11230433 (B.P.A.I. May. 17, 2011)

Ex Parte Gesler

Board of Patent Appeals and InterferencesMay 17, 2011

11230433 (B.P.A.I. May. 17, 2011)

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. 11/230,433 09/20/2005 William G. Gesler III 20002.171 4011 7590 05/18/2011 Christopher J. Fildes Fildes & Outland, P.C. Suite 2 20916 Mack Avenue Grosse Pointe Woods, MI 48236 EXAMINER PATEL, SHEFALI DILIP ART UNIT PAPER NUMBER 3767 MAIL DATE DELIVERY MODE 05/18/2011 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 BOARD OF PATENT APPEALS AND INTERFERENCES ____________________ Ex parte WILLIAM G. GESLER III ____________________ Appeal 2010-001450 Application 11/230,433 Technology Center 3700 ____________________ Before: STEFAN STAICOVICI, KEN B. BARRETT, and PHILLIP J. KAUFFMAN, Administrative Patent Judges. KAUFFMAN, Administrative Patent Judge. DECISION ON APPEAL Appeal 2010-001450 Application 11/230,433 2 STATEMENT OF CASE Appellant appeals under 35 U.S.C. § 134 from a rejection of claims 1- 5, 7-16, and 18, which are all of the pending claims. We have jurisdiction under 35 U.S.C. § 6(b). We REVERSE. THE INVENTION Appellant’s claimed invention relates to “securement devices for securing catheters to a patient’s skin.” Spec. 1:4-6. Claim 1, reproduced below, is representative of the claimed subject matter: 1. A winged securement device comprising: a flexible base having an adhesive side and an opposite non-adhesive side; and a generally planar, integral elastomeric anchoring member mounted on said base non-adhesive side; said anchoring member including a peripheral edge portion, a slit adjacent said base and a pair of opposing gripping tabs formed therein on either side of said slit, said peripheral edge portion circumscribing said gripping tabs; said anchoring member being adhered to said base along said peripheral edge portion of said anchoring member and not being adhered to said base at an inner portion within said peripheral edge portion; whereby said gripping tabs may be pulled to open said slit for receiving wings of a catheter hub therein and for securing said wings between said anchoring member and said base. Appeal 2010-001450 Application 11/230,433 3 REJECTIONS 1. Claims 1-5, 7, 9, 13-16 stand rejected under 35 U.S.C § 102(b) as being anticipated by Reynolds (US 5,147,320; issued September 15, 1992). 2. Claims 8, 10-12, and 18 stand rejected under 35 U.S.C § 103(a) as being unpatentable over Reynolds and Bierman (US 6,582,403 B1; issued June 24, 2003). CONTENTIONS AND ISSUE Each rejection relies upon the Examiner’s finding that Reynolds discloses an anchoring member (exposed surface 14) adhered to a base (closed surface 16) along the peripheral edge portion of the anchoring member (exposed surface 14). Ans. 4, 7. Appellant contends that Reynolds’ exposed surface 14 and closed surface 16 are opposing sides of a unitary pad (device 4), and as such are not adhered to each other along the peripheral edge as called for in independent claims 1 and 13. App. Br. 11-13, 17; Reply Br. 6, 8. The issue before us is whether Reynolds discloses an anchoring member adhered to a base along the peripheral edge portion of the anchoring member as called for in independent claims 1 and 13. ANALYSIS Independent claims 1 and 13 are directed to a device for securing a winged catheter hub that includes an anchoring member adhered to a base along the peripheral edge portion of the anchoring member. Appellant’s Specification does not provide a lexicographical definition of “adhere.” The ordinary and customary meaning of adhere is: “to hold fast or stick by as if by gluing, suction, grasping or fusing;” example “paper adhering to the Appeal 2010-001450 Application 11/230,433 4 wall.” 1 We find nothing in Appellant’s Specification inconsistent with this meaning. In re Zletz, 893 F.2d 319, 321 (Fed. Cir. 1989) (the words of the claim must be given their plain meaning unless the plain meaning is inconsistent with the specification). Giving claims 1 and 13 the broadest reasonable interpretation consistent with Appellant’s Specification, independent claim 1 calls for an anchoring member held fast or stuck to a base as if by gluing, suction, grasping, or fusing, along the peripheral edge portion of the anchoring member. In re Am. Acad. of Sci. Tech Ctr., 367 F.3d 1359, 1364 (Fed. Cir. 2004) (citations omitted) (claim terms are to be interpreted with the broadest reasonable interpretation consistent with the Specification). Reynolds’ exposed surface 14 and closed surface 16 are opposing sides of a unitary pad (device 4). Reynolds, col. 4, ll. 17-18, 22-29; figs. 1- 4. Because exposed surface 14 and closed surface 16 are opposing surfaces of a unitary pad (device 4), exposed surface 14 is not held fast or stuck to closed surface 16 as if by gluing, suction, grasping or fusing as called for in independent claims 1 and 13. Given this erroneous finding of fact, we do not sustain the rejection of independent claims 1 and 13 or their respective dependent claims 2-5, 7-12, 14-16, and 18. 1 WEBSTER’S UNABRIDGED (1996) (“adhere,” vb., definition 3a) (available at http://lionreference.chadwyck.com/initRefShelfSearch.do?initialise= true&listType=mwd). Appeal 2010-001450 Application 11/230,433 5 CONCLUSIONS OF LAW Reynolds does not disclose an anchoring member adhered to a base along the peripheral edge portion of the anchoring member as called for in independent claims 1 and 13. DECISION We reverse the Examiner’s decision to reject claims 1-5, 7-16, and 18. REVERSED nlk