Ex Parte Bracken et al

Patent Trial and Appeal Board

Oct 31, 2017

12175351 (P.T.A.B. Oct. 31, 2017)

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.
12/175,351 07/17/2008 Ronald L. Bracken 101900.0098P 1387
34284 7590
Rutan & Tucker, LLP
611 ANTON BLVD
SUITE 1400
COSTA MESA, CA 92626
EXAMINER
FARRAR, LAUREN PENG
ART UNIT PAPER NUMBER
3763
NOTIFICATION DATE DELIVERY MODE
11/02/2017 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):
patents @ rutan. com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte RONALD L. BRACKEN, VASU NISHTALA,
LARRY WHITE, and ROBERT YOUNG
Appeal 2016-000670
Application 12/175,351
Technology Center 3700
Before NINA L. MEDLOCK, KENNETH G. SCHOPFER, and
BRADLEY B. BAYAT, Administrative Patent Judges.
BAYAT, Administrative Patent Judge.
DECISION ON APPEAL1 2 3
The Appellants appeal under 35 U.S.C. § 134(a) from the Examiner’s
final rejection of claims 1—4, 6—9, 11, 13, 14, 24, 26, and 28—35.2,3 We have
jurisdiction under 35 U.S.C. § 6(b).
SUMMARY OF DECISION
We REVERSE.
1 Our Decision references Appellants’ Appeal Brief (“App. Br.,” filed Feb.
23, 2015), Reply Brief (“Reply Br.,” filed Sept. 30, 2015), the Examiner’s
Answer (“Ans.,” mailed July 31, 2015), and the Final Office Action (“Final
Act.,” mailed Sept. 12, 2014).
2 Appellants identify “C. R. Bard, Inc.” as the real party in interest. App.
Br. 3.
3 Claims 5, 10, 12, 15, 16, and 25 are withdrawn, and claims 17—23 and 27
are canceled. Id. at 23—25 (Claims App’x).
Appeal 2016-000670
Application 12/175,351
STATEMENT OF THE CASE
Claimed Subject Matter
The Appellants’ “invention relates to a system for securing a medical
article to a patient.” Spec. 12. Claims 1, 24, 28, and 35 are the independent
claims on appeal. Claim 1, reproduced below, is illustrative of the claimed
subject matter and reads as follows:
1. A device for securing a medical article to a patient,
comprising:
a body member; and
a plurality of tentacles extending from the body member
and being arranged in a two dimensional array of rows and
columns, each column and row including two or more tentacles,
one or more of the plurality of tentacles being configured to
bend in at least a lateral direction at least when the device is
pressed against the medical article so as to surround and form a
friction fit with a portion of the medical article, at least one of
the plurality of tentacles being moveable independent of
another of the plurality of tentacles at least when the device is
pressed against the medical article.
App. Br. 23 (Claims App’x).
Rejections
Claims 1,3,4, 6—8, 11, 13, 14, 24, 26, and 28—34 are rejected under
35 U.S.C. § 103(a) as unpatentable over Landuyt4 and Fleischer.5
Claim 2 is rejected under 35 U.S.C. § 103(a) as unpatentable over
Landuyt, Fleischer, and Ballarini.6
4 Landuyt, US 6,387,076 Bl, issued May 14, 2002.
5 Fleischer, US 7,637,894 B2, issued December 29, 2009.
6 Ballarini, US 2006/0025723 Al, published February 2, 2006.
2
Appeal 2016-000670
Application 12/175,351
Claim 9 is rejected under 35 U.S.C. § 103(a) as unpatentable over
Landuyt, Fleischer, and Kalt.7
Claim 35 is rejected under 35 U.S.C. § 103(a) as unpatentable over
Landuyt, Fleischer, and Bierman.8
ANALYSIS
In rejecting claim 1 as obvious over Landuyt and Fleischer, the
Examiner found that Landuyt’s teeth 35 and protrusions 15 correspond to “a
plurality of tentacles extending from the body member and being arranged in
a two dimensional array of rows and columns,” as recited in claim 1. Final
Act. 2.
Appellants argue that the rejection of claim 1 is in error because “[t]he
rectangular teeth (35) of Landuyt cannot properly be considered to be the
same as the claimed tentacles arranged in an array of rows and columns . . .
[because] Landuyt clearly teaches that the teeth 35 are arranged in a single
row, not an array of rows and columns.” App. Br. 12. According to
Appellants, “Landuyt’s small protrusions 15 are similarly unsuitable for the
claimed structure . . . [because] depictions of the ‘small protrusions 15’ show
that they cannot properly be considered as the tentacles claimed by the
Appellant.” Id. at 13—14 (citing Landuyt, Fig. 1).
Responding to Appellants’ argument, the Examiner asserts:
Appellant argues that the rectangular teeth 35 of Landuyt
does not show an array of rows and columns. While this may be
true, Examiner has pointed out that element 15 can also be
considered to teach tentacles which are placed in an array (as
seen in Fig. 1). These protrusions (15) engage the catheter from
7 Kalt et al., US 5,037,397, issued August 6, 1991.
8 Bierman, US 6,213,979 Bl, issued April 10, 2001.
3
Appeal 2016-000670
Application 12/175,351
below as seen in Fig. 1 (as recited in claim 5 of Landuyt).
Therefore, in combination with the teeth 35, elements 15 and 35
hold the catheter in place and forming a friction fit (Col 3, lines
13—39; Col 1, lines 52—65; Col 2, lines 30-45). The claims do
not recite that every single tentacle must be in an array. Because
[element] 15 is shown in an array these tentacles read on the
presently recited claim.
Ans. 2.
We are persuaded the Examiner erred in finding that Landuyt’s
teeth 35 and/or protrusions 15 constitute the claimed plurality of tentacles.
In response to Appellants’ argument supra, the Examiner acknowledges that
Landuyt’s teeth 35 are not shown as an array of rows and columns. Indeed,
Landuyt’s five rectangular teeth 35 are shown as extending from the lid 2
and arranged parallel to one another, in a single row. See Landuyt, Fig. 1;
see also Landuyt 3:1—3 (“The gripping means 34 is provided by five
rectangular teeth 35 extending parallel to one another and transversely of the
channel 11, and being spaced from one another along the locating region
16.”). As such, Landuyt’s teeth 35 cannot reasonably be interpreted as
constituting “a plurality of tentacles . . . arranged in a two dimensional array
of rows and columns,” as required by claim 1. Therefore, we agree with
Appellants that “element 35 of Landuyt cannot properly constitute any part
of the ‘plurality of tentacles’ recited in claim 1.” Reply Br. 4.
We next determine under a broadest reasonable interpretation,
whether one of ordinary skill in the art would consider Landuyt’s
protrusions 15 as a plurality of tentacles in light of Appellants’
Specification. In interpreting claim language, we apply the broadest
reasonable meaning of the words in their ordinary usage as they would be
understood by one of ordinary skill in the art, taking into account whatever
4
Appeal 2016-000670
Application 12/175,351
enlightenment by way of definitions or otherwise that may be afforded by
the Specification. The ordinary and customary meaning of the term
“tentacle” is an elongated flexible part or extension with the ability to grasp
or stretch.9 Consistent with this meaning, Appellants’ Specification
discloses that “[t]he tentacles 14 are formed as elongated, flexible
protrusions.” Spec. 1 67. The embodiments depicted in the Specification
also show the claimed tentacles 14 as being elongated—unusually long in
relation to their width. See Spec, e.g., Figs. 1 and 4. In contrast, Landuyt
describes element 15 as “an array of small protrusions” (Landuyt 2:44),
depicting these elements as round nodules or bumps. See Landuyt, Fig. 1.
One of ordinary skill in the art would not have reasonably interpreted
Landuyt’s small round protrusions 15 as a plurality of elongated extensions
or tentacles. Thus, the Examiner erred by finding that Landuyt’s
protrusions 15, which form round nodules or bumps, correspond to the
claimed “plurality of tentacles,” which form elongated protrusions.
Accordingly, we do not sustain the obviousness rejection of
independent claim 1. For the same reasons, we also do not sustain the
rejection of dependent claims 2-4, 6—9, 11, 13, and 14. Cf. In re Fritch, 972
F.2d 1260, 1266 (Fed. Cir. 1992) (“dependent claims are nonobvious if the
independent claims from which they depend are nonobvious”).
We also do not sustain the rejection of independent claims 24 (“a
plurality of pliant fingers...”), 28 (“a plurality of tentacles...”), and 35 (“a
plurality of tentacles”), which recite substantially similar claim language
(see App. Br. (Claims App’x)), because the rejection of claims 24, 28, and
9 http://www.yourdictionary.com/tentacle (last visited Oct. 24, 2017).
5
Appeal 2016-000670
Application 12/175,351
35 relies on the same erroneous finding as in claim 1. See Final Act. 4—6, 8.
We also do not sustain the rejection of claims 26 and 29—34, which depend
from independent claims 24 and 28.
DECISION
The decision to reject claims 1—4, 6—9, 11, 13, 14, 24, 26, and 28—35
is reversed.
REVERSED
6