Ex Parte Karpowicz et al

Patent Trial and Appeal Board

Dec 17, 2015

12946273 (P.T.A.B. Dec. 17, 2015)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
12/946,273 11/15/2010
28249 7590 12/17/2015
DILWORTH & BARRESE, LLP
Dilworth & Barrese, LLP
1000 WOODBURY ROAD
SUITE405
WOODBURY, NY 11797
FIRST NAMED INVENTOR
John Karpowicz
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.
Bl256/20101 (3Q) 9584
EXAMINER
SU, SUSAN SHAN
ART UNIT PAPER NUMBER
3761
MAILDATE DELIVERY MODE
12/17/2015 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 JOHN KARPOWICZ, CHRISTOPHER L. RADL,
KEVIN P. KLOCEK, JOHN R. BOEHRINGER,
DEREK NORTON, and ROBERT KROPP
Appeal2013-003834
Application 12/946,273
Technology Center 3700
Before STEFAN STAICOVICI, MICHAEL C. ASTORINO, and
CYNTHIA L. MURPHY, Administrative Patent Judges.
MURPHY, Administrative Patent Judge.
DECISION ON APPEAL
The Appellants 1 appeal under 35 U.S.C. § 134 from the Examiner's
rejection of claims 1--4, 6-8, 11, and 13-22. 2 We have jurisdiction over this
appeal under 35 U.S.C. § 6(b ).
We AFFIRM.
1 "The real party in interest for this appeal and the present application is
Boehringer Technologies, L.P ., 300 Thoms Drive, Phoenixville, PA 19460."
(Appeal Br. 2.)
2 "Claims 5, 9, 10, 12, 23-35 were previously canceled." (Non-Final
Action 2.)
Appeal2013-003834
Application 12/946,273
STATEMENT OF THE CASE
The Appellants' invention relates to "devices for wound drainage and
treatment with suction." (Spec. i-f 2.)
Illustrative Claim3
1. A pump for applying suction to a wound in a negative
pressure wound therapy system, the pump comprising a flow
monitor to monitor fluid flow rate in a system conduit from a
wound dressing to the pump as indicative of a level of negative
pressure applied to a wound, the flow monitor adapted to detect
when the flow rate deviates from a known reference airflow rate
through a calibrated vent, the flow monitor having an indicator
to indicate when the flow rate deviates from the reference
airflow rate.
Hermann
Waddell
Risk
Bn1gger
Lockwood
Watson
References
us 5,762,690
US 2002/0188279 Al
US 2002/0198504 Al
US 6;554;789 Bl
US 2005/0004534 Al
US 2006/0036221 Al
Rejections
June 9, 1998
Dec. 12, 2002
Dec. 26, 2002
Apr. 29; 2003
Jan. 6,2005
Feb. 16,2006
The Examiner rejects claims 1-3, 6-8, 11, and 15-22 under
35 U.S.C. § 103(a) as unpatentable over Lockwood and Waddell. (Non-
Final Action 5.)
The Examiner rejects claim 4 under 35 U.S.C. § 103(a) as
unpatentable over Lockwood, Waddell, and Brugger. (Id. at 10.)
3 This illustrative claim is quoted from the Claims Appendix ("Claims
App.") set forth on pages 7-11 of the Appeal Brie£
2
Appeal2013-003834
Application 12/946,273
The Examiner rejects claim 13 under 35 U.S.C. § 103(a) as
unpatentable over Lockwood, Waddell, and Watson. (Id.)
The Examiner rejects claim 14 under 35 U.S.C. § 103(a) as
unpatentable over Lockwood, Waddell, Watson, and Hermann. (Id. at 11.)
ANALYSIS
Independent claim 1 recites "[a] flow monitor adapted to detect when
[a] flow rate deviates from a known reference airflow rate through a
calibrated vent." (Claims App.) The Examiner finds Lockwood teaches a
flow monitor that is capable of detecting when a flow rate deviates from a
known reference flow rate through a vent 460. (Non-Final Action 6.) The
Examiner also finds that Lockwood's vent 460 is a "calibrated vent." (See
id. at 2; see also Answer 9-10.)
The Appellants argue that the Examiner incorrectly defines the word
"calibration" and they provide us with a purportedly more appropriate
definition:
Calibration is a comparison between measurements - one of
known magnitude or correctness made or set with one device
and another measurement made in as similar way as possible
with a second device.
The device with the known or assigned correctness is called the
standard. The second device is the unit under test, test
instrument, or any of several other names for the device being
calibrated.
(Appeal Br. 5.) When we apply this definition to the Appellants' claimed
"calibrated vent," it implicates that the claimed vent was previously
subjected to a comparison against a standard device to measure the
magnitude of a pertinent parameter. We agree, at least arguendo, that
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Appeal2013-003834
Application 12/946,273
Lockwood does not disclose that its vent was previously subjected to such a
companson.
However, the problem with the Appellants' position is that they do not
dispute that Lockwood teaches a flow monitor adapted to detect when a flow
rate deviates from a known reference airflow rate through an uncalibrated
vent. And the Appellants do not address how or why a vent's calibration
status would alter structural detection features of a flow monitor. A flow
monitor adapted to detect when a flow rate deviates from a known reference
airflow rate through an uncalibrated vent (i.e., Lockwood's vent) would also
be adapted to detect when a flow rate deviates from a known reference
airflow rate through a calibrated vent. In other words, whether Lockwood's
vent is calibrated or not does not affect the capability of Lockwood's flow
monitor to detect whether a flow rate deviates from a known reference
airflow rate. As such, the Appellants do not establish reversible error on the
part of the Examiner.
Thus, we sustain the Examiner's rejection of independent claim 1.
Dependent claims 2--4, 6-8, 11, and 13-22 are not argued separately (see
Appeal Br. 4), so we also sustain the Examiner's rejections of these claims.
DECISION
We AFFIRM the Examiner's rejections of claims 1--4, 6-8, 11, and
13-22.
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a)(l )(iv).
AFFIRMED
pgc
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