Ex Parte TweardyDownload PDFPatent Trial and Appeal BoardFeb 26, 201310638979 (P.T.A.B. Feb. 26, 2013) 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. 10/638,979 08/12/2003 Lisa A.G. Tweardy 1041-02 7132 22469 7590 02/27/2013 SCHNADER HARRISON SEGAL & LEWIS, LLP 1600 MARKET STREET SUITE 3600 PHILADELPHIA, PA 19103 EXAMINER NGUYEN, CAMTU TRAN ART UNIT PAPER NUMBER 3772 MAIL DATE DELIVERY MODE 02/27/2013 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 LISA A. G. TWEARDY __________ Appeal 2011-004059 Application 10/638,979 Technology Center 3700 __________ Before ERIC GRIMES, ERICA A. FRANKLIN, and ULRIKE W. JENKS, Administrative Patent Judges. GRIMES, Administrative Patent Judge. DECISION ON APPEAL This is an appeal under 35 U.S.C. § 134 involving claims to a pad for a backboard. The Examiner has rejected the claims as obvious. We have jurisdiction under 35 U.S.C. § 6(b). We reverse. STATEMENT OF THE CASE Emergency personnel sometimes immobilize the head and spine of an accident victim using a backboard (Spec. 2, ¶ 0003). The Specification discloses that the “anatomy of children is such that placement in a supine position on a backboard … will often orient the head and cervical spine in an Appeal 2011-004059 Application 10/638,979 2 anatomically flexed position, thus compromising spinal and airway alignment” (id. at 2, ¶ 0004). That is, relative to adults, children’s heads are disproportionately large compared to their bodies (id. at 5, ¶ 0017), causing their heads to be pushed forward when they are laid flat (id.). Proper alignment can be achieved, however, by placing a pad under the child’s spine (id. at 6, ¶ 0020), although the amount of padding required varies because the “proportionality of the child changes as the child grows” (id. at 5, ¶ 0018). The Specification discloses “a support pad used to elevate the spine of a child in a supine position to align the spine and airway” (id. at 3, ¶ 0006, emphasis deleted). The “pad has measuring indicia to determine the size of the child.… When the pad [i]s folded to the correct configuration, indicia related to the measuring indicia appear in a particular location.” (Id., emphasis deleted). Claims 9, 10, 12, 14-17 and 32 are on appeal. Claim 32, the only independent claim, reads as follows: 32. A pad for aligning the airways and spine of a child, the pad comprising: a plurality of sections joined together such that the pad can be configured to a plurality of thicknesses by folding or unfolding the pad, and wherein a particular configuration of the pad is suitable to simultaneously align the spine and airways of a child; a measuring device having indicia to represent a measurement of a child so that when a child is measured with the measuring device, particular indicia is (are) identified as corresponding to the measurement; indicia on the pad corresponding to the indicia on the measuring device, wherein the pad can be configured so that only the indicia corresponding to the particular indicia identified as corresponding to the measurement are visible, and when the pad is so configured, positioning the Appeal 2011-004059 Application 10/638,979 3 measured child on the pad will cause the child’s airways and spine to be simultaneously aligned. The Examiner has rejected claims 9, 10, 12, 14-17, and 32 under 35 U.S.C. § 103(a) as obvious in view of Nicholson,1 Zima,2 and Broselow.3 The Examiner finds that Nicholson discloses a pad having indicia on it and comprising a plurality of sections that “can be configured to a plurality of thicknesses by folding” and is “capable of being used as a pad for aligning the airways and spine of a child” (Answer 4, emphasis omitted). The Examiner finds that Zima discloses a measuring tape that is capable of measuring a child’s height (id.) and Broselow discloses indicia on a measuring tape and corresponding indicia on a measuring cup (id. at 4-5). The Examiner concludes that “one skilled in the art would have combined the Nicholson pad & Zima, Jr. measuring tape/device by corresponding their indicia, as taught by Broselow’s concept, as such has the capability of properly size the airways-to-spine measurement of a child” (id. at 5). Appellant argues that the Examiner “has not articulated what reason exists to combine a hopscotch board from the game field (Nicholson) with teachings about a dispenser from the medical field (Broselow)” (Appeal Br. 52-53). We agree with Appellant that the Examiner has not adequately explained what would have led a skilled artisan to combine the cited references. Nicholson discloses a foldable hopscotch board (Nicholson, col. 1 Nicholson, US 3,139,281, Sept. 20, 1961. 2 Zima, Jr., US 3,744,134, July 10, 1973. 3 Broselow, US 5,010,656, Apr. 30, 1991. Appeal 2011-004059 Application 10/638,979 4 1, ll. 8-9) and Zima discloses an improvement for a conventional retractable measuring tape (Zima, abstract). Broselow discloses an “apparatus for therapeutic treatment of a patient [which] comprises a measuring tape for measuring the … height of a patient and a dispenser” (Broselow, col. 2, ll. 7-10). Broselow discloses that the “measuring tape is divided along its effective length into coded zones and the dispenser is divided into correspondingly coded zones whereby a treatment obtained by using the coding of the dispenser is related to the heel to crown height of a patient as measured by the tape” (id. at col. 2, ll. 11-16). Broselow discloses that a simple dispenser may comprise a cup or spoon for administering liquids orally; a more sophisticated dispenser is a droplet type dispenser which can be used to administer very small and critical quantities of drugs, and another form of dispenser comprises a series of compartments, each containing one or more items of apparatus (e.g. endotracheal tubes). (Id. at col. 2, ll. 24-32.) Thus, Broselow discloses that the height of a patient can be measured and the measurement can be used to correlate the height with indicia on a dispenser for medicine or medical equipment, to determine the appropriate dosage or medical device for the patient. However, Broselow does not disclose using its system to choose an appropriate back support pad for a patient based on the patient’s height, and the Examiner has not provided any persuasive reason for concluding that Nicholson’s hopscotch board or Zima’s measuring tape, when considered together with Broselow’s system, would have made obvious the device of claim 32. Appeal 2011-004059 Application 10/638,979 5 Thus, we reverse the obviousness rejection of independent claim 32 and dependent claims 9, 10, 12 and 14-17. REVERSED lp Copy with citationCopy as parenthetical citation