Ex Parte Broeker

Patent Trial and Appeal Board

Mar 27, 2018

13864682 (P.T.A.B. Mar. 27, 2018)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
13/864,682 04/17/2013
23122 7590
RATNERPRESTIA
2200 Renaissance Blvd
Suite 350
King of Prussia, PA 19406
03/29/2018
FIRST NAMED INVENTOR
Bjoern Broeker
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.
BBMG-165US 1537
EXAMINER
PEO, JONATHAN M
ART UNIT PAPER NUMBER
1779
NOTIFICATION DATE DELIVERY MODE
03/29/2018 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):
PCorrespondence@ratnerprestia.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte BJOERN BROEKER
Appeal2017-006232
Application 13/864,682
Technology Center 1700
Before BEVERLY A. FRANKLIN, CHRISTOPHER L. OGDEN, and
MERRELL C. CASHION, JR., Administrative Patent Judges.
OGDEN, Administrative Patent Judge.
DECISION ON APPEAL
Appellant 1 appeals under 35 U.S.C. § 134(a) from the Examiner's
final decision rejecting claims 17-33 in the above-identified application. 2
We have authority pursuant to 35 U.S.C. § 6(b ). We reverse.
1 Appellant is the Applicant, B. Braun Avitum AG, which, according to the
Appeal Brief, is the real party in interest. Appeal Brief 1, Oct. 12, 2016
[hereinafter Appeal Br.].
2 Final Office Action 1, July 5, 2016 [hereinafter Final Action]; see also
Examiner's Answer, Jan. 13, 2017 [hereinafter Answer]; Reply Brief, Mar. 9,
2017 [hereinafter Reply Br.].
Appeal2017-006232
Application 13/864,682
BACKGROUND
The invention at issue "concerns a device for extra-corporal blood
treatment." Spec. 3 1. The following is a reproduction of Figure 1 of
Appellant's disclosure:
10
~--...........
~v
1: .............. - ................
. ,
' ' ' '
Fig .. 1
• 12
'1'~
I
I
I
I
30
Figure 1 is a schematic representation depicting the components of a dialysis
device (10). Spec. 9. Device 10 includes casing 11 for extra-corporal blood
circulation components, both on the inside (box 13) and outside (box 12
mounted on front panel 14 of casing 11). Id. Below casing 11 is base socket
20, which contains trough 21. Id. at 10. Device 10 is configured so that
3 Specification, April 17, 2013 [hereinafter Spec.].
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Appeal2017-006232
Application 13/864,682
liquids leaking from inner components 13 are collected in trough 21. Id.
Part of base socket 20 and trough 21 extend beyond casing 11, and liquids
leaking from external components 12 are collected in conduit 22. Id. Sensor
30, at the bottom of trough 21, is configured to detect any collected liquids.
Id. at 10-11. Although not shown in Figure 1, base socket 20 has an outside
surface, below external components 12 and above trough 21, that routes
fluids leaking from the external components 12 into conduit 22. Id. at 11;
see also Figs. 2--4.
Representative claim 17, the sole independent claim, is as follows:
17. A device for extra-corporal blood treatment, the device
compnsmg:
a casmg;
extra-corporal blood circulation components located
inside and outside of the casing;
a base socket attached below the casing, the base socket
including a collection trough configured to collect internal
leaking liquids occurring within the casing directly;
receptacle resources, including a conduit, the receptacle
resources positioned below the components located outside of
the casing, at least a portion of the receptacle resources
positioned over the collection trough to directly receive only
external leaking liquids occurring outside of the casing, wherein
the receptacle resources are configured to direct the external
leaking liquids into the conduit, and wherein the conduit is
configured to sequester the external leaking liquids from the
collection trough until the external leaking liquids are above a
specified quantity, and above the specified quantity, the conduit
is further configured to route at least a part of the sequestered
external leaking liquids into the collection trough; and
a sensor with which at least the presence of liquid is
measurable within the collection trough.
Appeal Br. 14 (formatting and emphasis of key limitations added).
3
Appeal2017-006232
Application 13/864,682
The Examiner maintains the following grounds of rejection:
1. Claims 17-33 are rejected under 35 U.S.C. § 112, first
paragraph as failing to comply with the written description requirement.
Final Action 5---6.
2. Claims 17-33 are rejected under 35 U.S.C. § 112, second
paragraph as being indefinite. Id. at 6.
3. Claims 17-24, 26, and 33 are rejected under 35 U.S.C. § 102(b)
as being anticipated by Jenkins. 4 Id. at 7-11.
4. Claims 25 and 32 are rejected under 35 U.S.C. § 103(a) as
being unpatentable over Jenkins in view ofFulkerson. 5 Id. at 12-14.
5. Claim 27 is rejected under 35 U.S.C. § 103(a) as being
unpatentable over Jenkins in view ofBurbank. 6 Id. at 14--15.
6. Claim 28 is rejected under 35 U.S.C. § 103(a) as being
unpatentable over Jenkins in view ofDonath. 7 Id. at 15-16.
7. Claim 29 is rejected under 35 U.S.C. § 103(a) as being
unpatentable over Jenkins in view of Donath and Fulkerson. Id. at 16-17.
8. Claims 30 and 31 are rejected under 35 U.S.C. § 103(a) as
being unpatentable over Jenkins in view of O'Mahony. 8 Id. at 17-18.
4 Jenkins, US 2011/0315237 Al (published Dec. 29, 2011).
5 Fulkerson et al., US 2011/0315611 Al (published Dec. 29, 2011).
6 Burbank, US 2003/0126910 Al (published July 10, 2003).
7 Donath, DE 10 2009 051 993 Al (published May 12, 2011).
8 O'Mahony et al., US 2004/0084358 Al (published May 6, 2004).
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Appeal2017-006232
Application 13/864,682
DISCUSSION
Rejection 1 (Written Description Requirement)
The Examiner finds that the application as filed does not disclose the
limitation "at least a portion of the receptacle resources positioned over the
collection trough to directly receive only external leaking liquids occurring
outside of the casing." Final Action 5---6. According to the Examiner, "the
Specification does not provide clear support that no internal leaking liquids
would be received by the receptacle resources, or 'at least a portion' of the
receptacle resources." Answer 16.
We disagree. Appellant has persuasively shown that a skilled artisan
would understand that the claimed device is designed so that the trough
would directly collect any internal leaking liquids, and because of the
configuration shown in the figures and described in the text, the "receptacle
resources" would collect none of these resources. See Appeal Br. 4--5 (citing
Spec. 3--4); see also Reply Br. 2--4 (citing Figs. 1, 3, 5). Thus, the original
disclosure reasonably conveys to a skilled artisan that the inventor had
possession of the claimed subject matter. See Vas-Cath Inc. v. Mahurkar,
935 F.2d 1555, 1563 (Fed. Cir. 1991). We therefore reverse the Examiner's
rejection under§ 112, first paragraph.
Rejection 2 (Indefiniteness)
The Examiner determines that the phrase "the sequestered external
leaking liquids" in claim 17 lacks antecedent basis, and is therefore
indefinite. Final Action 6.
Appellant argues that the phrase "wherein the conduit is configured to
sequester the external leaking liquids from the collection trough until the
5
Appeal2017-006232
Application 13/864,682
external leaking liquids are above a specified quantity" is sufficient
antecedent basis, Appeal Br. 5, and we agree.
A claim is considered indefinite, for purposes of prosecution, "when it
contains words or phrases whose meaning is unclear." Ex parte McAward,
Appeal 2015-006416, 2017 WL 3669566, at *5 (PTAB Aug. 25, 2017)
(precedential) (quoting Jn re Packard, 751F.3d1307, 1310, 1314 (Fed. Cir.
2014)). However, the phrase "the sequestered external leaking liquids" is
not ambiguous or unclear in light of the language that precedes it. We
therefore reverse the Examiner's rejection under§ 112, second paragraph.
6
Appeal2017-006232
Application 13/864,682
Rejections 3-8 (Prior Art)
We reproduce Figure 3 of Jenkins below:
. • . ...:_: ·._"-,,
"--.'.
; __ ~ ::- .-·
__ ,_ .. --···
··-.. _
.. / .
···---.. _. ... , -·
·124
_,.·
122
.. -··
""······
_.-/
...
... -··
Figure 3 discloses a bottom liquid collector (130) for collecting leakage from
the bottom of a dialysis machine (112). Jenkins i-f 51. Dialysis machine 112
is equipped with liquid tanks (122 and 126), and rides on wheeled (116) base
skirt 114. Id. i-fi-116, 17, 18, 21, 22. Collector 130 has sections 136A, 136B,
7
Appeal2017-006232
Application 13/864,682
and 137, which slope downwardly to direct liquids toward drain 142 (as
shown by arrows). Id. i-f 51. Collector 130 also includes ramp 138, which
allows wheeled dialysis machine 112 to be rolled up into place on collector
130. Id. i-f 52. There is also a raised dam (139) located at the entry to ramp
138. Id.
The Examiner identifies the "trough" recited in claim 17 as collector
sections 136A and B, as well as drain 142, and identifies the "receptacle
resources" as collector section 137, ramp 138, and dam 139. Final Action 7.
The Examiner also finds that section 137 is located "over" drain 142. Id. at
8.
Appellant argues that none of sections 137, ramp 138, or dam 139 are
"positioned over" any of items 136A, 136B, or 142, which the Examiner has
identified as the trough, but they are instead lateral to these items. Appeal
Br. 9. In particular, according to Appellant, while the apex of slope 13 7 and
ramp 138 "may be at a higher elevation [than items 136A, 136B, and 142],
no part of the 'apex' is located over any part of these components." Reply
Br. 8.
We agree with Appellant. While we give claim terms their broadest
reasonable interpretation consistent with the Specification, this interpretation
must be reasonable in light of the Specification. See In re Man Machine
Interface Techs. LLC, 822 F.3d 1282, 1287 (Fed. Cir. 2016). In addition, our
interpretation "must be consistent with the one that those skilled in the art
would reach." In re Cortright, 165 F.3d 1353, 1358 (Fed. Cir. 1999). In the
context of the claim, the plain meaning of the term "positioned over" does
not reasonably include merely being higher in elevation. Moreover, the
guidance in the Specification suggests that the recitation "positioned over"
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Appeal2017-006232
Application 13/864,682
has a specific function that requires the receptacle resources to be directly
above, not lateral to, the trough. In the Specification, the receptacle resource
(an external surface of base socket 20) is positioned directly above trough
21, and serves the purpose of ensuring "that liquids which arise from leakage
on the external components of the dialysis device 10 are routed to the
conduit 22 and do not flow directly into the collection trough 21." Spec. 11
(boldface added to reference numbers). In other words, by its position
directly above trough 21, the surface of base socket 20 prevents fluids from
directly flowing to trough 21. Considering the language of claim 17 and the
Specification as a whole, the broadest reasonable interpretation a skilled
artisan would reach is that at least a portion of the receptacle resources are
positioned above, not merely at a higher elevation to, the collection trough.
In light of this interpretation, the Examiner has not shown that Jenkins
discloses every limitation of claim 17. Therefore, we reverse the Examiner's
rejection of claim 17 under 35 U.S.C. § 102(b) as being anticipated by
Jenkins. For the same reasons, we reverse the § 102(b) rejection over claims
18-24, 26, and 33, which depend directly or indirectly from claim 17.
Because the Examiner's rejections under§ 103(a) rely on the same rationale
and do not cure the above error, we also reverse the Examiner's rejections of
claims 25 and 27-32.
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Appeal2017-006232
Application 13/864,682
In summary:
17-33 § 112 para 1
17-33 § 112 para 2
17-24,26,33 § 102(b)
25,32 § 103(a)
27 § 103(a)
28 § 103(a)
29 § 103(a)
30,31 § 103(a)
Summar
CONCLUSION
Jenkins
Jenkins and
Fulkerson
Jenkins and
Burbank
Jenkins and
Donath
Jenkins,
Donath, and
Fulkerson
Jenkins and
O'Mahony
DECISION
The Examiner's decision is reversed.
REVERSED
10
17-33
17-33
17-24,26,33
25,32
27
28
29
30,31
17-33