Ex Parte Yokota et al

Patent Trial and Appeal Board

Mar 28, 2017

12776656 (P.T.A.B. Mar. 28, 2017)

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.
12/776,656 05/10/2010 Hidetaka YOKOTA P38112 2800
7055 7590 03/30/2017
GREENBLUM & BERNSTEIN, P.L.C.
1950 ROLAND CLARKE PLACE
RESTON, VA 20191
EXAMINER
HEFFNER, NED T
ART UNIT PAPER NUMBER
3778
NOTIFICATION DATE DELIVERY MODE
03/30/2017 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):
gbpatent@gbpatent.com
greenblum.bernsteinplc@gmail.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte HIDETAKA YOKOTA and KEIZO ARAKAWA
Appeal 2015-002942
Application 12/776,656
Technology Center 3700
Before MURRIEL E. CRAWFORD, CYNTHIA L. MURPHY, and
TARA L. HUTCHINGS, Administrative Patent Judges.
MURPHY, Administrative Patent Judge.
DECISION ON APPEAL
The Appellants1 appeal under 35U.S.C. § 134 from the Examiner’s
rejections of claims 1—7 and 9—21. We have jurisdiction over this appeal
under 35 U.S.C. § 6(b).
We REVERSE.
1 The Appellants identify the real party in interest as “Hoya Corporation.”
(Appeal Br. 3.)
Appeal 2015-002942
Application 12/776,656
STATEMENT OF THE CASE
The Appellants’ invention “relates to an intubation assistance
instrument for use in intubating a distal end of an intubation tube into a
target site such as a trachea of a patient.” (Spec. 11.)
Illustrative Claim2
1. An intubation assistance instrument, comprising:
an elongated assistance instrument main body to be
inserted into a target site of a patient from a mouth cavity or a
nasal cavity of the patient, the assistance instrument main body
having a first side portion, a second side portion opposite to the
first side portion and a tube restriction portion defined by a rib
that protrudes from the first side portion;
a guide member detachably attached on the first side
portion of the assistance instrument main body, the guide
member having an elongated shape and a guide portion into
which an intubation tube is to be inserted when the intubation
tube is intubated into the target site of the patient, the guide
portion capable of guiding the intubation tube to the target site;
and
a lock mechanism that locks the guide member on the first
side portion of the assistance instrument main body when the
guide member is attached on the first side portion of the
assistance instrument main body, the lock mechanism provided
on the first side portion of the assistance instrument,
wherein the guide portion comprises a recess which has an
inner wall, and wherein the recess is formed so as to extend along
a longitudinal direction of the guide member, wherein when the
guide member is attached on the first side portion of the
assistance instrument main body, the tube restriction portion of
the assistance instrument main body and the inner wall of the
2 This illustrative claim is quoted from the Claims Appendix (“Claims
App.”) set forth on pages 16—21 of the Appeal Brief.
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Application 12/776,656
recess are configured to form an opened channel extending in a
direction along the longitudinal direction of the guide member,
and
wherein the opened channel is configured to hold the
intubation tube in a manner such that the intubation tube is
removable from the guide portion in a direction perpendicular to
the extending direction of the opened channel and away from the
first side portion of the assistance instrument main body.
Aratani
Parker
Wu
Henderson
References
US 3,789,467
US 5,174,283
US 5,261,392
US 6,471,643 B1
Feb. 5, 1974
Dec. 29, 1992
Nov. 16, 1993
Oct. 29, 2002
Rejections
The Examiner rejects claims 1, 6, 7, and 10-21 under 35 U.S.C.
§ 102(b) as anticipated by Wu. (Final Action 4.)
The Examiner rejects claim 2 under 35 U.S.C. § 103(a) as unpatentable
over Wu and Henderson. (Final Action 9.)
The Examiner rejects claims 3—5 under 35 U.S.C. § 103(a) as
unpatentable over Wu and Aratani. (Final Action 9.)
The Examiner reject claim 9 under 35 U.S.C. § 103(a) as unpatentable
over Wu and Parker. (Final Action 10.)
ANALYSIS
Independent claim 1 recites an “opened channel” that “is configured
to hold [an] intubation tube in a manner such that the intubation tube is
removable from [a] guide portion in a direction perpendicular to the
extending direction of the opened channel.” (Appeal Br., Claims App.) The
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Application 12/776,656
Examiner finds that Wu discloses a channel 28 that is “configured” as
required by independent claim 1. (See Final Action 4.)
The Appellants argue that Wu does not disclose that channel 28 is
configured such that a tube is removable therefrom in the claimed manner.
(See Appeal Br. 8—11, see also Reply Br. 5—10.) We are persuaded by the
Appellants’ position because the Examiner’s findings and determinations
regarding such removability are not sufficiently supported by Wu’s
disclosure.
Wu discloses an instrument comprising a bivalve part 11 and a blade
part 13 that “forms a channel 28 which becomes a closed passageway when
positioned against the bivalve part 11.” (Wu, col. 3,11. 10—12, see also id..
Figs. 1, 4.) When corresponding sections of Wu’s bivalve and blade parts are
“placed together they form an opening 48.” {Id. col. 3,11. 31—33, see also
id., Figs, 1, 2.) Wu discloses that, when bivalve part 11 and blade part 13
are interlocked together, “an endotracheal tube, not shown, is threaded into
the opening 48 and through the passageway formed by the blade and bivalve
elements.” {Id., col. 4,11. 7—12.) And Wu discloses that “[w]hen the larynx
of a patient is intubated,” a latch is released, the bivalve part “is drawn
away” from the blade part, and the bivalve part and the blade part “can then
be independently removed from the patient’s mouth” leaving the tube in
place. {Id., col. 4,11. 24—30.)
In short, Wu discloses that a tube (not shown in the drawings) is
inserted (i.e., “threaded) into channel 28 via the opening 48; but Wu does
not disclose that a tube is removed from channel 28 via opening 48. In fact,
Wu discloses that removal of this theoretical tube requires disassembly of
the parts (i.e., bivalve part 11 and blade part 13) that form the opening 48.
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Application 12/776,656
Nonetheless, the Examiner determines that the non-depicted
theoretical tube mentioned in Wu could be removed from the opening 48 in
a direction perpendicular to the channel’s extending direction. According to
the Examiner:
[I]t would be possible to remove an endotracheal tube from the
guide portion of the device of Wu in a direction perpendicular to
the extending direction of the opened channel and away from the
first side portion of the assistance instrument main body (taken
to be that side comprising 16 and that portion of channel 28
within component 22) that normal to the cross section of opening
48 as depicted in Figure 1, effectively normal to the plane of
Figure 1, by withdrawing said tube in a patient-distal direction
from opening 48. This is particularly implicit in the device of
Wu since an endotracheal tube is disclosed to be flexible (as per
Column 1, lines 30-38), thus capable of being pulled in a
direction toward said opposite side and thus withdrawn from the
device of Wu.
(Answer 3.) In other words, the Examiner maintains that it is possible to
perpendicularly pull a non-depicted theoretical tube out of Wu’s channel 28
through the opening 48.
As noted by the Examiner, Wu does disclose, in its background, that
“[i]t is sometimes difficult to align the flexible endotracheal tube with the
larynx opening and to insert the flexible tube through the larynx.” (Wu,
col. 1,11. 32—36.) However, the Examiner does not point with particularity
to additional disclosure in Wu regarding tube flexibility (or other tube
characteristics for that matter), much less disclosure demonstrating that such
flexibility abides withdrawal of a non-depicted theoretical tube from the
opening 48. The Examiner likewise does not direct our attention to
disclosure in Wu that addresses the removal of a tube from channel 28 via
the opening 48. As discussed above, Wu discloses that a tube can be
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Application 12/776,656
threaded into opening 48, but does not in any way anticipatorily indicate that
it would be possible to also withdraw a tube from opening 48.
Thus, we do not sustain the Examiner’s rejection of claim 1 under
35 U.S.C. § 102(b) as anticipated by Wu.
The Examiner’s further findings and determinations with respect to
the rest of the claims (see Final Action 4—11) do not compensate for the
above-discussed shortcoming. Thus, we do not sustain the Examiner’s
rejection of claims 6, 7, and 10-21 under 35 U.S.C. § 102(b) as anticipated
by Wu; we do not sustain the Examiner’s rejection of claim 2 under
35 U.S.C. § 103(a) as unpatentable over Wu and Henderson; we do not
sustain the Examiner’s rejection of claims 3—5 under 35 U.S.C. § 103(a) as
unpatentable over Wu and Aratani; and we do not sustain the Examiner’s
rejection of claim 9 under 35 U.S.C. § 103(a) as unpatentable over Wu and
Parker.
DECISION
We REVERSE the Examiner’s rejections of claims 1—7 and 9—21.
REVERSED
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