12178759 (P.T.A.B. Nov. 18, 2014)

Ex Parte Garzaniti et al

Patent Trial and Appeal BoardNov 18, 2014

12178759 (P.T.A.B. Nov. 18, 2014)

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. 12/178,759 07/24/2008 Erin Jessica Lindsay Garzaniti 0170(17284) 6928 46909 7590 11/18/2014 TERUMO CARDIOVASCULAR SYSTEMS CORPORATION ATTN: GAEL DIANE TISACK 6200 JACKSON ROAD ANN ARBOR, MI 48103 EXAMINER KRAMER, DEVON C ART UNIT PAPER NUMBER 3746 MAIL DATE DELIVERY MODE 11/18/2014 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 ERIN JESSICA LINDSAY GARZANITI and ERIC L. GAY ________________ Appeal 2012-009135 Application 12/178,759 Technology Center 3700 ________________ Before: CHARLES N. GREENHUT, MICHAEL L. HOELTER, and SCOTT A. DANIELS, Administrative Patent Judges. HOELTER, Administrative Patent Judge. DECISION ON APPEAL STATEMENT OF THE CASE This is a decision on appeal, under 35 U.S.C. § 134(a), from a final rejection of claims 1–16. App. Br. 2. We have jurisdiction under 35 U.S.C. § 6(b). We AFFIRM-IN-PART. THE CLAIMED SUBJECT MATTER The disclosed subject matter “relates in general to centrifugal pumps for pumping blood in an extracorporeal blood circuit.” Spec. 1:17–18. Appeal 2012-009135 Application 12/178,759 2 Independent claim 1, reproduced below, is illustrative of the claims on appeal: 1. A blood pump comprising: a disposable pump head having an inlet and an outlet formed in a sealed impeller housing, the pump head further comprising an impeller contained within the sealed impeller housing having a top disk and a bottom disk with impeller blades mounted therebetween, the top and bottom disks having respective magnetic structures; and a re-usable levitation/drive unit having movably coupled upper and lower housing sections, whereby the housing sections are relatively movable to an open position for allowing insertion of the disposable pump head and a closed position for retaining the disposable pump head in a predetermined position, wherein the re- usable levitation/drive unit includes a levitation magnet in one of the housing sections and a drive magnet in the other one of the housing sections. REFERENCES RELIED ON BY THE EXAMINER Olson US 4,540,351 Sept. 10, 1985 Nojiri US 5,947,703 Sept. 7, 1999 Kriesel US 2005/0033232 A1 Feb. 10, 2005 LaBanco US 7,980,835 B2 July 19, 2011 THE REJECTIONS ON APPEAL Claims 1, 2, and 9–14 are rejected under 35 U.S.C. § 102(b) as being anticipated by Nojiri. Ans. 4. Claims 3–7 are rejected under 35 U.S.C. § 103(a) as being unpatentable over Nojiri and Olson. Ans. 5. Claim 8 is rejected under 35 U.S.C. § 103(a) as being unpatentable over Nojiri. Ans. 6. Appeal 2012-009135 Application 12/178,759 3 Claims 8 and 15 are rejected under 35 U.S.C. § 103(a) as being unpatentable over Nojiri and LaBanco. Ans. 6. Claim 16 is rejected under 35 U.S.C. § 103(a) as being unpatentable over Nojiri and Kriesel. Ans. 7. ANALYSIS The rejection of claims 1, 2, and 9–14 as being anticipated by Nojiri Appellants rely on the same arguments for all of claims 1, 2, and 9– 14. App. Br. 4–5. We select claim 1 for review with claims 2 and 9–14 standing or falling with claim 1. See 37 C.F.R. § 41.37(c)(1)(vii) (2011). Claim 1 includes the limitation that a re-usable unit has “movably coupled upper and lower housing sections.” The Examiner finds that Nojiri’s corresponding upper and lower housing sections 203 and 204 “clearly meet this limitation as shown in Fig[.] 22.” Ans. 7. Appellants disagree contending that this claim language requires a “direct structural connection” between them. 1 App. Br. 5; see also Reply Br. 2. The Examiner disagrees stating that Nojiri’s “machine would be inoperable if the two housings were not coupled together via the pump 202 and attachment member 205.” Ans. 7. The Examiner states that “the upper and lower housing sections must be coupled to something, and not necessarily to one another.” Ans. 8. We agree that Nojiri discloses removable housing sections coupled via intermediate connecting members. Appellants do not identify language in claim 1 that precludes such a connection. This is because claim 1 recites 1 Appellants also contend that “[w]hat Figure 22 actually shows is that units 203 and 204 never touch and that there is no connection between them.” App. Br. 5. Appeal 2012-009135 Application 12/178,759 4 a limitation that these two housing sections are “movably coupled” and Appellants’ are not persuasive that when broadly construed, this coupling is limited solely to a “direct structural connection” between the housing sections with no intermediate structure between them. Appellants further contend that “[a] complete disassembly of all three [of Nojiri’s] elements would be required in order to perform a removal or insertion of the blood pump (impeller) of Nojiri.” Reply Br. 2. However, Appellants do not explain how such a “complete disassembly” fails to disclose “movably coupled.” As Appellants do not persuade us of Examiner error, we sustain the Examiner’s rejection of claims 1, 2, and 9–14 as being anticipated by Nojiri. The rejection of claims 3–7 as being unpatentable over Nojiri and Olson Appellants separately argue claim 3 and further contend that “[c]laims 4–7 are patentable for at least the reason that they depend from an allowable claim.” App. Br. 6. Claim 3 depends from claim 2 and includes the limitation that the jaws (see claim 2) of the upper housing section “comprise unequal portions of the circumferential periphery and include unequal numbers of magnet segments respectively.” The Examiner acknowledges that Nojiri fails to disclose this limitation (Ans. 5) and finds that “as clearly seen in Olson Fig[.] 3 (especially note the left side jaw having a cut-out adjacent to the hinge), the jaws have differing circumferences.” Ans. 8. Without ascertaining the proportion of the circumferential periphery of Olson’s jaws 22 as depicted in Figure 3, the Examiner is silent as to any teaching in Olson regarding “unequal numbers of magnet segments respectively” as also Appeal 2012-009135 Application 12/178,759 5 recited. For this reason, we agree with Appellants that the Examiner’s rejection of claim 3 “should be reversed.” App. Br. 6. Claim 4 depends from claim 3 and accordingly, the Examiner’s rejection of claim 4 is likewise reversed. However, claims 5–7 do not depend from claim 3 and as such, we are not persuaded by Appellants’ contention that these claims 5–7 are patentable for the reason asserted (i.e., “are patentable for at least the reason that they depend from an allowable claim”). App. Br. 6. Accordingly, we reverse the Examiner’s rejection of claims 3 and 4 but sustain the Examiner’s rejection of claims 5–7. Regarding claims 8, 15, and 16, Appellants assert that these claims should be allowable because they depend from an allowable claim. App. Br. 6–7. None of these claims depend from claim 3 and as such, we are not persuaded by Appellants that the Examiner’s rejections of claims 8, 15, and 16 are in error. We sustain the Examiner’s rejections of claims 8, 15, and 16. DECISION The Examiner’s rejections of claims 1, 2, 5–8, and 9–16 are affirmed. The Examiner’s rejection of claims 3 and 4 is reversed. No time period for taking any subsequent action in connection with this appeal may be extended under 37 C.F.R. § 1.136(a)(1)(iv). AFFIRMED-IN-PART hh