Ex Parte EcheverriDownload PDFPatent Trial and Appeal BoardFeb 26, 201310565002 (P.T.A.B. Feb. 26, 2013) Copy Citation UNITED STATES PATENT AND TRADEMARK OFFICE ____________ BEFORE THE PATENT TRIAL AND APPEAL BOARD ____________ Ex parte SANTIAGO ECHEVERRI ____________ Appeal 2011-003642 Application 10/565,002 Technology Center 3700 ____________ Before DONALD E. ADAMS, LORA M. GREEN, and MELANIE L. McCOLLUM, Administrative Patent Judges. ADAMS, Administrative Patent Judge. DECISION ON APPEAL This appeal under 35 U.S.C. § 134 involves claim 1 (App. Br. 4; Ans. 2). We have jurisdiction under 35 U.S.C. § 6(b). STATEMENT OF THE CASE Claim 1 is directed to a guide for an acetabular prosthetic cup instrument and is reproduced in the Claims Appendix of Appellant’s Brief. Appeal 2011-003642 Application 10/565,002 2 Claim 1 stands rejected under 35 U.S.C. § 102(e) as being anticipated by Subba Rao. 1 We affirm. ISSUE Does the preponderance of evidence on this record support Examiner’s finding that Subba Rao teaches Appellant’s claimed invention? FACTUAL FINDINGS (FF) FF 1. Subba Rao’s Figure 1 is reproduced below: “FIG. 1 is an exploded side sectional view of a modular instrument for positioning an acetabular prosthetic socket incorporating … [Subba Rao’s] invention” (Subba Rao, col. 6, ll. 5-7). 1 Subba Rao, US 6,743,235 B2, issued June 1, 2004. Appeal 2011-003642 Application 10/565,002 3 FF 2. The guide of Subba Rao’s instrument, comprises: (1) a shaft 80; (2) an instrument fixing means 62 for fixing the guide to a surgical instrument 10; (3) a pointing means 90 situated at the distal end 84 or shaft 80; and (4) an orientation means comprising: (a) a pillar 60 and (b) a bubble level 40 (Ans. 3-4; see FF 1). FF 3. Subba Rao’s Figures 6 and 7 are reproduced below: FIG. 6 is a sectional view illustrating the level bit member incorporating … [Subba Rao’s] invention, wherein the air bubble [is] migrating towards [the] proximal end of [the] level bit. FIG. 7 is a sectional view illustrating the level bit member incorporating … [Subba Rao’s] invention, wherein the air bubble [is] migrating towards the center of [the] level bit. The orientation pillar member standing vertical. (Subba Rao, col. 6, ll. 19-26.) Appeal 2011-003642 Application 10/565,002 4 FF 4. Examiner finds that Subba Rao’s orientation means defines a reference plane (Ans. 4; see Spec. 3: 14-16 (“the orientation means are of the dual-axis type, namely they allow the definition of the instrument orientation along two directions, defining thereby one plane”)). FF 5. Examiner finds that Subba Rao’s “bubble level 40 serves to orient the device in one direction … [and] the pillar [60] serves to orient the device in a second direction” (Ans. 4; see also Subba Rao, col. 7, ll. 59-63 (“the sensitive index of air bubble member 55, in the levelling [sic] apparatus 40 cooperate with orientation pillar 60 in order to align the alignment shaft 20 to position [the] acetabular prosthetic socket into [a] correct angle of abduction”); Subba Rao, col. 8, ll. 24-26 (“multiple sensitive parameters and indexes are used to position an acetabular prosthetic into correct position”). ANALYSIS We are not persuaded by Appellant’s contention that Subba Rao “is limited to and expressly teaches the use of a single-axis type orientation means (bubble level 40)” and therefore “actually teaches away from the claimed invention” (App. Br. 9; FF 5). Appellant fails to identify a disclosure in Subba Rao that supports the foregoing contention. Appellant’s claim does not require the device to comprise two bubble levels (see Claim 1). Therefore, we are not persuaded by Appellant’s contentions regarding a device that “includes two bubble levels” (id. at 10 (emphasis removed)). For the foregoing reasons, we are not persuaded by Appellant’s unsupported contention that Subba Rao “does not appreciate or even attempt to define a single reference plane” (id. at 11 (emphasis removed); Cf. FF 4). Appeal 2011-003642 Application 10/565,002 5 CONCLUSION OF LAW The preponderance of evidence on this record supports Examiner’s finding that Subba Rao teaches Appellant’s claimed invention. The rejection of claim 1 under 35 U.S.C. § 102(e) as being anticipated by Subba Rao is affirmed. TIME PERIOD FOR RESPONSE No time period for taking any subsequent action in connection with this appeal may be extended under 37 C.F.R. § 1.136(a). AFFIRMED cdc Copy with citationCopy as parenthetical citation