Ex Parte Trouilly et al

Patent Trial and Appeal Board

Jan 16, 2013

11461963 (P.T.A.B. Jan. 16, 2013)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________________
BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________________
Ex parte JEAN LUC TROUILLY, FREDDY DESBROSSES,
DENIS BONNOT, and CHRISTIAN MELIN
____________________
Appeal 2010-012036
Application 11/461,963
Technology Center 3700
____________________
Before: PHILLIP J. KAUFFMAN, ANNETTE R. REIMERS, and
MITCHELL G. WEATHERLY, Administrative Patent Judges.
WEATHERLY, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Appellants appeal under 35 U.S.C. § 134 from the decision of the
Examiner rejecting claims 1, 2, 5, 6, 8, 10-12, and 14-21. Claims 3, 4, 7, 9,
and 13 have been canceled. We have jurisdiction under 35 U.S.C. § 6(b).
We affirm-in-part.
Appeal 2010-012036
Application 11/461,963

2
The claims are directed to a flexible container or bag for storing
medical products. Claims 1 and 18, reproduced below, are illustrative of the
claimed subject matter:
1. A flexible container for storing medical products
comprising:
a) a plurality of adjacent chambers comprising a
first chamber positioned at one lateral end of the
container, a second chamber positioned at an opposite
lateral end of the container and at least one additional
chamber positioned between the first and second
chambers;
b) a first frangible barrier separating the first
chamber from the at least one additional chamber and a
second frangible barrier separating the second chamber
from the at least one additional chamber;
c) at least one port located at one end of the
container; each port providing fluid communication with
a different one of the first, second and at least one
additional chambers;
d) a flap defining outwardly curved borders of
upper ends of the first chamber and second chamber and
defining an inwardly curved border of an upper end of
the additional chamber; and
e) a longitudinal length of the at least one
additional chamber being substantially less than at least
one of a longitudinal length of the first and second
chamber, each of the first and second frangible barriers
being separably openable without the other of the first
and second frangible barriers being opened when a
corner of the flap is rolled.
18. A flexible multilayer bag for storing and
admixing medical products comprising:
a) top, bottom, first and second lateral sides;
b) a first chamber, a middle chamber, and a third
chamber, the middle chamber having a longitudinal
Appeal 2010-012036
Application 11/461,963

3
length that is from about two-thirds to about three-
quarters of longitudinal lengths of the first and third
chambers;
c) a first frangible barrier separating the first and
middle chambers and a second frangible barrier
separating the middle and third chambers;
d) a flap defining straight borders of upper ends of
the first chamber, middle chamber and third chamber;
and
e) at least two ports located at the bottom side,
each port providing access to a different one of the first,
middle, and third chambers wherein the first, middle and
third chambers are arranged such that rolling the bag
from the top side allows selective activation of one of the
first and second frangible barriers without activating the
other of the first and second frangible barriers.
REJECTIONS
Appellants seek our review of the following rejections:
1. Claims 1, 2, 5, 6, 8, 10-12, 14-17, and 21 stand rejected under
35 U.S.C. § 102(b) as being anticipated by U.S. 6,319,243 B1 issued
November 20, 2001 to Becker (“Becker”).1 Ans. 3-4.
2. Claims 18-20 stand rejected under 35 U.S.C. § 103(a) as being
unpatentable over Becker. Ans. 4-5.

1 Although Appellants list claim 3 as subject to this ground of rejection, it is
not, because it is cancelled. See App. Br. 9, 14; Ans. 2-3; Office Action
dated Dec. 2, 2009 at 2.
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,
.

Appeal 2010-012036
Application 11/461,963

6
The Examiner also finds that because Becker discloses the structure recited
in claims 1, 12, and 21, Becker’s “container is capable of activating one the
first and second frangible barriers/peelable seals (118, 120) before activating
the other barriers/seals by initiating rolling the Becker et al. container at one
of the corners of the first end of the container and proceeding diagonally
across the container.” Ans. 4. We also note that Becker expressly discloses
that “[t]he peelable seals allow for the selective opening of the chambers to
allow for the selective mixing of the liquids contained therein.” Becker,
col. 5, ll. 25-27. The Examiner indicates, and we agree, that the claims do
not require that the middle chamber be shorter than the entire length of at
least one of the side chambers. Ans. 5-6.
Appellants argue in response that the recitation of “substantially less”
in claims 1 and 21 and “substantially greater distance” in claim 12
distinguish these claims from the container illustrated in Becker’s Figure 2.
Reply Br. 2-3. Appellants contend that a skilled artisan understands
“substantially” as claimed to mean “considerable in value, degree, amount or
extent.” Id. at 3 (citing American Heritage Dictionary of the English
Language, Fourth Edition, Houghton Mifflin Company). Appellants then
attempt to quantify “considerable in value” by referring to the Specification,
which discloses multi-chambered containers in which the middle chamber is
“about two-thirds to about three-quarters” of the length of “either or both
side chambers.” Reply Br. 3. The Specification describes this range of
length ratios as being desirable. See, e.g., Spec., para. [0044]. However,
independent claims 1, 12, and 21 do not recite these ratios. The Federal
Circuit recently reiterated the well-established principle that “it is not proper
to import from the patent’s written description limitations that are not found
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Application 11/461,963

7
in the claims themselves.” Flo Healthcare Solutions, LLC v. Kappos, 697
F.3d 1367, 1375 (Fed. Cir. 2012). Therefore, we decline to import this range
of ratios from the Specification into claims 1, 12, and 21.
Appellants also argue that the Examiner may not use Becker’s
Figure 2 as a source of teaching that the middle chamber is shorter than the
side chambers because “patent drawings do not define the precise
proportions of the elements and may not be relied on to show particular sizes
if the specification is completely silent on the issue.” Reply Br. 3-4 (citing
Hockerson-Halberstadt, Inc. v. Avia Group Int’l, 222 F.3d 951, 956 (Fed.
Cir. 2000)). We agree that Becker does not indicate that its figures are
drawn to scale. However, even when patent drawings are not drawn to
scale, they may nevertheless be used to establish relative sizes and
relationships between the various components which are clearly depicted in
those drawings. See, e.g., Vas-Cath Inc. v. Mahurkar, 935 F.2d 1555, 1565
(Fed. Cir 1991). The Examiner merely relies on Figure 2 for its description
of the relative sizes and relationships among the three chambers shown in
the figure. The Examiner does not rely on “precise proportions” shown in
Becker’s Figure 2. Instead, the Examiner finds that the figure discloses a
middle chamber that is shorter than the side chambers. We agree that
Becker’s Figure 2 discloses this relationship to a skilled artisan, and thus the
Examiner’s reliance on the figure is permitted. In re Aslanian, 590 F.2d
911, 914 (C.C.P.A. 1979).
For the reasons expressed above, we agree with the Examiner that the
broadest reasonable interpretation of claims 1, 12, and 21 reads on the
container illustrated in Becker’s Figure 2 and discussed in Becker’s written
description. Appellants do not argue separately in support of any claim
Appeal 2010-012036
Application 11/461,963

8
depending from independent claims 1, 12, and 21. App. Br. 17; Reply Br. 5.
Therefore, we affirm the Examiner’s rejection of claims 1, 2, 5, 6, 8, 10-12,
14-17, and 21 as anticipated by Becker.
Obviousness of claims 18-20 over Becker
Independent claim 18 recites that the middle chamber is “from about
two-thirds to about three-quarters” as long as the first and third side
chambers. Independent claim 20 recites that the length of the second
chamber differs from the length of each of the first and third chambers,
respectively “by a degree of about twenty five percent to about thirty three
percent.” The Examiner recognizes that Becker does not sufficiently
disclose the bags recited in independent claims 18 and 20 to warrant a
rejection under section 102. Ans. 8. However, the Examiner finds that
Becker’s Figure 1 “shows a chamber (16) having a longitudinal length that is
from about two-thirds to about three-quarters of longitudinal lengths of the
two other chambers (12, 14).” Id. However, Becker’s short chamber 16 is
not positioned between the other two chambers (12, 14). Id. Nonetheless,
the Examiner concludes that a skilled artisan would have considered it
obvious to reposition chamber 16 to a location between the longer chambers
(12, 14), because Becker’s Figure 2 suggests such an arrangement and “it
has been held that rearranging parts of an invention involves only routine
skill in the art.”3 Id. at 8-9. The Examiner further found that the modified

3 Claim 20 does not require that the shortest chamber be the middle
chamber. Nor does the claim require that all three chambers be different
lengths. Instead, all that is required is that a first chamber differs in length
from a second chamber, and the second chamber differs from the third.
When a first length merely differs from a second length, either the first or
the second length may be the shorter of the two. This series of requirements
Appeal 2010-012036
Application 11/461,963

9
bag of Becker’s Figure 1 meets the claimed functional requirement of
selectively opening either one of the seals between the chambers without
opening the other by rolling the modified bag from one of the top corners.
Id. at 9.
Appellants argue that the Examiner erred in finding that Becker’s
Figure 1 discloses the claimed length ratios of claims 18 and 20. Reply
Br. 6-7. Appellants contend that the Examiner improperly relied on
Becker’s Figure 1 to teach the claimed length relationships (Reply Br. 7),
because “it is well established that patent drawings do not define the precise
proportions of the elements and may not be relied on to show particular sizes
if the specification is completely silent on the issue.” Reply Br. 4 (quoting
Hockerson-Halberstadt, Inc. v. Avia Group Int’l, 222 F.3d 951, 956, (Fed.
Cir. 2000)).
The Federal Circuit applied the principles of Hockerson in a later case
even more relevant to the case before us. Nystrom v. TREX Co., Inc., 424
F.3d 1136 (Fed. Cir. 2005). In Nystrom, an accused infringer relied upon a
computer model generated from Figure 3 in a prior art patent
(“Zagelmeyer”) to prove anticipation of Nystrom’s claim 18 directed to a
wooden plank with a convex top surface, which recited in pertinent part:
said convex top surface being manufactured to have a radius of
curvature with a slightly rounded or curved configuration
extending across the top surface from one side edge to the
other, defining a difference in thickness between the
longitudinal centerline and the opposite side edges, with the

encompasses an arrangement such as the one shown in Becker’s Figure 1.
Therefore, we determine that the Examiner need not offer rationale for
rearranging the position of the chambers shown in Becker’s Figure 1 in
connection with claim 20.
Appeal 2010-012036
Application 11/461,963

10
ratio of said difference in thickness to the width of the board
being about 1:40.
Nystrom, 424 F.3d at 1148 (emphasis in original). A Trex employee
carefully measured Zagelmeyer’s Figure 3, which illustrated a plank with a
convex top surface. The Trex employee used those measurements to
generate a computer model of the plank to establish that the plank had a
relevant thickness ratio of 1:39 or 1:37. Id. Based on the computer model,
the district court concluded that Zagelmeyer anticipated claim 18. The
Federal Circuit reversed the district court because “the district court erred in
determining invalidity based on evidence improperly derived from a patent
drawing” in violation of the principles of Hockerson and In re Wright, 569
F.2d 1124, 1127 (C.C.P.A. 1977) (rejecting PTO’s reliance on drawings not
to scale to find that prior art taught “chime length of roughly ½ to 1 inch for
a whiskey barrel”). Nystrom, 424 F.3d at 1149.
Appellants correctly point out that Becker contains no written
description of the length of chamber 16 in comparison to the lengths of
chambers 12, 14. Reply Br. 7. We further agree with Appellants that
Becker fails to disclose that its Figures are drawn to scale. Id. The
Examiner thus relies solely upon Becker’s Figure 1 for his finding that
Becker teaches the length relationships of independent claims 18 and 20. In
doing so, the Examiner errs in the same way that the district court erred in
Nystrom. Therefore, we reverse the rejection of claims 18-20 under § 103(a)
as obvious over Becker.
Appeal 2010-012036
Application 11/461,963

11
DECISION
For the reasons stated above, we:
1. AFFIRM the Examiner’s rejection of claims 1, 2, 5, 6, 8, 10-12, 14-
17, and 21 under 35 U.S.C. § 102(b) as anticipated by Becker; and
2. REVERSE the Examiner’s rejection of claims 18-20 under 35 U.S.C.
§ 103(a) as obvious over Becker.

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-IN-PART

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