Ex Parte Bracken et al

Patent Trial and Appeal Board

Jun 29, 2018

13762803 (P.T.A.B. Jun. 29, 2018)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR
131762,803 02/08/2013 Ronald L. Bracken
34284 7590 07/03/2018
RUTAN & TUCKER, LLP
611 ANTON BL VD
SUITE 1400
COST A MESA, CA 92626
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
ATTORNEY DOCKET NO. CONFIRMATION NO.
101900.0094P2 9092
EXAMINER
DARB, HAMZA A.
ART UNIT PAPER NUMBER
3763
NOTIFICATION DATE DELIVERY MODE
07 /03/2018 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):
patents@rutan.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte RONALD L. BRACKEN, VASU NISHTALA,
and ROBERT YOUNG
Appeal2017-005022 1
Application 13/762,803 2
Technology Center 3700
Before MICHAEL C. ASTORINO, BRUCE T. WIEDER, and
KENNETH G. SCHOPPER, Administrative Patent Judges.
SCHOPPER, Administrative Patent Judge.
DECISION ON APPEAL
This is an appeal under 35 U.S.C. § 134 from the rejection of claims
1-20. We have jurisdiction under 35 U.S.C. § 6(b ).
We AFFIRM-IN-PART.
1 Our decision references the Appeal Brief ("Appeal Br.," filed May 9,
2016), Reply Brief ("Reply Br.," filed Feb. 1, 2017), the Examiner's Answer
("Ans.," mailed Dec. 1, 2016), and the Final Office Action ("Final Act.,"
mailed Oct. 30, 2015).
2 According to Appellants, the real party in interest is C. R. Bard, Inc.
Appeal Br. 4.
Appeal2017-005022
Application 13/762,803
BACKGROUND
According to Appellants, "[t]he present invention relates to a system
for securing medical devices to a patient." Spec. i-f 2.
ILLUSTRATIVE CLAIM
Claim 1 is illustrative of the appealed claims and recites:
1. A securement device for a medical device, comprising:
a body having a top surface and a bottom surface, said
bottom surface having an adhesive compound thereon; and
a resilient retainer formed from an elastomeric gel or an
elastomeric foam and being supported by said body, said resilient
retainer having a channel extending along a longitudinal axis,
said channel having a longitudinal axis opening disposed on an
underside of the body and being configured to retain at least a
portion of a medical device, said medical device being secured
to the skin of a patient upon affixing said bottom surface to the
patient via said adhesive compound, at least a portion of said
resilient retainer being disposed between said body and said
medical device along a transverse axis.
Appeal Br. 26 (Claims Appendix).
REJECTIONS 3
1. The Examiner rejects claims 16-20 under 35 U.S.C. § 102(b) as
anticipated by Kawaguchi. 4
2. The Examiner rejects claims 1--4 and 9-11 under 35 U.S.C. § 103(a) as
unpatentable over Kalt5 in view of Kawaguchi.
3 The double patenting rejection of claims 1-3 and 5-20 has been
withdrawn. See Ans. 2.
4 Kawaguchi, US 4,621,029, iss. Nov. 4, 1986.
5 Kalt et al., US 5,037,397, iss. Aug. 6, 1991.
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3. The Examiner rejects claims 5-8 and 12-15 under 35 U.S.C. § 103(a) as
unpatentable over Kalt in view of Kawaguchi and Sunkel. 6
DISCUSSION
Anticipation
With respect to the anticipation rejection of claim 16, we are
persuaded of error in the rejection because the Examiner has not established
that Kawaguchi discloses a flexible body as claimed.
Claim 16 is directed to a securement system comprising, inter alia, a
flexible body member having a first surface comprising an adhesive
configured for attachment to a patient. Appeal Br. 31. With respect to this
claim limitation, the Examiner finds that Kawaguchi discloses "a flexible
body member (23, 23' and 25) having a first surface ... comprising an
adhesive (Col. 5, lines 15-25) capable for attachment to a patient." Final
Act. 6. The Examiner also specifically finds that "tape 25 ... is part of the
body [and] is any conventional adhesive tape wherein the tape is flexible"
and the tape is part of the body "because the claim does not disclose that the
body is a single part." Id. at 16.
Appellants argue that "the claim is direct[ ed] to a single unified item
or structure called 'a flexible body,' whereas the Examiner is alleging
several different structures that exist separately ... should be considered 'a
flexible body."' Appeal Br. 17. In support, Appellants assert that the claim
language requires a singular "flexible body" and that the Specification
teaches that "the adhesive is in all cases part of the body." Id. at 18. Thus,
6 Sunkel et al., US 2004/0228821 Al, pub. Nov. 18, 2004.
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Appellants assert that Kawaguchi's tape cannot be considered part of the
body relied upon by the Examiner.
During prosecution, the scope of the claims is determined not solely
on the basis of the claim language, but upon giving claims "their broadest
reasonable interpretation consistent with the specification" and "in light of
the specification as it would be interpreted by one of ordinary skill in the
art." In re Am. Acad. of Sci. Tech. Ctr., 367 F.3d 1359, 1364 (Fed. Cir.
2004). Here, with respect to the scope of the claim, the Examiner finds only
that the claim provides "no indication ... that 'a flexible body' is formed by
a single piece." Ans. 3. Thus, the Examiner indicates that any combination
of multiple parts may together be considered a "flexible body member" as
claimed. This finding implies an interpretation that is not consistent with
broadest reasonable interpretation of the claim, when read in light of the
Specification. Therefore, we disagree with the Examiner's finding that
Kawaguchi' s combination of cover 23 with conventional adhesive tape 25
may be considered a "flexible body member."
For this reason, we are persuaded of reversible error in the rejection of
claim 16. Accordingly, we do not sustain the rejection of claim 16. For the
same reasons, we also do not sustain the rejection of dependent claims 17-
20.
Obviousness
Claims 1-4
With respect to claim 1, the Examiner finds that Kalt discloses a
securement device as claimed, except that "Kalt is silent about the resilient
retainer being formed from elastomeric gel or elastomeric foam." Final
Act. 8. The Examiner finds that Kawaguchi teaches a securement device
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Application 13/762,803
that includes elastomeric gel as claimed, and the Examiner concludes that it
would have been obvious to include an elastomeric gel in Kalt's device. Id.
at 9. More specifically and with respect to Appellants' arguments, the
Examiner finds that Kalt discloses a body having a top surface 23 and a
bottom surface 24 with a channel disposed on an underside of the body. Id.
at 8 (citing Kalt Fig. 4 ). The Examiner finds that "reference number 3 8
designates an underside of top 23, which is a part of the 'body"' in Kalt. Id.
at 15-16.
Appellants argue that the rejection contains reversible error because
neither Kalt nor Kawaguchi teach a channel disposed on the underside of the
body of the device. Appeal Br. 20. As discussed below, we are not
persuaded of error.
Appellants argue that the channel in Kalt, as identified by the
Examiner, is not disposed on the underside of the body. Appeal Br. 20.
More specifically, Appellants argue that "structure 3 8 is never identified by
Kalt as the 'underside' of structure 23" and "Kalt never contemplates that
structure 23 is the 'top' of the device. Instead, Kalt actually teaches that 23
is actually a top side of hook section 46, rather than an underside of top 23."
Id. at 20-21. Appellants also assert that the Examiner has not explained
"what in Kalt is alleged to be the body." Id. at 21. Finally, Appellants argue
that "the term 'underside' is used as a synonym to bottom and lower," and
thus, "both 'underside' and 'bottom surface' are referring to the same
structure in claim 1." Id. (citing Spec. ,-r 63 7).
7 We note that Appellants reference i-f 65, which is the relevant paragraph in
the published application. However, we reference the paragraph numbers of
the Specification as filed.
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We find that the Examiner has sufficiently set forth what is considered
to be the body of Kalt's device, i.e., the entirety of the structure including
the top 23 and bottom 24. See Final Act. 8; see also Ans. 4 ("the body [has]
been identified by the top surface 23 and bottom surface 24, so the body is
between (23 and 24)." We agree with the Examiner that this is properly
identified as a body as claimed. Kalt discloses that the layers shown in
Figures 1 and 2 form an integral device described as a medical clamp 10
"particularly suitable for holding a tube 22 to the skin of medical patient"
including a base 12 and with an inner surface 24 and several connected
layers including a top layer 23. See Kalt col. 4, 11. 3-57.
We also agree with the Examiner that the channel depicted in Kalt
Fig. 2 is "disposed on an underside of the body" of the device, as required by
the claim. With respect to this requirement, we are not persuaded by
Appellants' argument that "an underside" as claimed refers to the same
structure as the bottom surface of the body. First, we find that the claim
language does not support Appellants' contention. The claim first recites
that the body includes "a bottom surface," then the claim refers to "said
bottom surface," and then the claim later recites "an underside of the body."
By using different terminology, i.e. "a bottom surface" and "an underside of
the body," and referring back to "said bottom surface" the broadest
reasonable interpretation of the claim based on its language alone allows for
the bottom surface of the body and an underside of the body to be different
structures.
Second, we are not persuaded that the Specification provides a
definition of bottom and underside that requires those terms to refer to the
same structure. The Specification states:
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The terms "upper " "lower " "top " "bottom " "underside "
' ' ' ' '
"upperside" and the like, which also are used to describe the
present securement system, are used in reference to the illustrated
orientation of the embodiment. For example, the term "bottom"
is used to describe a surface of a device that is located nearest the
skin of the patient.
Spec. i-f 63. The Specification does not appear to otherwise use the term
"underside" and we do not find that this disclosure provides sufficient clarity
such that "underside" must be interpreted to refer to the same structure as
"bottom," as Appellants propose. Although the quoted text refers to "the
illustrated orientation of the embodiment," in context this text does not refer
to any specific figure or embodiment. See id. i-fi-1 62---65. Further, the
Specification states that the body member may be formed as a laminate
structure with top and bottom layers and other layers such that an underside
of one layer may not be the same as the bottom surface of the bottom layer.
See id. i-f 73.
Based on the foregoing, we are not persuaded of reversible error with
respect to the rejection of claim 1. Accordingly, we sustain this rejection.
Because Appellants do not raise separate arguments with respect to the
rejection of claims 2--4, we sustain the rejection of those claims for the same
reasons.
Claims 9--11
With respect to claim 9, the Examiner finds, inter alia, that Kalt
discloses a retainer (26 and 3 6) that is supported by the bottom surface 24 of
the device. Final Act. 9. The Examiner further explains that "the bottom
surface does directly support the gel 36 [sic 26] and indirectly support[s] the
gel 36 ([F]ig 2 or Fig. 4 of Kalt)." Ans. 5. As discussed below, we are not
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persuaded of error in this rejection by Appellants' argument that Kalt does
not disclose that the bottom surface supports the retaining device.
Appellants argue that "it is clear from the illustration[, i.e. Kalt Fig. 2]
that the bottom surface 24 does not support the gel retainer 3 6." Appeal
Br. 23. Appellants further assert that "because the bottom surface 24 of base
12 of Kalt never comes into contact with either of adhesive pad [26 or] 36 of
Kalt, surface 24 cannot support either of the adhesive pad 26 or pad 36." Id.
at 23-24. Thus, Appellants are asserting that in order for the bottom surface
to support the retainer device, the retainer must be in contact with the bottom
surface.
For the reasons discussed below, we are not persuaded of error.
The claim language itself does not appear to require the interpretation
set forth by Appellants, i.e., the claim recites only "the retainer being
supported by the bottom surface of the body" without further distinction.
Further, the Specification does not provide a definition of the term support.
Although, the Specification discloses embodiments in which the retainer is
in direct contact with the bottom surface, we decline to read this requirement
into the claims as there is no express indication that the term support should
be so limited. Thus, we find that the broadest reasonable interpretation of
the term support would be consistent with its ordinary meaning in this
context, i.e., "to hold up or serve as a foundation or prop for." Definition of
Support, MERRIAM-WEBSTER. COM, https://www.merriam-
webster.com/ dictionary/ support (last visited June 26, 2018).
Finally, we find that this interpretation of the claim supports the
Examiner's finding that Kalt teaches a bottom surface that supports the gel
retainer. In particular, Kalt discloses a base layer 12 with a bottom surface
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24 and pads 26 and 36 that form a channel around a medical device and are
directly and indirectly held up, i.e. supported, by the base layer of the
device. See Kalt Fig. 2. For these reasons, we are not persuaded of error by
Appellants' arguments. Accordingly, we sustain the rejection of claim 9.
Appellants do not provide separate arguments with respect to claim 10 and
11, and thus, we also sustain the rejection of claims 10 and 11 for the same
reasons.
Claims 5-8 and 12-15
Appellants do not raise arguments with respect to the rejection of
claims 5-8 and 12-15 other than to say that "Sunkel does not supply the
missing limitations from" the independent claims. Appeal Br. 24. As
discussed above, we find no reversible error in the rejection of the
independent claims, and thus, we also sustain the rejection of claims 5-8 and
12-15.
CONCLUSION
We AFFIRM the rejections of claims 1-15. We REVERSE the
rejection of claims 16-20.
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a)(l )(iv).
AFFIRMED-IN-PART
9