Gammons’ tube “to come up with an underbody blanket that has an uninflated area whereon there is at least one liquid absorbing pad.” App. Br. 14. We find these arguments unpersuasive for the reasons provided by the Examiner. See Ans. 13–14. Specifically, we agree that Augustine teaches it was known to use an absorbent pad or bib with a thermal blanket, and that it would have been obvious to apply this teaching to the uninflated portions of Gammons’ device in order to absorb bodily or other fluids regardless of whether the device is place over or under a patient. Id. at 14. Accordingly, we affirm the rejection of claim 7. CONCLUSION For the reasons set forth above, we affirm the rejections of claims 1, 3, 4, 6, and 7. 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)(iv). AFFIRMED Copy with citationCopy as parenthetical citation