Ex Parte Gewirtz et al

Patent Trial and Appeal Board

Jun 21, 2018

14180011 (P.T.A.B. Jun. 21, 2018)

UNITED STA TES p A TENT AND TRADEMARK OFFICE APPLICATION NO. FILING DATE 14/180,0ll 02/13/2014 19407 7590 06/22/2018 Fitch, Even, Tabin & Flannery, LLP 120 South La Salle Street, Suite 2100 Chicago, IL 60603-3406 FIRST NAMED INVENTOR Gail Gewirtz 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. 9262-131897-US (10890U) 8067 EXAMINER MARCETICH, ADAM M ART UNIT PAPER NUMBER 3761 MAILDATE DELIVERY MODE 06/22/2018 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 Exparte GAIL GEWIRTZ, LUKE STEVENS, and PAULINA LOWKIS 1 Appeal2017-008233 Application 14/180,011 Technology Center 3700 Before JENNIFER D. BAHR, MICHELLE R. OSINSKI, and BRANDON J. WARNER, Administrative Patent Judges. OSINSKI, Administrative Patent Judge. DECISION ON APPEAL STATEMENT OF THE CASE Appellant appeals under 35 U.S.C. § 134(a) from the Examiner's decision rejecting claims 1-19. We have jurisdiction over the appeal under 35 U.S.C. § 6(b). We AFFIRM. 1 Medline Industries, Inc. ("Appellant") is the A .. pplicant as provided in 37 C.F.R. § 1 .46 and is identified as the real party in interest. Appeal Br. 3. Appeal2017-008233 Application 14/180,011 THE CLAIMED SUBJECT MATTER Claims 1, 11, and 18 are independent. Claim 1, reproduced below, is illustrative of the subject matter on appeal. 1. An apparatus comprising: a sealed and squeezable container of pre-filled squeezable food that is sized no larger than a single meal, the squeezable container having a dispensing port comprising a direct feeding tube connector. EVIDENCE The Examiner relies on the following evidence in rejecting the claims on appeal: Cohn US 2005/0139565 Al June 30, 2005 Stribling US 2007/0108158 Al May 17, 2007 Kane US 2007/0278114 Al Dec. 6, 2007 Butler US 2010/0294760 Al Nov. 25, 2010 Foumie US 2010/0331787 Al Dec. 30, 2010 REJECTIONS I. Claims 1-7 stand rejected under 35 U.S.C. § 103 as unpatentable over Stribling. Final Act. 3-5. II. Claims 8, 9, 18, and 19 stand rejected under 35 U.S.C. § 103 as unpatentable over Stribling and Butler. Id. at 5-8. III. Claim 10 stands rejected under 35 U.S.C. § 103 as unpatentable over Stribling and Kane. Id. at 8-9. IV. Claims 11-15 stand rejected under 35 U.S.C. § 103 as unpatentable over Cohn and Foumie. Id. at 9-12. 2 Appeal2017-008233 Application 14/180,011 V. Claims 16 and 17 stand rejected under 35 U.S.C. § 103 as unpatentable over Cohn, Foumie, and Butler. Id. at 12-13. OPINION Rejections I-III In rejecting independent claim 1, the Examiner finds that Stribling discloses an apparatus including, inter alia, a sealed and squeezable container (i-f [0025], liquid pouch 100; i1 [0029], liquid container 304 is a polyethylene pouch, blow molded); ... the squeezable container having a dispensing port (i-f [0029], Fig. 3a, fitting 306, e.g. friction fit nozzle)[] comprising a direct feeding tube connector (i-f [0029], Fig. 3a, flexible tube 308). Final Act. 3. The Examiner acknowledges that Stribling "is silent [as to] whether the container is filled with pre-filled squeezable food," but concludes that "it would have been obvious to pre-fill the container with squeezable food." Id. (citing Stribling i1i15, 25, 29). The Examiner also finds that, "[a]s an alternative to the features of Figs. 3a, 3b, 4a, and 4b, the embodiments of Figs. le and 3b can be combined into a functional apparatus." Id. (emphasis added). In particular, the Examiner determines that "[a] skilled artisan would have been able to combine Figs. le and 3b by attaching flexible tube 308 of Fig. 3b to the flexible tube valve 102 of Fig. le" (id. at 4). See also id. (the Examiner explaining that, "[a]s a further alternative, valve 312 can be omitted from Fig. 3b, and a feeding tube can be connected directly to either fitting 306 or connector 31 O"). Appellant argues that the Examiner erred in determining that it would have been obvious to attach tube 308 of Stribling's embodiment shown in 3 Appeal2017-008233 Application 14/180,011 Figures 3b to valve 102 of the embodiment shown in Figure le. See Appeal Br. 9-13 (Appellant asserting that there is no suggestion for combining the different approaches of Stribling' s two embodiments, and the Examiner relied on impermissible hindsight reconstruction). However, these arguments only address the Examiner's alternative findings and reasoning based on a proposed combination of Stribling' s embodiment shown in Figure 1 c with an element from the embodiment shown in Figure 3b and do not specifically address, much less contest, the Examiner's findings or reasoning for the conclusion of obviousness based on embodiment 300 shown Figures 3a, 3b, 4a, and 4b of Stribling. Accordingly, these arguments do not apprise us of error in the Examiner's rejection. Appellant also argues that Stribling fails to teach "a direct feeding tube connector," as recited in claim 1. Reply Br. 2-3. Appellant asserts that the recited "'direct feeding tube connector' necessarily incorporates physical limitations regarding feeding tubes (otherwise the connector could not be a direct feeding tube connector)." Id. at 2. According to Appellant, the Examiner has neither suggested nor otherwise provided any evidence that Stribling's tube is, in fact, "a flexible tube ... that is designed, packaged, and distributed for exclusive use in enteral feeding by having one end of the tube placed directly within the consumer's digestive tract (i.e., the stomach or the small intestine) via that person's nose or mouth ... or via an opening formed in and through the user's skin." Id. (quoting Spec. i-f 32). The Examiner correctly points out that the claim does not positively recite a feeding tube as an element of the apparatus. Ans. 14. Moreover, neither the claim nor the Specification includes specific parameters (e.g., size or shape) for a feeding tube, with the Specification defining feeding tubes only by their use in enteral feeding. Spec. i-f 32. 4 Appeal2017-008233 Application 14/180,011 Claim 1 also does not include any specific parameters (e.g., size or shape) for a feeding tube connector, and the Specification defines a feeding tube connector only as a connector that "is configured, shaped, and sized to connect securely (albeit removably and temporarily) to a feeding tube with a water-tight seal." Spec. i-f 31. The Examiner finds that Stribling's friction fit connection between flexible tube 308 and fitting 306 meets the limitation of "a dispensing port comprising a direct feeding tube connector (Appeal Br. 18 (Claims App'x.)." Final Act. 3 (citing Stribling i-f 29). In this regard, Stribling' s disclosure is consistent with Appellant's Specification, which describes that "the direct feeding tube connector can assume any of a variety of form factors," including, for example, "threaded interfaces, friction-fit interfaces, snap-fit interfaces, and so forth (though needles and the like are excluded)." Spec. i-f 18 (emphasis added). We agree with the Examiner that Stribling's fitting 306 is capable of connection with a feeding tube (e.g., when utilized with an appropriately dimensioned feeding tube). The burden shifts to Appellant to show that Stribling's fitting 306 is incapable of being a direct connector for a feeding tube, and Appellant does not meet this burden. See In re Schreiber, 128 F.3d 1473, 1478 (Fed. Cir. 1997) (once the Examiner finds that the prior art structure would be capable of performing all of the functions claimed, the burden shifts to the applicant to show that this is not the case). Thus, we are not persuaded of error in the Examiner's finding that Stribling discloses the disputed limitation, which is supported by a preponderance of the evidence. For the above reasons, Appellant fails to apprise us of error in the Examiner's conclusion that the subject matter of claim 1 would have been obvious. Accordingly, we sustain the rejection of claim 1, and its dependent 5 Appeal2017-008233 Application 14/180,011 claims 2-7, for which Appellant relies on the same arguments (Appeal Br. 16), under 35 U.S.C. § 103 as unpatentable over Stribling. In contesting the rejections of independent claim 18 and dependent claims 8-10 and 19, Appellant relies on the arguments presented for patentability of independent claim 1. Id. For the reasons discussed above, Appellant's arguments do not apprise us of error in the rejection of claim 1, and likewise do not apprise us of error with respect to the rejections of claims 8-10, 18, and 19. Accordingly, we sustain the rejections under 35 U.S.C. § 103 of: claims 8, 9, 18, and 19 as unpatentable over Stribling and Butler; and claim 10 as unpatentable over Stribling and Kane. Rejections IV and V In rejecting independent claim 11, the Examiner finds Cohn teaches a food dispenser including, inter alia, "a dispensing port comprising a tube connector that extends outwardly of the sealed package (i-f [0040], [0044], mount subassembly 100 is first attached to the flexible drink pouch 1 O; i1 [0046], Figs. 13-15, nipple subassembly 200 is secured to mount subassembly 100)." Final Act. 10. The Examiner acknowledges that Cohn "does not explicitly disclose the assembly as an enteral food dispenser, ... lacks a direct feeding tube connector[, and] ... is also silent regarding the dimensions of the connector." Id. However, the Examiner finds that Foumie teaches, inter alia, a female adaptor for a feeding line (i-f [0001], [0003], [0017], feeding set 10), comprising ... a dispensing port comprising a direct feeding tube connector that extends outwardly of the package (i-f [ 001 7], female adaptor 16) [] by no more than about ten centimeters (i-f [0017], lengths LI of most, types of standard semi-rigid luer tips 20 are less than or equal to 0.50 in [12.70 mm]). 6 Appeal2017-008233 Application 14/180,011 Id. The Examiner explains that Foumie delivers feeding liquid directly to a patient's gastrointestinal system (i-f [0002]). One would be motivated to modify Cohn with the direct feeding tube connector and dimensions of Foumie to administer nutritional fluid through another means since Cohn calls for delivering nutritional liquids (i-f [0064], package formula or other beverages). A skilled artisan would have been able to modify Cohn with the feeding tube connector ofFoumie by connecting subassembly 100 of Cohn to oral tip connector 38 and feeding tubing 18 of Foumie. Therefore, it would have been obvious to one of ordinary skill in the art at the time the invention was made to modify Cohn with the direct feeding tube connector of Foumie in order to deliver nutritional liquid via another route. Id. at 11. In the Answer, the Examiner clarifies that "Cohn calls for delivering the same types of liquids administered through an enteral feeding tube (i-f [0064], formula ... other beverages; i1 [0067], [0068], formula)" and takes the position that Cohn's disclosure "overlaps with the type of liquids delivered through a feeding tube, and would have encouraged a skilled artisan to at least consider an alternative means of delivery." Ans. 15. The Examiner further clarifies that "[t]he rejection does not wholly substitute F oumie' s connector, and instead modifies the existing connector of Cohn with the feeding tube connector and feeding tube of Foumie" and that "a skilled artisan would have preserved ... the sharpened end of tube 225." Id. (citing Cohn i1 42). Appellant argues "that the Examiner has not presented a prima facie basis for why an ordinarily-skilled person would make ... [the proposed] combination." Appeal Br. 15. Appellant asserts that "the fact that Cohn describes delivering various substances is not, in and of itself, a reason or motivation to accommodate 'another means' of administering such content." 7 Appeal2017-008233 Application 14/180,011 Id. Appellant also argues that "there is no prior suggestion that the skilled person would have effected such a combination by preserving useful features as they went" (Reply Br. 3) and the Examiner's rejection is based upon impermissible hindsight reconstruction (Appeal Br. 15-16; Reply Br. 4). Appellant's arguments do not persuasively refute the Examiner's reasoning, which is based on rational underpinnings. Cohn teaches that the construction of a particular drinking element for use with a drink pouch varies depending on the intended user (e.g., nipple construction for infant or toddler; sippy spout construction for toddler or disabled person; drinking tube for biker or runner). Cohn i-f 57; see Ans. 15 (referring to Cohn i-f 57). Foumie teaches delivery of fluid directly to a patient's gastrointestinal system. Final Act. 11 (citing Foumie i-f 2). Thus, we agree with the Examiner that a skilled artisan would have been led "to modify Cohn with the direct feeding tube connector of Foumie in order to deliver nutritional liquid via another route" (id.), such as when the intended user requires direct feeding of liquid into the gastrointestinal system. Moreover, we note that, "if a technique has been used to improve one device, and a person of ordinary skill in the art would recognize that it would improve similar devices in the same way, using the technique is obvious unless its actual application is beyond his or her skill." KSR Int'! Co. v. Teleflex inc., 550 U.S. 398, 417 (2007); see also id. at 416 ("The combination of familiar elements according to known methods is likely to be obvious when it does no more than yield predictable results."). Appellant asserts that the proposed "combination yields an inoperable result" because Fournie's device "lacks any puncturing mechanism." Appeal Br. 15. However, Appellant has not 8 Appeal2017-008233 Application 14/180,011 provided any factual evidence or persuasive technical reasoning to explain why modifying Cohn's apparatus to include a feeding tube connector, as taught by Foumie, in an operable manner (e.g., by including a puncturing mechanism) would yield anything other than a predictable result, or that doing so would be somehow be beyond the level of ordinary skill in the art. "A person of ordinary skill is also a person of ordinary creativity, not an automaton." KSR, 550 U.S. at 421. Finally, we do not agree with Appellant's assertion that the "Examiner's rejections are best explained by an overuse and overabundance of hindsight reasoning." Reply Br. 4. Appellant does not identify any knowledge relied upon by the Examiner that was gleaned only from Appellant's disclosure and that was not otherwise within the level of ordinary skill at the time of the invention. See In re McLaughlin, 443 F.2d 1392, 1395 (CCPA 1971). For the above reasons, Appellant fails to apprise us of error in the Examiner's conclusion that the subject matter of claim 11 would have been obvious. Accordingly, we sustain the rejection of claim 11, and its dependent claims 12-15, for which Appellant relies on the same arguments (Appel Br. 16), under 35 U.S.C. § 103 as unpatentable over Cohn and Foumie. In contesting the rejection of dependent claims 16 and 17, Appellant relies on the arguments presented for patentability of independent claim 11. Id. For the reasons discussed above, Appellant's arguments do not apprise us of error in the rejection of claim 11, and likewise do not apprise us of error with respect to the rejections of claims 16 and 17. Accordingly, we sustain the rejection of claims 16 and 17 under 35 U.S.C. § 103 as unpatentable over Cohn, Foumie, and Butler. 9 Appeal2017-008233 Application 14/180,011 DECISION The Examiner's decision to reject claims 1-7 under 35 U.S.C. § 103 as unpatentable over Stribling is affirmed. The Examiner's decision to reject claims 8, 9, 18, and 19 under 35 U.S.C. § 103 as unpatentable over Stribling and Butler is affirmed. The Examiner's decision to reject claim 10 under 35 U.S.C. § 103 as unpatentable over Stribling and Kane is affirmed. The Examiner's decision to reject claims 11-15 under 35 U.S.C. § 103 as unpatentable over Cohn and Foumie is affirmed. The Examiner's decision to reject claims 16 and 17 stand rejected under 35 U.S.C. § 103 as unpatentable over Cohn, Foumie, and Butler is affirmed. 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)(l )(iv). AFFIRMED 10