13377641 (P.T.A.B. Aug. 28, 2018)

Ex Parte Charlez et al

Patent Trial and Appeal BoardAug 28, 2018

13377641 (P.T.A.B. Aug. 28, 2018)

UNITED STA TES p A TENT AND TRADEMARK OFFICE APPLICATION NO. FILING DATE 13/377,641 12/12/2011 112467 7590 RMCK Law Group, PLC Michael A Schaldenbrand PO Box 210280 Auburn Hills, MI 48321 08/30/2018 FIRST NAMED INVENTOR Mikael Chadez 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. 14003-000102/US 1828 EXAMINER ABOUELELA, MAY A ART UNIT PAPER NUMBER 3736 NOTIFICATION DATE DELIVERY MODE 08/30/2018 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): mailbox@rmcklaw.com gail@rmcklaw.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte MIKAEL CHARLEZ and MIKAEL LOFGREN Appeal2017-006600 Application 13/377,641 1 Technology Center 3700 Before DONALD E. ADAMS, DEMETRA J. MILLS, and TIMOTHY G. MAJORS, Administrative Patent Judges. ADAMS, Administrative Patent Judge. DECISION ON APPEAL This Appeal under 35 U.S.C. Â§ 134(a) involves claims 1, 2, 4, 6-13, and 16-31 (Office Act. 2 1). Examiner entered rejections under 35 U.S.C. Â§ 103(a). We have jurisdiction under 35 U.S.C. Â§ 6(b). We REVERSE. 1 Appellants identify "OBSERVE MEDICAL APS" as the real party in interest (App. Br. 2). 2 Office Action mailed March 2, 2016. Appeal2017-006600 Application 13/377,641 STATEMENT OF THE CASE Appellants' disclosure "relates to a device and a method for measuring the urine production of a patient" (Spec. 1: 6-7). Appellants' claim 1 is representative and reproduced below: 1. A urine measuring device for measuring urine production of a patient carrying a urine catheter, comprising: a self-emptying siphon, which comprises an inlet connectable to the catheter and an outlet for the urine whose volume is to be measured; and a base unit comprising: an attachment organ configured to removably attach the self-emptying siphon to the base unit, and a urine level measurement organ, configured to sense changes in the level of urine in the self- emptying siphon, and wherein the urine level measurement organ comprises two planar capacitance electrodes placed apart relative to each other on the base unit, a capacitance signal occurring between the two planar capacitance electrodes; and wherein the planar capacitance electrodes are positioned on the base unit in respective locations of the base unit relative to the attachment organ and over vertical distances where, when the self-emptying siphon is held to the base unit with the attachment organ, each of the planar capacitance electrodes extends at least from a position outside of the siphon in the base unit directly radially outwards of a bottom end of the siphon to a position outside of the siphon in the base unit directly radially outwards of an upper end of the siphon, the capacitance signal occurring between the two planar capacitance electrodes continuously changes as the level of urine in the self-emptying siphon changes, the capacitance signal therefore constitutes a continuous measure of the produced amount of urine, 2 Appeal2017-006600 Application 13/377,641 wherein the base unit further comprises a processor that is configured to keep record of how many times the self- emptying siphon has been emptied, and thus calculates the urine production as a function of time. (App. Br. 17 (emphasis added).) The claims stand rejected as follows: Claims 1, 2, 4, 6, 7, 16-21, and 24--31 stand rejected under 35 U.S.C. Â§ 103(a) as unpatentable over the combination of Sigdell3 and Faisandier. 4 Claims 8-11, 22, and 23 stand rejected under 35 U.S.C. Â§ 103(a) as unpatentable over the combination of Sigdell, Faisandier, and Han. 5 Claims 12 and 13 stand rejected under 35 U.S.C. Â§ 103(a) as unpatentable over the combination of Sigdell, Faisandier, and Carter. 6 ISSUE Does the preponderance of evidence relied upon by Examiner support a conclusion of obviousness? ANALYSIS The rejection over the combination of Sigdell and Faisandier: Examiner finds that Sigdell discloses Appellants' claimed invention but for: a base unit comprising an attachment organ configured to removably attach the self-emptying siphon chamber to the base unit, wherein the organs for removably attaching the self- emptying siphon chamber to the base unit is an open cavern, 3 Sigdell et al., US 3,919,455, issued Nov. 11, 1975. 4 Faisandier, US 4,137,940, issued Feb. 6, 1979. 5 Han et al., US 5,891,051, issued Apr. 6, 1999. 6 Carter et al., US 4,554,687, issued Nov. 26, 1985. 3 Appeal2017-006600 Application 13/377,641 wherein the cavern is defined by a first limiting wall, a second limiting wall, and a third limiting wall, wherein the base unit is provided with an input organ for marking events; and wherein the capacitance electrodes are positioned on the base unit in respective locations of the base unit relative to the attachment organ and over vertical distances where, when the self- emptying siphon chamber is held to the base unit with the attachment organ, wherein each of the capacitance electrodes is disposed on an outer surface of the base unit. (Office Act. 2--4.) Examiner relies on Faisandier to make up for the foregoing deficiencies in Sigdell (id. at 5). Based on the combination of Sigdell and Faisandier, Examiner concludes that, at the time Appellants' invention was made, it would have been prima facie obvious to attach the syphon container taught by Sigdell's invention to [a] case [] between two external capacitance electrodes positioned in the case as taught by Faisandier's invention, without changing their respective function, in order to hold the fluid/urine syphon chamber in a vertical position and to place the capacitance electrodes outside the fluid/urine syphon container to prevent contamination of the capacitance electrodes, in order to reuse the capacitance electrodes, where the processor in the base unit calculates the fluid level/volume. (Id.) We are not persuaded. As Appellants explain, their claimed invention requires, inter alia, "two planar capacitance electrodes placed apart relative to each other on the base unit" and that "each of the planar capacitance electrodes extends at least from a position outside of the siphon in the base unit directly radially outwards of a bottom end of the siphon to a position outside of the siphon in the base unit directly radially outwards of an upper end of the siphon." (App. Br. 8; see also Reply Br. 2.) In contrast, Appellants contend, Sigdell, at best, discloses only one such electrode, specifically Sigdell' s plate 31 (see 4 Appeal2017-006600 Application 13/377,641 App. Br. 8-9; see also Reply Br. 2-3). For clarity Sigdell's Figure 4 is reproduced below: -32 34 ......... 35 Sigdell's "FIG. 4 shows a schematic representation of a sensor for the electrical determination of a liquid level in the case where the liquid may be either conductive or non-conductive" (Sigdell 2: 4--7 (emphasis removed)). According to Sigdell, [ c ]ondenser plates [31, 33] are disposed in the walls of the apparatus facing each other. Plate 31 is disposed in the direction of the axis of the apparatus and extends over the entire length of the maximum difference in height of the liquid in the housing. In the opposite wall are disposed small plates 33 at predetermined distances from each other. The plate 31 and the plates 33 are each respectively connected through leads 32 and 34 to a conventional capacitance meter 35. Each plate 33 forms, together with the plate 31, a condenser whose capacity changes as the space between the plates is filled by the rising liquid thereby providing a signal which corresponds to the level of the liquid. (id. at 4: 39-51 (emphasis added); see App. Br. 9.) Thus, as Appellants explain, although Sigdell's plate 31 may "'extend[] at least from a position outside of the siphon in the base unit directly radially outwards of a bottom 5 Appeal2017-006600 Application 13/377,641 end of the siphon to a position outside of the siphon in the base unit directly radially outwards of an upper end of the siphon,"' as required by Appellants' claimed invention, each of Sigdell's plates 33 do not (App. Br. 9). Thus, Examiner failed to establish that Sigdell discloses two planar capacitance electrodes that are arranged as required by Appellants' claimed invention (id.). In this regard, we agree with Appellants' contention that to the extent Examiner asserts "that the combination of [Sigdell's] small plates 33 correspond[] to one plate ... the prior art does not disclose that. Sigdell most definitely does not. And the ... [Examiner] does not cite any evidence to that point or even explain[] how [Examiner] reaches this conclusion" (id. at 10; cf Office Act. 3--4 (discussing Sigdell's "small plates 33")). We also agree with Appellants' contention that Faisandier fails to make up for this deficiency in Sigdell (see App. Br. 11; cf Office Act. 5 and 9). For clarity Faisandier's Figure 1 is reproduced below: device" (Faisandier 2: 13-14) (emphasis omitted). Faisandier discloses that 6 Appeal2017-006600 Application 13/377,641 "[ t ]he detector ... comprises ... an electrostatic detector for detecting the presence of liquid comprising two plate-shaped electrodes 6a, 6b which are arranged at either side of [flow] chamber 2 (id. at 11. 62----67 (emphasis omitted); cf Office Act. 5 (Examiner finds that Faisandier's "capacitance electrodes extend in a substantially vertical direction and ... are disposed on an outer surface of base unit 1 and not disposed in the inner walls, as best seen in [Faisandier' s] Fig. 1 "). According to Examiner, Faisandier "is combined [with] Sigdell[] ... to teach attaching [a] ... liquid container to a base unit and that the capacitors can be disposed in the base unit and outside the liquid container" and not to disclose "the shape of the capacitor plates" (Office Act. 9). Thus, as relied upon by Examiner, Faisandier fails to disclose a device comprising two planar capacitance electrodes arranged according to the requirements of Appellants' claimed invention (see App. Br. 12). We are not persuaded by Examiner's assertion that: Under the broadest reasonable interpretation the bottom end and upper end of the siphon may be interpreted as the bottom end and upper end of any portion of the siphon's walls, so any of plates 33 taught by Sigdell's invention (Fig.4) can be fairly interpreted as a planar plate that is extending from a bottom end to an upper end of a portion of the siphon's wall opposite to the siphon's wall where plate 31 is extending [there through], especially that the claims doesn't recite the two planar plates having the same exact length and that they are extending from the same bottom end and upper end of the siphon's walls. (Ans. 2.) To the contrary, we agree with Appellants' contention that Examiner's interpretation of Appellants' claims renders "the terms 'bottom end' and 'upper end"' meaningless (Reply Br. 3-5). Therefore, we agree 7 Appeal2017-006600 Application 13/377,641 with Appellants' contention that Examiner's "claim term construction is unsustainable" (id. at 5). The rejections over the combination of Sigdell and Faisandier with Han or Carter: Examiner finds that the combination of Sigdell and Faisandier fails to "disclose that the urine level measurement comprises an ultrasound meter system" and relies on Han to make up for this deficiency in the combination of Sigdell and Faisandier (Office Act. 6-7). In addition, Examiner finds that the combination of Sigdell and Faisandier fails to "disclose that the urine level measurement comprises a pressure metering system to determine the level of urine in [a] self-emptying siphon chamber" and relies on Carter to make up for this deficiency in the combination of Sigdell and Faisandier (Office Act. 7-8). Examiner, however, failed to establish that either of Han or Carter makes up for the deficiency in the combination of Sigdell and Faisandier discussed above. CONCLUSION The preponderance of evidence relied upon by Examiner fails to support a conclusion of obviousness. The rejection of claims 1, 2, 4, 6, 7, 16-21, and 24--31 under 35 U.S.C. Â§ 103(a) as unpatentable over the combination of Sigdell and Faisandier is reversed. The rejection of claims 8-11, 22, and 23 under 35 U.S.C. Â§ 103(a) as unpatentable over the combination of Sigdell, Faisandier, and Han is reversed. 8 Appeal2017-006600 Application 13/377,641 The rejection of claims 12 and 13 under 35 U.S.C. Â§ 103(a) as unpatentable over the combination of Sigdell, Faisandier, and Carter is reversed. REVERSED 9