Ex Parte Sharp et al

Patent Trial and Appeal Board

Jan 27, 2016

12812310 (P.T.A.B. Jan. 27, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
12/812,310 07/09/2010
24955 7590
ROGITZ & AS SOCIA TES
Jeanne Gahagan
750B STREET
SUITE 3120
SAN DIEGO, CA 92101
01/29/2016
FIRST NAMED INVENTOR
Bradley J. Sharp
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
ATTORNEY DOCKET NO. CONFIRMATION NO.
1208.008 6126
EXAMINER
WEISS, JESSICA
ART UNIT PAPER NUMBER
3776
NOTIFICATION DATE DELIVERY MODE
01129/2016 ELECTRONIC
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.
Notice of the Office communication was sent electronically on above-indicated "Notification Date" to the
following e-mail address( es):
Noelle@rogitz.com
eofficeaction@appcoll.com
J ohn@rogitz.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte BRADLEY J. SHARP, WAYNE A. NODA, and
STEPHEN G. BELL
Appeal2013-010983
Application 12/812,310 1
Technology Center 3700
Before STEFAN STAICOVICI, GEORGE R. HOSKINS, and
LEE L. STEPINA, Administrative Patent Judges.
STAICOVICI, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Bradley J. Sharp et al. (Appellants) appeal under 35 U.S.C. § 134(a)
from the Examiner's decision rejecting claims 13-16. We have jurisdiction
over this appeal under 35 U.S.C. § 6(b).
SUMMARY OF DECISION
We REVERSE.
According to Appellants, the real parties in interest are Insightra
Medical, Inc. and Nanyang Technological University. Appeal Br. 2 (filed
May 16, 2013).
Appeal2013-010983
Application 12/812,310
INVENTION
Appellants' invention is a tissue retractor for retracting the periphery
of an incision to open the incision further in order to permit a surgeon to
operate. Spec. 1.
Claims 13 and 15 are independent. Claim 13 is illustrative of the
claimed invention and reads as follows:
13. A tissue retraction assembly, comprising:
a hook member formed with a distal tissue engagement
feature configured to engage a periphery of an opening in a
patient's body such that when the hook member is pulled away
from the opening, the distal engagement feature remains in
contact with the periphery of the opening to pull the periphery
outward, the hook member also being formed with a proximal
aperture;
a flexible strap extending through the proximal aperture
of the hook member to form a loop, the strap defining first and
second end segments; and
a flexible base defining a bottom surface for conforming
to a portion of the patient without surrounding the opening in
the patient's body, the bottom surface having an adhesive
thereon for sticking to a surface, the first end segment of the
strap being formed integrally with the base, the second end
segment of the strap being removably engageable by hand with
a top surface of the base such that the second end segment can
be detached from the base by hand, pulled to cinch the loop
formed by the strap and thereby pull the hook member to retract
tissue away from the opening in the patient's body, and
reattached to the top surface of the base by simply pressing the
second end segment onto the top surface of the base by hand to
thereby hold the loop cinched.
REJECTIONS
The following rejections are before us for review:
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Appeal2013-010983
Application 12/812,310
I. The Examiner rejected claims 13 and 15 under 35 U.S.C.
§ 103(a) as being unpatentable over Rozek (US 2,493,598, iss.
Jan. 3, 1950), Jackson (US 5,476,478, iss. Dec. 19, 1995), and
Byrd (US 5,676,137, iss. Oct. 14, 1997).
II. The Examiner rejected claims 14 and 16 under 35 U.S.C.
§ 103(a) as being unpatentable over Rozek, Jackson, Byrd, and
Fowler (US 5,964,698, iss. Oct. 12, 1999).
ANALYSIS
Each of independent claims 13 and 15 requires, inter alia, "a flexible
base defining a bottom surface for conforming to a portion of the patient
without surrounding the opening in the patient's body." See Appeal Br. 9--
10 (emphasis added).
The Examiner finds that Rozek' s canvas mat 10 corresponds to the
claimed "flexible base." See Non-Final Rej. 2-3 (mailed May 15, 2013).
However, in contrast to the claimed "flexible base," Rozek's canvas mat 10
surrounds wound 46 and thus cannot include "a bottom surface for
conforming to a portion of the patient without surrounding the opening in the
patient's body." See Rozek, Fig. 1 (emphasis added). Therefore, Rozek
fails to disclose a "flexible base," as called for by each of independent
claims 13 and 15. Furthermore, the Examiner's use of the disclosures of
Jackson, Byrd, and Fowler does not remedy the deficiency of Rozek as
discussed supra. Accordingly, for the foregoing reasons, we do not sustain
the rejections under 35 U.S.C. § 103(a) of claims 13 and 15 as being
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Appeal2013-010983
Application 12/812,310
unpatentable over Rozek, Jackson, and Byrd, and of claims 14 and 16 as
being unpatentable over Rozek, Jackson, Byrd, and Fowler.
SUMMARY
The Examiner's decision to reject claims 13-16 is reversed.
REVERSED
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