Drägerwerk AG & Co. KGaADownload PDFPatent Trials and Appeals BoardMay 14, 20212020006554 (P.T.A.B. May. 14, 2021) Copy Citation 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. 14/785,108 10/16/2015 Thomas GRASSL 75212 9218 23872 7590 05/14/2021 MCGLEW & TUTTLE, PC P.O. BOX 9227 SCARBOROUGH STATION SCARBOROUGH, NY 10510-9227 EXAMINER STUART, COLIN W ART UNIT PAPER NUMBER 3785 MAIL DATE DELIVERY MODE 05/14/2021 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 THOMAS GRASSL, GERD WOTHA, and MEINHARD BRAEDEL ____________ Appeal 2020-006554 Application 14/785,108 Technology Center 3700 ____________ Before BIBHU R. MOHANTY, MICHAEL C. ASTORINO, and MICHAEL L. HOELTER, Administrative Patent Judges. MOHANTY, Administrative Patent Judge. DECISION ON APPEAL STATEMENT OF THE CASE Pursuant to 35 U.S.C. § 134(a), Appellant1 appeals from the Examiner’s decision to reject claims 1, 2, and 4–21. We have jurisdiction under 35 U.S.C. § 6(b). Oral arguments were presented on May 10, 2021 by telephone. SUMMARY OF THE DECISION We REVERSE. 1 We use the word Appellant to refer to “applicant” as defined in 37 C.F.R. § 1.42(a). Appellant identifies the real party in interest as Drägerwerk AG & Co. KgaA. (Appeal Br. 1). Appeal 2020-006554 Application 14/785,108 2 CLAIMED SUBJECT MATTER The Appellant’s claimed invention relates to ventilation tube unit for connection to a medical ventilator (Spec., para. 2). Claim 1, reproduced below, is representative of the subject matter on appeal. 1. A ventilation tube unit for connection to a medical ventilator, the ventilation tube unit comprising: an outer tube comprising a first outer tube part, a second outer tube part and a tubular connection device comprising at least one jacket-side branch for connecting a medical unit, the connection device being arranged between the first outer tube part and the second outer tube part of the outer tube, the outer tube comprising an outer tube interior space defining at least a portion of a first fluid flow path; an inner line arranged within the outer tube, the inner line comprising an inner line interior space defining a second fluid flow path; and two port connectors, between which the outer tube and the inner line extend, wherein each of the port connectors is connected by a corresponding inner line port to one end of the inner line and by a corresponding outer tube port to an end of the outer tube, the end of the outer tube and the one end of the inner line being located on the same side, wherein each outer tube part comprises a variable length structure with a length that is variable between a compressed state and an expanded state, and the connection device is displaceable in a longitudinal direction relative to the inner line by compressing one outer tube part and correspondingly expanding the other outer tube part. Appeal 2020-006554 Application 14/785,108 3 THE REJECTIONS The Examiner relies upon the following as evidence in support of the rejections: Name Reference Date Rosenkoetter US 5,894,839 Apr. 20, 1999 Reinboth US 2010/0122702 A1 May 20, 2010 Chang US 2010/0252035 A1 Oct. 7, 2010 Dhuper US 7,870,857 B2 Jan. 18, 2011 The following rejections are before us for review: 1. Claims 1, 2, 4–11, 16–18, and 21 are rejected under 35 U.S.C. § 103 as unpatentable over Chang and Dhuper. 2. Claims 19 and 20 are rejected under 35 U.S.C. § 103 as unpatentable over Chang, Dhuper, and Reinboth. 3. Claims 12 and 13 are rejected under 35 U.S.C. § 103 as unpatentable over Chang, Dhuper, and Rosenkoetter. 4. Claims 14 and 15 are rejected under 35 U.S.C. § 103 as unpatentable over Chang, Dhuper, Rosenkoetter, and Reinboth. FINDINGS OF FACT We have determined that the findings of fact in the Analysis section below are supported at least by a preponderance of the evidence.2 2 See Ethicon, Inc. v. Quigg, 849 F.2d 1422, 1427 (Fed. Cir. 1988) (explaining the general evidentiary standard for proceedings before the Patent Office). Appeal 2020-006554 Application 14/785,108 4 ANALYSIS The Appellant argues that the rejection of claim 1 as unpatentable over Chang and Dhuper is improper because one of ordinary skill in the art would not have combined the cited prior art teachings as asserted in the rejection (Appeal Br. 15). In contrast, the Examiner has determined that the rejection of record is proper (Final Act. 5, 6; Ans. 4–8). We agree with the Appellant. Claim 1 requires in part: two port connectors, between which the outer tube and the inner line extend, wherein each of the port connectors is connected by a corresponding inner line port to one end of the inner line and by a corresponding outer tube port to an end of the outer tube. (Claim 1, emphasis added). The rejection of record cites to Chang as disclosing outer tubes (50, 40), two port connectors, (80, 70), and an inner line (20) (Final Act. 5). Here, the cited claim limitation above requires that “each of the port connectors is connected by a corresponding inner line port to one end of the inner line.” In the Chang reference the port connector (70) is not connected to a corresponding inner line port (21) but rather connected to member (75). The rejection of record fails to account for this deficiency in the citation to the Dhuper reference (Final Act. 6). Claim 1 further requires the outer tube part to include “a variable length structure with a length that is variable between a compressed state and an expanded state, and the connection device is displaceable in a longitudinal direction relative to the inner line by compressing one outer tube part and correspondingly expanding the other outer tube part.” Appeal 2020-006554 Application 14/785,108 5 In KSR International Company v. Teleflex Incorporated, 550 U.S. 398 (2007) the Supreme Court at page 418 noted that in an obviousness analysis that “[r]ejections on obviousness grounds cannot be sustained by mere conclusory statements; instead, there must be some articulated reasoning with some rational underpinning to support the legal conclusion of obviousness.” Initially, the cited combination fails to account for the requirement that “each of the port connectors is connected by a corresponding inner line port to one end of the inner line.” Further, the cited rejection lacks articulated reasoning with rational underpinnings to support a conclusion of obviousness. Dhuper does disclose a device in Figure 5 with expandable and compressible outer lines (592, 594, 530), but the reference does not contain a citation to an inner line. Further, in the Chang reference portions of the outer tube (50, 40) and inner tube (20) also have a “spaced rib” structure which will already allow for some degree of flexibility in bending in both tubes (50, 40) to prevent some level of bending stresses. Here, the rejection of record fails to account for all the limitations in the claim and further lacks articulated reasoning with rational underpinnings to support the references being combined in the rejection to meet the claimed limitations without impermissible hindsight. Accordingly, the rejection of claim 1 and its dependent claims is not sustained. The remaining independent claims 16 and 21 are drawn to similar subject matter and the rejection of these claims and their dependent claims is not sustained for the same reasons given above. Appeal 2020-006554 Application 14/785,108 6 CONCLUSIONS OF LAW We conclude that Appellant has shown that the rejection of claims 1, 2, 4–11, 16–18, and 21 under 35 U.S.C. § 103 as unpatentable over Chang and Dhuper is improper. We conclude that Appellant has shown that the rejection of claims 19 and 20 under 35 U.S.C. § 103 as unpatentable over Chang, Dhuper, and Reinboth is improper. We conclude that Appellant has shown that the Examiner rejection of claims 12 and 13 under 35 U.S.C. § 103 as unpatentable over Chang, Dhuper, and Rosenkoetter is improper. We conclude that Appellant has shown that rejection of claims 14 and 15 under 35 U.S.C. § 103 as unpatentable over Chang, Dhuper, Rosenkoetter, and Reinboth is improper. Appeal 2020-006554 Application 14/785,108 7 DECISION SUMMARY In summary: Claim(s) Rejected 35 U.S.C. § Reference(s)/Basis Affirmed Reversed 1, 2, 4–11, 16–18, 21 103 Chang, Dhuper 1, 2, 4–11, 16–18, 21 19, 20 103 Chang, Dhuper, Reinboth 19, 20 12, 13 103 Chang, Dhuper, Rosenkoetter 12, 13 14, 15 103 Chang, Dhuper, Rosenkoetter, Reinboth 14, 15 Overall Outcome 1, 2, 4–21 REVERSED Copy with citationCopy as parenthetical citation