SHARPS COMPLIANCE, INC. OF TEXASDownload PDFPatent Trials and Appeals BoardAug 4, 20212020004741 (P.T.A.B. Aug. 4, 2021) 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. 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. Appeal 2020-004741 Application 16/536,747 2 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 3 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. Appeal 2020-004741 Application 16/536,747 4 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. Appeal 2020-004741 Application 16/536,747 5 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, Appeal 2020-004741 Application 16/536,747 6 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.” Appeal 2020-004741 Application 16/536,747 7 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. Appeal 2020-004741 Application 16/536,747 8 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 Copy with citationCopy as parenthetical citation