Ex Parte Entenman et al

Patent Trial and Appeal Board

May 20, 2013

11818880 (P.T.A.B. May. 20, 2013)

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.
11/818,880 06/15/2007 Scott Allen Entenman AUGA07000020 2799
38000 7590 05/20/2013
TERRANCE A. MEADOR
INCAPLAW
1050 ROSCRANS STREET, SUITE K
SAN DIEGO, CA 92106
EXAMINER
CAMPBELL, THOR S
ART UNIT PAPER NUMBER
3742
MAIL DATE DELIVERY MODE
05/20/2013 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 SCOTT ALLEN ENTENMAN and KEITH J. LELAND
____________

Appeal 2011-004601
Application 11/818,880
Technology Center 3700
____________

Before LINDA E. HORNER, BARRY L. GROSSMAN, and
NEIL A. SMITH, Administrative Patent Judges.

HORNER, Administrative Patent Judge.

DECISION ON APPEAL

STATEMENT OF THE CASE
Scott Allen Entenman and Keith J. Leland (Appellants) seek our
review under 35 U.S.C. § 134 of the Examiner’s decision rejecting claims
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Application 11/818,880

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32-45, which are all of the pending claims.1 We have jurisdiction under
35 U.S.C. § 6(b).
We AFFIRM.
THE INVENTION
Appellant’s claimed invention “relates to the structure of a fluid
warming cassette used with a warming apparatus to heat parenteral fluid for
administration to patients, in which the fluid warming cassette is capable of
functioning under negative fluid pressure.” Spec., para. [0008].2 Claims 32
and 43 are independent. Claim 32, reproduced below, is illustrative of the
subject matter on appeal.
32. A fluid warming cassette with proximal and distal ends,
the fluid warming cassette consisting of:
a flexible planar spacer having an internal serpentine
opening;
a first sheet formed of flexible plastic material proximate
the planar spacer;
a second sheet of flexible plastic material joined to the
first sheet to enclose the planar spacer and form a serpentine
fluid channel with a serpentine fluid channel having first and
second ends near the proximal end;
an inlet port in fluid communication with the first end; and
an outlet port in fluid communication with the second end.

1 While the Final Office Action from which this appeal is taken includes a
rejection of claims 46-52, Appellants canceled these claims by Preliminary
Amendment dated November 1, 2007. Ans. 2; Reply Br. 4. As such, claims
46-52 are not before us in the present appeal.
2 Citations to “Spec.” refer to the Substitute Specification filed June 15,
2007.
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THE EVIDENCE
The Examiner relies upon the following evidence:
Schon US 4,744,414 May 17, 1988
Cassidy US 6,175,688 B1 Jan. 16, 2001
Entenman US 7,394,976 B2 Jul. 1, 2008
THE REJECTIONS
Appellants seek review of the following rejections:
1. Claims 32-41, 43-45 under 35 U.S.C. § 102(b) as anticipated by
Cassidy;
2. Claim 36 under 35 U.S.C. § 103(a) as unpatentable over Cassidy and
Schon; and
3. Claims 39 and 40 under 35 U.S.C. § 103(a) as unpatentable over
Cassidy.
The Final Office Action from which this appeal is taken also included
a rejection of pending claims 32-45 on the ground of nonstatutory
obviousness-type double patenting as unpatentable over claims 1, 3, 4, 7, 10-
17, 19, and 20 of Entenman. Final Office Action dated Jan. 8, 2010 at 5;
Ans. 6. Appellants do not rebut or even address this rejection in the Appeal
Brief. As such, we summarily sustain this rejection.
ANALYSIS
Independent claims 32 and 43 call for the second flexible plastic
material sheet to be joined to the first flexible plastic material sheet “to
enclose the planar spacer.” The Examiner found that Cassidy anticipates
claims 32 and 43 because, in part, Cassidy discloses first and second sheets
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40, 42 “joined together via adhering to the perimeter of spacer 65. . . .”
Ans. 3; see also id. at 7. The Examiner explained that “[t]he language of the
claims does not explicitly recite that the two sheets are in direct contact with
each other, merely ‘joined’. In this context, ‘joined’ is read to mean held in
place so as to not change positions.” Id. at 6-7 (noting the dependent claim
33 calls for the first and second sheets to be joined along their peripheries
and dependent claim 34 calls for the sheets to be joined to the spacer).
The Examiner’s rejection fails to adequately address that the claim
language calls for the sheets to be joined to “enclose” the planar spacer.
App. Br. 8. In the case of Cassidy, as undisputed by the Examiner and
Appellants, the sheets 40 and 42 contact respective internal sides of flared
portions 16, 30, 50, 52 of the member 65. Ans. 3 (citing Cassidy, col. 6,
ll. 26-30); App. Br. 8. As such, as shown in Figures 1 and 2 of Cassidy, the
sheets 40 and 42, when joined to the spacer 65, do not enclose3 the spacer.
We do not find the language of claims 33 and 34 to be inconsistent
with our understanding that claim 32 calls for the first and second sheets,
when joined, to enclose the planar spacer. Claim 33, which depends from
claim 32, recites that “the first and second sheets are joined along their
peripheries.” This claim recitation is consistent with the requirement in
claim 32 that the sheets, once joined, enclose the spacer. See, e.g., Spec.,
paras. [0039], [0041] (describing that the spacer 34 is disposed between the

3 An ordinary meaning of “enclose” is “[t]o surround on all sides; close in.”
THE AMERICAN HERITAGE® DICTIONARY OF THE ENGLISH LANGUAGE (2007),
retrieved from http://www.credoreference.com/entry/hmdictenglang/enclose,
last accessed May 14, 2013.
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Application 11/818,880

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first and second sheets 32, 33 and a device is applied to join the sheets 32,
33 around their peripheries so that once joined, the first and second sheets
32, 33 enclose the spacer 34); see also id. at Fig. 5.
Claim 34, which depends from claim 33, recites that “the first and
second sheets are also joined to the spacer.” We do not understand this
claim language to mean that the sheets are joined to the spacer instead of
being joined to each other. Rather, because claim 34 depends from claim
33, we understand claim 34 to call for the sheets to be joined to the spacer in
addition to be being joined to each other around their peripheries. See, e.g.,
Spec., paras. [0040]-[0041] (describing an optional additional sealing step in
which the first and second sheets 32, 33 are joined to the spacer 34 to create
a double barrier, with the seal between the sheets 32, 33 to the spacer 34
forming a first barrier and the periphery seal formed by the sheets 32, 33
being joined to each other forming a second barrier).
For these reasons, we disagree with the Examiner’s finding that
Cassidy discloses “a second sheet of flexible plastic material joined to the
first sheet to enclose the planar spacer,” as called for in independent claims
32 and 43. The rejections of the remaining dependent claims suffer from the
same deficiency.
DECISION
We REVERSE the decision of the Examiner to reject claims 32-41
and 43-45 under 35 U.S.C. § 102(b) as anticipated by Cassidy, claim 36
under 35 U.S.C. § 103(a) as unpatentable over Cassidy and Schon, and
claims 39 and 40 under 35 U.S.C. § 103(a) as unpatentable over Cassidy.
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We SUMMARILY AFFIRM the decision of the Examiner to reject
claims 32-45 on the ground of nonstatutory obviousness-type double
patenting as unpatentable over claims 1, 3, 4, 7, 10-17, 19, and 20 of
Entenman.
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a). See 37 C.F.R.
§ 1.136(a)(1)(iv).

AFFIRMED

JRG