Ex Parte Kyvik et al

Patent Trial and Appeal Board

Mar 18, 2013

11706634 (P.T.A.B. Mar. 18, 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.
11/706,634 02/15/2007 INV001Kurt Kyvik Z0058.10U 6669
29633 7590 03/19/2013
ROGERS TOWERS, P.A.
1301 RIVERPLACE BOULEVARD, SUITE 1500
JACKSONVILLE, FL 32207
EXAMINER
MEHTA, BHISMA
ART UNIT PAPER NUMBER
3767
MAIL DATE DELIVERY MODE
03/19/2013 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 KURT KYVIK, SCOTT RYAN, and
JOHN MATSON
__________

Appeal 2011-004490
Application 11/706,634
Technology Center 3700
__________

Before DONALD E. ADAMS, ERIC GRIMES, and FRANCISCO C.
PRATS, Administrative Patent Judges.

GRIMES, Administrative Patent Judge.

DECISION ON APPEAL
This is an appeal under 35 U.S.C. § 134 involving claims to a
catheter. The Examiner has rejected the claims as obvious. We have
jurisdiction under 35 U.S.C. § 6(b). We reverse.
STATEMENT OF THE CASE
The Specification discloses a catheter anchoring device for “securing
a catheter, or more particularly the catheter body member, such as a fitting,
App
App

conn
5). F
Figu
anch
body
The
resil
(id. a
9:14
eal 2011-0
lication 11
ector, hub
igure 1 of
re 1 shows
or pad or s
or pad 14
“compress
ient materi
t 9:5-7) an
-15). Figu
04490
/706,634
or the like
the Speci
a catheter
heet mem
… mount
ible cathet
al, prefera
d has a “r
re 5 of the
, to a patie
fication is
anchoring
ber 11 …
ed onto th
er receivin
bly a poly
ecess or ca
Specifica
2
nt’s skin
shown bel
device 1
[with] a co
e upper or
g pad 14
mer foam
vity 15 …
tion is sho
in a fixed p
ow:
0 that “com
mpressibl
exterior s
is compos
or a comp
on the up
wn below
osition” (

prises a f
e catheter
ide” (id. at
ed of a com
ressible so
per side”
:

Spec. 4:3-
lexible
receiving
8:15-9:3)
pressible
ft plastic”
(id. at

.
,
Appeal 2011-004490
Application 11/706,634

3
Figure 5 is a perspective view of the catheter receiving pad, showing the
cavity (id. at 6:13-14). The Specification discloses that cavity 15 has a
“peripheral configuration, outline or contour that corresponds, matches and
essentially mates with the footprint or perimeter configuration … [of]
catheter body member 21” (id. at 10:5-8).
Claims 1-19 are on appeal. Claim 1 is representative:
1. In combination, a catheter anchoring device and catheter body
member;
said catheter body member having a footprint configuration, a
thickness and defining an axial direction corresponding to the direction of
flow through said catheter body member, said catheter body member
receiving one or more catheter tubes;
said catheter anchoring device comprising an adhesive-backed
flexible anchor sheet member, a compressible catheter receiving pad
mounted onto said flexible anchor sheet member, said compressible catheter
receiving pad being composed of a polymer foam material, a cavity disposed
in said compressible catheter receiving pad, and a releasable securing strap
retaining said catheter body member within said cavity of said compressible
catheter receiving pad;
said cavity comprising an elongated channel with open ends, said
channel extending fully across said flexible anchor sheet member, said
cavity further comprising sets of opposing retention walls, said cavity having
a peripheral configuration matching and mating with said footprint
configuration of said catheter body member; and
whereby said catheter body member is precluded from horizontal
movement in all directions by said sets of opposing retention walls.

The Examiner has rejected claims 1-19 under 35 U.S.C. § 103(a) as
obvious in view of Bierman,1 Kornerup2 and Boyd.3 The Examiner finds

1 Bierman et al., US 6,413,240 B1, July 2, 2002.
2 Kornerup, US 5,685,859, Nov. 11, 1997.
3 Boyd, US 3,834,380, Sept. 10, 1974.
Appeal 2011-004490
Application 11/706,634

4
that Bierman discloses a “catheter anchoring device and a catheter body
member (112)” (Answer 3), where the “catheter anchoring device comprises
an adhesive-backed flexible anchor sheet member (12), a catheter receiving
pad (22) … [and] a cavity (30) disposed in the catheter receiving pad” (id. at
3-4). The Examiner finds that the cavity has “a peripheral configuration
matching with the footprint configuration of the catheter body member” (id.
at 4).
The Examiner finds that Bierman does not disclose a compressible
catheter receiving pad or one “composed of a polymer foam material” (id. at
5), but “Kornerup discloses a catheter anchoring device having an … anchor
sheet member (41) and a compressible catheter receiving pad (31) …
composed of a polymer foam material” (id.). The Examiner concludes that
it would have been obvious to “to make the catheter receiving pad of
Bierman et al from a polymer foam material as taught by Kornerup …
[because] Kornerup teaches that it is well known to use a polymer foam
material for the catheter receiving pad which … would allow the catheter
anchoring device to be more comfortable for a patient” (id. at 5-6). The
Examiner also concludes that Boyd would have it obvious to extend
Bierman’s channel “fully across the anchor sheet member … to give more
support to the catheter body member” (id.).
Appellants argue that it would not have been obvious to modify
Bierman’s rigid receiving pad into a “compressible catheter receiving pad …
composed of a polymer foam material,” as required by claim 1 (Appeal Br.
19-20). Appellants argue that the “Bierman device would not function
properly if the catheter receiving pad was made out of polymer foam since
Appeal 2011-004490
Application 11/706,634

5
the Bierman device (a) utilizes a snap closure mechanism which requires a
minimum rigidity in order to function, and (b) the post member of Bierman
would not have sufficient strength to preclude movement of the catheter
body member if it was composed of a compressible polymer foam” (id. at
19). Appellants argue that “Bierman clearly expresses that the catheter
receiving pad is to be … ‘a rigid structure’” (id.), and “there would be no
motivation nor common sense reason to form the catheter receiving pad of
Bierman out of a polymer foam material, since this contradicts the material
specified by Bierman and would result in a device that does not function
properly” (id. at 19-20).
We agree with Appellants that the Examiner has not established that it
would have been obvious, based on the cited references, to modify Bierman’s
device to include a “compressible catheter receiving pad being composed of a
polymer foam material,” as required by claim 1. Bierman discloses “an
anchoring system which retains a dialysis catheter in position upon a patient”
(Bierman, col. 1, ll. 7-11), to prevent axial movement of the catheter (see id.
at col. 1, ll. 23-28). Figure 1 of Bierman is shown below:

Appeal 2011-004490
Application 11/706,634

6
Figure 1 shows Bierman’s “anchoring system … in perspective view with
the cover open” (id. at col. 3, ll. 48-50). Bierman discloses that “retainer 20
is mounted upon the anchor pad 12 … [which] is secured to the skin of the
patient.… The retainer receives the medical article and secures it in
position.” (Id. at col. 5, ll. 1-5.) Bierman discloses that “retainer 20
includes a rigid structure principally formed by the base 22 and the cover
24” (id. at col. 7, ll. 17-19). Bierman discloses that “several features of the
retainer, such as the latch [ ] and hinge [ ], are desirably flexible. Suitable
rigid but flexible materials include for example … plastics, polymers or
composites such as polypropylene, polyethylene, polycarbonate … as well
as moldable silicon, thermoplastic urethane, thermoplastic elastomers,
thermoset plastics and the like.” (Id. at col. 7, ll. 26-33.)
Bierman discloses that “[b]ecause most dialysis catheters are
approximately the same transverse height, a single size retainer … can be
used to secure most catheters. The material of the retainer is slightly
flexible, which helps the retainer accommodate catheters … [with] plastic
hubs of larger thickness.” (Id. at col. 16, ll. 48-53.) Bierman discloses that
the hinge “desirably comprises a flexible band” (id. at col. 8, ll. 48-59), and
the “width of the hinge 40 … is desirably less than that of either the base 22
or the cover 24 to allow some leeway or play when engaging or disengaging
the cover 24 to the base 22” (id. at col. 8, ll. 63-67).
Thus, Bierman expressly discloses that the retainer is made of a rigid
but flexible material. Although the Examiner points to Kornerup’s
“compressible catheter receiving pad (31) … composed of a polymer foam
material” (Answer 5), Kornerup describes element 31 of its device as a
Appeal 2011-004490
Application 11/706,634

7
“connecting component” that is positioned below a “plaster component 41”
and above a “layer 21 … [that] provides a biologically acceptable contact
between the device and the tissue” (Kornerup, col. 5, ll. 50-57). The
Examiner has not provided evidence or persuasive technical reasoning to
show that those of ordinary skill in the art would have recognized
Kornerup’s connecting component 31 as having properties that would make
its material an obvious choice for use as the retainer of Bierman’s device.
The Examiner also reasons that Bierman discloses that “the material
of the catheter anchoring device or retainer (20) is slightly flexible … [and]
that, although the device or retainer (20) … includes a rigid structure, it is
still desirable to have the material of the device or retainer, which includes
the catheter receiving pad, be slightly flexible” (Answer 9-10). The
Examiner reasons that forming Bierman’s retainer “from a polymer foam
material as taught by Kornerup would still result in the device of Bierman et
al functioning properly … and would not change the principle of operation
of the device” (id. at 10).
This reasoning is not persuasive. Bierman discloses that its device is
made of “rigid but flexible” material (Bierman, col. 7, ll. 27-28), and that the
desired flexibility can be achieved in a device made of such material. The
Examiner has not provided evidence or technical reasoning adequate to
support a conclusion that a skilled worker would have recognized the foam
disclosed by Kornerup as an appropriate material for Bierman’s retainer,
which is made of a rigid, but flexible material. The Examiner failed to
establish that Boyd, relied upon to suggest “a releasable securing strap …
which comprises a hook-and-loop fastener assembly” makes up for the
Appeal 2011-004490
Application 11/706,634

8
foregoing deficiency in the combination of Bierman and Kornerup (see Ans.
6-7).
Thus, we reverse the rejection of independent claim 1 and dependent
claims 2-7 as being obvious in view of Bierman, Kornerup, and Boyd. Like
claim 1, independent claims 8 and 15 also require a catheter anchoring
device that comprises a “compressible catheter receiving pad … composed
of a polymer foam material.” For the reasons discussed above, we also
reverse the rejection of independent claims 8 and 15 and dependent claims
9-14 and 16-19 as being obvious in view of Bierman, Kornerup, and Boyd.
SUMMARY
We reverse the rejection of claims 1-19 under 35 U.S.C. § 103(a).

REVERSED

lp