Ex Parte Kunysz

Patent Trial and Appeal Board

Sep 21, 2018

14738058 (P.T.A.B. Sep. 21, 2018)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO.
14/738,058
62439 7590
SINORICA, LLC
20251 Century Blvd.
Suite 140
FILING DATE
06/12/2015
09/25/2018
Germantown, MD 20874
FIRST NAMED INVENTOR
Zenon Kunysz
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.
TUP22845 9049
EXAMINER
LACYK, JOHN P
ART UNIT PAPER NUMBER
3735
NOTIFICATION DATE DELIVERY MODE
09/25/2018 ELECTRONIC
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.
Notice of the Office communication was sent electronically on above-indicated "Notification Date" to the
following e-mail address(es):
SINORICA@GMAIL.COM
sinorica@outlook.com
pair@sinorica.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte ZENON KUNYSZ 1
Appeal2017---006720
Application 14/738,058
Technology Center 3700
Before ERIC B. GRIMES, JOHN G. NEW, and JOHN E. SCHNEIDER,
Administrative Patent Judges.
SCHNEIDER, Administrative Patent Judge.
DECISION ON APPEAL
This is an appeal under 35 U.S.C. § 134 involving claims to, which a
neonatal support unit have been rejected as obvious. We have jurisdiction
under 35 U.S.C. § 6(b).
We AFFIRM.
STATEMENT OF THE CASE
"Immediately after a child is born, a number of steps must be taken to
ensure that the infant is healthy. In doing this, the infant is taken from the
mother to be weighed, cleaned, and monitored." Spec. 1. Each process can
1 Appellant identifies the Real Party in Interest as the inventor, Zenon
Kunysz. Br. 2.
Appeal2017---006720
Application 14/738,058
involve several different devices requiring the infant to be moved from one
device to another. Id. This can cause problems for the infant, especially for
premature infants. Id. The Specification describes a neonatal support unit
which "aids with monitoring infants and moving said infants between rooms
and departments." Spec. 2.
Claims 1-5 and 10-14 are on appeal. Claim 1 is illustrative and reads
as follows ( emphasis added to disputed limitations):
1. An independent neonatal support assessment placenta
transfusion and resuscitation unit comprises:
a base structure;
a lift mechanism;
a height-adjustable platform;
an accessory-receiving mount;
a power system;
a vacuum system;
a resuscitation system;
the lift mechanism being adjacently connected to the base
structure;
the height-adjustable platform being adjacently
connected to the lift mechanism opposite the base structure;
the accessory-receiving mount being attached to the
height-adjustable platform;
the power system being electrically connected to the lift
mechanism, the vacuum system, and the resuscitation system;
a barricade;
the barricade being adjacently connected to the height-
adjustable plaiform;
the barricade comprises a first railing and a second
railing;
the first railing being connected along a first edge of the
height-adjustable plaiform;
the second railing being connected along a second edge
of the height-adjustable plaiform;
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Application 14/738,058
the resuscitation system comprises a first gas tank, a
second gas tank, a gas mixer, and an gas control module;
the first gas tank and the second gas tank being in fluid
communication with the gas mixer;
the gas mixer being in fluid communication with the gas
control module;
the first railing and the second railing being positioned
opposite each other across the height-adjustable platform;
a plurality of wheels being pivotally connected to the
base structure;
the plurality of wheels being positioned below the base
structure;
the vacuum system comprises a vacuum pump and a
vacuum hose;
the vacuum pump being connected to the base structure;
the vacuum hose being in fluid communication with the
vacuum pump.
The claims have been rejected under 35 U.S.C. § I03(a) as
unpatentable over Benson2 in view ofRichards3 and Kneuer. 4
DISCUSSION
Issue
The issue with respect to the rejection is whether a preponderance of
the evidence supports the Examiner's conclusion that the subject matter of
the claims would have been obvious over Benson combined with Richards
and Kneuer.
The Examiner finds that Benson teaches the claimed system with the
exception of a vacuum system or a lift mechanism that is electrically
2 Benson, US 5,980,449, issued Nov. 9, 1999 ("Benson").
3 Richards et al., US 2011/166411 Al, published July 7, 2011 ("Richards").
4 Kneuer et al., US 2013/0217981 Al, published Aug. 22, 2013 ("Kneuer").
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Application 14/738,058
powered to control the height-adjustment. Final Act. 2-3. The Examiner
also finds that Benson does not teach an accessory-receiving mount for
mounting accessories such as a resuscitation module. Final Act. 3.
The Examiner finds that Richards teaches including an accessory such
as a resuscitation module or a suction unit on a neonatal support system and
modifying the system of Benson to add such a unit would have been obvious
to one skilled in the art. Id.
The Examiner finds that Kneuer teaches electronically controlling the
height of a neonatal support unit. Final Act. 4. The Examiner concludes
that it would have been obvious to one of ordinary skill in the art to modify
the system of Benson to incorporate the powered height control system of
Kneuer. Id.
Appellant contends that Benson does not teach the barriers recited in
the claims as the walls of Benson can be folded down and when folded
down, the walls do not prevent newborns or objects from falling off the
platform. Br. 6-7. Appellant also argues that the walls of Benson do not
provide an "easily grasped fixture for the attending physician." Id.
Appellant goes on to argue that the walls of Benson cannot be removed to
provide access to the newborn. Id.
With respect to claim 4, Appellant contends that Benson does not
teach a manual locking mechanism. Br. 7-10. Appellant argues that while
Benson teaches a locking mechanism, nothing in Benson teaches or suggests
that the locking system is manual. Id.
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Findings of Fact
We adopt the Examiner's findings as our own, including with regard
to the scope and content of, and motivation to modify or combine, the prior
art. Final Act. 2--4, Ans. 2--4. The following findings are included for
emphasis and reference purposes
FF 1. Benson teaches "[ a ]n open care bed or infant warmer having a
mattress supported on a mattress base cantilevered from a columnar or
vertically disposed 'back bone."' Benson Abstract.
FF2. Benson teaches
In order to protect an infant from drafts and to stop the
infant from falling from the warmer, the basinet is preferably
also provided with at least one removable article retaining wall
means or side wall 32. In the preferred form four side walls are
provided, so that the infant is enclosed on all sides by the
warmer except for the side above the infant which is open to the
ambient and through which heat is directed from the radiant
heater unit 7. Preferably the side walls are manufactured from a
tough rigid plastics or acrylic material. Notches, for example
notches 37, are provided in the side wall for holding various
tubes required for an infant's care.
Benson col. 4, 1. 66- col. 5, 1. 9.
FF3. Benson teaches
[w]ith reference to FIG. 7, [reproduced below] one side wall 32
is shown in its normal raised retaining position, however, the
side walls of the basinet according to the preferred form of the
present invention are able to fold down to a lowered, article ( or
infant) access position to allow unobstructed access to the
infant.
Benson col. 5, 11. 10-15.
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FIG 7
Figure 7 of Benson showing a side elevation of a part of the mattress
support structure of the infant warmer with a wall attached. Benson col. 3,
11. 5-7.
FF4. Benson teaches
Preferably a channel 64 is provided in each side of the
column and "T" shaped sliding blocks are positioned within the
channel so that they may slide up and down the channel but
may not be withdrawn therefrom. Preferably the pivot points 62
and 63 are connected into the aforementioned "T" shaped
sliding blocks to allow rapid height adjustment of the basinet
relative to the support column 5. Upon tightening the screw or
bolt connecting the linkage member to its "T" shaped sliding
block, the "T" shaped block is firmly frictionally held in
position in the channel although still allowing free rotational
movement of the linkage members about their connection to the
column 5. Upon tightening, it will be observed that a fixed
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Application 14/738,058
distance ( a first predetermined distance) has been set between
the two pivot points 62 and 63.
Benson col. 6, 1. 64 - col. 7, 1. 11.
Principles of Law
[T]he examiner bears the initial burden, on review of the
prior art or on any other ground, of presenting a prima facie
case ofunpatentability. If that burden is met, the burden of
coming forward with evidence or argument shifts to the
applicant.
After evidence or argument is submitted by the applicant
in response, patentability is determined on the totality of the
record, by a preponderance of evidence with due consideration
to persuasiveness of argument."
In re Oetiker, 977 F.2d 1443, 1445 (Fed. Cir. 1992).
Though understanding the claim language may be aided
by the explanations contained in the written description, it is
important not to import into a claim limitations that are not a
part of the claim. For example, a particular embodiment
appearing in the written description may not be read into a
claim when the claim language is broader than the embodiment.
Superguide Corp. v. DirecTV Enterprises, Inc. 358 F.3d 870, 875 (Fed. Cir.
2004).
Picking one of a finite number of known solutions to a known
problem is obvious. KSR Int'! Co. v. Teleflex Inc., 550 U.S. 398,421
(2007): "When there is a design need or market pressure to solve a problem
and there are a finite number of identified, predictable solutions, a person of
ordinary skill has good reason to pursue the known options within his or her
technical grasp. If this leads to the anticipated success, it is likely the
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product not of innovation but of ordinary skill and common sense. In that
instance the fact that a combination was obvious to try might show that it
was obvious under§ 103." Id. at 418.
Analysis
We find the Examiner has established that the subject matter of the
claims would have been obvious to one of ordinary skill in the art at the time
the invention was made over Benson combined with Richards and Kneuer.
Appellant has not produced evidence showing, or persuasively argued, that
the Examiner's determinations on obviousness are incorrect. Only those
arguments made by Appellant in the Brief have been considered in this
Decision. Arguments not presented in the Brief are waived. See 3 7 C.F .R. §
4I.37(c)(l)(iv) (2015). We have identified claim 1 as representative. We
address Appellant's arguments below.
Appellant argues that Benson does not teach a barrier as required by
claim 1. Br. 5-7. Appellant contends that the wall of Benson does not meet
this limitation in that the wall of Benson does not prevent an infant from
falling off the bassinet when the walls are folded down; when the wall are
folded down, they do not provide a fixture that can be easily grasped; and
the walls in Benson are folded down to provide access to the infant as
opposed to being removed from the bassinet. Br. 7.
We have considered Appellant's arguments and find them
unpersuasive. To begin, Appellant argues limitation that are not recitted in
the claims. Limitations not recited in the claims cannot serve as a basis for
distinguishing an invention from the prior art.
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Moreover, as the Examiner has pointed out, the walls of Benson serve
the functions described in Appellant's arguments. Ans. 5. When the walls
of Benson are in the upright positon the walls prevent an infant from falling
from the bassinet. FF2. Similarly, as shown in Figure 2 of Benson,
reproduced below, when the walls are upright, they provide a fixture that can
be easily grasped.
FIG 2
Figure 2 of Benson showing a side view of an infant warmer.
Finally, Benson teaches that the walls of the bassinet can be folded down to
provide access to the infant. FF3.
Turning to claim 4, Appellant argues that Benson does not teach or
suggest a manual locking mechanism. Br. 8. Appellant contends that while
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Benson teaches tightening a screw or bolt to hold the bassinet in position,
Benson is silent as to whether the screw or bolt is tightened manually. Br. 9.
Again, we find Appellant's argument unpersuasive. While we agree
with Appellant that Benson does not specifically teach manually tightening
the screw, it does teach that tightening the crew will lock the bassinet in
positon. FF4. Given that there are a finite number of ways to tighten a
screw including manually tightening the screw or automatically tightening
the screw, it would have been obvious to manually tighten the screw absent
any evidence that manual tightening produces unexpected results. KSR at
518. Appellant has offered no such evidence. See, Br. 8-9.
Conclusion of Law
We conclude that a preponderance of the evidence supports the
Examiner's conclusion that the subject matter of claims 1 and 4 would have
been obvious over Benson combined with Richards and Kneuer.
Claims 2, 3, 5, and 10-14 have not been argued separately and
therefore fall with claim 1. 37 C.F.R. § 4I.37(c)(l)(iv).
SUMMARY
We affirm the rejection under 35 U.S.C. § 103(a).
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
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