Ex Parte McEwen et al

Board of Patent Appeals and Interferences

Jan 18, 2012

11153667 (B.P.A.I. Jan. 18, 2012)

UNITED STATES PATENT AND TRADEMARKOFFICE
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.
11/153,667 06/15/2005 James A. McEwen 1077-036-PWH 9957
60597 7590 01/18/2012
HANCOCK HUGHEY LLP
P.O. BOX 6553
PORTLAND, OR 97228
EXAMINER
MCEVOY, THOMAS M
ART UNIT PAPER NUMBER
3731
MAIL DATE DELIVERY MODE
01/18/2012 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 BOARD OF PATENT APPEALS
AND INTERFERENCES
__________

Ex parte JAMES A. McEWEN, KENNETH L. GLINZ,
KEVIN B. INKPEN, and MICHAEL JAMESON
__________

Appeal 2010-007752
Application 11/153,667
Technology Center 3700

__________

Before ERIC GRIMES, LORA M. GREEN, and
JEFFREY N. FREDMAN, Administrative Patent Judges.

GRIMES, Administrative Patent Judge.

DECISION ON APPEAL
This is an appeal under 35 U.S.C. § 134 involving claims to a
tourniquet cuff, which the Examiner has rejected as obvious. We have
jurisdiction under 35 U.S.C. § 6(b). We affirm.
STATEMENT OF THE CASE
Claims 14-16, 18-20, and 22 are on appeal. Claim 20, the only
independent claim, is representative and reads as follows:
Appeal 2010-007752
Application 11/153,667

2
20. A tourniquet cuff having an improved pneumatic passageway,
comprising:
a first layer of flexible thermoplastic material having a first layer
sealing surface,
a second layer of flexible thermoplastic material having a second layer
sealing surface facing the first layer sealing surface,
a perimeter seal establishing a gas-tight seal between the first layer
sealing surface and the second layer sealing surface around a predetermined
perimeter to form an inflatable bladder within the perimeter seal, wherein
the perimeter seal includes an extruded bead of fused-together portions of
the first and second layer of thermoplastic material protruding into the
inflatable bladder and having a bead thickness for separating the first sealing
surface from the second sealing surface within the bladder near the bead,
thereby establishing a bladder pneumatic passageway along the perimeter
seal; and
a port having a bladder sealing flange sealed to the first layer sealing
surface and passing through the first layer to establish a port passageway
from a distal port end outside the first layer through the port and into the
bladder near the edge of the bladder sealing flange along a channel that is
formed in the bladder sealing flange.

The claims stand rejected under 35 U.S.C. § 103(a) as follows:
• Claims 18-20 based on McEwen,1 Cook,2 and Savage3 (Answer 3);
• Claims 14, 15, and 22 based on McEwen, Cook, Savage, and
Schrock4 (Answer 4); and
• Claim 16 based on McEwen, Cook, Savage, Schrock, and Werth5
(Answer 5).

1 McEwen et al., US 2003/003677 A1, issued February 20, 2003
2 Cook, US 2004/0067327 A1, Apr. 8. 2004
3 Savage et al., US 6,607,097 B2, issued August 19, 2003
4 Schrock, US 3,720,235, issued March 13, 1973
5 Werth, US 2003/0006610 A1, issued January 09, 2003
Appeal 2010-007752
Application 11/153,667

3
With regard to the rejection of claim 20, the Examiner finds that
McEwen discloses a tourniquet cuff that meets most of the claim limitations,
but does not “disclose that the perimeter seal includes an extruded bead of
fused together portions of the first and second layer of thermoplastic
material which protrudes into the bladder” (Answer 3).
The Examiner finds that “Cook teaches that it is well-known in the art
that a seal comprises an extruded bead formed from bladder layers which
protrudes into the bag interior (Figure 1C; paragraphs 0022-0025)” (id. at 3-
4). The Examiner concludes that it would have been obvious “to have used
the well-known seal taught by Cook to seal the layers of the McEwen et al.
bladder” (id. at 4).6 See also id. at 6-7 (“one of ordinary skill in the art
would use the well-known structure disclosed by Cook to modify McEwen
et al.”).
Appellants argue that Cook teaches away from the extruded bead
recited in the claims on appeal, because it discloses that such a bead is a
feature of a prior art seal that has disadvantages that are solved by Cook’s
different, inventive seal (Appeal Br. 5-7).
We conclude that the evidence of record supports the Examiner’s
rejection. McEwen discloses a tourniquet cuff having first and second
layers, or “[o]uter strip 68 and inner strip 80 . . . [that] are bonded together to
form an inflatable bladder” (McEwen 7, ¶ 50). McEwen states that “the
terms ‘bond’ or ‘bonded’ will generally refer to processes such as radio

6 The Examiner relies on Savage to meet the limitation of a plurality of
channels recited in dependent claim 18 (Answer 4). Appellants do not
dispute that Savage would have made obvious that limitation.
App
App

frequ
plast
suita
form
frequ
show
form
¶ 16)
bead
at 2,
inven
proc
redu
radio
eal 2010-0
lication 11
ency (RF
ic welding
ble” for th
Cook sta
ing an infl
ency weld
n below:
The figu
ed by radi
. Cook di
9 of molt
¶ 25).
Cook als
tion . . . [
ess” (id. at
ction in str
frequency
07752
/153,667
) welding,
, adhesive
e material
tes that its
atable bla
ing” (Coo
re shows a
o frequenc
scloses tha
en polyme
o disclose
that] is qui
2, ¶ 26).
ength or f
welding
ultrasonic
bonding,
s of its cuf
“FIG. 1 i
dder for th
k 1, ¶ 22)
wall cros
y welding
t one “con
r formed b
s a “novel
te differen
Cook disc
atigue life
technique”
4
sewing an
or solvent
f (id. at 5,
llustrates t
e A-V Imp
. Cook’s F
s sectional
in accord
sequence
etween th
technique
t from the
loses that
compared
(id. at 2,
d welding
bonding s
¶ 30).
he conven
ulse Syste
igure 1C,
detail vie
ance with
of welding
e skins 1 a
in accord
radio freq
its techniq
with joint
¶ 31).
, other for
elected to
tional met
mTM using
in relevan
w of a wel
the prior a
is . . . an
nd 2 as sh
ance with
uency wel
ue causes
s produced
ms of
be
hod of
radio
t part, is
ded joint
rt (id. at 1
extruded
own” (id.
the
ding
“no
by the

,
Appeal 2010-007752
Application 11/153,667

5
Thus, although Cook discloses a different bonding method that has
certain advantages over radio frequency welding with respect to strength and
fatigue life, it also teaches that the perimeter seal shown in its Figure 1C was
conventional and well-known to those skilled in the art. We therefore agree
with the Examiner that it would have been obvious to bond the layers of
McEwen’s product using radio frequency welding, despite the drawbacks of
this method that are solved by Cook’s different bonding method, because
radio frequency welding was a conventional means to carry out such
bonding. This conclusion is strengthened by McEwen’s express suggestion
to use radio frequency (RF) welding to carry out the bonding needed to
make its product (McEwen 5, ¶ 30).
Cook’s disclosure of the advantages of its process over conventional
radio frequency welding is not, as Appellants argue, a teaching away from
using radio frequency welding. Cook’s discussion would provide a reason
for a skilled worker to use Cook’s inventive process when strength or fatigue
life was particularly desirable, but as the Examiner has pointed out (Answer
6), Cook does not suggest that radio frequency welding would not
effectively bond the layers of McEwen’s device. Cook therefore does not
teach away from combining conventional radio frequency welding with
McEwen’s device. See Syntex (U.S.A.) LLC v. Apotex, Inc., 407 F.3d 1371,
1380 (Fed. Cir. 2005) (“Under the proper legal standard, a reference will
teach away when it suggests that the developments flowing from its
disclosures are unlikely to produce the objective of the applicant’s
invention.”). Rather, the use of radio frequency welding to make McEwen’s
device would have been a predictable variation based on the state of the art.
Appeal 2010-007752
Application 11/153,667

6
See KSR Int’l Co. v. Teleflex Inc., 550 U.S. 398, 417 (2007) (“If a person of
ordinary skill can implement a predictable variation [of a known work],
§ 103 likely bars its patentability.”).
SUMMARY
We affirm the rejection of claim 20 under 35 U.S.C. § 103 based on
McEwen, Cook, and Savage. Because claims 18 and19 were not argued
separately, they fall with claim 20. 37 C.F.R. § 41.37(c)(1)(vii).
Appellants have waived any arguments based on the Schrock and
Werth references. Accordingly, we also affirm the rejection of claims 14,
15, and 22 based on McEwen, Cook, Savage, and Schrock, and the rejection
of claim 16 based on McEwen, Cook, Savage, Schrock, and Werth.
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

dm