Ex Parte Parker

Patent Trial and Appeal Board

Nov 12, 2013

11423595 (P.T.A.B. Nov. 12, 2013)

UNITED STATES PATENT AND TRADEMARK OFFICE
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BEFORE THE PATENT TRIAL AND APPEAL BOARD
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Ex parte JEFFREY D. PARKER
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Appeal 2012-001676
Application 11/423,595
Technology Center 3700
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Before TONI R. SCHEINER, DONALD E. ADAMS, and
SHERIDAN K. SNEDDEN, Administrative Patent Judges.

ADAMS, Administrative Patent Judge.

DECISION ON APPEAL1
This appeal under 35 U.S.C. § 134 involves claims 1-30 (App. Br. 3).
Examiner entered rejections under 35 U.S.C. § 103(a). We have jurisdiction
under 35 U.S.C. § 6(b). We reverse.
STATEMENT OF THE CASE
Appellant’s “invention relates to endotracheal tubes, and more
particularly, to stylets for endotracheal tubes” (Spec. ¶ [0001]). Claims 1,
13, 14, and 24 are representative and are reproduced in the Claims Appendix
of Appellant’s Brief.

1 The Real Party in Interest is Parker Medical, Inc. (App. Br. 1.)
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Claims 1-12 and 14-30 stand rejected under 35 U.S.C. § 103(a) as
unpatentable over the combination of Schroeder2 and Hermann.3
Claim 13 stands rejected under 35 U.S.C. § 103(a) as unpatentable
over the combination of Schroeder, Hermann, and Blenkush.4
ISSUE
Does the preponderance of evidence relied upon by Examiner support
a conclusion of obviousness?
FACTUAL FINDINGS (FF)
FF 1. Schroeder suggests “[a] stylet for use in both oral and nasal
endotracheal intubation” (Schroeder, Abstract).
FF 2. Schroeder’s Figures 4 and 5 are reproduced below:

“FIG. 4 is a partial sectional view of … the stylet mounted in an
endotracheal tube in a[] … tensioned state” (id. at col. 4, ll. 7-9). “FIG. 5 is

2 Schroeder, US 5,259,377, issued Nov. 9, 1993.
3 Hermann et al., US 6,602,240 B2, issued Aug. 5, 2003.
4 Blenkush et al., US 4,903,995, issued Feb. 27, 1990.
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a partial sectional view of oral intubation of a patient utilizing the stylet
according to ... [Schroeder’s] invention” (id. at ll. 10-11).
FF 3. Schroeder suggests that
To successfully insert the endotracheal tube 30 into the
patient’s tracheal opening 40, the user must deflect the tapered
end 34 of the endotracheal tube 30 toward the tracheal opening
40. To create this deflection with the stylet 12 according to …
[Schroeder’s] invention, the user applies a squeezing force to
the handle … and the collar 18 to achieve enhanced curvature
of the distal end 24 of the flexible member 14.
(Id. at 6, ll. 37-44.)
FF 4. Examiner finds that Schroeder fails to suggest “a ratchet mechanism
associated with the second [of the pair of elongated, flexible] member[s] and
the collar whereby to selectively set the curvature” (Ans. 5; see, e.g.,
Appellant’s claims 1, 14, and 24).
FF 5. Examiner relies on Hermann to suggest “a slot and ratchet
mechanism connection for connecting two tubular objects” (id.; see also
Hermann, col. 2, ll. 65-67 (Hermann’s “invention provides for improved
methods and apparatus for providing a seal around a primary treatment
device”)).
FF 6. Examiner finds that the combination of Schroeder and Hermann fails
to suggest “a thickened portion distal of the ratchet mechanism and sized to
not be slidable through the collar slot to limit proximal sliding of the second
member” and relies on Blenkush to make up for this deficiency in the
combination of Schroeder and Hermann (id. at 8-9).
ANALYSIS
Based on the combination of Schroeder and Hermann, Examiner
concludes that, at the time Appellant’s invention was made, it would have
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been prima facie obvious “to modify Schroeder’s collar and second member
to include a ratchet mechanism as taught by Hermann to affix the stylet in
place without continual holding effort by a physician” (Ans. 6). According
to Examiner,
Schroeder already discloses adjustment of curvature and is only
being modified by Hermann to include fixation ratchets to
allow the physician to remove their hand from the device,
which is taught in the improvement of Hermann in fig. 4 and
fig. 5 in which Hermann first teaches a device … that must be
continually held by a physician (fig. 4) and an improvement to
that in fig. 5 with a ratcheting mechanism to allow the
physician to remove their hand from the device.
(Id. at 9-10.) As Appellant explains, however, Examiner’s interpretation of
Hermann’s figures is incorrect (Reply Br. 2; see also Hermann, col. 4, ll. 50-
65 and col. 5, l. 66 - col. 7, l. 40).
Nevertheless, Examiner asserts that “Hermann is not being used to
teach providing curvature to a member. Schroeder is used to teach providing
curvature and Hermann is applied to teach the fixation of a member to
prevent continual holding of a device” (Ans. 10). This is, however, contrary
to the requirements of Appellant’s claimed invention, which requires, inter
alia, a ratchet mechanism to selectively set the curvature of an endotracheal
tube (Appellant’s claim 1; see also Appellant’s remaining independent
claims 14 and 24).
Examiner failed to establish an evidentiary basis on this record to
support a conclusion that, at the time of Appellant’s invention, it would have
been prima facie obvious to a person of ordinary skill in this art to include
Hermann’s ratchet mechanism to connect two tubular objects in Schroeder’s
device to selectively set the curvature of a flexible member as is required by
Appellant’s claimed invention (see Ans. 10; Cf. Reply Br. 3). As Appellant
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explains, “[t]he nature of the ratchet mechanism in Hermann is only for
creating a clamping seal and has nothing to do with setting a curvature of a
member” as is required by Appellant’s claimed invention (App. Br. 13).
Blenkush fails to make up for the deficiency in the combination of
Schroeder and Hermann (see App. Br. 18).
CONCLUSION OF LAW
The preponderance of evidence relied upon by Examiner fails to
support a conclusion of obviousness.
The rejection of claims 1-12 and 14-30 under 35 U.S.C. § 103(a) as
unpatentable over the combination of Schroeder and Hermann is reversed.
The rejection of claim 13 under 35 U.S.C. § 103(a) as unpatentable
over the combination of Schroeder, Hermann, and Blenkush is reversed.
REVERSED

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