Ex Parte Duck et al

Patent Trial and Appeal Board

Feb 28, 2018

13440296 (P.T.A.B. Feb. 28, 2018)

United States Patent and Trademark Office
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.
13/440,296 04/05/2012 Benjamin S. Duck BPMDL0047JS (10318U) 1084
27939 7590 03/01/2018
Philip H. Burrus, IV
Burrus Intellectual Property Law Group LLC
222 12th Street NE
Suite 1803
Atlanta, GA 30309
EXAMINER
DUNWOODY, AARON M
ART UNIT PAPER NUMBER
3679
MAIL DATE DELIVERY MODE
03/01/2018 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 BENJAMIN S. DUCK and JOHN HENRY KUTSCH
Appeal 2016-001306
Application 13/440,296
Technology Center 3600
Before LINDA E. HORNER, LISA M. GUIJT, and NATHAN A. ENGELS,
Administrative Patent Judges.
ENGELS, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Appellants appeal under 35 U.S.C. § 134(a) from a non-final rejection
of claims 1, 2, 6, 8, 9, and 11—20. Claims 10 and 14 are subject to an
objection, and the rejections of claims 3—5 and 7 have been withdrawn. We
have jurisdiction under 35 U.S.C. § 6(b).
We affirm-in-part.
Appeal 2016-001306
Application 13/440,296
ILLUSTRATIVE CLAIMS
Claims 1,11, and 17, reproduced below, are illustrative of the claimed
subject matter:
I. A connector assembly comprising:
a unitary female connector portion manufactured from a
singular material, the unitary female connector portion
comprising:
a waisted, tapering intermediate section disposed between a
compression ring and a luminal connector; and
one or more finger grasping surfaces disposed along the
waisted, tapering intermediate section.
II. A connector assembly comprising:
a single ended male connector portion manufactured from a
singular material,
the single ended male connector portion comprising:
a protruding male connector portion;
a single ended luminal connector; and
a convex frustration disposed between the protruding male
connector portion and the single ended luminal connector.
17. A connector assembly comprising double ended male
connector
a double-ended male connector portion manufactured from a
singular material, the double-ended male connector portion
comprising:
a protruding male connector portion;
a double-ended luminal connector; and
a convex frustration disposed between the protruding male
connector portion and the double-ended luminal connector.
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Application 13/440,296
THE REJECTIONS
Claims 11—20 stand rejected under pre-AIA 35 U.S.C. § 112, second
paragraph, as being indefinite. Ans. 2.
Claims 1, 2, 6, 8, and 9 stand rejected under pre-AIA 35 U.S.C.
§ 102(e) as being anticipated by Carter et al. (US 2012/0016345 Al; Jan. 19,
2012). Ans. 3.1
Claims 11—13 and 15 stand rejected under pre-AIA 35 U.S.C.
§ 102(b) as being anticipated by Sauer (US 3,834,388; Sept. 10, 1974). Ans.
4.2
Claims 17—20 stand rejected under pre-AIA 35 U.S.C. § 102(b) as
being anticipated by Rugheimer (US 4,557,261; Dec. 10, 1985). Ans. 5.
Claims 17—20 stand rejected under pre-AIA 35 U.S.C. § 102(b) as
being anticipated by Haarala et al. (US 2008/0214993 Al; Sept. 4, 2008).
Ans. 6.
ANALYSIS
The Rejection of Claims 11—20 as Indefinite
The indefmiteness rejection of claims 11—20 turns on the meaning of
the claim term “frustration” in independent claims 11 and 17. See Appeal
Br. 28 (claim 11 reciting “a convex frustration disposed between the
protruding male connector portion and the single ended luminal connector”),
29 (claim 17 reciting “a convex frustration disposed between the protruding
male connector portion and the double-ended luminal connector”). The
1 The Examiner has withdrawn a rejection of claims 3—5, 12, 13, and 15 as
being anticipated by Carter. Ans. 7.
2 The Examiner has withdrawn a rejection of claims 1—9 and 16 as being
anticipated by Sauer. Ans. 7.
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Application 13/440,296
words of a claim are generally given their ordinary and customary meaning,
as would be understood by a person of ordinary skill in the art in the context
of the specification. See In re Translogic Tech. Inc., 504 F.3d 1249, 1257
(Fed. Cir. 2007). Nonetheless, a patentee may define a term contrary to or
inconsistent with its ordinary meaning, but any special definition or meaning
must be sufficiently clear in the specification such that the meaning would
be understood by a person of skill in the field of the invention. Phillips v.
AWHCorp., 415 F.3d 1303, 1316 (Fed. Cir. 2005) (en banc) (citing CCS
Fitness, Inc. v. Brunswick Corp., 288 F.3d 1359, 1366 (Fed. Cir. 2002));
Multiform Desiccants, Inc. v. Medzam, Ltd., 133 F.3d 1473, 1477 (Fed. Cir.
1998); see MPEP § 2173.05(a).
The Examiner states that Appellants’ Specification does not define
“frustration” beyond its ordinary meaning, and, citing dictionary definitions,
the Examiner interprets “frustration” in claims 11 and 17 to mean a feeling
of anger or annoyance caused by being unable to do something, rendering
the claims indefinite. Ans. 8—10.
Appellants contend the Specification defines the claim term
“frustration.” Appeal Br. 13—16. As cited by Appellants, the Specification
identifies a “convex frustration” as element 2201 in Figure 22, describing
the structure to be “the same as” the “frustum” depicted as element 1201 in
Figures 12—20. Appeal Br. 13—14 (quoting Spec. 1 83); accord Appeal Br.
15—16 (citing Spec. 83, 88); see also Spec. 84 (“The unitary double-
ended male connector portion 2200 differs from its single ended counterpart
at the end disposed opposite the convex frustration 2201 from the protruding
male connector portion 2202.”), 93 (describing “convex frustum 2201”).
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Application 13/440,296
Although the Examiner is correct that the word “frustration” does not
typically refer to a structure, the claims define “a convex frustration” as a
structure disposed between a male connector portion and a luminal
connector. The Specification also uses the term “convex frustration”
interchangeably with “convex frustum” to reference a structure that is
consistent with the claim language. See Spec. ]Hf 83, 84, 88. Reading claims
11 and 17 in light of the Specification, we agree with Appellants that the
term “frustration” refers to a structure and does not render claims 11 and 17
indefinite. Accordingly, we do not sustain the indefmiteness rejection of
independent claims 11 and 17, nor dependent claims 12—16 and 18—20,
which depend from claims 11 and 17.
The Rejection of Claims 1, 2, 6, 8, and 9 as Anticipated by Carter
In relevant part, claim 1 requires a “female connector portion.” The
Examiner finds Carter discloses the claimed “female connector portion” with
the part labeled 72 in Carter’s Figures 2—7. Ans. 10-11; see Non-final Act.
3. Citing a definition of “female” relevant to “machinery, fittings, etc.” as
“manufactured hollow so that a corresponding male part can be inserted”
(Reply Br. 8) (emphasis omitted), Appellants argue the cited structure of
Carter refers to a male connector, not a female connector as claimed.
Appeal Br. 17—18; Reply Br. 8—10.
Carter discloses “a Luer connector fitting 72 with Luer threads 74 that
interlock with corresponding threads 254 within the coupler 30” as part of an
infusion system that introduces fluid through an extension set 26 across the
connection and into an extension tube 38. Carter 15. Consistent with
Appellants’ definition and the Examiner’s findings, Carter’s Luer connector
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Application 13/440,296
fitting 72 is hollow such that the corresponding end of extension set 26 can
be inserted into connector fitting 72 to create the fluid pathway. Carter || 5,
7, Figs. 2—3. Notably, Appellants recognize the equivalent portion of a Luer
connector disclosed in Haarala as the female connector. Appeal Br. 25.
Accordingly, we disagree with Appellants and agree with the Examiner that
Carter discloses a “female connector portion” as claimed.
We sustain the Examiner’s rejection of independent claim 1, as well
as dependent claims 2, 6, 8, and 9, which Appellants do not argue separately.
The Rejection of Claims 11—13 and 15 as Anticipated by Sauer
Appellants argue Sauer discloses a concave connector, not a convex
frustration as claimed. Appeal Br. 23. The Examiner responds that it “is not
clear as to what a convex frustration resembles” and that Sauer’s Figure 3
illustrates a convex frustration as understood by the Examiner. Ans. 12—13.
As explained above, we interpret the claimed convex frustration to
include the convex frustrum described in Appellants’ Specification. Further,
we agree with Appellants that the Examiner erred in finding Sauer discloses
a convex frustration, as claimed. Accordingly, we do not sustain the
Examiner’s rejection of claims 11—13 and 15 as anticipated by Sauer.
The Rejection of Claims 17—20 as Anticipated by Rugheimer
Claim 17 requires “a double-ended male connector portion
manufactured from a singular material.” Appellants argue Rugheimer “fails
to teach a device manufactured from a singular material as claimed”
because, according to Appellants, Rugheimer “teaches a connecting element
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Application 13/440,296
manufactured from two pieces coupled together by ‘an unfastening element
12.’” Appeal Br. 24 (citing Riigheimer 5:67—6:39).
As explained by the Examiner, however, claim 17 recites a “singular
material,” and nothing in claim 17 excludes a two-piece assembly. Ans. 14.
Further, as cited by the Examiner, Riigheimer discloses that its connector
can be made of a single material—metal or plastic. Ans. 13 (quoting
Riigheimer 10:43—61). Accordingly, we sustain the Examiner’s rejection of
claims 17—20 as being anticipated by Riigheimer.
The Rejection of Claims 17—20 as Anticipated by Haarala
Appellants argue the Examiner erred in finding Haarala teaches “a
protruding male connector portion,” as required by claim 17. Specifically,
Appellants argue the cited portion of Haarala is a female connector, not a
male connector portion as claimed. Appeal Br. 25 (citing Haarala Fig. 2e).
Haarala discloses a Luer connector at “fluid source end 54” with an
internal bore 58 that is adapted for fluid-tight engagement with a fluid
source 10. Haarala 127, Figs. 1, 2e. For reasons explained above regarding
Carter’s Luer connector, we agree with Appellants that the cited portion of
Haarala discloses a female connector, not a male connector portion as
claimed. Accordingly, we do not sustain the Examiner’s rejection of claims
17—20 as being anticipated by Haarala.
DECISION
For the above reasons, we sustain the Examiner’s rejection of claims
1, 2, 6, 8, and 9 under pre-AIA 35 U.S.C. § 102(e) as being anticipated by
Carter and the Examiner’s rejection of claims 17—20 under pre-AIA
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Application 13/440,296
35 U.S.C. § 102(b) as being anticipated by Riigheimer. We reverse (i) the
Examiner’s rejection of claims 11—20 under pre-AIA 35 U.S.C. § 112,
second paragraph, as being indefinite; (ii) the Examiner’s rejection of claims
11—13 and 15 under pre-AIA 35 U.S.C. § 102(b) as being anticipated by
Sauer; and (iii) the Examiner’s rejection of claims 17—20 under pre-AIA
35 U.S.C. § 102(b) as being anticipated by Haarala.
No time period for taking any subsequent action in connection with
this appeal maybe extended. 37 C.F.R. § 1.136(a)(l)(iv).
AFFIRMED-IN-PART
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