Medline Industries, Inc.

Patent Trials and Appeals Board

Jan 19, 2022

2021003617 (P.T.A.B. Jan. 19, 2022)

UNITED STATES PATENT AND TRADEMARK OFFICE 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 APPLICATION NO. FILING DATE FIRST NAMED INVENTOR ATTORNEY DOCKET NO. CONFIRMATION NO. 15/674,744 08/11/2017 Linda M. Walther 9262-141493-US 1032 19407 7590 01/19/2022 Fitch, Even, Tabin & Flannery, LLP 120 South La Salle Street, Suite 2100 Chicago, IL 60603-3406 EXAMINER MORRIS, TAYLOR L ART UNIT PAPER NUMBER 3631 MAIL DATE DELIVERY MODE 01/19/2022 PAPER 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. PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE __________ BEFORE THE PATENT TRIAL AND APPEAL BOARD __________ Ex parte LINDA M. WALTHER, FRANK MARTORELLI, and CRISTOBAL J. RODRIGUEZ __________ Appeal 2021-003617 Application 15/674,744 Technology Center 3600 __________ Before CHARLES N. GREENHUT, MICHAEL L. HOELTER, and ANNETTE R. REIMERS, Administrative Patent Judges. HOELTER, Administrative Patent Judge. DECISION ON APPEAL STATEMENT OF THE CASE1 Pursuant to 35 U.S.C. § 134(a), Appellant2 appeals from the Examiner’s Final decision to reject claims 1-8, 10, 12, and 13. See Final Act. 1 (Office Action Summary). We have jurisdiction under 35 U.S.C. § 6(b). 1 Parent Application No. 13/339,788 dated 12/29/2011 was the subject of Appeal Nos. 2015-003220 (reversed) and 2019-002517 (affirmed). The present application (i.e., Application No. 15/674,744 dated August 11, 2017) was the subject of Appeal No. 2019-001754 (affirmed). 2 We use the word “Appellant” to refer to “applicant” as defined in 37 C.F.R. § 1.42. Appellant identifies “Medline Industries, Inc.,” as the real party in interest. Appeal Br. 3. Appeal 2021-003617 Application 15/674,744 2 For the reasons explained below, we AFFIRM the Examiner’s rejections. CLAIMED SUBJECT MATTER The disclosed subject matter “relates generally to intravenous poles.” Spec. ¶ 2. Apparatus claim 1 is the sole independent claim, is illustrative of the claims on appeal, and is reproduced below. 1. An intravenous (IV) pole assembly comprising: an IV pole; an IV pole base configured to couple in a tessellating manner to at least one other like IV pole base comprising: a base footing having a side edge and a plurality of tessellating elements comprising at least each of a first blank and a first tab formed at opposing sides of the side edge, wherein each of the tessellating elements has a substantially arcuate shape; a plurality of rolling members disposed on an underside of the base footing; an IV pole coupler formed central to the base footing and that is connected to the IV pole such that the IV pole extends outwardly perpendicularly to the base footing. REFERENCES Name Reference Date Dillon et al. (“Dillon”) US 2003/0106969 A1 June 12, 2003 Elliott et al. (“Elliott”) US 6,619,599 B2 Sept. 16, 2003 West et al. (“West”) US 2010/0052274 A1 Mar. 4, 2010 Su GB 2 458 115 A Sept. 9, 2009 THE REJECTIONS ON APPEAL Claims 1, 2, 4-8, 10, 12, and 13 are rejected under 35 U.S.C. § 103(a) as unpatentable over West and Su. Final Act. 5-7. Claim 3 is rejected under 35 U.S.C. § 103(a) as unpatentable over West, Su, and Elliott. Final Act. 7. Appeal 2021-003617 Application 15/674,744 3 Claims 1, 2, 5, 10, 12, and 13 are rejected under 35 U.S.C. § 103(a) as unpatentable over Dillon and Su. Final Act. 8-10. Claim 3 is rejected under 35 U.S.C. § 103(a) as unpatentable over Dillon, Su, and Elliott. Final Act. 10. ANALYSIS The rejection of claims 1, 2, 4-8, 10, 12, and 13 as unpatentable over West and Su Appellant presents arguments only with respect to sole independent claim 1. See Appeal Br. 7-10. As regarding the remaining dependent claims (i.e., claims 2, 4-8, 10, 12, and 13), Appellant states that “the comments set forth herein regarding allowability of the independent claim[ is] sufficiently compelling” for these claims as well. Appeal Br. 10. Accordingly, we select claim 1 for review with claims 2, 4-8, 10, 12, and 13 standing or falling with claim 1. See 37 C.F.R. § 41.37(c)(1)(iv) (2019). Claim 1 recites “an IV pole” and the Examiner relies on West for such a teaching. See Final Act. 5 (citing West Fig. 1 (hanger 14 and pole 16)). Appellant contends that “[i]ntravenous poles are so named because they serve to hold bags of intravenous fluids that are to be administered to a patient intravenously” and that “[c]laim 1 is clearly limited to such a structure.” Appeal Br. 7. As such, according to Appellant, “the Examiner’s primary reference[]” is not “concerned with intravenous fluids nor with anything having to do with a patient’s veins.” Appeal Br. 8. Thus, Appellant contends that West’s “teachings literally have nothing to do with intravenous poles.” Appeal Br. 8. Appellant’s contention above seeking to define “an IV pole” as a pole that “hold[s] bags of intravenous fluids” is narrower than how Appellant Appeal 2021-003617 Application 15/674,744 4 employs that term in Appellant’s Specification.3 To be precise, Appellant’s Specification states, “[t]he IV pole, in turn, typically has arms, hooks, or other features upon which medical-services providers can hang, for example, bags of intravenous fluids, medications, and various electro-mechanical apparatuses.” Spec. ¶ 3 (emphasis added). Hence, the broadest reasonable interpretation of the limitation “an IV pole” is to be consistent with Appellant’s Specification, which is not limited solely to a pole for the hanging of intravenous fluids, as Appellant contends above. See Appeal Br. 8. Figure 1 of West clearly depicts pole 16 supporting hanger 14. See also West ¶ 26. While admittedly West is directed to “blood filtration” (see West ¶ 2) and not necessarily with providing intravenous fluids to a patient, West clearly teaches that a filter and other devices “are hung on a hook of a cart.” West ¶ 5. This is consistent with how an IV pole is used in Appellant’s Specification (i.e., “can hang, for example, bags of intravenous fluids, medications, and various electro-mechanical apparatuses”). Appellant contends that West’s use of such structure is “solely focused on leukoreduction” and that “those skilled in the art will know and understand that leukoreduction and the administration of intravenous fluids are utterly distinct and separate activities.” Appeal Br. 8; see also Reply Br. 4 (Where Appellant asks whether a skilled person would “think it reasonable to equate the leukoreduction carts of the prior art with an intravenous pole?”). Appellant thus concludes, as expressed above, that West’s “teachings literally have nothing to 3 Appellant acknowledges that “[d]uring patent examination, the pending claims must be ‘given their broadest reasonable interpretation consistent with the specification.’” Reply Br. 4 (citation and emphasis omitted). Appeal 2021-003617 Application 15/674,744 5 do with intravenous poles” and that “the claim requires an IV pole.” Appeal Br. 8, 9. The Examiner does not dispute that claim 1 requires an IV pole. See Final Act. 5. The Examiner simply relies on the structure disclosed in West as teaching such a pole, and Appellant does not explain how West’s pole fails to meet the criteria for an IV pole as this term is used and defined in Appellant’s Specification. See Spec. ¶ 3. Accordingly, we are not persuaded the Examiner erred in finding that West teaches “an IV pole” consistent with how such a pole would have been understood from a reading of Appellant’s Specification. We sustain the Examiner’s rejection of claims 1, 2, 4-8, 10, 12, and 13 as being obvious in view of West and Su. The rejections of claim 3 as unpatentable over West, Su, and Elliott Appellant does not present any argument with respect to dependent claim 3 separate from that provided above regarding parent claim 1. See Appeal Br. 10. Accordingly, we sustain the Examiner’s rejection of this claim in view of the cited art. The rejection of claims 1, 2, 5, 10, 12, and 13 as unpatentable over Dillon and Su The Examiner relies on the primary reference to Dillon for teaching the recited “IV pole.” See Final Act. 8 (citing Dillon Figs. 3, 4 (items 44 and 62 depicted therein)). Dillon states that “the present invention comprises apparatus for suspending blood packs while blood therein is drained under gravity.” Dillon ¶ 7. Again, Appellant contends that Dillon is “solely focused on Appeal 2021-003617 Application 15/674,744 6 leukoreduction” and that this process is “utterly distinct and separate” from “the administration of intravenous fluids.” Appeal Br. 8; see also Reply Br. 4. As above, Appellant seeks to restrict the recitation of “an IV pole” to only a pole for dispensing intravenous fluid despite how this term is actually employed in Appellant’s Specification. See Appeal Br. 8; see also Spec. ¶ 3. Appellant does not explain how the apparatus depicted in Figures 3 and 4 of Dillon fails to illustrate a pole mounted hanger from which blood packs are to be suspended. See Dillon ¶ 7. Accordingly, and for similar reasons, we are not persuaded that Dillon fails to teach the recited “IV pole.” We sustain the Examiner’s rejection of claims 1, 2, 5, 10, 12, and 13 as being obvious in view of Dillon and Su. The rejection of claim 3 as unpatentable over Dillon, Su, and Elliott Appellant does not present any argument with respect to dependent claim 3 separate from that provided above regarding parent claim 1. See Appeal Br. 10. Accordingly, we sustain the Examiner’s rejection of this claim in view of the cited art. CONCLUSION The Examiner’s decision to reject claims 1-8, 10, 12, and 13 is affirmed. DECISION SUMMARY In summary: Claim(s) Rejected 35 U.S.C. § Reference(s)/Basis Affirmed Reversed 1, 2, 4-8, 10, 12, 13 103 West, Su 1, 2, 4-8, 10, 12, 13 3 103 West, Su, Elliott 3 Appeal 2021-003617 Application 15/674,744 7 Claim(s) Rejected 35 U.S.C. § Reference(s)/Basis Affirmed Reversed 1, 2, 5, 10, 12, 13 103 Dillon, Su 1, 2, 5, 10, 12, 13 3 103 Dillon, Su, Elliott 3 Overall Outcome 1-8, 10, 12, 13. No time period for taking any subsequent action in connection with this appeal may be extended under 37 C.F.R. § 1.136(a)(1)(iv). AFFIRMED