Ex Parte Moss

Patent Trial and Appeal Board

Sep 24, 2013

11952563 (P.T.A.B. Sep. 24, 2013)

UNITED STATES PATENT AND TRADEMARK OFFICE
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BEFORE THE PATENT TRIAL AND APPEAL BOARD
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Ex parte GERALD MOSS
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Appeal 2011-010955
Application 11/952,563
Technology Center 3700
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Before DONALD E. ADAMS, LORA M. GREEN, and
ULRIKE W. JENKS, Administrative Patent Judges.

JENKS, Administrative Patent Judge.

DECISION ON APPEAL
This is a decision on appeal1 under 35 U.S.C. § 134 from the
Examiner’s rejection of claims directed to a gastrointestinal aspiration
catheter and a method of using the catheter. The Patent Examiner has
rejected the claims for obviousness. We have jurisdiction under 35 U.S.C.
§ 6(b). We affirm.

1 Appellant states that the Real Party in Interest is Gerald Moss. (App.
Br. 3.)
Appeal 2011-010955
Application 11/952,563

2
STATEMENT OF THE CASE
The claims 26-31, 33-35, 37, 46, and 47 are drawn to a
gastrointestinal aspiration catheter and methods of using such a catheter, and
a recitation of the claims may be found in the Claims Appendix. (App.
Br. 21-23.)
The Examiner has rejected claims 26-31, 33-35, 37, 46, and 47 under
35 U.S.C. § 103(a) as being unpatentable over varying combinations of
Fearnot,2 Peacock,3 O'Keefe,4 Vitullo;5 and Park.6 (Ans. 4-10.)
We agree with the rejections and responses to Appellant’s arguments
that are set out in the Examiner’s Answer, and therefore adopt the
Examiner’s reasoning as our own. We note that Appellant’s reliance on In
re Imperato, 486 F.2d 585 (CCPA 1973) for the position that the references
must contain some suggestion or desirability for the combination is
misplaced (see App. Br. 12, 13, 16, 17, 18). The Supreme Court has rejected
the rigid application of the “teaching, suggestion, or motivation” test for
obviousness. KSR Int’l Co. v. Teleflex Inc., 550 U.S. 398, 422 (2007).
“Common sense teaches . . . that familiar items may have obvious uses
beyond their primary purposes, and in many cases a person of ordinary skill
will be able to fit the teachings of multiple patents together like pieces of a
puzzle.” Id. at 420.

2 Fearnot et al., US 5,069,674, issued Dec. 3, 1991.
3 Peacock, III et al., US 6,777,644 B2, issued Aug. 17, 2004
4 Stephen J. D. O'Keefe Transnasal Endoscopic Placement of
Feeding Tubes in the Intensive Care Unit, 27 J. OF PARENTERAL AND
ENTERAL NUTRITION, 349-354 (2003).
5 Vitullo et al., US 6,896,671 B2, issued May 24, 2005.
6 Park et al., US 6,159,187, issued Dec. 12, 2000.
Appeal 2011-010955
Application 11/952,563

3
The Examiner’s rejection is affirmed for the reasons set forth in the
Answer.
Arguments not made are waived. See 37 C.F.R. § 41.37(c)(1)(vii)
(“Any arguments or authorities not included in the brief or a reply brief . . .
will be refused consideration by the Board, unless good cause is shown.”).

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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