Ex Parte Allen

Patent Trial and Appeal Board

Sep 29, 2017

13589640 (P.T.A.B. Sep. 29, 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.
13/589,640 08/20/2012 Fred L. Allen BPMDL0042FA (10383U) 4064
27939 7590 09/29/2017
Philip H. Burrus, IV
Burrus Intellectual Property Law Group LLC
222 12th Street NE
Suite 1803
Atlanta, GA 30309
EXAMINER
HICKS, VICTORIA J
ART UNIT PAPER NUMBER
3772
MAIL DATE DELIVERY MODE
09/29/2017 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 FRED L. ALLEN
Appeal 2016-001186
Application 13/5 89,64c1
Technology Center 3700
Before STEFAN STAICOVICI, LINDA E. HORNER, and
ANTHONY KNIGHT, Administrative Patent Judges.
KNIGHT, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Appellant appeals under 35 U.S.C. § 134(a) from the Examiner’s final
decision rejecting claims 11—20, which constitute all the claims pending in
this application. We have jurisdiction under 35 U.S.C. § 6(b).
We REVERSE.
1 According to Appellant, the real party in interest is Medline Industries, Inc.
Br. 2.
Appeal 2016-001186
Application 13/589,640
CLAIMED SUBJECT MATTER
The claims are directed to “medical drapes, and more specifically to a
medical drape system having a tearing feature for easy and clean removal of
the drape from a patient.” Spec. 12. Claim 11 is the sole independent
claim. Claim 11, reproduced below with some minor formatting changes to
enhance readability and italics added to emphasize pertinent limitations, is
illustrative of the claimed subject matter:
11. A medical drape having a tool-less removal feature, the
medical drape comprising:
a first portion drape material and a second portion drape
material, each having a top side and a back side, the first portion
drape material being opaque and the second portion drape
material being pellucid;
a first drape cut having a first drape cut starting point at a
top end of the first portion drape material and a second drape cut
having a second drape cut starting point at the top end of the first
portion drape material, the first drape cut and the second drape
cut being oriented substantially parallel relative to each other,
wherein each drape cut:
extends completely through a thickness of the first portion
drape material such that two adjoining cut edges are completely
severed from one another;
comprises an adhesive tape strip positioned along a length
of the drape cut, the adhesive tape strip overlapping at least a
portion of the first portion drape material on both sides of the
drape cut to initially secure the two adjoining cut edges to each
other; and
comprises a scoreline extending along a length of the
adhesive tape strip, the scoreline extending only partially
through a thickness of the adhesive tape strip to permit easy
2
Appeal 2016-001186
Application 13/589,640
tearing of the adhesive tape strip for separation of the two
adjoining cut edges.
Br. 18—19. (Claims App.)
REJECTIONS
The Examiner made the following rejections:
1. Claims 11—16, 19, and 20 stand rejected under 35 U.S.C.
§ 103(a) over Singer (US 4,479,492, issued Oct. 30, 1984), Marshall
(US 5,109,873, issued May 5, 1992), and Bonutti (US 7,114,500 B2, issued
Oct. 3, 2006).
2. Claims 17 and 18 stand rejected under 35 U.S.C. § 103(a) over
Singer, Marshall, and Bonutti, and Arco (US 4,627,427, issued Dec. 9,
1986).
OPINION
In the rejection of independent claim 11, the Examiner finds that
Singer teaches “a medical drape (surgical drape) having a tool-less removal
feature . . . comprising: a first portion drape material (. . . panels A-D) and a
second portion drape material (. . . panels E-K)... a first drape cut (26a). . .
and the second drape cut (26b).” Final Act. 2—3. The Examiner also finds
that Singer teaches that the first and second drape cuts are substantially
parallel. Id. at 3. Further, the Examiner finds that Singer teaches “an
adhesive tape strip (28a, 28b, 28c, 28d, 28e) positioned along a length of the
drape cut (26a, 26b)... to initially secure the two adjoining cut edges to
each other.” Id.
3
Appeal 2016-001186
Application 13/589,640
Appellant argues that “Singer never teaches an adhesive tape strip that
overlaps both sides of a slit to secure the two adjoining cut edges together.'1'’
Br. 11. According to Appellant, “Singer teaches tape disposed on each side
of the slits. Said differently, a first piece of tape is on the right side of a slit
and a second piece of tape is on the left side of the slit.” Id. at 10.
In the Answer, the Examiner responds by stating that “Singer
explicitly teaches in column 3, lines 60-65 that the adhesive tape strips (28a,
28b, 28c, 28d, 28e) ‘overlap closing the slits,’ and thus, it is clear that the
adhesive tape strips ... of Singer overlap both sides of the drape cut (slit
26a, 26b) as claimed.” Ans. 8.
Singer’s Figure 12, as annotated by Appellant, is reproduced below.
tape on second
.Br. 11
Appellant’s annotated Figure 12 of Singer shows slit 1 between
adhesive strips 28d, 28e and slit 2 between adhesive strips 28a, 28b. .
We agree with Appellant that Singer’s Figure 12 shows that strips
28d, 28e are disposed on either side of slit 1 and strips 28a, 28b are disposed
on either side of slit 2, such that the slits are open. Id. Such an
4
Appeal 2016-001186
Application 13/589,640
interpretation is consistent with the disclosure of Singer which states that
“tapes 28a and 28b surround and are substantially co-extensive with slit 26a
and tapes 28d and 28e surround and are substantially co-extensive with slit
26b.'” Singer, col. 3,11. 59-62 (emphasis added). Furthermore, although we
appreciate the Examiner’s position that Singer explicitly discloses in column
3, lines 60-65 that tape strips (28a, 28b, 28c, 28d, 28e) “overlap closing the
slits,” we note that the cited portion is taken out of context. The entire
sentence reads “[tjhese tapes are used to adhere to the patient and to overlap
closing the slits.” As such, in this sentence, the overlapping of the edges of
the drape occurs after the drape is placed over the patient and not “to
initially secure the two adjoining cut edges to each other,” as called for by
claim 11. Therefore, Appellant is correct that Singer fails to disclose “an
adhesive tape strip overlapping both sides of the drape cut to initially secure
the two adjoining cut edges to each other.” Br. 12. The Examiner’s use of
the disclosures of Marshall and Bonutti fails to remedy the deficiency of
Singer as discussed supra. See Final Act. 2—\.2
Singer fails to disclose an adhesive tape strip securing both sides of a
drape cut initially. As stated by the Examiner, the score line taught by
Marshall is not within the adhesive tape. Ans. 9. Further, Marshall does not
teach or suggest overlapping and adjoining edges of a drape with adhesive
tape. See Marshall 2:57—61 (“[T]he score lines of the preferred embodiment
are V shaped and penetrate into a portion of drape 18. Preferably the score
2 The Examiner relies upon Marshall to teach “a scoreline (score lines 22,
24) extending along a length of the material (18)... to permit easy tearing.”
Final Act. 3^4. Bonutti is relied upon to teach a medical drape having both
opaque and pellucid portions. Id. at 4.
5
Appeal 2016-001186
Application 13/589,640
line extends to a depth of between 35% and 50% of the total thickness of
drape 18.”). Therefore, neither Singer nor Marshall teach or suggest every
limitation of claim 11, as set forth above. Thus, the rejection is not
sustained.
Accordingly, for the foregoing reasons, we do not sustain the
rejection of independent claim 11 or its dependent claims 12—16, 19, and 20.
See In re Fine, 837 F.2d 1071, 1076 (Fed. Cir. 1988).
With respect to the rejection of claims 17 and 18, the Examiner’s use
of Arco’s disclosure does not remedy the deficiencies discussed above. See
Final Act. 6—7. Thus, for the same reasons discussed above, we also do not
sustain the rejection of claims 17 and 18.
DECISION
The Examiner’s decision to reject claims 11—20 under 35 U.S.C.
§ 103 is reversed.
REVERSED
6