Ex Parte Couvillon et al

Patent Trial and Appeal Board

Feb 25, 2013

10981098 (P.T.A.B. Feb. 25, 2013)

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.
10/981,098 11/04/2004 Lucien Alfred Couvillon JR. 02-204US02 (4010/34C1) 7138
106953 7590 02/25/2013
Mayer & Williams
251 North Avenue West
Suite 201
Westfield, NJ 07090
EXAMINER
GRAY, PHILLIP A
ART UNIT PAPER NUMBER
3767
MAIL DATE DELIVERY MODE
02/25/2013 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 LUCIEN ALFRED COUVILLON JR.,
PETE M. NICHOLAS, and MICHAEL S. BANIK
__________

Appeal 2011-002820
Application 10/981,098
Technology Center 3700
__________

Before TONI R. SCHEINER, JEFFREY N. FREDMAN, and
STEPHEN WALSH, Administrative Patent Judges.

FREDMAN, Administrative Patent Judge.

DECISION ON APPEAL
This is an appeal under 35 U.S.C. § 134 involving claims to a drug
delivery pump. The Examiner rejected the claims as obvious. We have
jurisdiction under 35 U.S.C. § 6(b). We affirm.

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Statement of the Case
Background
“The present invention is directed to novel implantable infusion
pumps in which electroactive polymer actuators are used to express
medication from a medication reservoir within the pump” (Spec. 3 ¶ 0008).
The Claims
Claims 1-19, 26, and 27 are on appeal. Independent claim 1 is
representative and reads as follows:
1. A drug delivery pump apparatus comprising:
(a) a contractible and expandable enclosure having an interior
volume defining a medication reservoir;
(b) an electroactive polymer actuator comprising a conducting
polymer, said electroactive polymer actuator reducing said interior
volume of said contractible and expandable enclosure upon
contraction of said electroactive polymer actuator based upon received
control signals;
(c) a medication outlet port providing fluid communication
between said interior volume of said contractible and expandable
enclosure and an exterior of said delivery pump apparatus; and
(d) a control unit electrically coupled to said actuator and
sending said control signals to said actuator.

The issues
A. The Examiner rejected claims 1-14, 17-19, 26, and 27 under 35
U.S.C. § 103(a) as obvious over Kriesel1 and Adolf2 (Ans. 4-6).
B. The Examiner rejected claims 15 and 16 under 35 U.S.C. § 103(a) as
obvious over Kriesel, Adolf, and Flaherty3 (Ans. 6-7).

1 Kriesel et al., US 6,416,495 B1, issued Jul. 9, 2002.
2 Adolf et al., US 5,250,167, issued Oct. 5, 1993.
3 Flaherty et al., US 6,723,072 B2, issued Apr. 20, 2004.
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A. U.S.C. § 103(a) over Kriesel and Adolf
The Examiner finds that “Kriesel discloses the claimed invention
except for the polymeric actuator which contraction causes a
contraction/reduction of a reservoir (bellows)” (Ans. 4). The Examiner finds
that “Adolf teaches that it is known to use a polymeric actuator which
contraction causes a contraction/reduction of a reservoir (bellows)” (Ans. 4).
The Examiner finds it obvious to
modify the system as taught by Kriesel with use a polymeric
actuator which contraction causes a contraction/reduction of
a reservoir (bellows)as taught by Adolf, since such a
modification would provide the system with use a polymeric
actuator which contraction causes a contraction/reduction of
a reservoir (bellows)for providing suitable alternate designs
of equivalent polymeric actuators and to provide a gel
actuated device demonstrating compactness, simplicity, and
low material costs, while providing a synthetic muscle

(Ans. 5).
The issue with respect to this rejection is: Does the evidence of
record support the Examiner’s conclusion that Kriesel and Adolf render
claim 1 obvious?
Findings of Fact
1. Kriesel teaches “an implantable fluid delivery apparatus that
can be used for the precise infusion of various pharmaceutical fluids into the
patient at controlled rates over extended periods of time” (Kriesel, col. 2, ll.
35-38).
2. Kriesel teaches that “fluid reservoir 44, which contains the
medicinal fluid ‘F’ to be delivered to the patient, is defined by an
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expandable component, here provided as a first expandable bellows 46”
(Kriesel, col. 5, ll. 39-42).
3. Kriesel teaches that “bellows 46 is movable between the
expanded configuration . . . and the collapsed configuration” (Kriesel, col. 5,
ll. 42-44).
4. Figure 4 of Kriesel is reproduced below:

FIG. 4 is a cross-sectional view of the medicament delivery device.
5. Kriesel teaches that “signals can be delivered to the
CPU/electric controller 112 of the implanted device to accomplish, among
other things, the energization of heater foil 72. Upon energizing the heater
foil 72, the expandable gel 70 will expand . . . causing fluid to be
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controllably expelled from the device via the infusion means” (Kriesel, col.
13, ll. 38-42).
6. Kriesel teaches that “[e]xpansion of the first stored energy
means causes bellows 50 to expand . . . and concomitantly causes capture
housing 48 to slide upwardly . . . This upward movement of capture housing
48 causes bellows 46 to collapse . . . As bellows 46 collapses, the fluid
contained therein is forced outwardly of the fluid reservoir through an outlet
port 56” (Kriesel, col. 6, ll. 3-10).
7. Kriesel teaches stimulating a “first stored energy source, which
here comprises an expandable mass 70” so that when “power is supplied to
heater foil 72 via leads 72a, the heater foil will be heated so as to
controllably heat expandable mass 70 to a predetermined, substantially
constant elevated temperature to enable appropriate expansion thereof”
(Kriesel, col. 6, ll. 19-30).
8. Kriesel teaches regarding “the novel expandable mass 70, this
mass is here provided in the form of a polymeric gel . . . Polymeric gels best
suited for use in constructing the heat expandable mass of the present
invention are gels which undergo a change in polymer conformation and in
so doing exhibit a large volume change at a given phase-transition
condition” (Kriesel, col. 6, ll. 33-52).
9. Kriesel teaches that “when such gels experience certain
environmental changes, the entire gel, or a component thereof will undergo a
reversible volumetric change which typically involves a shift between two
equilibrium states as, for example, expanded and collapsed” (Kriesel, col. 7,
ll. 39-43).
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10. Kriesel teaches that “[g]els particularly well suited for use as
the stored energy sources of the present invention include various types of so
called ferrogels that respond reversibly to a magnetic field” (Kriesel, col. 9,
ll. 49-51).
11. Kriesel teaches that a “ferrogel can respond to a magnetic
stimuli by either elongating (growing in length) or contracting (shortening in
length). . . . the placement of the applied magnetic field relative to the
ferrogel determines whether a contraction or elongation is observed”
(Kriesel, col. 10, ll. 22-27).
12. Adolf teaches “employment of polyelectrolyte polymeric gels
in electrolytic solutions contained in flexible containers and selectively
subjecting them to electrical potentials to induce desired expansion or
contraction so as to act as an actuator” (Adolf, col. 7, ll. 49-52).
13. Adolf teaches that “[u]pon application of an electrical potential
from power source 116, polymer gel sheets 114 in the vicinity of inner wall
102 [sic 104] swell resulting in a sphincter type action opening of annular
gel actuator 100” (Adolf, col. 5, ll. 30-34).
14. Adolf teaches that “[u]pon removal of electrical potential, the
cation-rich polymeric gel sheets contract to their original configuration
resulting in the closing of the annular polymeric gel actuator 100. Proper
actuation of a series of such annular actuators can result in a peristaltic pump
action” (Adolf, col. 5, ll. 34-39).
15. Figures 4 and 4a of Adolf are reproduced below:
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“FIG. 4 is a view in perspective of another embodiment of the invention
wherein the encapsulated polymeric gel actuator is capable of a sphinctering
action. FIG. 4a is a plan view of the gel actuator of FIG. 4” (Adolf, col. 3, ll.
26-30).
16. Adolf teaches “an alternative annular actuator structure . . .
Upon application of electric potential to electrodes 108 and 110, gel
elements 116 and 118 contract against inner wall 104, closing the annulus.
Upon removal of electrical potential, gel elements then expand allowing the
annulus to open” (Adolf, col. 5, ll. 40-50).
17. Adolf teaches “gel actuated devices demonstrating
compactness, simplicity, modest weight, small power requirements, and low
material costs” (Adolf, col. 2, ll. 41-44).
Principles of Law
“The combination of familiar elements according to known methods
is likely to be obvious when it does no more than yield predictable results.”
KSR Int’l Co. v. Teleflex Inc., 550 U.S. 398, 416 (2007). “If a person of
ordinary skill can implement a predictable variation, § 103 likely bars its
patentability.” Id. at 417.
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Analysis
Kriesel teaches a drug delivery pump apparatus (FF 1) comprising:
a) a “fluid reservoir 44, which contains the medicinal fluid ‘F’ to be
delivered to the patient, is defined by an expandable component, here
provided as a first expandable bellows 46” (Kriesel, col. 5, ll. 39-42; FF 2).
Kriesel teaches that “bellows 46 is movable between the expanded
configuration . . . and the collapsed configuration” (Kriesel, col. 5, ll. 42-44;
FF 3).
b) Kriesel teaches regarding “the novel expandable mass 70, this mass
is here provided in the form of a polymeric gel” (Kriesel, col. 6, ll. 33-34; FF
8).
c) Kriesel teaches that as “bellows 46 collapses, the fluid contained
therein is forced outwardly of the fluid reservoir through an outlet port 56”
(Kriesel, col. 6, ll. 8-10; FF 6).
d) Kriesel teaches that “signals can be delivered to the CPU/electric
controller 112 of the implanted device to accomplish, among other things,
the energization of heater foil 72. Upon energizing the heater foil 72, the
expandable gel 70 will expand . . . causing fluid to be controllably expelled
from the device via the infusion means” (Kriesel, col. 13, ll. 38-42; FF 5).
While Kriesel teaches the use of a polymeric gel to reduce the interior
volume of a contractible and expandable enclosure based on control signals
(FF 2, 3, 5, 6), Kriesel does not teach contraction of an electroactive polymer
as the actuator polymer.
Adolf teaches the use of the expansion and contraction of
electroactive polymers as actuators (FF 12). Adolf teaches that “[p]roper
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actuation of a series of such annular actuators can result in a peristaltic pump
action” (Adolf, col. 5, ll. 34-39; FF 14). Adolf teaches an embodiment
where “[u]pon application of electric potential to electrodes 108 and 110, gel
elements 116 and 118 contract against inner wall 104, closing the annulus”
(Adolf, col. 5, ll. 40-50; FF 16).
Applying the KSR standard of obviousness to the findings of fact, we
conclude that the person of ordinary skill would have reasonably substituted
Adolf’s electroactive polymer (FF 12) as a known equivalent of the heat
expandable or ferrogel polymers of Kriesel (FF 7, 10, 11). Kriesel
recognizes the use of multiple gel types (FF9) and Adolf provides a reason
to select the electroactive polymers teaching that “gel actuated devices
demonstrating compactness, simplicity, modest weight, small power
requirements, and low material costs” (Adolf, col. 2, ll. 41-44; FF 17). Such
a combination is merely a “predictable use of prior art elements according to
their established functions.” KSR, 550 U.S. at 417.
Appellants contend that “it is quite clear that Adolf does not show a
polymer actuator that reduces the interior volume of a reservoir or enclosure
upon its contraction, as required by claim 1 of the present invention” (App.
Br. 5).
We are not persuaded. Adolf teaches that the electroactive polymer
can contract to reduce an enclosure. Specifically, Adolf teaches an
embodiment where “[u]pon application of electric potential to electrodes 108
and 110, gel elements 116 and 118 contract against inner wall 104, closing
the annulus” (Adolf, col. 5, ll. 40-50; FF 16). In this embodiment, the
contraction of the gel elements closes the annulus. If the same gel elements
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were placed in the device of Kriesel, then the ordinary artisan would have
recognized that contraction of the gel elements would have functioned to
reduce the interior volume of an enclosure, and served as the actuator in the
pump/bellows of Kreisel (FF 6, 16).
Conclusion of Law
The evidence of record supports the Examiner’s conclusion that
Kriesel and Adolf render claim 1 obvious.
B. 35 U.S.C. § 103(a) over Kriesel, Adolf, and Flaherty
The Examiner finds that “Flaherty teaches that it is known to use a
wireless power transmission interface and battery” (Ans. 6). The Examiner
finds it obvious to “modify the fluid delivery device as taught by Kriesel
with a wireless power transmission interface and battery as taught by
Flaherty, since such a modification would provide the fluid delivery device
with a wireless power transmission interface and battery for providing a
smaller, light-weight, easy-to-use device for delivering liquid medicines to a
patient remotely” (Ans. 6-7).
The Examiner provides sound fact-based reasoning for combining
Flaherty with Kriesel and Adolf. We adopt the fact finding and analysis of
the Examiner as our own. Appellants do not separately argue this rejection.
Therefore, consistent with the rejection which we affirmed above, we affirm
this rejection for the reasons stated by the Examiner.

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SUMMARY
In summary, we affirm the rejection of claim 1 under 35 U.S.C.
§ 103(a) as obvious over Kriesel and Adolf. Pursuant to 37 C.F.R. §
41.37(c)(1), we also affirm the rejection of claims 2-14, 17-19, 26, and 27 as
these claims were not argued separately.
We affirm the rejection of claims 15 and 16 under 35 U.S.C. § 103(a)
as obvious over Kriesel, Adolf, and Flaherty.

No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a).

AFFIRMED

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