Ex Parte Nasir

Patent Trial and Appeal Board

Mar 28, 2018

12627844 (P.T.A.B. Mar. 28, 2018)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
12/627,844 11130/2009
27667 7590
HA YES SOLOWAY P.C.
4640 E. Skyline Drive
TUCSON, AZ 85718
03/30/2018
FIRST NAMED INVENTOR
Muhammed Aslam Nasir
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.
SCOTT USP4870A DIV 4809
EXAMINER
STANIS, TIMOTHY A
ART UNIT PAPER NUMBER
3771
NOTIFICATION DATE DELIVERY MODE
03/30/2018 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):
admin@hayes-soloway.com
nsoloway@hayes-soloway.com
dlandau @hayes-soloway.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte MUHAMMED ASLAM NASIR
Appeal2017-006800
Application 12/627 ,844
Technology Center 3700
Before: STEFAN STAICOVICI, LEE L. STEPINA, and
ARTHUR M. PESLAK, Administrative Patent Judges.
ST AI CO VICI, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Muhammed Aslam Nasir ("Appellant") 1 appeals under 35 U.S.C.
§ 134(a) from the Examiner's decision in the Final Office Action (dated
May 5, 2016, hereinafter "Final Act.") rejecting claims 78-81, 83, 85-90,
92-94, 96-100, 102, 104--109, 111-113, and 115-127. 2 We have
jurisdiction under 35 U.S.C. § 6(b ).
1 Muhammed Aslam Nasir is identified as the real party in interest in
Appellant's Appeal Brief (dated Sept. 29, 2016, hereinafter "Appeal Br."), at
page 2.
2 Claims 1-77, 82, 84, 91, 95, 101, 103, 110, and 114 are canceled. Appeal
Br. 4.
Appeal2017-006800
Application 12/627,844
We REVERSE.
SUMMARY OF DECISION
INVENTION
Appellant's invention relates to "a laryngeal airway device." Spec. 1,
11. 8-9.
Claims 78, 88, 96, 97, 107, and 115 are independent. Claim 78,
reproduced below, is illustrative of the claimed subject matter:
78. A laryngeal mask airway device for human or animal use,
said device comprising:
(i) an airway tube having a distal end and a proximal end,
wherein the distal end of the airway tube is surrounded by a
laryngeal cuff adapted to form an anatomical fit over the
laryngeal inlet of a patient and to cover and form a seal with the
laryngeal inlet of the patient; and
(ii) a buccal cavity stabiliser formed as an integral part of
the airway tube, located on or around the airway tube between
the laryngeal cuff and the proximal end of the tube, wherein the
body of the buccal cavity stabiliser extends on both sides of the
airway tube and is generally elliptical in cross-section, wherein
the internal profile of the airway tube is substantially circular,
wherein the laryngeal cuff and a front, ventral part of the buccal
stabiliser are formed from a material of substantially the same
Shore hardness, and wherein the device is formed at least in part
by a transparent material whereby to permit an anaesthetist or
operator to see an inner lumen of the airway tube.
REJECTIONS
I. The Examiner rejects claims 78-81, 83, 85-90, 92-94, 96-100, 102,
104--109, 111-113, and 115-127 under 35 U.S.C. § 103(a) as being
unpatentable over Brain (US 4,509,514, iss. Apr. 9, 1985, hereinafter "Brain
'514"), Lew et al. (US 5,181,505, iss. Jan. 26, 1993, hereinafter "Lew"),
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Application 12/627,844
Brain (US 6,439,232B1, iss. Aug. 27, 2002, hereinafter "Brain '232"),
Tonrey (US 5,259,371, iss. Nov. 9, 1993), and Ennold (US 478,582, iss.
July 12, 1892).
II. The Examiner rejects claims 122-127 under 35 U.S.C. § 103(a) as
unpatentable over Brain '514, Lew, Brain '232, Tonrey, Ermold, and
Tielemans (US 2001/0027793 Al, pub. Oct. 11, 2001).
OPINION
Rejection I
Each of independent claims 78, 88, 96, 97, 107, and 115 recites, in
relevant part, "a buccal cavity stabiliser formed as an integral part of the
airway tube." Appeal Br. 20, 21, 23-25, and 27 (Claims App'x.).
The Examiner finds that Brain '514 discloses most of the limitations
of the independent claims but relies on Lew to teach a buccal stabilizer, as
called for by each of the independent claims. Final Act. 3--4 (citing Brain
'514, Figs. 1, 2; Lew, col. 3, 11. 6-8, Figs. la, 2). The Examiner takes the
position that because Appellant "is not claiming that the stabilizer is formed
as one piece with the airway tube," the device of Brain '514, as modified by
Lew, can be considered as "'integral' to the tube in the sense that it is
formed as an essential feature of the modified device of Brain to prevent
movement of the tube within the mouth of the patient." Id. at 6.
In the alternative, the Examiner finds that Ermold discloses a larynx
tube having a stabilizer section formed as an integral part of the tube. Id.
(citing Ermold, Figs. 4, 6). Thus, the Examiner concludes that it would have
been obvious for a person of ordinary skill in the art "to design the buccal
stabilizer of the modified device of Brain [' 514] to be an integral part of the
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Application 12/627,844
tube as taught by Ermold in order to simplify the manufacturing of the tube,
and to prevent any chance of the buccal cavity stabilizer disengaging from
the tube during use." Id.
Appellant argues that the term "integral" and the claimed language
"formed as an integral part of' "are not interchangeable," because the phrase
"formed as an integral part of' has a particular meaning that must be
consistent with how such language is used in Appellant's Specification.
Appeal Br. 13-14. According to Appellant, the Examiner's use of "the
phrase integral to in place of the actual claim language formed as an integral
part of ... [is] an unreasonably broad interpretation of the claim language,"
because the Specification distinguishes between these two phrases. Reply
Brief 7 (dated March 21, 2017, hereinafter "Reply Br.") (citing Spec. 17, 11.
30-32). Appellant asserts, moreover, that the addition of Ermold does not
help the Examiner because "Ermold does not teach or suggest any type of
buccal cavity stabiliser." Reply Br. 8. Appellant takes the position that
Ermold discloses an intubation tube, and nothing in Ermold supports the
Examiner's position that the widened "section of the tube operates as a
stabilizer and the Examiner has failed to provide any evidence that this
section of the intubation tube can properly be equated with a buccal cavity
stabiliser, as claimed." Id.
During examination, "claims ... are to be given their broadest
reasonable interpretation consistent with the [S]pecification, [] and ...
claim language should be read in light of the specification as it would be
interpreted by one of ordinary skill in the art." In re Bond, 910 F.2d 831,
833 (Fed. Cir. 1990) (alteration in original) (citing In re Sneed, 710 F.2d
1544, 1548 (Fed. Cir. 1983). In this case, we appreciate the Examiner's
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Application 12/627,844
position that "the term 'integral' does not necessarily require one-piece or
unitary construction." See Examiner's Answer 22 (dated Jan. 27, 2017,
hereinafter "Ans."); see also, e.g., Advanced Cardiovascular Sys. v. Scimed
Life Sys., 887 F.2d 1070, 1074 (Fed.Cir. 1989) (nothing of record limited
"integral" to mean "of one-piece" construction). However, in light of
Appellant's Specification, we do not agree that Lew's apparatus 10
constitutes "a buccal cavity stabiliser formed as an integral part of the
airway tube," as called for by each of independent claims 78, 88, 96, 97,
107, and 115.
Appellant's Specification describes an embodiment in which the
claimed buccal cavity stabilizer is formed by injection molding as "a one-
piece plastics moulding" with the airway tube. See Spec. 7, 1. 34--8, 1. 3.
The Specification describes additional embodiments of a buccal stabilizer
slidably mounted on an airway tube (see Spec. 6, 11. 32-33) and a buccal
cavity stabiliser formed as an integral part of the airway tube (see id., 11. 34--
35). Furthermore, the Specification distinguishes between these
embodiments by stating that "the buccal cavity stabiliser may be an integral
part of the airway tube, rather than being a separate component formed on or
around the airway tube itself." Spec. 17, 11. 30-32; see also Reply Br. 7.
As such, a skilled artisan, in light of Appellant's Specification, would
understand the term "integral" to mean "of one-piece" or of unitary
construction because "formed as an integral part" describes an embodiment
that is distinct from a separate component formed on or around the airway
tube itself. See Reply Br. 7. In contrast, Lew discloses that body 12 of
apparatus 10 is "slipped onto and off of the tube 40 of endotracheal tube 36."
Lew, col. 7, 11. 34--36. Therefore, Lew's separate components, namely,
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Application 12/627,844
apparatus 10 and tube 40, do not constitute "a buccal cavity stabiliser formed
as an integral part of the airway tube," as called for by each of independent
claims 78, 88, 96, 97, 107, and 115.
We also do not agree with the Examiner's position that because
Ermold "teach[ es] the formation of a larger diameter section of a larynx tube
(a 'stabilizer' section) as one piece with the remainder of the larynx tube,"
"Ermold teach[ es] the obviousness of making the tube and stabilizer as one,
unitary piece." Ans. 23. Although we appreciate that the device of Ermold
includes a portion with a widened cross section (see Ermold, Figs. 4, 6; see
also Final Act. 6), the Examiner does not explain adequately why this
widened portion constitutes a buccal cavity stabilizer, or would apply to a
buccal cavity stabilizer.
Ermold "relates to the manufacture of intubation-tubes for the larynx."
Ermold, col. 1, 11. 9--10. As seen from Figure 3 of Brain '514 and Figure 3
of Lew, the oropharynx or throat is between the oral cavity, including the
buccal mucosa, and the larynx. The Examiner does not explain adequately
why an intubation tube for the larynx would include a widened portion that
engages the tongue, or any other portion of the oral cavity. See Spec. 4, 11.
21-22; 6, 11. 13-14, and 16, 11. 21-23; see also Lew, col. 6, 11. 15-20.
Ermold is silent as to the function of the widened portion, and the Examiner
does not provide any persuasive evidence or technical reasoning that
supports the finding that Ermold's widened section constitutes a buccal
cavity stabilizing section. For these reasons, the Examiner has not
established by a preponderance of the evidence that Ermold discloses a
buccal cavity stabilizer, formed as an integral part of the airway tube, as
called for by each of independent claims 78, 88, 96, 97, 107, and 115. The
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Examiner's use of the disclosures of Brain '232 and Tonrey does not remedy
the deficiency of Brain '514, Lew and Ermold discussed above. See Final
Act. 4---6.
Accordingly, for the foregoing reasons, we do not sustain the rejection
under 35 U.S.C. § 103(a) of independent claims 78, 88, 96, 97, 107, and 115,
and their respective dependent claims 79--81, 83, 85-87, 89, 90, 92-94, 98-
100, 102, 104--106, 108, 109, 111-113, and 116-127, as unpatentable over
Brain '514, Lew, Brain '232, Tonrey, and Ermold.
Rejection II
The Examiner's use of the disclosure of Tielemans does not remedy
the deficiency of Brain '514, Lew, Brain '232, Tonrey, and Ermold
discussed supra. See Final Act. 20-22.
Accordingly, for the same reasons as discussed above, we also do not
sustain the rejection of claims 122-127 over the combined teachings of
Brain '514, Lew, Brain '232, Tonrey, Ermold, and Tielemans.
DECISION
The Examiner's decision to reject claims 78-81, 83, 85-90, 92-94,
96-100, 102, 104--109, 111-113, and 115-127 is reversed.
REVERSED
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