Ex Parte Nilsson et al

Patent Trial and Appeal Board

Mar 26, 2018

13598476 (P.T.A.B. Mar. 26, 2018)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR
13/598,476 08/29/2012
127226 7590 03/28/2018
BIRCH, STEW ART, KOLASCH & BIRCH, LLP
8110 Gatehouse Road
Suite 100 East
Falls Church, VA 22042-1248
Martin NILSSON
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.
0104-0644PUS3 7985
EXAMINER
SCHMIDT, EMILY LOUISE
ART UNIT PAPER NUMBER
3763
NOTIFICATION DATE DELIVERY MODE
03/28/2018 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):
mailroom@bskb.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte MARTIN NILSSON and ERIK ANDREEN
Appeal2017-002851
Application 13/598,476
Technology Center 3700
Before ANNETTE R. REIMERS, JILL D. HILL, and
THOMAS F. SMEGAL, Administrative Patent Judges.
SMEGAL, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Martin Nilsson and Erik Andreen (Appellants) 1 seek our review under
35 U.S.C. § 134 of the Examiner's rejections2 of claims 1, 2, 4--20, 22-29,
32-35 and 37. 3 We have jurisdiction under 35 U.S.C. § 6(b ).
We AFFIRM.
1 According to Appellants, the real party in interest is ASTRA TECH AB.
Br. 1.
2 Appeal is taken from the adverse decision of the Examiner as set forth in
the Final Office Action, dated March 17, 2015 ("Final Act.").
3 Claims 21 and 36 have been canceled. Claim 3 is objected to as being
dependent upon a rejected base claim, but would be allowable if rewritten in
independent form including all of the limitations of the base claim and
any intervening claims. Final Act. 15. Claims 31 and 32 are allowed. See
id. at 14.
Appeal2017-002851
Application 13/598,476
CLAIMED SUBJECT MATTER4
Claims 1, 29, and 3 2 are independent. Claim 1 is reproduced below
and illustrates the claimed subject matter, with disputed limitations
emphasized.
1. A self-contained portable apparatus for administration of
a drug solution, said apparatus comprising:
a housing having an enclosure for receiving a flexible
pouch with a first chamber therein containing a drug solution,
wherein said enclosure has a second chamber arranged outside
said pouch, the first and second chambers being arranged in a
pressure-transmitting relation within said enclosure;
an output from said first chamber connectable to a conduit
for delivering said drug solution to a recipient; and
a pressurization system for providing a constant and
controllable gas pressure to said second chamber, wherein a
controllable pressure is obtained in said first chamber for a
controllable delivery of the drug solution, wherein said
pressurization system comprises:
a pressure source for delivering positive pressure gas;
a pressure accumulation tank connected to said source and
to said second chamber, arranged to provide a positive pressure
reserv01r;
a one-way valve arranged between said pressure source
and said pressure accumulation tank, enabling gas to flow solely
in the direction from the pressure source to the pressure
accumulation tank; and
a mechanical pressure regulator arranged between said
pressure accumulation tank and said second chamber,
wherein the pressure accumulation tank is integrated on or
within the housing, and the second chamber is formed by an
inflatable bladder, said inflatable bladder wrapping around the
flexible pouch containing the drug solution in a manner that
4 A revised copy of the CLAIMS APPENDIX, including a correct copy of
the allowed claims and the claims on appeal, is included with a document
styled "Reply to Notice of Non-Compliant Amendment," (hereinafter
"Second Br." filed May 12, 2016).
2
Appeal2017-002851
Application 13/598,476
inflatable parts of the bladder are arranged on opposite sides of
the flexible pouch.
REJECTIONS
The following Examiner's rejections are before us for review.
1. Claims 1, 2, 13-15, 18, 20, 22-25, 27-29, 32, and 35 are rejected
under 35 U.S.C. § 103(a) as unpatentable over Dancy (US 3,640,276,
iss. Feb, 8, 1972), Hoback (US 5,810,202, iss. Sept. 22, 1998), and
Wang (US 4,857,055, iss. Aug. 15, 1989).
2. Claims 4 and 5 are rejected under 35 U.S.C. § 103(a) as
unpatentable over Dancy, Hoback, Wang, and Herskowitz (US
5,554,123, iss. Sept. 10, 1996).
3. Claim 6 is rejected under 35 U.S.C. § 103(a) as unpatentable over
Dancy, Hoback, Wang, and Bierman (US 3,468,308, iss. Sept. 23,
1969).
4. Claims 7-12 are rejected under 35 U.S.C. § 103(a) as unpatentable
over Dancy, Hoback, Wang, and Stewart (US 5,163,909, iss. Nov. 17,
1992).
5. Claim 26 is rejected under 35 U.S.C. § 103(a) as unpatentable
over Dancy, Hoback, Wang, and Gray (US 6,382,923 Bl, iss. May 7,
2002).
6. Claims 33 and 34 are rejected under 35 U.S.C. § 103(a) as
unpatentable over Dancy, Hoback, Wang, and Hyun (US 5,891,096,
iss. Apr. 6, 1999).
7. Claims 1, 2, 13-15, 18, 20, 22-25, 27, 28, and 37 are rejected
under U.S.C. § 103(a) as being unpatentable over Dancy, Mandl (US
4,551,136, iss. Nov. 5, 1985), and Wang.
3
Appeal2017-002851
Application 13/598,476
8. Claims 4 and 5 are rejected under 35 U.S.C. § 103(a) as
unpatentable over Dancy, Mandl, Wang, and Herskowitz.
9. Claim 6 is rejected under 35 U.S.C. § 103(a) as unpatentable over
Dancy, Mandl, Wang, and Bierman.
10. Claims 7-12 are rejected under 35 U.S.C. § 103(a) as unpatentable
over Dancy, Mandl, Wang, and Stewart.
11. Claim 26 is rejected under 35 U.S.C. § 103(a) as unpatentable
over Dancy, Mandl, Wang, and Gray.
ANALYSIS
First Ground of Rejection: Obviousness of Claims 1, 2, 13-15, 18, 20,
22-25, 27-29, 32, and 35 over Dancy, Hoback, and Wang
Appellants argue claims 1, 2, 13-15, 18, 20, 22-25, 27-29, 32, and 35
together in contesting the rejection of these claims as obvious over Dancy,
Hoback, and Wang. 5 See Br. 6-11. We select claim 1 as the representative
claim for this group, and the remaining claims stand or fall with claim 1.
See 37 C.F.R. § 41.37(c)(l)(iv).
The Examiner finds that Dancy teaches a self-contained portable
apparatus for administration of a drug solution having substantially all the
limitations of claim 1, including a one-way valve arranged between a
pressure source and a pressure accumulation device6, and a housing having
an enclosure containing a flexible pouch and an inflatable bladder in a
5 While independent claims 29 and 33 are included under a separate heading,
the Appeal Brief contains no arguments in addition to those presented for
claim 1. See Br. 11.
6 The Examiner correctly identifies one-way valve 63. See Ans. 2.
4
Appeal2017-002851
Application 13/598,476
pressure-transmitting relation, but "does not explicitly disclose a bladder
with inflatable parts on opposite sides of the pouch." Final Act. 2-3. The
Examiner looks to Hoback for teaching "a drug solution pouch enclosed
within an inflatable bladder around the entire pouch," that "stabilizes [the
pouch] and enables the pressure to be more uniformly distributed and a more
constant pressure is achieved allowing for more efficient delivery." Id. at 3
(citing Hoback, col. 2, 11. 61-67). 7
Based on the foregoing, the Examiner determines it would have been
obvious
Id.
to use an inflatable bladder around the drug pouch within the
housing in the embodiment of Figure 1 of Dancy ... , because
Dancy ... teaches this is an equivalent means for pressurization
and [Hoback teaches] such an inflatable arrangement is
beneficial because such an arrangement stabilizes [the] inner
bag and enables the pressure to be more uniformly distributed
[so that] a more constant pressure is achieved allowing for more
efficient delivery.
In taking issue with the Examiner's findings and conclusions in the
Final Office Action, Appellants contend that Dancy "nowhere teaches or
suggests that the pressurization system is integrated on or within the housing
having the enclosure for receiving the flexible pouch." Br. 7. However, we
agree with the Examiner that "as shown in at least Figure 4 of Dancy [,] as
7 The Examiner also observes that Wang "teaches using inflatable bladders
on either side of a drug pouch within a rigid housing as a beneficial means
for achieving a constant flow rate." Final Act. 3 (citing Wang, col. 2, 11. 43-
49; col. 3, 11. 4--7).
5
Appeal2017-002851
Application 13/598,476
all the components are mated together[,] the pressurization system is in fact
integrated." Ans. 2. Appellants have not disputed these findings. 8
Appellants continue by first acknowledging "Hoback discloses an
inner bag 14 (the alleged flexible pouch), which is arranged within an outer
bag 12, in which the air pressure may be increased," but then contending that
"Hoback does not disclose any bladder wrapping around the pouch at all."
Br. 7. Appellants reason that "Hoback discloses a single, non-wrapped
bladder, in which the pouch is encapsulated," which "makes it impossible to
use standard pouches." Br. 7.
However, Appellants' contention is unavailing as it is not
commensurate with the scope of claim 1, which does not recite that the first
chamber is a standard pouch. See Second Br. 3, Claims App. 9 As we are
instructed by our reviewing court, "limitations are not to be read into the
claims from the [S ]pecification." In re Van Geuns, 98 8 F .2d 1181, 1184
(Fed. Cir. 1993) (citing In re Zietz, 893 F.2d 319, 321 (Fed. Cir. 1989)).
Furthermore, we determine the scope of the claims in a patent
application upon giving claims "their broadest reasonable interpretation
consistent with the specification" and "in light of the specification as it
would be interpreted by one of ordinary skill in the art." In re Am. A cad. of
Sci. Tech Ctr., 367 F.3d 1359, 1364 (Fed. Cir. 2004) (quoting In re Bond,
910 F.2d 831, 833 (Fed. Cir. 1990). "Construing claims broadly during
prosecution is not unfair to the applicant ... because the applicant has the
opportunity to amend the claims to obtain more precise claim coverage." Id.
Thus, we agree with the Examiner "that as the bladder [of Hoback] encloses
8 Appellants have not filed a Reply Brief.
9 See, supra, n.4.
6
Appeal2017-002851
Application 13/598,476
and surrounds the pouch[,] this is sufficient to meet the term 'wrap'." Ans.
2.
Appellants further contend that Hoback "does not disclose any
housing in which the pouch and the inflatable bladder are arranged," noting
that "Hoback actually teaches against the use of both a wrapped bladder
(see col. 1, lines 54-65 of Hoback) and the use of an outer housing (see col.
1, line 66- col. 2, line 9 of Hoback)." Br. 8. However, Appellants misread
Hoback.
Appellants' contention relies on descriptions of prior art procedures
over which Hoback distinguishes. See Hoback, col. 2, 11. 61---67. Thus, we
agree with the Examiner that while "Hoback may teach it is not as successful
to use a blood pressure cuff, the Examiner does not find this to be a teaching
away from using a wrapped bladder as this is specifically to a blood pressure
cuff." Ans. 2.
Based on the foregoing, we sustain the Examiner's rejection of claims
1, 2, 13-15, 18, 20, 22-25, 27-29, 32, and 35 over Dancy, Hoback, and
Wang. 10
10 We consider the remaining reference to Wang cumulative to the teachings
of Dancy and Hoback. The Board may rely on less than all of the references
applied by an Examiner in an obviousness rationale without designating it as
a new ground of rejection. In re Bush, 296 F.2d 491, 496, 131USPQ263,
266-67 (CCPA 1961); In re Boyer, 363 F.2d 455, 458, n.2, 150 USPQ 441,
444, n.2 (CCPA 1966); In re Kronig, 539 F.2d 1300, 1302 (CCPA 1976).
7
Appeal2017-002851
Application 13/598,476
Second-Sixth Grounds of Rejection: Obviousness of Claims 4 and 5
over Dancy, Hoback, Wang, and Herskowitz; of Claim 6 over Dancy,
Hoback, Wang, and Bierman; of Claims 7-12 over Dancy, Hoback, Wang,
and Stewart; of Claim 26 over Dancy, Hoback, Wang, and Gray; and of
Claim 33 and 34 over Dancy, Hoback, Wang, and Hyun
Regarding dependent claims 4--12, 26, 33, and 34, Appellants contend
they are allowable based on their respective dependence on independent
claims 1, 26, and 32. Br. 11-14. However, we are not persuaded that
Appellants' arguments are demonstrative of error in the Examiner's rejection
of claims 1, 26, and 32, as set forth supra. As such, for the same reasons, we
sustain the rejections under 35 U.S.C. § 103(a) of claims 4 and 5 over
Dancy, Hoback, Wang, and Herskowitz; of claim 6 over Dancy, Hoback,
Wang, and Bierman; of claims 7-12 over Dancy, Hoback, Wang, and
Stewart; of claim 26 over Dancy, Hoback, Wang, and Gray; and of claim 33
and 34 over Dancy, Hoback, Wang, and Hyun.
Seventh Ground of Rejection: Obviousness of Claims 1, 2, 13-15, 18,
20, 22-25, 27, 28, and 37 over Dancy, Mand!, and Wang
We affirmed the rejection of claims 1, 2, 13-15, 18, 20, 22-25, 27, 28,
and 37 under 35 U.S.C. § 103(a) as unpatentable over Dancy, Hoback, and
Wang. Consequently, we find it unnecessary to reach a decision about the
cumulative rejection under 35 U.S.C. § 103(a) of claims 1, 2, 13-15, 18, 20,
22-25, 27, 28, and 37 over Dancy, Mandl, and Wang. See 37 C.F.R. §
41.50(a)(l) ("The affirmance of the rejection of a claim on any of the
grounds specified constitutes a general affirmance of the decision of the
examiner on that claim .... ").
8
Appeal2017-002851
Application 13/598,476
Eighth-Twelfth Grounds of Rejection: Obviousness of Claims 4 and 5
over Dancy, Mand!, Wang, and Herskowitz; of Claim 6 over Dancy, Mand!,
Wang, and Bierman; of Claims 7-12 over Dancy, Mand!, Wang, and
Stewart; of Claim 26 over Dancy, Mand!, Wang, and Gray; and of Claim 33
and 34 over Dancy, Mand!, Wang, and Hyun
We affirmed the rejections under 35 U.S.C. § 103(a) of claims 4 and 5
over Dancy, Hoback, Wang, and Herskowitz; of claim 6 over Dancy,
Hoback, Wang, and Bierman; of claims 7-12 over Dancy, Hoback, Wang,
and Stewart; of claim 26 over Dancy, Hoback, Wang, and Gray; and of
claims 33 and 34 over Dancy, Hoback, Wang, and Hyun. Consequently, we
find it unnecessary to reach a decision about the cumulative rejection under
35 U.S.C. § 103(a) of claims 4 and 5 over Dancy, Mandl, Wang, and
Herskowitz; of claim 6 over Dancy, Mandl, Wang, and Bierman; of claims
7-12 over Dancy, Mandl, Wang, and Stewart; of claim 26 over Dancy,
Mandl, Wang, and Gray; and of claims 33 and 34 over Dancy, Mandl,
Wang, and Hyun. See 37 C.F.R. § 41.50(a)(l) ("The affirmance of the
rejection of a claim on any of the grounds specified constitutes a general
affirmance of the decision of the examiner on that claim .... ").
DECISION
We AFFIRM the Examiner's U.S.C. § 103 rejections of claims 1, 2,
13-15, 18, 20, 22-25, 27-29, 32, and 35 over Dancy, Hoback, and Wang; of
claims 4 and 5 over Dancy, Hoback, Wang, and Herskowitz; of claim 6 over
Dancy, Hoback, Wang, and Bierman; of claims 7-12 over Dancy, Hoback,
Wang, and Stewart; of claim 26 over Dancy, Hoback, Wang, and Gray; and
of claims 33 and 34 over Dancy, Hoback, Wang, and Hyun.
9
Appeal2017-002851
Application 13/598,476
We do not reach the additional issues raised by Appellants regarding
the cumulative rejections of claims 1, 2, 13-15, 18, 20, 22-25, 27, 28, and
37 over Dancy, Mandl, and Wang; of claims 4 and 5 over Dancy, Mandl,
Wang, and Herskowitz; of claim 6 over Dancy, Mandl, Wang, and Bierman;
of claims 7-12 over Dancy, Mandl, Wang, and Stewart; of claim 26 over
Dancy, Mandl, Wang, and Gray; and of claims 33 and 34 over Dancy,
Mandl, Wang, and Hyun.
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a). See 37 C.F.R.
§ 1.136(a)(l )(iv).
AFFIRMED
10