Ex Parte ChewDownload PDFPatent Trial and Appeal BoardMar 27, 201312227342 (P.T.A.B. Mar. 27, 2013) Copy Citation UNITED STATES PATENT AND TRADEMARKOFFICE 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. 12/227,342 11/14/2008 Heng Hai Chew 14133-4 9656 80711 7590 03/27/2013 Brinks Hofer Gilson & Lione/Ann Arbor 524 South Main Street Suite 200 Ann Arbor, MI 48104 EXAMINER PATEL, SHEFALI DILIP ART UNIT PAPER NUMBER 3767 MAIL DATE DELIVERY MODE 03/27/2013 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 HENG HAI CHEW __________ Appeal 2011-007620 Application 12/227,342 Technology Center 3700 __________ Before STEPHEN WALSH, ERICA A. FRANKLIN, and SHERIDAN K. SNEDDEN, Administrative Patent Judges. WALSH, Administrative Patent Judge. DECISION ON APPEAL This is an appeal under 35 U.S.C. § 134(a) from the rejection of claims directed to a flow regulating device for an intravenous drip set. The Patent Examiner rejected the claims for obviousness. We have jurisdiction under 35 U.S.C. § 6(b). We reverse. Appeal 2011-007620 Application 12/227,342 2 STATEMENT OF THE CASE Claims 1-7 are on appeal. Claim 1 illustrates the subject matter on appeal and reads as follows (emphasis added): 1. A flow regulating device for an intravenous drip set which is attached on to a tubing of an intravenous drip line in between a bag and a cannula comprising a main housing unit having a length with a flexible tubing, which comprises portion of an intravenous line, threaded through the entire length of the main housing unit, the main housing unit further comprising: a mobile roller which can rotate and slide along a groove provided within the main housing unit such that as the mobile roller slides diagonally along the groove from one end to the other, it gradually compresses the flexible tubing that is threaded through the entire length of the main housing unit until the flexible tubing is fully compressed and thereby fluid flow through the flexible tubing is regulated by adjusting the position of the mobile roller along the groove provided in the main housing unit; and a fixed roller which rotates on an axis that is in a fixed position within the main housing unit, the fixed roller and the mobile roller being provided on opposite sides of the flexible tubing within the main housing unit whereby the mobile roller can be positioned along the groove so that the flexible tubing is squeezed between the fixed roller and the mobile roller into a totally closed position to act as a flusher, for the intravenous line, whereby when by sliding the regulating device along the tubing in one direction allows for flushing of fluid in the intravenous line. The Examiner rejected1 claims 1-7 under 35 U.S.C. § 103(a) as unpatentable over Adelberg2 and Bierman.3 1 The Appeal Brief requests review of an objection to the drawings. (App. Br. 5.) As the objection is not a rejection of claims, it is not an appealable matter; review should be sought by petition, not appeal. See MPEP § 1201 (“The Board will not ordinarily hear a question that should be decided by the Director on petition ….”); see also MPEP § 1002.02(c)(4) (petitions relating to objections or requirements made by Examiners). 2 Kenneth N. Adelberg, US 6,422,529 B1, issued July 23, 2002. 3 Steven F. Bierman, US 5,318,546, issued June 7, 1994. Appeal 2011-007620 Application 12/227,342 3 DISCUSSION The Issue The Examiner’s position is that Adelberg disclosed a flow regulating device for an intravenous drip set that comprised a mobile roller, but not a fixed roller. (Ans. 4.) The Examiner found that Bierman disclosed a flow regulating device for an intravenous drip set that comprised two fixed rollers. (Id. at 4-5.) The Examiner concluded it would have been obvious “to modify the device of Adelberg with the fixed roller of Bierman in order to be able to clamp the tubing with ease.” (Id. at 5.) The Examiner found that “Adelberg shows the main housing unit is tapered towards an end,” and concluded “it would have been obvious to one of ordinary skill in the art at the time the invention was made to modify the housing to have a larger end at the fixed roller as the modification would have involved a mere change in the size of a component generally recognized as being within the level of ordinary skill in the art.” (Id. at 5.) According to the Examiner: Adelberg as modified by Bierman would show the fixed roller is located beyond a position at which when the mobile roller is located at the position the flexible tube is fully opened, and wherein the fixed roller is located beyond a position at which when the mobile roller is located at the position the flexible tube is fully opened. (Id.) Appellant contends: “Neither Adelberg nor Bierman teach or suggest how to achieve [the claimed] alignment with a combination of movable roller and a fixed roller.” (App. Br. 11.) “Specifically, merely adding a fixed roller to Adelberg as the Examiner suggests does not provide sufficient Appeal 2011-007620 Application 12/227,342 4 guidance as to how to arrange the fixed roller, relative to the movable roller, so that fluid flow and be regulated and line flushing can be accomplished.” (Id. at 12.) We find Appellant’s contentions persuasive. More specifically, we agree with Appellant that the rejection did not establish that a preponderance of evidence suggests, prima facie, the obviousness of Appellant’s arrangement of mobile and fixed rollers. The rejection did not explain, for example, (i) how adding a fixed roller to Adelberg’s device would have affected the ability of Adelberg’s device to clamp tubing, or (ii) why Adelberg’s device modified by a fixed roller “would show” the roller located where Appellant’s device has it. “Rejections on obviousness grounds cannot be sustained by mere conclusory statements; instead, there must be some articulated reasoning with some rational underpinning to support the legal conclusion of obviousness.” In re Kahn, 441 F.3d 977, 988 (Fed. Cir. 2006), SUMMARY We reverse the rejection of claims 1-7 under 35 U.S.C. § 103(a) as unpatentable over Adelberg and Bierman. REVERSED dm Copy with citationCopy as parenthetical citation