11731538 (P.T.A.B. Feb. 26, 2013)

Ex Parte Worley

Patent Trial and Appeal BoardFeb 26, 2013

11731538 (P.T.A.B. Feb. 26, 2013)

UNITED STATES PATENT AND TRADEMARK OFFICE __________ BEFORE THE PATENT TRIAL AND APPEAL BOARD __________ Ex parte BRIAN D. WORLEY __________ Appeal 2011-004626 Application 11/731,538 Technology Center 3700 __________ Before DEMETRA J. MILLS, ERIC GRIMES, and STEPHEN WALSH, Administrative Patent Judges. GRIMES, Administrative Patent Judge. DECISION ON APPEAL This is an appeal under 35 U.S.C. § 134 involving claims relating to a tracheotomy tube. The Examiner has rejected the claims as obvious. We have jurisdiction under 35 U.S.C. § 6(b). We reverse. STATEMENT OF THE CASE The Specification discloses a coupling “for connecting a ventilator tube to a tracheotomy tube” (Spec. 5:2-3). Figure 36 of the Specification is shown below: App App Figu trach 515 traili plura at 17 inclu 521 18:1 follo eal 2011-0 lication 11 re 36 show eotomy tu The Spe with an an ng from th lity of circ :19-20). F des latche to secure t ). Claims 1 ws: 1. A tra an arcua a neck p an annul a tubular 04626 /731,538 s a “persp be and ass cification nular ring e annular umferenti lexible co s 571, whi he connect -13 are on cheotomy te soft tub late on a tr ar ring on extension ective ass ociated co discloses t 521 on its ring (id. at al sets of d nnector 56 ch engage or 560 to appeal. C tube comp e cannula; ailing end a trailing e on a trail 2 embly view upling” (i hat “soft tu trailing si 17:15-17 iametrica 0 has a le the serrat the tracheo laim 1 is rising: of said ca nd of said ing end of of an im d. at 10:27 be 501 tra de” and tu ). The “an lly oppose ading end ions 543 o tomy tube representa nnula; neck plat said annul proved ch -28). ils to a ne bular exten nular ring d serration adapter 56 n the annu 500 (id. a tive and re e; ar ring; an ild’s ck plate sion 523 521 has a s 543” (id 1 that lar ring t 17:23 to ads as d . Appeal 2011-004626 Application 11/731,538 3 at least one circumferential set of at least two displaced striations on said annular ring; said cannula, neck plate, annular ring and tubular extension each having a passageway therethrough sequentially forming one continuous passageway from a leading end of said cannula to a trailing end of said tubular extension. The Examiner has rejected claim 1 under 35 U.S.C. § 103(a) as obvious in view of Mongeon1 and Gross.2 The Examiner also rejected claims 2-13 as obvious in view of Mongeon and Gross, further in view of Carlsen,3 or Carlsen and Werth.4 The same issue is dispositive for all of the rejections. The Examiner finds that Mongeon discloses a tracheotomy tube that meets the limitations of claim 1 except that it lacks displaced striations on the annular ring (Answer 4). The Examiner finds that Gross discloses at least one circumferential set of at least two displaced striations on the annular ring of its device (id.). The Examiner concludes that it would have been obvious to replace the “matching threaded connector disclosed by Mongeon, by utilizing the quicker, easier connection means, as taught by Gross because of the reasonable expectation of obtaining a tracheotomy tube with a removable inner cannula that can be removed and replaced quicker and easier than with a threaded connection” (id.). Appellant argues that the references would not have made obvious the claimed tracheotomy tube because “Gross does not teach striations on an 1 Mongeon, US 6,135,111, Oct. 24, 2000. 2 Gross, US 4,852,563, Aug. 1, 1989. 3 Carlsen et al., US 6,769,430 B1, Aug. 3, 2004. 4 Werth US 6,796,586 B2, Sept. 28, 2004. App App annu App comp 10.) expl trach Figu cann its d cann ll. 9- show attac lock ll. 62 eal 2011-0 lication 11 lar ring w ellant. Gro onent wit We agre ained how eotomy tu re 2 shows ula” and a evice inclu ula 500 th 10). Mon n to be th hed to the Gross di certain oth -66). Figu 04626 /731,538 hich has a ss teaches hout any t e with App Mongeon be of claim a “trache connector des trache at can be i geon discl readed. C proximal scloses a b er compo res 1 and tubular ex annular r ubular ext ellant tha and Gross 1. Figur ostomy tub (Mongeo al tube 10 nserted int oses that “ ap 401 of c end 135.” reathing c nents of th 2 of Gross 4 tension on ings on a f ension on t the Exam would ha e 2 of Mo e … inclu n, col. 2, ll 0 with con o tube 100 the proxim onnector (Id. at col ircuit elem at circuit t are show its trailing emale end the trailing iner has n ve made o ngeon is sh ding a rem . 3-8). M nected fla (id. at co al end 13 400 is ada . 3, ll. 52-5 ent that “ ogether” ( n below: end, as c of a fricti end.” (A ot adequat bvious the own belo ovable in ongeon dis nge 200 an l. 3, ll. 25, 5 of the tub pted to be 4.) may be ad Gross, col laimed by on-fit ppeal Br. ely w: ner closes tha d inner 44; col. 4, e 100 is threadedly apted to . 1, t App App Figu show discl endo the e spac “lock 32 o clip comp expl tube plate finds whic contr eal 2011-0 lication 11 re 1 shows s a side el oses that “ tracheal tu lbow 2 [si ed longitu ing clip … f the elbow “engage[s] onent wh We agre ained how with displ . Element to corresp h is to be ast, Gross 04626 /731,538 “a plan v evational elbow me be adapte c, 20] has dinally fro disposed 20” (id. a the proxi ich may ha e with App these refe aced striat 135 of M ond to the inserted in discloses iew of a po view of elb mber 20 h r 24” (id. a at least tw m one ano parallel to t col. 3, ll mal side o ve them” ellant tha rences wou ions on an ongeon’s t claimed a to the fem striations 5 rtion of a ow 20 (id as a femal t col. 3, ll o annular r ther” (id. a the longi . 18-20). G f the annul (id. at col. t the Exam ld have m annular ri racheotom nnular rin ale end of on the fem breathing . at col. 2, e end 22 w . 6-8). The ings 30 (f t col. 3, ll tudinal ax ross disc ar rings on 3, ll. 27-3 iner has n ade obvio ng on the y tube, wh g, is a thre the conne ale memb circuit” an ll. 57-60) hich mate “female our are sh . 12-14), a is 25 of th loses that t any mati 0). ot adequat us a trach trailing en ich the Ex aded male ctor 400. B er of a cou d Figure 2 . Gross s with an end 22 of own), nd a e male end he locking ng ely eotomy d of a neck aminer end y pled Appeal 2011-004626 Application 11/731,538 6 fitting. That is, in Gross, the striations are located on the attachment part (e.g., elbow 20) that fits over the other attachment part (e.g., adapter 24). Thus, simple substitution of Gross’ attachment means for Mongeon’s threaded connection, as posited by the Examiner (Answer 4), would put the striations on the attachment part that goes inside the other attachment part, where Gross’ locking clip would not able to engage them. Alternatively, the Examiner may have intended to modify the annular ring 135 to be the female member of Mongeon’s coupling, with the extension 400 being inserted into the annular ring. However, Mongeon discloses that the trailing end of inner cannula 500 sits within the annular ring 135, which would prevent extension 400 being mated to annular ring 135 by being inserted into it. The Examiner has not adequately explained how annular ring 135, if made the female member of the coupling, could accommodate both a male end of the extension 400 and the trailing end of inner cannula 500. Thus, we reverse the rejection of independent claim 1 as being obvious in view of Mongeon and Gross. Similar to claim 1, claim 13 (the only other independent claim) requires “a cannula having an annular ring on a trailing end thereof, said ring having a tubular extension trailing therefrom and at least one circumferential set of at least two displaced striations thereon” (Appeal Br. 30, Claims Appendix). The Examiner rejection of claim 13 as obvious in view of Mongeon, Gross, and Carlsen relies on Mongeon and Gross, as discussed above, to make obvious a tracheotomy tube comprising an annular ring with displaced striations on it. For the reasons discussed above, we disagree with the Examiner’s conclusion in this regard. The Examiner points to nothing in Appeal 2011-004626 Application 11/731,538 7 Carlsen that makes up for the deficiency of Mongeon and Gross. Thus, we also reverse the rejection of claim 13, as well as dependent claims 2-12. REVERSED lp