SHARPS COMPLIANCE, INC. OF TEXAS

Patent Trials and Appeals Board

Aug 4, 2021

2020004741 (P.T.A.B. Aug. 4, 2021)

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.
16/536,747 08/09/2019 David P. Tusa SHARPS.002004 3931
100183 7590 08/04/2021
Locklar PLLC
Michael Locklar
238 S. Egret Bay Blvd. # 386
League City, TX 77573
EXAMINER
WEISS, PAMELA HL
ART UNIT PAPER NUMBER
1796
NOTIFICATION DATE DELIVERY MODE
08/04/2021 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):
docket@adolphlocklar.com
docket@al-ip.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________

Ex parte DAVID P. TUSA, KHAIRAN ALADWANI,
GREG C. DAVIS, and JAN HARRIS 1
____________

Appeal 2020-004741
Application 16/536,747
Technology Center 1700
____________

Before CATHERINE Q. TIMM, CHRISTOPHER C. KENNEDY, and
BRIAN D. RANGE, Administrative Patent Judges.

KENNEDY, Administrative Patent Judge.

DECISION ON APPEAL
This is an appeal under 35 U.S.C. § 134(a) from the Examiner’s
decision rejecting claims 34–38, 41, and 43. We have jurisdiction under
35 U.S.C. § 6(b). We AFFIRM.
BACKGROUND
The subject matter on appeal relates to methods of collecting
pharmaceuticals such as prescription drugs. E.g., Spec. ¶ 2; Claim 34.

1 We use the word “Appellant” to refer to “applicant” as defined in
37 C.F.R. § 1.42. The Appellant identifies the real party in interest as
Sharps Compliance, Inc. Appeal Br. 5.
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Application 16/536,747

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Claim 34 is reproduced below from page 2 of the Response to Notice of
Non-Compliant Appeal Brief dated April 14, 2020:
34. A process comprising:
a. supplying a collection apparatus, the collection apparatus
comprising
i. a first outer container, the outer container having:
1. an exterior, wherein the exterior is not adjacent to the
exterior of a second outer container,
2. an interior,
3. a first opening; and
4. a second opening;
ii. a door, the door mounted to the first outer container, the
door positioned so as to allow access to the interior of the
first outer container through the second opening;
iii. a unidirectional depositing member, the unidirectional
depositing member communicating between the exterior
and the interior of the first outer container through the first
opening in the first outer container, wherein the
unidirectional depositing member comprises:
a scoop unidirectional depositing member, the scoop
unidirectional depositing member including a hollow,
cylindrical scoop mounted within the first opening, the
scoop rotatable about an axis; and
iv. an inner container, the inner container positioned within
the interior of the first outer container.
b. receiving pharmaceutical containing materials into the
interior through the unidirectional depositing member.
Appeal 2020-004741
Application 16/536,747

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REJECTIONS ON APPEAL
The claims stand rejected as follows:
1. Claims 34, 35, 38, 41, and 43 under 35 U.S.C. § 102(a)(1)/(2) as
anticipated by Fisher (US 2008/0139866 A1, published June 12, 2008).
2. Claims 36 and 37 under 35 U.S.C. § 103(a) as unpatentable over
Fisher and Bruno (US 4,722,472, issued Feb. 2, 1988).
ANALYSIS
We determine that the Appellant has not identified reversible error in
the Examiner’s rejections. Accordingly, we affirm the rejections for reasons
set forth below, in the Final Action dated February 3, 2020, and in the
Examiner’s Answer.
The Appellant presents separate arguments for claims 34 and 38. We
address those claims below. Consistent with the provisions of 37 C.F.R.
§ 41.37(c)(1)(iv), the remaining claims will stand or fall with claim 34, from
which they depend.
Claim 34. The Examiner finds that Fisher anticipates claim 34. Final
Act. 6. For support, the Examiner relies primarily on Figures 1–3 of Fisher,
and on textual descriptions of those figures. Id. at 6–12.
Figures 1, 2(a), and 2(b) of Fisher are reproduced below.
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Application 16/536,747

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Figures 1, 2(a), and 2(b), above, depict a medical waste receptacle 11 with
exterior housing 13 and disposal drawer 37. See Fisher ¶¶ 24–33.
Figure 2(a) shows drawer 37 in the closed position, and Fisher explains that
drawer 37 can be rotated in the direction of arrow “A” using flange 39-3 as a
handle. Id. ¶ 33. Figure 2(b) shows drawer 37 in the open position. Id.
Waste is placed into the drawer, and when the drawer is closed, the
“waste . . . slide[s] along tray 39 and drop[s]” into a waste collection bin. Id.
Fisher states that “disposal drawer 37 is preferably biased to its closed
position for safety purposes.” Id. ¶ 32.
Figures 3(a) and 3(e) of Fisher are reproduced below.

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Figures 3(a) and 3(e), above, depict disposal drawer 37 in the form of a “roll
bucket” having tray 39 with substantially planar section 39-1 and flange 39-
3 which “serv[es] as a handle for pivoting drawer 37.” Fisher ¶¶ 30–33.
The Examiner finds that Fisher’s drawer 37 falls within the scope of the term
“scoop unidirectional depositing member including a hollow, cylindrical
scoop,” as recited by claim 34. Final Act. 7–12. The sole dispute on appeal
with respect to claim 34 is whether Fisher’s drawer 37 falls within the scope
of the term “cylindrical scoop.”
The Appellant argues that Figure 3(e) shows that drawer 37 “is not a
cylinder.” Appeal Br. 11. The Appellant provides drawings and definitions
of the word “cylinder.” Id. at 11–13. The Appellant argues that “[a] cube is
just a cylinder with a few edges knocked off,” but that does not make it a
cylinder. Reply Br. 4.
Those arguments are not persuasive. Claim 34 does not require a
“cylinder.” Claim 34 requires a “scoop unidirectional depositing member
including a hollow, cylindrical scoop.” As the Examiner explains, see
Ans. 14–17, the broadest reasonable interpretation of that term that is
consistent with the Specification encompasses objects, such as drawer 37 of
Fisher, that are generally cylindrical in shape with minor exceptions such as,
e.g., handles and flanges. The Examiner finds that the Specification
describes element 462 of Figure 6A as a cylindrical scoop even though
element 462 is not actually a cylinder because it has a “flat front.” Id. at 14.
The Examiner also explains that the Specification identifies “mailboxes or
bank night deposits” as examples of unidirectional apparatuses similar to a
cylindrical scoop, id. at 16, even though the depositing members of
mailboxes and bank night deposits would typically have flanges, handles,
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Application 16/536,747

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and/or openings. The Appellant does not dispute those findings or otherwise
persuasively explain why those portions of the Specification are not relevant
to the broadest reasonable interpretation of the disputed term.
The plain meaning of the word “cylindrical” is consistent with the
Specification in that it does not require an object to be a perfect cylinder in
order to be considered “cylindrical.” See
https://www.dictionary.com/browse/cylindrical (last accessed July 29,
2021). One definition of “cylindrical” is “of, relating to, or having the form
of a cylinder.” Id. An object can be “of” or “relating to” a cylinder without
being a perfect cylinder. Objects that are of similar shape to a cylinder but
have, e.g., flanges or handles, are encompassed by the plain meaning of the
word “cylindrical” because they are “of” or “relating to” a cylinder.
Figures 3(a) and 3(e) of Fisher show that Fisher’s drawer 37 is
essentially a cylinder with a protruding chute (element 39-1) that facilitates
conveyance of the waste from the drawer into the waste bin. In view of the
foregoing discussion, we agree with the Examiner that the broadest
reasonable interpretation of the disputed term that is consistent with the
Specification encompasses drawer 37 of Fisher. Accordingly, we are not
persuaded of reversible error in the Examiner’s rejection of claim 34.
Claim 38. Claim 38 depends from claim 34 and recites, inter alia,
that “the step of receiving the pharmaceutical containing materials
comprise[s] . . . rotation of the scoop to an open position caused by
movement of a handle . . . and . . . rotation of the scoop to a closed position
caused by movement of the handle.”
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The Examiner relies on Fisher’s disclosure that flange 39-3 of drawer
37 can “serv[e] as a handle for pivoting drawer 37.” Final Act. 7, 9, 12;
Fisher ¶ 31.
The Appellant argues that Fisher’s drawer closes automatically due to
a biasing mechanism, such as a spring, when the handle is released. Appeal
Br. 14. The Appellant argues that, even if a person might use Fisher’s
handle to manually control the closing speed of the drawer, (1) controlling
the closing speed “is not closing the drawer,” (2) Fisher does not expressly
teach controlling the closing speed using the handle, and (3) “theoretically, a
user could shut the drawer of Fisher by bashing it with a crowbar or backing
over the device with a car, but neither is taught by Fisher.” Id.
Those arguments are not persuasive for reasons stated by the
Examiner. See Ans. 17–18. Fisher discloses that the handle may be used
“for pivoting drawer 37.” Fisher ¶ 31. A person of ordinary skill would
have understood that the term “pivoting” is not limited to opening the
drawer, but also encompasses closing the drawer. That understanding is
consistent with the very next paragraph of Fisher, which discloses that
drawer 37 “is preferably biased to its closed position,” clearly indicating that
a closing bias is not a required feature of drawer 37. Id. ¶ 32 (emphasis
added). A person of ordinary skill in the art would have at once envisaged
that, if a closing bias is not used as contemplated by ¶ 32, the handle would
be used to close the drawer. On this record, we are not persuaded of
reversible error in the Examiner’s rejection of claim 38.
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Application 16/536,747

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CONCLUSION
In summary:
Claims
Rejected
35 U.S.C.
§
Reference(s)/
Basis Affirmed Reversed
34, 35, 38, 41,
43
102(a)(1)
/(2) Fisher
34, 35, 38, 41,
43
36, 37 103(a) Fisher, Bruno 36, 37
Overall
Outcome 34–38, 41, 43
No time period for taking any subsequent action in connection with this
appeal may be extended under 37 C.F.R. § 1.136(a).
AFFIRMED