10976193 (B.P.A.I. Sep. 2, 2010)

Ex Parte Chappa

Board of Patent Appeals and InterferencesSep 2, 2010

10976193 (B.P.A.I. Sep. 2, 2010)

UNITED STATES PATENT AND TRADEMARK OFFICE _________ BEFORE THE BOARD OF PATENT APPEALS AND INTERFERENCES __________ Ex parte RALPH A. CHAPPA __________ Appeal 2009-007255 Application 10/976,193 Technology Center 1700 ___________ Before ADRIENE LEPIANE HANLON, PETER F. KRATZ, and MARK NAGUMO, Administrative Patent Judges. HANLON, Administrative Patent Judge. DECISION ON APPEAL1 1 The two-month time period for filing an appeal or commencing a civil action, as recited in 37 C.F.R. § 1.304, or for filing a request for rehearing, as recited in 37 C.F.R. § 41.52, begins to run from the “MAIL DATE” (paper delivery mode) or the “NOTIFICATION DATE” (electronic delivery mode) shown on the PTOL-90A cover letter attached to this decision. Appeal 2009-007255 Application 10/976,193 2 A. STATEMENT OF THE CASE This is an appeal under 35 U.S.C. § 134 from an Examiner’s decision finally rejecting claims 15, 17-28, and 78-86, all of the pending claims. We have jurisdiction under 35 U.S.C. § 6(b). We REVERSE. The subject matter on appeal is directed to an apparatus for coating a surface of a rollable medical device. Claim 15, reproduced below, is illustrative. 15. An apparatus for coating a surface of a rollable medical device comprising: a device rotator comprising at least one pair of rollers, said at least one pair comprising a first roller and a second roller separated by a gap; wherein the device rotator is configured to hold the device within the gap such that the device contacts the first and second roller; a spray nozzle able to produce a spray of a coating material, wherein the spray nozzle is arranged to direct the spray at the gap; and a device retaining member disposed at a distance from at least one of the rollers that is less than the diameter of the rollable medical device, the device retaining member comprising a wire disposed in a plane that is substantially parallel to at least one of the rollers. Br., Claims Appendix (emphasis added).2 Claims 78 and 83 are the only other independent claims on appeal. These claims are also directed to an apparatus for coating a surface of a rollable medical device comprising a device rotator that includes a first and 2 Appeal Brief dated April 25, 2008. Appeal 2009-007255 Application 10/976,193 3 second roller separated by a gap “wherein the device rotator is configured to hold the device within the gap such that the device contacts the first and second roller.” Br., Claims Appendix. The following Examiner’s rejections are before us on appeal: (1) Claims 15, 17-21, 24-28, and 78-86 are rejected under 35 U.S.C. § 103(a) as unpatentable over the combination of Haller (US 2006/0096535, published May 11, 2006) and Frailly (US 4,060,116, issued November 29, 1977). (2) Claims 22 and 23 are rejected under 35 U.S.C. § 103(a) as unpatentable over the combination of Haller, Frailly, and Onishi (US 3,198,170, issued August 3, 1965). B. ISSUE Did the Examiner err in finding that Haller discloses a coating apparatus comprising a device rotator that is configured to hold a fastener device within a gap between a first and second roller such that the fastener device contacts the first and second roller? C. DISCUSSION The Examiner found that Haller discloses a coating apparatus comprising a device rotator including at least one pair of pulley wheels or rollers (22, 37) comprising a first roller and a second roller separated by a gap. The Examiner found that “the device rotator is capable of holding a fastener device within the gap such that a discrete fastener device would be Appeal 2009-007255 Application 10/976,193 4 in contact or communication with the first roller and subsequently, the second roller.”3 Ans. 3; see also Ans. 4-5, 7. The Appellant argues that the pulley wheels 22 and 37 support an endless belt 3 and the belt, rather than the pulley wheels, contacts the fastener device. Br. 6; see also Br. 10, 13. The Appellant’s argument is well supported by the record. See, e.g., Haller, para. [0168], Figs. 1, 4 (depicting belt 3 contacting fastener 2). The Examiner does not explain how the teachings of Frailly or Onishi cure this deficiency in Haller. Therefore, the § 103(a) rejections on appeal will be reversed. D. DECISION The decision of the Examiner is reversed. REVERSED kmm PAULY, DEVRIES SMITH & DEFFNER, L.L.C. PLAZA VII 45 SOUTH SEVENTH STREET, SUITE 3000 MINNEAPOLIS, MN 55402-1630 3 The Examiner correctly points out that claims 15, 78, and 83 do not require the first and second rollers to contact the device continuously or simultaneously. Examiner’s Answer dated June 20, 2008 (“Ans.”), at 9.