Ex Parte Coulthard et al

Patent Trial and Appeal Board

Aug 24, 2018

14024066 (P.T.A.B. Aug. 24, 2018)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR
14/024,066 09/11/2013 Richard Daniel John Coulthard
60402 7590 08/28/2018
KINETIC CONCEPTS, INC.
c/o Harness Dickey & Pierce
5445 Corporate Drive
Suite 200
Troy, MI 48098
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.
VAC.1057US 9645
EXAMINER
TOWNSEND, GUY K
ART UNIT PAPER NUMBER
3761
NOTIFICATION DATE DELIVERY MODE
08/28/2018 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):
dgodzisz@hdp.com
troymailroom@hdp.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte RICHARD DANIAL JOHN COULTHARD
and CHRISTOPHER BRIAN LOCKE
Appeal2018-000995 1
Application 14/024,0662
Technology Center 3700
Before MICHAEL C. ASTORINO, CYNTHIA L. MURPHY, and
KENNETH G. SCHOPPER, Administrative Patent Judges.
SCHOPPER, Administrative Patent Judge.
DECISION ON APPEAL
This is an appeal under 35 U.S.C. § 134(a) from the rejection of
claims 1-13 and 38. We have jurisdiction under 35 U.S.C. § 6(b).
We REVERSE.
1 Our decision references the Appeal Brief ("Appeal Br.," filed June 8,
2017), the Reply Brief ("Reply Br.," filed Nov. 2, 2017), the Examiner's
Answer ("Ans.," mailed Sept. 14, 2017), and the Non-Final Office Action
("Non-Final Act.," mailed Jan. 12, 2017).
2 According to Appellants, "[t]he real party in interest is KCI Licensing,
Inc., ... which is a subsidiary of Kinetic Concepts, Inc." Appeal Br. 2.
Appeal2018-000995
Application 14/024,066
BACKGROUND
According to Appellants, "[t]he subject matter described [in the
application] relates generally to regulating pressure. In more particular
embodiments, the subject matter relates to regulating pressure for reduced-
pressure therapy." Spec. ,r 2.
ILLUSTRATIVE CLAIM
Claim 1 is the only independent claim on appeal and recites:
1. A reduced-pressure treatment system comprising:
a dressing;
a supply chamber fluidly coupled to the dressing through
a supply lumen;
a control chamber fluidly coupled to the dressing through
a feedback lumen;
a charging chamber fluidly coupled to the supply chamber
through a port; and
a regulator valve within the control chamber and operable
to reciprocate within the control chamber to control fluid
communication through the port based on a differential between
a control pressure in the control chamber and a therapy pressure.
Appeal Br. 13.
REJECTION
The Examiner rejects claims 1-13 and 38 under 35 U.S.C. § I02(b) as
anticipated by Adahan. 3
DISCUSSION
With respect to claim 1, the Examiner finds that Adahan discloses a
dressing "within wound enclosure" 112; a supply chamber, i.e., "upper
3 Adahan, US 2007/0179460 Al, pub. Aug. 2, 2007.
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Appeal2018-000995
Application 14/024,066
portion of container" 131; a control chamber within sleeve 169; a charging
chamber 129; a port 119; and a regulator valve 135 as claimed. Non-Final
Act. 5-6. More specifically, in relevant part, the Examiner finds that
Adahan's regulator valve reciprocates within the control chamber:
to control fluid communication through the port ( 188) Fig. 3
[ 0102] L 11, 13 based on a differential between a contro 1 pressure
in the control chamber ( as control pressure within sleeve (194)
in control chamber within (169)) Fig. 3 [0108] LI 7-29 and a
therapy pressure (based on threshold pressure value (M) [O 109]
L5; [0108] LI7-[0109] LI3 to maintain substantially constant
operating negative pressure [0029] L 7-10).
Id. at 6 (bracketed material in original). Although this portion of the
rejection appears to indicate that element 188 may be the port recited in
claim 1, the Examiner makes clear that the rejection relies on port 119 as the
claimed port. See Ans. 12 ("Thus, the citations for the recited port element
only cite one element as [the] port (119).").
We are persuaded of error in the rejection of claim 1 because the
Examiner has not established that Adahan discloses a regulator valve
"operable to reciprocate within the control chamber to control fluid
communication through the port," as recited in claim 1. Appellants argue
that "[t]here is no evidence that the pressure regulator 135 within the sleeve
169 as described in Adahan is operable to control fluid communication
through the inlet port 119." Appeal Br. 6. Rather, Appellants assert that
"Adahan teaches that 'the outlet port 120 is vented to the external ambient
environment E through exit port 188."' Id. at 6-7 (citing Adahan ,r 105). In
response, the Examiner finds:
the regulator valve (135) does control fluid communication
through the inlet port (119) where ... , the regulator valve (135)
controls the pressure in all of the control, supply, and charging
chambers where these chambers are interconnected by the ports
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Appeal2018-000995
Application 14/024,066
(119) and (120), where Adahan teaches that the regulator valve
(135) including piston (198); a valve body (181) coupled to the
piston (198) [0108] LI0-13 annotated Fig. 2, 3, the valve body
(181) moveable with the piston (198) [0108] Lll-13 to engage
the port (188) Fig. 2, 3 [0109 ]L9-I0; and an elastic member
(spring) (137) Fig. 3 [0108] LI9 coupled to the valve body (181)
Fig. 2, 3 (via (138), (168), (195) [0108] L2I-24 biases the piston
(198) against ambient pressure in the control chamber [O 109]
L2-I0; [0034]-[0035] Fig.2-3 [0108] LI 7-29), in order to
control fluid communication through the port (119) (by (188)
Fig. 3 [O 102] L 11, 13) based on a differential between a control
pressure in the control chamber and a therapy pressure ( as control
pressure within sleeve (194) in control chamber within (169))
Fig. 3 [O 108] L 17-29); and a therapy pressure based on
threshold pressure value (M) [0109] L5; [0108] L 17-[0I09]L 13
to maintain substantially constant operating negative pressure
[0029] L 7-10).
Ans. 13-14 (bracketed material in original).
We have reviewed the cited portions of Adahan and see no disclosure
that the regulator valve is operable to control fluid communication through
port 119. Although the regulator valve is fluidly connected to the inlet port
through the outlet port 120 and the charging chamber 129, we see no
disclosure that operation of the regulator valve controls fluid communication
through port 119. Rather, Adahan discloses that air is drawn into the inlet
port based on operation of the pump head 114. See Adahan ,r,r 102, 112. In
particular, Adahan discloses that "[a]s the pump head [114] begins to
operate, air and fluids exuded from the wound are sucked out of the
contained volume V" and "air is drawn into the inlet port 119, through the
pump working chamber 129 . .. and out of the outlet port [120] to the sleeve
169, and subsequently vented." Id. But the Examiner does not establish that
venting this air controls operation of the pump and thus fluid communication
through port 119. Further, the Examiner does not point to any description in
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Appeal2018-000995
Application 14/024,066
Adahan of the operational relationship between the regulator valve 135 and
the inlet port 119. Regarding the operation of the regulator valve, Adahan
discloses:
the regulator 135 is urged to the open position when there is a
pressure difference between the ambient air pressure of the
external ambient environment E and the pressure within the
confined volume V that exceeds a threshold value M. As the
sleeve 169 is vented to the external ambient environment E, via
vent 117, the ambient pressure of the external ambient
environment Eis maintained in sleeve 169, and thus with respect
to the seal 138 and outlet port 120. When this pressure difference
is at, or less than, the threshold value M, the regulator 135 is
urged to the closed position by means of the restoration force of
the spring 137.
Adahan ,r 109. Therefore, as noted above, we find that Adahan does not
disclose, in an anticipatory manner, that the pressure regulator is "operable
... to control fluid communication through the port" 119. We also find that
the fact that the control, supply, and charger "chambers are interconnected
by the ports (119) and (120)" is not sufficient to show that Adahan discloses,
in an anticipatory manner, a regulator valve that is operable to control fluid
communication through port 119.
Based on the foregoing, we are persuaded of reversible error in the
rejection of claim 1. Accordingly, we do not sustain this rejection. We also
do not sustain the rejection of claims 2-13 and 38, each of which depend
from independent claim 1.
CONCLUSION
We REVERSE the rejection of claims 1-13 and 38.
REVERSED
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