Ex Parte 6685719 et al

Patent Trial and Appeal Board

Feb 27, 2015

95001930 (P.T.A.B. Feb. 27, 2015)

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.
95/001,930 04/19/2012 6685719 97343.00145 2316
7590 03/02/2015
CARTER, DELUCA, FARRELL & SCHMIDT, LLP
445 BROAD HOLLOW ROAD,
SUITE 225
MEL VILLE, NY 11747
EXAMINER
WEHNER, CARY ELLEN
ART UNIT PAPER NUMBER
3993
MAIL DATE DELIVERY MODE
03/02/2015 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
____________________

BEEKLEY CORP.
Requester and Respondent
v.
JAMES R. MATERA
Patent Owner and Appellant
____________________

Appeal 2014-009648
Reexamination Control 95/001,930
US Patent No. 6,685,719 B2
1

Technology Center 3900
____________________

Before: STEVEN D.A. McCARTHY, MICHAEL L. HOELTER, and
BRETT C. MARTIN, Administrative Patent Judges.

MARTIN, Administrative Patent Judge.

DECISION ON APPEAL

1
Issued to James R. Matera, Jr. on February 3, 2004.
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STATEMENT OF THE CASE
Appellant/Patent Owner appeals under 35 U.S.C. §§ 134(b) and
315(a) from the Examiner’s rejections of claims 1–19. App. Br. 4-16. We
have jurisdiction under 35 U.S.C. §§ 134(c) and 315(b). Claims 1-15 are
amended original claims and claims 16-19 were added during
reexamination. RAN 8. Claims 17 and 18 were canceled in Patent Owner's
Appeal Brief. App. Br. 16. Accordingly, claims 1-16 and 19 remain
pending.
We AFFIRM the rejections of claims 1–15 and 19. Pursuant to 37
C.F.R. § 41.77(b), we enter new grounds of rejection against claim 16 under
35 U.S.C. §103(a) as being unpatentable over Gvozdic and either Hughes,
Carol, or Zinreich.

THE INVENTION
Appellant’s invention is directed generally to surgical tattooing
apparatus and method. Claim 2, reproduced below, is illustrative of the
claimed subject matter:
2. A method for surgically tattooing a patient for use in
conjunction with radiation therapy, comprising the steps of:
providing a sealed ink dispensing instrument including a
deformable ink cartridge having sterilized tattoo ink therein and
defining a port for dispensing said tattoo ink;
dispensing said tattoo ink from said port of said
dispensing instrument;
directing said tattoo ink with respect to predetermined
body tissue of a patient to mark the body tissue to generally
correspond to a target location for radiation therapy; and
disposing said dispensing instrument after use on the
patient; wherein said step of dispensing includes manually
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deforming said ink cartridge by user engagement of said ink
cartridge to dispense said tattoo ink under pressure.

REFERENCES
The prior art relied upon by the Examiner in rejecting the claims on
appeal is:
Cohen
LaHaye
Zinreich
Carol
Hughes
Gvozdic
US 2,679,246
US 4,719,825
US 5,407,440
US 5,622,187
US 5,820,553
US 6,197,034
May 25, 1954
Jan. 19, 1988
Apr. 18, 1995
Apr. 22, 1997
Oct. 13, 1998
Mar. 6, 2001

THE REJECTIONS ON APPEAL
The Examiner made the following rejections:
1. Claims 1–15 stand rejected under 35 U.S.C. § 102(e) as being
anticipated by Gvozdic. RAN 12.
2. Claim 1 stands rejected under 35 U.S.C. § 102(b) as being
anticipated by LaHaye. RAN 14.
3. Claims 1–4 and 6–9 stand rejected under 35 U.S.C. § 103(a) as
being unpatentable over Gvozdic and Hughes. RAN 15.
4. Claims 1–4 and 6–9 stand rejected under 35 U.S.C. § 103(a) as
being unpatentable over Gvozdic and Carroll. RAN 16.
5. Claims 1, 3, 4, and 6–9 stand rejected under 35 U.S.C. § 103(a)
as being unpatentable over Gvozdic and Zinreich. RAN 17.
6. Claims 1, 8, and 9 stand rejected under 35 U.S.C. § 103(a) as
being unpatentable over LaHaye and Hughes, Carol, or Zinreich. RAN 18-
19.
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7. Claims 2 and 12 stand rejected under 35 U.S.C. § 103(a) as
being unpatentable over Gvozdic. RAN 20.
8. Claims 5 and 10 stand rejected under 35 U.S.C. § 103(a) as
being unpatentable over Gvozdic; Hughes, Carol, or Zinreich; and Cohen.
RAN 20-22.
9. Claim 10 stands rejected under 35 U.S.C. § 103(a) as being
unpatentable over LaHaye; Hughes, Carol, or Zinreich; and Cohen. RAN
22-24.
10. Claims 11 and 13–15 stand rejected under 35 U.S.C. § 103(a)
as being unpatentable over Gvozdic and Cohen. RAN 24.
11. Claims 11, 14, and 15 stand rejected under 35 U.S.C. §103(a)
as being unpatentable over LaHaye and Cohen. RAN 25.
12. Claims 16 and 19 stands rejected under 35 U.S.C. § 102(e) as
being anticipated by Gvozdic. RAN 26.

ANALYSIS
Anticipation
Claims 1, 2, and 8 recite steps of "directing said tattoo ink with
respect to predetermined body tissue . . . to mark the body tissue to generally
correspond to a target location for radiation therapy." While Gvozdic and
LaHaye disclose that the tattooing may be "used for surgical or any other
medical marking applications" (Gvozdic, col. 1, l. 21) and used in "the
tattooing and medical cosmetic fields" (LaHaye, col. 2, ll. 37-38), neither
specifically discloses marking body tissue to generally correspond to a target
location for radiation therapy. Although we agree that radiation therapy is a
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medical application, rather than being an intended use in an apparatus claim,
claims 1, 2, and 8 are method claims that specifically recite that the marking
corresponds to a location for radiation therapy. The Examiner merely makes
a conclusory statement that this aspect is inherent but fails to explain why
marking for the specific purpose of radiation therapy is inherent in Gvozdic.
RAN 13. Furthermore, claim 8 also claims "performing at least one
radiation treatment directed at the target location as identified by the mark
on the body tissue," which is also not taught by Gvozdic. Accordingly, we
will not sustain the anticipation rejections of method claims 1–10 and 16
over Gvozdic and LaHaye.
Independent claim 11 recites a "surgical ink dispensing instrument for
facilitating surgical tattooing of a patient." Neither claim 11, nor any claim
ultimately depending from claim 11, recites any limitation relating to
marking body tissue to generally correspond to a target location for radiation
therapy.
Claim 11 does recite "sterile tattoo ink disposed within said ink
cartridge." The Patent Owner asserts that "[t]here is no mention of the use
of any sterilization processes applicable to the ink." App. Br. 5; see also id.
at 7. The Requester correctly points out, however, that Gvozdic "discloses
that the device is sterilized prior to use." Resp. Br. 6 (citing Gvozdic col. 6,
ll. 23–40 and col. 8, ll. 40–55). We agree with the Requester that sterilizing
the device containing the ink prior to use would reasonably disclose the use
of sterile ink as well. The Patent Owner also argues that the ink in Gvozdic
could become contaminated (App. Br. 5). As the Requester points out,
claim 11 does not require that the ink remain sterile throughout the use of
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the dispensing instrument, but only that “sterile tattoo ink [be] disposed
within said ink cartridge” at the same time that other limitations of the claim
are met (Resp. Br. 7). Accordingly, we sustain the rejection of claim 11, and
claims 12–15 and 19 which depend therefrom and were not separately
argued in this matter, as anticipated by Gvozdic.
Obviousness
Regarding the obviousness rejections generally, the Patent Owner
does not argue that the proposed combinations do not teach the use of
tattooing for radiation therapy. Contrary to Gvozdic and LaHaye, each of
Zinreich, Carol, and Hughes clearly teaches medical marking for use in
radiation therapy as evident, for example, by their respective titles. The
Patent Owner focuses the argument on deficiencies allegedly present in the
main references of Gvozdic and LaHaye; and we will deal with each of these
in turn as they apply to Gvozdic. Because the rejections over Gvozdic
dispense with all of the claims except claim 16 (which is rejected only as
being anticipated by Gvozdic), we decline to reach the rejections relating to
LaHaye.
As mentioned earlier, the Patent Owner first argues that Gvozdic fails
to teach that the ink used therein is sterile. App. Br. 5. Gvozdic "discloses
that the device is sterilized prior to use." See Resp. Br. 6 (citing Gvozdic
col. 6, ll. 23–40 and col. 8, ll. 40–55). We agree with the Requester that
sterilizing the device containing the ink prior to use would also reasonably
disclose the use of sterile ink as well. The Patent Owner also argues that the
ink in Gvozdic could become contaminated (App. Br. 5), but as the
Requester points out, the claims do not require that the ink remain sterile
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throughout, but only that sterile ink is provided (Resp. Br. 7). Accordingly,
we do not agree with the Patent Owner that Gvozdic is deficient regarding
sterile ink.
The Patent Owner next asserts that "Gvozdic fails to teach or suggest
the recited step of 'disposing said dispensing instrument after use on the
individual patient'." App. Br. 5. The Requester notes, however, that
Gvozdic specifically teaches disposability. App. Br. 7 (citing Gvozdic, col.
8, ll. 45–47 and col. 4, ll. 25–27). Gvozdic clearly states, "[i]t is also
intended within the scope of this invention that marking device 1 be either
disposable or reusable, and that the handle 14 be either disposable or
reusable." Col. 8, ll. 45–48. One surgically tattooing a patient with
Gvozdic’s marking device in accordance with the intended use of the device
would perform the step of disposing of the marking device after use on an
individual patient. As such, we do not find the Patent Owner's argument
persuasive on this point.
Regarding claim 2, the Patent Owner argues that "Gvozdic clearly
lacks the recited 'said step of dispensing includes manually deforming said
ink cartridge by user engagement of said ink cartridge to dispense said tattoo
ink under pressure'." App. Br. 5. As Requester asserts, however, Gvozdic
teaches this claimed step by way of the "embodiment in which the flexible
ink cartridge is inserted in a handle with a spring loaded button on the side
that can be manually depressed to cause ink to flow through the port." Resp.
Br. 8 (citing Gvozdic col. 8, l. 56–col. 9, l. 11 and Fig. 6). Although this
disclosure in Gvozdic may not be direct manual engagement by the user
with the ink cartridge, we do not read claim 2 as requiring such direct
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engagement. The user engagement taught in Gvozdic via manually pressing
the button sufficiently teaches this claim limitation.
In arguing the rejection of claims 1–4 and 6–9 as obvious over
Gvozdic and either Hughes or Carol, the Patent Owner relies solely on the
arguments above with respect to Gvozdic. App. Br. 8-9. Accordingly, we
sustain the Examiner's rejection of claims 1–4 and 6–9 over Gvozdic and
Hughes or Carol.
Likewise, with respect to the rejections of claims 5 and 10 over
Gvozdic, Cohen, and either Hughes, Carol, or Zinreich, the Patent Owner
relies solely on arguments relating to the alleged deficiencies of Gvozdic,
which we have already deemed unpersuasive. App. Br. 12. As such, we
sustain the rejections of claims 5 and 10.
The Patent Owner also relies upon the Gvozdic arguments in rebutting
the Examiner's rejection of claims 11 and 13–15 as obvious over Gvozdic
and Cohen. App. Br. 13–14. We sustain this rejection for the same reasons
as stated supra.
Remaining Rejections
Because the affirmed rejections discussed above represent at least one
rejection of each of claims 1–15 and 19, we decline to reach the remaining
rejections of those claims.

NEW GROUNDS OF REJECTION
Claim 16 depends from claim 2. As stated earlier, claim 2 recites the
step of "directing said tattoo ink with respect to predetermined body tissue
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. . . to mark the body tissue to generally correspond to a target location for
radiation therapy." Hughes, Carol, and Zinreich clearly teach medical
marking for use in radiation therapy as evident by their respective titles. The
Patent Owner in the Appeal Brief challenges the combination of the
teachings of Gvozdic with those of either Hughes, Carol, or Zinreich only on
the basis of perceived deficiencies in the teachings of Gvozdic itself. See
App. Br. 8–10. Having found these arguments unpersuasive, and pursuant to
37 C.F.R. § 41.77(b), we enter new grounds of rejection against claim 16
under 35 U.S.C. § 103(a) as unpatentable over Gvozdic and either Hughes,
Carol or Zinreich.
Gvozdic describes a tattooing pen including handle 14 having a notch
16 for receiving a marking device 1. Col. 8, ll. 55–59 and Fig. 6. Gvozdic
describes the marking device 1 as intended for use for surgical or any other
medical applications (col. 1, ll. 20–23), that is, for surgical tattooing. The
marking device 1 includes a hollow housing 2 having an integral extending
member 3. A hollow tube 4 extends from the integral extending member 3.
The integral extending member 3 defines a channel 5 which extends between
the hollow interior of the housing 2 and the hollow tube 4. Gvozdic, col. 6,
ll. 23–33. A supply of ink or pigmenting solution 6 resides in the hollow
interior of the housing 2. Gvozdic, col. 6, ll. 34–35.
Gvozdic’s pen also includes a spring-loaded, depressible button 18 for
delivering ink 6 from the hollow interior of the housing 2 through the
channel 5 and the hollow tube 4 when the marking device 1 is received in
the notch 16. See Col. 8, l. 64 – col. 9, l. 4. More specifically, Gvozdic
teaches that “the pen can be shaken to clear the channel 5 and the hollow
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tube 4 and re-ink the tip of the marking device[;] and the button [18] can be
depressed to deliver ink through the channel 5 and the hollow tube 4 for
delivery of a dot under the skin.” Col. 9, ll. 11–15. This teaching has
several implications. First, the teaching to deliver the ink 6 under the skin
implies that the ink or pigmented solution 6 is a tattoo ink. Second, the
teaching to deliver the ink 6 through the tip (that is, the distal end 10 of the
hollow tube 4) implies that the distal end 10 of the hollow tube 4 defines a
port for dispensing the tattoo ink 6. Third, the teaching indicates that the
housing 2 constitutes “a deformable ink cartridge having sterilized tattoo ink
therein;” and that manual depression of the button 18 allows the user to
engage (that is, squeeze) the housing or ink cartridge 2 to dispense the tattoo
ink 6 under pressure through the port defined at the distal end 10 of the
hollow tube 4.
Parent claim 2 recites a method for surgically tattooing a patient for
use in conjunction with radiation therapy. Gvozdic describes a marking
device 1 intended for use for surgical tattooing. Either Hughes, Carol, or
Zinreich teaches that a marking device useful for surgical applications may
be used in conjunction with radiation therapy. See Hughes, col. 4, ll. 1–6;
Carol, col. 1, ll. 48–55; Zinreich, col. 1, ll. 27–32. These teachings would
have provided one of ordinary skill in the art reason to use Gvozdic’s
marking device 1 in a method for surgically tattooing a patient for use in
conjunction with radiation therapy. See “Corrected Request for Inter partes
Reexamination,” dated April 19, 2012 (“Request”), at 21–24.
Parent claim 2 recites providing a sealed ink dispensing instrument
including a deformable ink cartridge having sterilized tattoo ink therein and
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defining a port for dispensing said tattoo ink. Gvozdic describes providing a
sealed ink dispensing instrument (that is, the combination of the pen and the
marking device 1) including a deformable ink cartridge (that is, the marking
device 1 including its deformable housing 2) having tattoo ink 6 therein.
Gvozdic also describes defining a port for dispensing the tattoo ink at the
distal end 10 of the hollow tube 4. In addition, Gvozdic describes sterilizing
both the marking device 1 and the handle 14 of the pen. Col. 8, ll. 40–45.
As discussed earlier, this teaching implies sterilizing the tattoo ink 6 in the
marking device 1. Therefore, providing the combination of Gvozdic’s pen
and marking device 1 in accordance with their ordinary use satisfies the
limitation. See Request 12.
Parent claim 2 also recites dispensing said tattoo ink from said port of
said dispensing instrument. This step is taught by Gvozdic at column 9, line
11–15. See Request 12–13.
Parent claim 2 additionally recites directing said tattoo ink with
respect to predetermined body tissue of a patient to mark the body tissue to
generally correspond to a target location for radiation therapy. Hughes
teaches affixing a number of targets to a patient for the purpose of
positioning the patient relative to a source of radiation during radiation
treatment and then impinging radiation on the targets. See Col. 2, ll. 11–13;
see also id., col. 1, ll. 38–41. Hughes further teaches that “[d]uring the
simulation process the region of the patient’s skin that is aligned with the
hole 24 may be marked with a tattoo.” Col. 4, ll. 2–4. Carol teaches that:
Traditional techniques used in the positioning of
patients during radiation therapy treatments
include: laser lights with tattoos or other markers;
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non-invasive immobilization devices; and invasive
immobilization devices. When tattoos, or markers,
are utilized to position the patient during the
radiation therapy treatment, the tattoos are placed
on the patient’s body, while they are on the
diagnostic table, in locations corresponding to the
tumor, or lesion, volume.
Col. 1, ll. 48–55. Zinreich teaches:
With the help of diagnostic imaging such as
computerized x-ray tomography (CT) and
magnetic resonance imaging (MRI), when
combined with the fluoroscopic capability of the
simulator, a radiation therapy portal (the area
through which the treating radiation will be
focused) may be designed. Conventionally, the
perimeter, isocenter, and set-up point of this
radiation therapy portal are marked on the
patient[’]s skin with magic markers, fuchsia color
and/or tattoo markings.
Col. 1, ll. 23–33. Thus, Hughes, Carol, and Zinreich all teach directing
tattoo ink with respect to predetermined body tissue of a patient to mark the
body tissue to generally correspond to a target location for radiation therapy.
It would have been obvious to use the pen and marking device 1 described
by Gvozdic to mark the body tissue to generally correspond to a target
location for radiation therapy as taught by Hughes, Carol, or Zinreich. See
Request 21–24.
Parent claims 2 recites disposing said dispensing instrument after use
on the patient. As discussed earlier, Gvozdic teaches that "[i]t is also
intended within the scope of this invention that marking device 1 be either
disposable or reusable, and that the handle 14 be either disposable or
reusable." Col. 8, ll. 45–48. Therefore, disposing of Gvozdic’s pen and
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marking device 1 in accordance with their intended use satisfies this
limitation.
Finally, parent claim 2 recites “wherein said step of dispensing
includes manually deforming said ink cartridge by user engagement of said
ink cartridge to dispense said tattoo ink under pressure.” Claim 16 depends
from claim 2 and recites “wherein the step of dispensing includes the user
squeezing said ink cartridge to dispense said tattoo ink under pressure.” As
discussed earlier, this limitation is met by Gvozdic’s teaching to depress the
button 18 in the handle 14 of the pen in order to deliver the ink 6 through the
tip of the hollow tube 4. Gvozdic, col. 9, ll. 11–15. Depressing the button
18 can deliver the ink 6 as described only if the button 18 directly engages
and squeezes the housing 2 of the marking device 1, thereby pressurizing the
tattoo ink 6. Because depressing the button 18 is a manual act, depressing
the button 18 results in manual deformation of the housing or ink cartridge 2
(albeit indirectly); user engagement of the housing or ink cartridge 2 to
dispense the tattoo ink 6 under pressure (once again, indirectly); and
squeezing the housing or ink cartridge 2 to dispense the tattoo ink 6 under
pressure. Therefore, depressing the button 18 as described in Gvozdic
satisfies the limitation. See Request 12.
DECISION
For the above reasons, we AFFIRM the Examiner’s decision to reject
claims 1–15 and 19. Pursuant to 37 C.F.R. § 41.77(b), we enter new
grounds of rejection against claim 16 under 35 U.S.C. § 103(a) as
unpatentable over Gvozdic and either Hughes, Carol or Zinreich.
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This decision contains new grounds of rejection pursuant to 37 C.F.R.
§ 41.77(b) which provides that "[a]ny decision which includes a new ground
of rejection pursuant to this paragraph shall not be considered final for
judicial review." Correspondingly, no portion of the decision is final for
purposes of judicial review. For further guidance on new grounds of
rejection, see 37 C.F.R. § 41.77(b)–(g). The decision may become final
after it has returned to the Board. 37 C.F.R. § 41.77(f).
37 C.F.R. § 41.77(b) also provides that the Patent Owner, WITHIN
ONE MONTH FROM THE DATE OF THE DECISION, must exercise one
of the following two options with respect to the new grounds of rejection to
avoid termination of the appeal as to the rejected claims:
(1) Reopen prosecution. The owner may file
a response requesting reopening of prosecution
before the examiner. Such a response must be
either an amendment of the claims so rejected or
new evidence relating to the claims so rejected, or
both.
(2) Request rehearing. The owner may
request that the proceeding be reheard under
§ 41.79 by the Board upon the same record. . . .
Any request to reopen prosecution before the Examiner under 37
C.F.R. § 41.77(b)(1) shall be limited in scope to the "claims so rejected."
Accordingly, a request to reopen prosecution is limited to issues raised by
the new ground(s) of rejection entered by the Board. A request to reopen
prosecution that includes issues other than those raised by the new ground(s)
is unlikely to be granted. Furthermore, should the Patent Owner seek to
substitute claims, there is a presumption that only one substitute claim would
be needed to replace a cancelled claim.
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Requester may file comments in reply to a Patent Owner response. 37
C.F.R. § 41.77(c). Requester comments under 37 C.F.R. § 41.77(c) shall be
limited in scope to the issues raised by the Board's opinion reflecting its
decision to reject the claims and the Patent Owner's response under
paragraph 37 C.F.R. § 41.77(b)(1). A newly proposed rejection is not
permitted as a matter of right. A newly proposed rejection may be
appropriate if it is presented to address an amendment and/or new evidence
properly submitted by the Patent Owner and is presented with a brief
explanation as to why the newly proposed rejection is now necessary and
why it could not have been presented earlier.
Compliance with the page limits pursuant to 37 C.F.R. § 1.943(b) for
all Patent Owner responses and Requester comments is required.
The Examiner, after the Board's entry of a Patent Owner response and
Requester comments, will issue a determination under 37 C.F.R. § 41.77(d)
as to whether the Board's rejection is maintained or has been overcome. The
proceeding will then be returned to the Board together with any comments
and reply submitted by the Patent Owner and/or Requester under 37 C.F.R. §
41.77(e) for reconsideration and issuance of a new decision by the Board as
provided by 37 C.F.R. § 41.77(f).
The Requester may also request rehearing under 37 C.F.R. § 41.79, if
appropriate. However, the Board may elect to defer issuing any decision on
such request for rehearing until such time that a final decision on appeal has
been issued by the Board.
Requests for extensions of time in this inter partes reexamination
proceeding are governed by 37 C.F.R. § 1.956.
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AFFIRMED; 37 C.F.R. § 41.77(b)

For PATENT OWNER:
CARTER, DELUCA, FARRELL & SCHMIDT, LLP
445 Broad Hollow Road
Suite 225
Melville, NY 11747

For THIRD PARTY REQUESTER:
McCARTER & ENGLISH, LLP
CityPlace I, 185 Asylum Street
Hartford, CT 06103-3495

lb