Ex Parte Masters

Patent Trial and Appeal Board

Aug 23, 2016

13223504 (P.T.A.B. Aug. 23, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR
13/223,504 09/01/2011
97056 7590 08/25/2016
Levenfeld Pearlstein, LLC (Hollister Incorporated)
2 N. LaSalle St.
Suite 1300
Chicago, IL 60602
Brock Edward Masters
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.
373US (37150-82716) 7518
EXAMINER
DEICHL, JENNIFER M
ART UNIT PAPER NUMBER
3764
NOTIFICATION DATE DELIVERY MODE
08/25/2016 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):
ipdocket@lplegal.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte BROCK EDWARD MASTERS
Appeal2014-005683
Application 13/223,504
Technology Center 3700
Before ERIC B. GRIMES, ULRIKE W. JENKS, and
ROBERT A. POLLOCK, Administrative Patent Judges.
PERCURIAM
DECISION ON APPEAL
r-T"I.. • • .. • • .. 1 .. ,..... ,_ T T r'1 I'\ l\ -1 ,..... Al / '\. r'" , "1 ims 1s a aec1s10n on appear unaer j) u.~.L. s U4~aJ rrom me
Examiner's rejection of claims 1-16. We have jurisdiction under 35 U.S.C.
§ 6(b ).
We reverse.
STATEMENT OF THE CASE
The Specification discloses an "adaptive flange for an ostomy
appliance" (Spec. i-f 2). Figure 1 of the Specification is shown below:
1 Appellant identifies the Real Party in Interest as Hollister Incorporated (Br.
2).
Appeal2014-005683
Application 13/223,504
....... :; ~
,, ; ,~ ,J
~\ +t.s.':.i·., ..
'·· t'"'
~\. \(
.;~)j ,. h
,_. '"-·; M
.,, . if
·"·'i1
Figure 1 shows an "ostomy appliance 10 having a pouch assembly 11 and a
faceplate assembly 12" (id. at ii 23). "A first coupling ring 16 is secured to
one wall 13a of the pouch" (id. at ii 24).
"[T]he faceplate assembly 12 ... may be adhesively secured to the
patient's skin" (id. at ii 25) and includes a second coupling ring 37, which
includes flange portion 40 (id. at ii 27). "A thin annular web 42 of flexible
and resilient thermoplastic material joins the periphery of flange portion 40
to faceplate 30" (id. at ii 29). "The annular web 42 allows a wearer ... to
place his/her fingers behind the second coupling ring 3 7, that is, between the
coupling ring and faceplate 30, to better grasp the ring 3 7 so that it may be
coupled to ring 16" (Spec. ii 31 ).
Claim 1 is representative and reads as follows:
1. An ostomy appliance comprising:
a collection pouch;
a first coupling ring attached to the collection pouch, the first coupling
ring having a first opening therethrough in communication with the pouch;
2
Appeal2014-005683
Application 13/223,504
a faceplate having a rear surface and a front surface;
a second coupling ring adapted to sealingly mate with the first
coupling ring;
a web operably connecting the second coupling ring to the faceplate,
the second coupling ring having a second opening corresponding to the first
opening and a flange encircling the second opening, wherein the second
coupling ring and the first coupling ring are configured to couple the pouch
and the faceplate together; and
a securing member configured to releaseably, operably couple the
second coupling ring with the faceplate.
Issue
The Examiner has rejected claims 1, 3, 4, 6-9, 11, 12, and 14--16
under 35 U.S.C. § 103(a) as obvious in view of Ferguson2 and Alexander3
(Ans. 2-3). The Examiner has also rejected claims 2, 5, 10, and 13 under 35
U.S.C. § 103(a) as obvious in view of Ferguson, Alexander, and either
Newby4 (claims 2 and 10, Ans. 4) or Sawyer5 (claims 5 and 13, Ans. 4--5).
The issue presented is: Does the evidence of record support the
Examiner's conclusion that it would have been obvious to modify
Ferguson's device, based on Alexander, to include a securing member that
releaseably couples the second coupling ring with the faceplate?
Findings of Fact
1. Ferguson discloses a "coupling for joining an ostomy bag to a
pad" (Ferguson 1: 9-11).
2 Ferguson, US 4,826,496 issued May 2, 1989.
3 Alexander et al., US 2008/0269698 Al; published Oct. 30, 2008.
4 Newby et al., US 6,905,483 B2; issued June 14, 2005.
5 Sawyer, US 2007/0144996 Al; published June 28, 2007.
3
Appeal2014-005683
Application 13/223,504
2. Figures 1and2 of Ferguson are shown below:
Figures 1 and 2 show cross-sectional views of an ostomy device in an
expanded position and "in a normal position for use," respectively (id. at
3:42--46). Ostomy device 100 comprises "an ostomy bag 102, an adhesive
backed label 104 suitable for use on a patient's skin, first and second
coupling rings 106 and 108 shown in frictional engagement, and a mounting
means 110 for mounting one of the first or second rings 106 or 108,
respectively, to the label 104" (id. at 3 :65--4:3). "The expandable section
156 comprises a pair of accordion-like folds 160 and 162 ... [which]
facilitate displacement of the second coupling ri[n]g 108 relative to the
surface of base 140 by permitting the member 110 to expand when fingers
are inserted between the member 110 and the label 104" (id. at 4:60-67).
3. Alexander discloses "a collector device for collecting body
waste in an ostomy appliance. The collector device is ... expandable from a
compact form, in which the collector device is stowed initially, to an
expanded form, in which the collector device is deployed" (Alexander i-f 1 ).
4. Figures IA and IB of Alexander are shown below:
4
Appeal2014-005683
Application 13/223,504
FIG.1A FIG.16
Figure IA illustrates "the blocking (or non-discharge) condition, in which
... the collection device 12 is held in a stowed condition" (id. at i-f 38).
Figure IB illustrates "the non-blocking (or discharge) condition ... [in
which] the cover 26 is separated from, and displaced away from, the
intermediate coupling ring 24 in order to remove the seal 28 from the stoma,
and to distend the collection device 12 to a deployed condition" (id.).
5. Alexander discloses that the appliance 10 comprises "(a) an
adhesive faceplate 14 for attachment to the wearer's skin around a stoma 16,
and carrying a first coupling ring 18 ... [and] an intermediate coupling ring
24 mateable with the first coupling ring 18 ... [and] a cover 26 mateable
with, or removeably attached to, the intermediate coupling ring 24" (id. at
,-r,-r 33-36).
Analysis
The Examiner finds that Ferguson discloses an ostomy appliance
comprising most of the limitations of claim 1, but does not teach a securing
member that releasably couples the second coupling ring with the faceplate
(Ans. 2-3). The Examiner finds that Alexander discloses "a securing
member (see interaction of 24 and hooked edge of 26) configured to
releaseably couple a coupling ring (26) with a faceplate (14)" (id. at 3).
The Examiner concludes that it would have been obvious to one of
ordinary skill in the art to modify Ferguson's ostomy appliance with
5
Appeal2014-005683
Application 13/223,504
Alexander's securing means "in order to hold the device in a stowed
condition" (id.). The Examiner reasons that, "[f]ollowing the teachings of
Alexander, wherein the securing member is used to hold a web in a
collapsed position, such a combination yields a device wherein the securing
member is present on a rear surface of the second coupling ring ( 108 ... )
and the front surface of the faceplate (104 .. . )"(id.).
Appellant argues that Alexander does not teach "the claimed securing
member that secures the floating faceplate-side coupling ring ... that is
connected to a faceplate via a web therebetween" (Br. 8). Rather, Appellant
argues, Alexander's Figure IA shows that "the faceplate-side coupling ring
... is directly sealed to the faceplate 14. That is, there is no web connecting
the faceplate-side coupling ring to the faceplate" (id.). "Thus, there is
absolutely no need for the claimed securing member which secures a
floating faceplate-side coupling ring to the faceplate" (id.). Appellant argues
that Alexander's teaching of a deployable pouch that includes "a cover that
engages with a pouch-side coupling ring to hold a deployable pouch in a
compacted state" would not lead a skilled artisan "to modify Ferguson's
faceplate-side coupling ring configuration to include the claimed securing
member that secures a floating faceplate-side coupling ring to a faceplate"
(id. at 9).
We agree with Appellant that the Examiner has not adequately
explained why one of skill in the art, based on the cited references, would
have been motivated to modify Ferguson's ostomy device to include the
securing member required by claim 1.
6
Appeal2014-005683
Application 13/223,504
Alexander discloses an ostomy appliance that comprises a collecting
device 12 having a coupling ring 24 for mating with coupling ring 18 on a
faceplate (FFs 4, 5). In Alexander, coupling ring 18 (the "second coupling
ring" in claim 1) is directly attached to faceplate 14 (FF 4 (Fig. IA), FF5),
rather than being connected via a web as required by claim 1. The
Examiner, therefore, has not pointed to a disclosure in either of the cited
references of a second coupling member, connected by a web to the
faceplate, where the second coupling member is releasably coupled to the
faceplate by a securing member. The Examiner has not explained why one
of skill in the art nonetheless would have been motivated to modify
Ferguson's device to include the securing member that is required by claim
1.
Thus, we reverse the rejection of independent claim 1 and dependent
claims 3, 4, and 6-8 under 35 U.S.C. § 103(a). Independent claim 9 also
requires a faceplate comprising a second coupling ring, a web operably
connecting the second coupling ring to the faceplate, and "a securing
member configured to releaseably, operably couple the second coupling ring
with the faceplate." For the reasons discussed above for claim 1, therefore,
we also reverse the rejection of claim 9 and dependent claims 11, 12, and
14--16 under 35 U.S.C. § 103(a).
The rejections based on Ferguson and Alexander, and further in view
of either Newby or Sawyer rely on the combination of Ferguson and
Alexander as discussed above. Thus, we also reverse the rejection of claims
2, 5, 10, and 13 for the reasons discussed above.
7
Appeal2014-005683
Application 13/223,504
SUMMARY
We reverse the rejection of claims 1-16 under 35 U.S.C. § 103(a).
REVERSED
8