Ex Parte Reuther et al

Patent Trial and Appeal Board

Sep 19, 2018

13253246 (P.T.A.B. Sep. 19, 2018)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR
13/253,246 10/05/2011 Martin Reuther
27774 7590 09/21/2018
MA YER & WILLIAMS PC
55 Madison A venue
Suite 400
Morristown, NJ 07960
UNITED ST A TES OF AMERICA
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.
7003/107 8076
EXAMINER
BOUCHELLE, LAURA A
ART UNIT PAPER NUMBER
3763
NOTIFICATION DATE DELIVERY MODE
09/21/2018 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):
docket@mwpatentlaw.com
mwolf@mwpatentlaw.com
kwilliams@mwpatentlaw.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte MARTIN REUTHER, MATTHIAS STILLER, and
THOMAS MERZHAUSER
Appeal 2017-011445
Application 13/253,246 1
Technology Center 3700
Before LINDA E. HORNER, EDWARD A. BROWN, and
JEREMY M. PLENZLER, Administrative Patent Judges.
BROWN, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Martin Reuther et al. ("Appellants") appeal under 35 U.S.C. § 134(a)
from the Examiner's decision rejecting 1, 2, and 6-9, which are all the
pending claims. We have jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM.
1 The Appeal Brief identifies W.O.M. World of Medicine GMBH as the real
party in interest. Br. 3.
Appeal 2017-011445
Application 13/253,246
CLAIMED SUBJECT MATTER
Claim 1 is the sole independent claim on appeal, and reads:
1. A device for rinsing a body cavity with a fluid,
compnsmg:
a controllable rinsing pump;
a feed line connected to the pressure side of said
controllable rinsing pump and including a first medical
instrument with a rinsing channel, wherein said first medical
instrument is configured to be introduced into the body cavity;
a drainage cannula configured to be introduced into the
body cavity and including a drainage line with a pinch valve to
control the volume flow of fluid through the drainage line;
a pressure sensor for determining the pressure in the body
cavity, wherein said pressure sensor is located in the drainage
line between said drainage cannula and the pinch valve, the
drainage line having the volume flow of fluid therethrough; and
a second medical instrument which is a shaver, wherein
the shaver controls the pinch valve such that when setting the
shaver into operation, the pinch valve moves to the closed
position, and when the shaver is at a standstill, the pinch valve
moves to the open position.
Br. 16 (Claims App.).
REJECTIONS
Claims 1, 2, 7, and 9 stand rejected under 35 U.S.C. § I03(a) as
unpatentable over Haischmann (EP 1 3 82 291 B 1, published Dec. 2, 2009),
DeSatnick (US 4,650,462, issued Mar. 17, 1987), and Kumar (US
2008/0091071 Al, published Apr. 17, 2008).
Claims 6 and 8 stand rejected under 35 U.S.C. § I03(a) as
unpatentable over Haischmann, DeSatnick, Kumar, and Blight (US
2008/0154185 Al, published June 26, 2008).
2
Appeal 2017-011445
Application 13/253,246
ANALYSIS
Rejection of claims 1, 2, 7, and 9 over Haischmann, DeSatnick, and Kumar
Appellants argue claims 1, 2, 7, and 9 as a group. Br. 9--13. We
select claim 1 as representative of the group; claims 2, 7, and 9 stand or fall
with claim 1. See 37 C.F.R. § 4I.37(c)(l)(iv).
Claim 1 calls for "a pressure sensor for determining the pressure in the
body cavity, wherein said pressure sensor is located in the drainage line
between said drainage cannula and the pinch valve, the drainage line having
the volume flow of fluid therethrough." Br. 16 (Claims App. (emphasis
added)) (hereinafter, also referred to as the "pressure sensor limitation").
The Examiner finds that Haischmann discloses a device for rinsing a
body cavity 1, comprising feed line 4 connected to the pressure side of
rinsing pump 3 and including a first medical instrument 5 configured to be
inserted into body cavity 1, drainage cannula 7 configured to be introduced
into body cavity 1 and including drainage line 8 with pinch valve (flow
resistance controller 12), and pressure sensor 6 for determining the pressure
in body cavity 1. Final Act. 4 ( citing Haischmann, Abstract, Fig. 1, col. 2, 11.
30-50).2 The Examiner determines, however, that pressure sensor 6 is
located on the pressure side of rinse pump 3, rather than on the pressure side
of drainage line 8, as claimed. Id.
The Examiner relies on DeSatnick for teaching a device for rinsing a
body cavity, comprising a pressure sensor (pressure sensing or pressure
2 The Examiner refers to the English-language counterpart of EP 1 382 291
Bl (i.e., US 7,371,224 B2, issued May 13, 2008) when referring to
"Haischmann." Herein, all references to Haischmann are directed to the
'224 patent.
3
Appeal 2017-011445
Application 13/253,246
feedback tube 30) located on the drainage line between a drainage cannula
and a pinch valve. Final Act. 4 (citing DeSatnick, col. 4, 11. 14--17). The
Examiner determines it would have been obvious to modify Haischmann in
view of DeSatnick to include the pressure sensor on the pressure side of the
drainage line, "because the pressure sensor will work equally well at either
location because both locations are in fluid communication with the body
cavity." Id. at 5.
The Examiner further determines that the combination of Haischmann
and DeSatnick teaches a pressure sensor comprising a transducer and a
column of fluid in a tube in communication with the drainage tube, whereas
claim 1 calls for "the pressure sensor to be located in the drainage line
having a volume of outflow fluid therethrough." Id. The Examiner finds
that Kumar teaches an irrigation suction device including a pressure sensor
with a pressure transducer that measures the pressure in a column of air or
liquid located in a tube associated with a fluid flow tube, similar to
DeSatnick. Id. The Examiner notes this pressure corresponds to the
pressure within the body cavity. Id. ( citing Kumar ,r 51 ). Additionally, the
Examiner finds that Kumar teaches an alternative pressure sensor including
a membrane diaphragm incorporated in the wall of the flow tube and directly
contacting fluid contained in the flow tube. Id. ( citing Kumar ,r 51 ). The
Examiner determines that because Kumar teaches that a pressure sensor
within a flow line is a known alternative to the fluid column pressure sensor
disclosed in DeSatnick, it would have been obvious to substitute
DeSatnick's fluid column pressure sensor with the in-line membrane sensor
taught by Kumar. Id.
4
Appeal 2017-011445
Application 13/253,246
Appellants assert that the applied combination of references fails to
teach or suggest the pressure sensor limitation. Br. 10. Appellants disagree
that DeSatnick discloses a pressure sensor located on the drainage line
between a drainage cannula and a pinch valve, as found by the Examiner.
Id.; see Final Act. 4. Appellants quote the following description in
DeSatnick:
The actual sensing of pressure utilizes a pressure sensing or
pressure feedback tube 3 0 communicating, at one end, with the
knee site 22 or, alternatively, the inflow or ouiflow tubes 22 and
24 immediately outward of the site 22. This pressure feedback
tube 30 ... will utilize air as the pressure transmission medium,
and as such will be maintained dry.
Br. 10 (underlining omitted) (quoting DeSatnick, col. 4, 11. 13-19).
Appellants contend that Figure 1 of DeSatnick shows pressure feedback tube
30 communicating with the knee site, with its opposite end entering pump
housing 10. Id. at 11. Appellants contend this configuration fails to suggest
the claimed "pressure sensor limitation" requiring the pressure sensor to be
located in the drainage line ( corresponding to outflow tube 24 in DeSatnick)
-having the volume flow of fluid therethrough-between the drainage
cannula and the pinch valve (corresponding to pressure control valve 36 in
DeSatnick). Id.
This contention is unpersuasive because it does not address the
Examiner's stated combination. The Examiner relies on DeSatnick for
teaching the location of a pressure sensor on the drainage line between a
drainage cannula and a pinch valve. Final Act. 4. Accordingly, we
understand that the Examiner's finding is not based entirely on the
illustration of DeSatnick' s system in Figure 1, but is further supported by
DeSatnick' s description of "pressure feedback tube 3 0 communicating, at
5
Appeal 2017-011445
Application 13/253,246
one end, with ... alternatively, the ... outflow ... [tube] 24 immediately
outward of the site 22." See DeSatnick, col. 4, 11. 14--17, Fig. 1. And, as
discussed above, the Examiner relies on Kumar, not DeSatnick, to teach a
pressure sensor located within a fluid flow line.
Appellants further contend that the alternative communication
described in DeSatnick (i.e., "pressure feedback tube 30 ... can
'alternatively' communicate, at one end, with the 'inflow or outflow tubes
22 and 24 immediately outward of the site 22 "') also does not suggest that
"the pressure sensor is located in the drainage line - having the volume flow
of fluid there through - between the drainage cannula and the pinch valve."
Br. 11 (underlining omitted). According to Appellants, DeSatnick describes
that "exit 'of the flow from the knee is similarly effected through an
appropriate cannula and outflow line or tube 24' (Col. 4, lines 1-7)," but
"the 'actual sensing of pressure utilizes a pressure sensing or pressure
feedback tube 3 0 communicating, at one end, with the knee site 22 or,
alternatively, the inflow or outflow tubes 22 and 24 immediately outward of
the site 22." Id. We understand Appellants' position to be that DeSatnick
fails to teach or suggest sensing pressure in the knee site 22 using a sensor
located in outflow tube 24.
Appellants further contend that Kumar fails to teach or suggest that
pressure transducer 17 is "located in the drainage line between said drainage
cannula and the pinch valve, the drainage line having the volume flow of
fluid therethrough," as claimed, but rather, discloses that pressure transducer
17 is "'attached at one of tube 9 while the other end of tube 9 is connected
anywhere on inflow tube 10' - not in outflow tube 12." Id. (underlining
omitted) ( quoting Kumar ,r 51 ); see also Kumar, Fig. 4.
6
Appeal 2017-011445
Application 13/253,246
Appellants' contentions do not address the Examiner's reliance on
Kumar in the combination. Although Figure 4 of Kumar shows pressure
transducer 7 attached to one end of tube 9, with the other end of tube 9
connected on inflow tube 10 (see Kumar ,r 51 ), the Examiner relies on
Kumar for teaching a pressure sensor used for measuring pressure within a
flow tube, where the pressure sensor includes structure incorporated in the
wall of the flow tube to directly contact fluid contained therein. Id. ( citing
Kumar ,r 51 ); Ans. 4. 3
Appellants also assert DeSatnick's disclosure, "'pressure feedback
tube 30 ... will utilize air as the pressure transmission medium, and as such
will be maintained dry,"' teaches away from any modification of DeSatnick.
Appeal Br. 13 (underlining omitted). We disagree. Although DeSatnick
discloses that pressure feedback tube 30 "will be maintained dry" (see
DeSatnick, col. 4, 11. 1 7-19), the Examiner's combination modifies
Haischmann's device to measure fluid pressure in drainage line 8 through
which fluid flows from body cavity 1, relying on DeSatnick's teaching of
sensing pressure with feedback tube 30 communicating with outflow tube
24, and also using a pressure sensor that would directly contact fluid
contained in drainage line 8, relying on Kumar's teaching of an alternative
pressure sensor. Accordingly, Appellants do not identify an error in the
Examiner's combination.
3 We note Kumar discloses that "an additional pressure transducer 26 may
also be attached on the outflow tube 12, if desired, as shown in FIG. 7." See
Kumar ,r 53 ( emphasis added), Fig. 7.
7
Appeal 2017-011445
Application 13/253,246
For the above reasons, we sustain the rejection of claim 1, and of
claims 2, 7, and 9 falling with claim 1, as unpatentable over Haischmann,
DeSatnick, and Kumar.
Rejection of claims 6 and 8 over Haischmann, DeSatnick,
Kumar, and Blight
Appellants rely on the dependency of claims 6 and 8 from claim 1 for
patentability. Br. 14. Thus, we also sustain the rejection of claims 6 and 8
as unpatentable over Haischmann, DeSatnick, Kumar, and Blight.
DECISION
We affirm the rejections of claims 1, 2, and 6-9.
No time period for taking any subsequent action in connection with
this appeal may be extended according to 37 C.F.R. § 1.136(a)(l )(iv).
AFFIRMED
8