Ex Parte Noda et al

Patent Trial and Appeal Board

Oct 27, 2016

13659123 (P.T.A.B. Oct. 27, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR
13/659, 123 10/24/2012 Wayne A. Noda
24955 7590 10/31/2016
ROGITZ & AS SOCIA TES
Jeanne Gahagan
750B STREET
SUITE 3120
SAN DIEGO, CA 92101
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.
l 156-15C.DV2CON 9161
EXAMINER
COMLEY, ALEXANDER BRYANT
ART UNIT PAPER NUMBER
3746
NOTIFICATION DATE DELIVERY MODE
10/31/2016 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):
Noelle@rogitz.com
eofficeaction@appcoll.com
J ohn@rogitz.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte WAYNE A. NODA and STELICA STELEA
Appeal2014-008027
Application 13/659, 123
Technology Center 3700
Before CHARLES N. GREENHUT, MICHAEL L. HOELTER, and
PAUL J. KORNICZKY, Administrative Patent Judges.
GREENHUT, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Appellants appeal under 35 U.S.C. § 134 from a rejection of claims
27-31and35--49. 1 We have jurisdiction under 35 U.S.C. § 6(b).
We affirm-in-part.
1 The Examiner addresses the claims, with the following comment:
"Misnumbered claims 39-49 have been renumbered 38-48. However, in
order to avoid any possible confusion, the following rejections will refer to
claims as currently numbered in [Appellants'] reply filed on January [8],
2014." Final Act. 3 (emphasis omitted). We use the Examiner's convention.
Appeal2014-008027
Application 13/659, 123
CLAIMED SUBJECT MATTER
The claims are directed to a fluid pump assembly. Claim 27,
reproduced below, is illustrative of the claimed subject matter:
27. A fluid pump assembly, comprising:
a pump support platform supporting a motor; and
a pump removably engaged with the pump support
platform, the pump pumping working fluid to and from an
intravascular catheter, the motor being removably coupled to the
pump to provide power to the pump when the pump is engaged
with the pump support platform;
a magnet extending from the pump and coupled thereto;
a cup-shaped member coupled to the motor to receive the
magnet and magnetically engage the magnet such that as the cup-
shaped member is rotated by the motor it causes the magnet to
rotate which, in tum, causes the pump to pump fluid.
REJECTIONS
Claims 27-28, 35-37, 39, and 43--49 are rejected under pre-AIA 35
U.S.C. § 102(b) as being anticipated by Furlong (US 4,065,235, iss. Dec. 27,
1977).
Claims 29 and 40 are rejected under 35 U.S.C. § 103(a) as being
unpatentable over Furlong and Rani (US 5,634,907, iss. June 3, 1997).
Claims 30 and 41 are rejected under 35 U.S.C. § 103(a) as being
unpatentable over Furlong and Portner (US 4,126,132, iss. Nov. 21, 1978).
Claims 31 and 42 are rejected under 35 U.S.C. § 103(a) as being
unpatentable over Furlong and Tsuji (US 4,653,987, iss. Mar. 31, 1987).
OPINION
Each of claims 37, 39, and 47 requires "the collars," which means
both collars recited, to be "received in a pump bore." Appellants correctly
2
Appeal2014-008027
Application 13/659, 123
point out that "[t]he 'bore' [relied upon by the Examiner to reject these
claims] is formed by the legs (one of which is broken away in figure 1) and
the interior of the top of the element 45 on the outside of which the element
22 is bolted." Reply Br. 3 (emphasis added); see Ans. 12. Thus, we agree
with Appellants that "no part of the element 22 is 'within' the bore formed
by the element 45." Reply Br. 3. Thus, we cannot sustain the rejections of
claims 37, 39, and 47, and claims 40-45 depending from claim 39, on the
basis set forth by the Examiner.
With respect to the rejections of claims 27-31, 35, 36, 46, 48, and 49,
rejections not argued are summarily sustained. See Hyatt v. Dudas, 551 F.3d
1307, 1314 (Fed. Cir. 2008) ("[T]he applicant can waive appeal of a ground
of rejection"); 37 C.F.R. § 41.37(c)(iv).
DECISION
The Examiner's rejections of claims 37, 39--45, and 47 are reversed.
The Examiner's rejections of claims 27-31, 35, 36, 46, 48, and 49 are
affirmed.
AFFIRMED-IN-PART
3