Ex Parte Haines et al

Patent Trial and Appeal Board

Dec 20, 2016

13116473 (P.T.A.B. Dec. 20, 2016)

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.
13/116,473 05/26/2011 Kimberly Haines BPMDL0033KH (10267U) 5541
27939 7590 12/20/2016
Philip H. Burrus, IV
Burrus Intellectual Property Law Group LLC
222 12th Street NE
Suite 1803
Atlanta, GA 30309
EXAMINER
HICKS, VICTORIA J
ART UNIT PAPER NUMBER
3772
MAIL DATE DELIVERY MODE
12/20/2016 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 KIMBERLY HAINES and DEBBIE ESQUIVEL
Appeal 2015-003402
Application 13/116,47s1
Technology Center 3700
Before JOHN C. KERINS, STEFAN STAICOVICI, and LEE L. STEPINA,
Administrative Patent Judges.
STAICOVICI, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Kimberly Haines and Debbie Esquivel (Appellants) appeal under
35 U.S.C. § 134(a) from the Examiner’s final decision rejecting claims
12—17, 19-22, and 55—602. We have jurisdiction over this appeal under
35 U.S.C. § 6(b).
SUMMARY OF DECISION
We REVERSE.
1 According to Appellants, the real party in interest is Medline
Industries, Inc. Appeal Br. 2 (filed June 18, 2014).
2 Claims 1—11, 18, and 23—54 are canceled. Id. at 20-21 (Claims App.).
Appeal 2015-003402
Application 13/116,473
THE INVENTION
Appellants’ invention relates to medical gowns. Spec. para. 1. Claim
12, the sole independent claim, is representative of the claimed invention
and reads as follows:
12. A medical drape, comprising:
a first portion and a second portion:
the first portion wider than the second portion;
the first portion pellucid;
the second portion opaque; and
a tourniquet integrated with the medical drape, the
tourniquet enclosed within and passing through a sleeve on a
patient side of the medical drape, with ends of the tourniquet
that extend outwardly from a non-patient side of the medical
drape;
the first portion defining at least one aperture through
which a peripherally inserted central catheter can be inserted
into a patient when the medical drape is disposed atop the
patient.
THE REJECTIONS
The following rejections are before us for review:3
I. The Examiner rejected claims 12—17, 19, 22, and 58—60 under
35 U.S.C. § 103(a) as being unpatentable over Bream (US 2011/0315150
Al, pub. Dec. 29, 2011), Lair (US 2010/0300459 Al, pub. Dec. 2, 2010),
and Rothrum (US 5,707,703, iss. Jan. 13, 1998).
3 The rejection under 35 USC § 112, first paragraph, of claims 55—57
and 59 as failing to comply with the written description requirement has
been withdrawn by the Examiner. Ans. 11 (mailed Nov. 26, 2014).
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Appeal 2015-003402
Application 13/116,473
II. The Examiner rejected claims 20 and 21 under 35 U.S.C.
§ 103(a) as being unpatentable over Bream, Lair, Rothrum, and Bolker (US
3,881,476, iss. May 6, 1975).
III. The Examiner rejected claims 55—57 under 35 U.S.C. § 103(a)
as being unpatentable over Bream, Lair, Rothrum, and Kirkham (US
8,343,182 B2, iss. Jan. 1,2013).
ANALYSIS
Rejection I
Claim 12 recites, in part, “a tourniquet integrated with the medical
drape, the tourniquet enclosed within and passing through a sleeve on a
patient side of the medical drape, with ends of the tourniquet that extend
outwardly from a non-patient side of the medical drape.” Appeal Br. 20
(Claims App.).
The Examiner finds that Bream discloses most of the limitations of
the medical drape, but relies on Rothrum for teaching a tourniquet integrated
with a medical drape, final Act. 5 (citing Rothrum, Abstract, col. 14,11.
62—65; Tig. lc) (mailed Nov. 22, 2013).
Appellants argue that because Rothrum’s “restraint, not the cable or
tube, can be used as a tourniquet,” “Rothrum never suggests that the cable or
tube can be used as a tourniquet.” Appeal Br. 17. Appellants further
contend that “when the restraint is attached to ‘a surgical drape as taught by
Rothrum’ ... the restraint will only be on a single side of the drape.'” Id.
In response, the Examiner takes the position that Rothrum “explicitly
teaches in column 14, lines 62—65 that the restraint illustrated in Figure 1 [c]
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Application 13/116,473
may be a tourniquet.” Ans. 12. As an ordinary and customary meaning of
the term “sleeve” is “a tubular part designed to fit over another part,” the
Examiner contends that “the loop taught by Rothrum ... in Figure 1 [c] may
be a tourniquet.” Id. (citing http://www/merriam-
webster.com/dictionary/sleeve). The Examiner further opines that “the
tourniquet restraint of Rothrum . . . can be considered to extend from the
patient side (the side at which the sleeve is positioned) to the non-patient
side (a side laterally outward from the sleeve at which the tourniquet
restraint is positioned).” Id.
Rothrum first discloses a cable restraint 1 having a strip 10 with a
cable or tube wrapped in a loop formed in strip 10 by securing adhesive area
20 to adjustment area 30 of strip 10. Rothrum, col. 15,1. 29-col. 16,1. 13;
Figs, la— lc. Rothrum further discloses that, in an alternative embodiment,
[w]hen combined with an elastomeric band-section material the
restraint would allow variable tension to be applied to the object.
For example, a tourniquet can be readily formed from the
restraint (e.g., a restraint can attached to a patient’s gown and
utilized to restrict the flow of blood down a limb).
Id., col. 14,11. 60—65 (emphasis added). Hence, in this alternative
embodiment, upon which the Examiner relies, and as Appellants correctly
note, restraint 1 is used as a tourniquet when formed from an elastomeric
material into a loop (sleeve) and a limb is placed inside the loop. See
Appeal Br. 17. As such, because Rothrum’s restraint 1 is used as a
tourniquet, Rothrum fails to disclose a tourniquet that is “enclosed within
and passing through a sleeve,” as recited in claim 12.
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Application 13/116,473
Furthermore, even assuming arguendo that the cable or tube of
Rothrum constitutes a tourniquet, we do not agree with the Examiner’s
position that such a tourniquet can be considered to extend from the patient
side to the non-patient side of the drape. Ans. 12. Although we appreciate
that the claims “do not define specifically where the patient and non-patient
sides of the drape are located” (see id.), nonetheless, we interpret claim
language in light of the Specification as it would be interpreted by a person
of ordinary skill in the art. In re Suitco Surface, Inc., 603 F.3d 1255, 1260
(Fed. Cir. 2010). Here, Appellants’ Specification describes the “non­
patient” side as the side of the “medical personnel” and the “patient side” as
“the side that will contact the patient when the medical drape ... is used.”
Spec, para 27. Thus, we agree with Appellants that the “patient side” and
the “non-patient side” are on opposite sides of the drape. See Reply Br. 7.
Accordingly, as the tourniquet restraint of Rothrum extends from the patient
side laterally outward from the loop (sleeve) (see Ans. 12), the tourniquet
restraint of Rothrum extends on the same side of the drape, namely, the
patient side of the medical drape. We thus, agree with Appellants that
Rothrum fails to disclose a tourniquet that has portions thereof positioned on
opposite sides of a medical drape, namely, a “patient side” and a “non­
patient side,” as required by claim 12. See Reply Br. 7.
The Examiner’s use of the disclosure of Lair fails to remedy the
deficiencies of Bream and Rothrum discussed supra. See Final Act. 4.
Accordingly, for the foregoing reasons, we do not sustain the rejection under
35 U.S.C. § 103(a) of claims 12—17, 19, 22, and 58—60 as being unpatentable
over Bream, Lair, and Rothrum.
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Appeal 2015-003402
Application 13/116,473
Rejections II and III
The Examiner does not rely on Bolker or Kirkham in any manner that
would remedy the deficiency in the rejection of independent claim 12 based
upon Bream, Lair, and Rothrum. See Final Act. 9—11.
Accordingly, for the same reasons discussed supra, we do not sustain
the rejections under 35 U.S.C. § 103(a) of claims 20 and 21 as unpatentable
over Bream, Lair, Rothrum, and Bolker and of claims 55—57 as unpatentable
over Bream, Lair, Rothrum, and Kirkham.
DECISION
The Examiner’s decision to reject claims 12—17, 19—22, and 55—60 is
reversed.
REVERSED
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