Ex Parte GarrettsonDownload PDFPatent Trial and Appeal BoardJan 16, 201814165776 (P.T.A.B. Jan. 16, 2018) 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. 14/165,776 01/28/2014 John Roy GARRETTSON TUP17006 7460 62439 7590 SINORICA, LLC 20251 Century Blvd. Suite 140 Germantown, MD 20874 EXAMINER TOWNSEND, GUY K ART UNIT PAPER NUMBER 3761 NOTIFICATION DATE DELIVERY MODE 01/18/2018 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): SINORICA@GMAIL.COM sinorica@outlook.com pair @ sinorica.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte JOHN ROY GARRETTSON Appeal 2017-002414 Application 14/165,776 Technology Center 3700 Before JENNIFER D. BAHR, MICHELLE R. OSINSKI, and BRANDON J. WARNER, Administrative Patent Judges. OSINSKI, Administrative Patent Judge. DECISION ON APPEAL STATEMENT OF THE CASE John Roy Garrettson (“Appellant”) appeals under 35 U.S.C. § 134(a) from the Examiner’s decision rejecting claims 1, 3, 6—9, 11, and 12 under 35 U.S.C. § 103(a) as unpatentable over Jensen (US 4,778,446, iss. Oct. 18, 1988) and Kay (US 4,668,227, iss. May 26, 1987).1 We have jurisdiction over the appeal under 35 U.S.C. § 6(b). We AFFIRM. 1 Claims 2, 4, 5, and 10 are cancelled. Br. 2. Appeal 2017-002414 Application 14/165,776 THE CLAIMED SUBJECT MATTER Claims 1, 8, and 11 are independent. Claim 11 is reproduced below and is illustrative of the subject matter on appeal. 11. A urostomy drainage appliance comprising: a wafer; an appliance mount; a convex drainage appliance; at least two drainage stems; the wafer comprises an adhesive interface, an outer section, a stoma opening, and an appliance mount coupler; wherein the adhesive interface being a medical grade water resistant adhesive; wherein the inner section being of a flexible material where, the flexible material is provided to accommodate stoma protrusions; the appliance mount comprises a base section, a flange, a first ring mount, and a second ring mount; the convex drainage appliance comprises a mounting base, a lateral wall, a planar section, a fluid channel, and at least two drainage ports; the drainage stems each comprise a fluid conduit and a tethered drain plug; the fluid channel comprises an angled wall; the at least two drainage stems comprise a first drainage stem and a second drainage stem; the appliance mount being positioned between the inner section and the outer section; the appliance mount being concentrically positioned to the stoma opening; the base section of the appliance mount being coincident with the wafer opposite the adhesive interface; the appliance mount being sealed to the wafer by way of the appliance mount coupler; the first ring mount and the second ring mount being positioned opposite the base section; the first ring mount being concentrically positioned between the stoma opening and the second ring mount; 2 Appeal 2017-002414 Application 14/165,776 the flange being circumferentially positioned to the second ring mount; the convex drainage appliance being centrally positioned to the stoma opening; the convex drainage appliance being sealed to the appliance mount, wherein the mounting base being coupled between the first ring mount and the second ring mount; the flange being secured to the outer section by way of the appliance mount coupler; the fluid channel being positioned between the mounting base and the lateral wall; the lateral wall being positioned between the fluid channel and the planar section; the planar section being positioned distal to the stoma opening; the lateral wall being concave to the stoma opening, wherein the concavity of the lateral wall being curved towards the stoma opening; the fluid channel being traversed by the at least two drainage stems; the angled wall being immediately adjacent to the mounting base; the angled wall being sloped towards the at least two drainage stems; the at least two drainage stems being peripherally positioned to the convex drainage appliance; the fluid conduit traverses through each of the at least two drainage stems; the fluid conduit being in fluid communication with the fluid channel; the fluid conduit being detachably sealed by the tethered drain plug; and the first drainage stem and the second drainage stem being radially positioned about the fluid channel, wherein the first drainage stem and the second drainage stem are angularly positioned about the fluid channel with a 0 [angle therebetween] less than 180°. 3 Appeal 2017-002414 Application 14/165,776 OPINION Appellant presents arguments for the patentability of independent claim 11, and does not separately argue claims 1,3, 6—9, and 12. Br. 6—11. We select claim 11 as the representative claim, and claims 1,3, 6—9, and 12 stand or fall therewith. 37 C.F.R. § 41.37(c)(l)(iv). The Examiner finds that Jensen teaches a urostomy drainage appliance having most of the limitations of independent claim 11, including, inter alia, “at least two drainage stems (ports (12) and (10) C4L7).” Final Act. 16. The Examiner also finds that Jensen teaches that “the drainage stems (10)/(12) each comprise a fluid conduit (interior) Fig 2 and a drain plug C4L 12—13.” Id. at 17. The Examiner acknowledges that Jensen does not teach that the drain plugs are tethered, but finds that Kay teaches “a drain plug (removable plug) that is tethered (by a lanyard) C3L7—11.” Id. at 19. The Examiner concludes that it would have been obvious “to provide the tethered drain plug of Kay for the drain plug of Jensen ... to conveniently secured [sic] the plug to the outside of the drain stem.” Id. at 19-20. Appellant argues that Jensen does not teach at least two drainage stems (i.e., fluid outlets) (Br. 6—7) because “the cited element 10 is an inlet, not an outlet” {id. at 8 (citing Jensen, col. 4,11. 5—7)). According to Appellant, one of ordinary skill in the art would not use Jensen’s inlet port 10 as an outlet (i.e., a drain) because “mixed use between fluid inlet and fluid outlet. . . may result in severe healthy [sic] risk to a user.” Id. at 9 (emphasis omitted). The Examiner responds that because “Jensen’s inlet port (10) has the same structure and arrangement in the device as outlet [port] (12), both ports can be used as first and second drainage stems[,] and thus are capable of the recited function.” Ans. 19. We agree with the 4 Appeal 2017-002414 Application 14/165,776 Examiner that, although Jensen labels port 10 as an “inlet,” each of ports 10 and 12 has the same structure for conveying fluid, and, as such, both ports are capable of draining fluid from the interior of the device. Moreover, Appellant’s contention that mixed use of port 10 as an inlet and an outlet could risk contamination and infection does not persuade us of error in the Examiner’s findings because the Examiner’s rejection is not based on the use of port 10 as both an inlet and outlet, but rather on port 10 being structurally indistinguishable from the claimed drainage stem and, thus, reasonably expected to be capable of being used as a drain. We emphasize that claim 11 is directed to an apparatus rather than a method. In this regard, Appellant does not specifically address the Examiner’s finding that the structure of Jensen’s port 10 is capable of functioning as a drain. Namely, Appellant has not set forth persuasive evidence or technical reasoning to show that one of ordinary skill in the art would have doubted that Jensen’s port 10 would be capable of draining fluid from the interior of the device. Thus, we are not convinced of a patentable distinction between the structure of Jensen’s ports 10 and 12 and the “at least two drainage stems” recited in claim 11. Appellant also argues that Jensen fails to disclose “a tethered drain plug,” as claimed, because the plugs taught by Jensen are not tethered. Br. 11 (citing Jensen, col. 4,11. 12—13). This argument is not persuasive because it improperly addresses Jensen individually, rather than the rejection as articulated by the Examiner, which is based on the combination of Jensen and Kay. See In re Keller, 642 F.2d 413, 425 (CCPA 1981) (one cannot show nonobviousness by attacking references individually when the rejection is based on a combination of the references). As discussed above, 5 Appeal 2017-002414 Application 14/165,776 the Examiner’s rejection relies on Kay for teaching a tethered drain plug. Final Act. 19; see also Ans. 20 (explaining that Jensen is not cited for teaching a tether). For the foregoing reasons, Appellant does not apprise us of error in the Examiner’s conclusion that the subject matter of independent claim 11 would have been obvious. Accordingly, we sustain the rejection of claim 11, and claims 1, 3, 6—9, and 12, which fall therewith, under 35 U.S.C. § 103(a) as unpatentable over Jensen and Kay. DECISION The Examiner’s decision to reject claims 1, 3, 6—9, 11, and 12 under 35 U.S.C. § 103(a) as unpatentable over Jensen and Kay is affirmed. No time period for taking any subsequent action in connection with this appeal may be extended under 37 C.F.R. § 1.136(a)(l)(iv). AFFIRMED 6 Copy with citationCopy as parenthetical citation