Ex Parte HansenDownload PDFPatent Trial and Appeal BoardApr 16, 201311630987 (P.T.A.B. Apr. 16, 2013) Copy Citation UNITED STATES PATENT AND TRADEMARKOFFICE 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. 11/630,987 12/28/2006 Bernd Hansen 52858 4357 1609 7590 04/17/2013 ROYLANCE, ABRAMS, BERDO & GOODMAN, L.L.P. 1300 19TH STREET, N.W. SUITE 600 WASHINGTON,, DC 20036 EXAMINER SCHMIDT, EMILY LOUISE ART UNIT PAPER NUMBER 3767 MAIL DATE DELIVERY MODE 04/17/2013 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 BERND HANSEN __________ Appeal 2011-011048 Application 11/630,987 Technology Center 3700 __________ Before ERIC GRIMES, MELANIE L. McCOLLUM, and JEFFREY N. FREDMAN, Administrative Patent Judges. McCOLLUM, Administrative Patent Judge. DECISION ON APPEAL This is an appeal under 35 U.S.C. § 134 involving claims to a receptacle. The Examiner has rejected the claims as obvious. We have jurisdiction under 35 U.S.C. § 6(b). We reverse. STATEMENT OF THE CASE Claims 12-24 are pending and on appeal (App. Br. 2). We will focus on claim 12, the only independent claim on appeal, which reads as follows: 12. A receptacle of elastically flexible plastic material, comprising: a dosing chamber containing a delivery medium and having opposite first and second ends; a discharge opening at said first end of said dosing chamber; Appeal 2011-011048 Application 11/630,987 2 a compressible receptacle part containing a gaseous propellant medium and coupled at said second end of said dosing chamber via a connecting point connecting said dosing chamber and said receptacle part in fluid communication, said connecting point being a capillary tube creating a capillary action independently of relative three-dimensional locations of said dosing chamber and said receptacle part to prevent flow of said delivery medium into said receptacle part; and a support device stiffening said capillary tube, said support device including at least two bridge-shaped support arms extending along at least part of a length of said receptacle part, all of a length of said capillary tube and at least part of a length of dosing chamber; whereby upon compression of said receptacle part, said propellant medium displaces said delivery medium out of said dosing chamber via said discharge opening. Claims 12, 13, 15, 16, 18, 19, and 22-24 stand rejected under 35 U.S.C. § 103(a) as obvious over Dirksing (US 5,215,221, Jun. 1, 1993) in view of Schenk et al. (WO 90/07351 A1, Jul. 12, 1990) as evidenced by Schlosser et al. (US 5,350,366, Sep. 27, 1994), Kirchhofer (US 2008/0132840 A1, Jun. 5, 2008), and Pohlmann et al. (US 2009/0000615 A1, Jan. 1, 2009) (Ans. 4). Claim 14 stands rejected under 35 U.S.C. § 103(a) as obvious over Dirksing in view of Schenk and Welker, III et al. (US 3,993,223, Nov. 23, 1976) as evidenced by Schlosser, Kirchhofer, and Pohlmann (Ans. 6). Claim 17 stands rejected under 35 U.S.C. § 103(a) as obvious over Dirksing in view of Schenk and Fuchs (US 6,419,167 B1, Jul. 16, 2002) as evidenced by Schlosser, Kirchhofer, and Pohlmann (Ans. 6). Claims 20 and 21 stand rejected under 35 U.S.C. § 103(a) as obvious over Dirksing in view of Schenk and Garcia et al. (US 6,786,369 B2, Sep. 7, 2004) as evidenced by Schlosser, Kirchhofer, and Pohlmann (Ans. 7). Appeal 2011-011048 Application 11/630,987 3 I In rejecting claim 12, the Examiner relies on Dirksing for teaching a receptacle substantially as claimed (Ans. 4-5). In particular, the Examiner finds that Dirksing teaches a receptacle “comprising: a dosing chamber [14] containing a delivery medium . . . ; a discharge opening [18] at said first end of said dosing chamber . . . ; a compressible receptacle part [13] containing a gaseous propellant medium and coupled at said second end of said dosing chamber via a connecting point” (id. at 4). However, the Examiner acknowledges that “Dirksing does not specifically teach using a capillary tube” (id. at 5). The Examiner relies on Schenk for teaching “using a restriction of capillary size to connect a product chamber and a gas chamber to provide for sufficient velocity to allow for adequate delivery” (id.). The Examiner relies on Schlosser, Kirchhofer, and Pohlmann “as evidence . . . that a tube of the size between .1mm and 1mm as in Schenk et al. is a capillary tube” (id.). The Examiner concludes that it would have been obvious “to use a capillary tube constriction in the device of Dirksing because Schenk et al. teach that such is beneficial to provide the necessary velocity for delivery” (id.). Appellant argues that Schenk “does not disclose a capillary tube” (App. Br. 6). Appellant also argues that the Examiner “has not pointed to any specific principle or motivation in the prior art that would lead one skilled in the art to arrive at the invention as claimed” (id. at 10). In addition, Appellant argues that Schenk “is not in the same field of endeavor as the inventor and is not reasonably pertinent to the particular problem with which the inventor is involved” (Reply Br. 2). Appeal 2011-011048 Application 11/630,987 4 Issue Has the Examiner set forth a prima facie case that it would have been obvious to modify Dirksing’s dispenser to connect chamber 13 and product reservoir 14 via a capillary tube? Findings of Fact 1. Dirksing discloses “a unit dose dispenser . . . for fluidizing and dispensing a predetermined quantity of powdered product” (Dirksing, col. 1, ll. 44-46). 2. In particular, Dirksing discloses a dispenser 10 comprising a blister 11 and a backsheet 12, wherein the “blister 11 comprises three chambers; a gas or air chamber 13, a product reservoir 14 and a delivery tube 15,” and wherein a “rupturable seal 17 separates gas chamber 13 from product reservoir 14” (id. at col. 2, ll. 30-55). 3. To use the dispenser, Dirksing discloses: Pressure is applied to gas chamber 13 . . . by manually squeezing the dispenser 10. . . . Seal 17 eventually ruptures and releases the pressurized gas from gas chamber 13 into product reservoir 14 and out through delivery tube 15. . . . The energy stored in the compressed gas, up to the point of the rupture of seal 17 and the quickness of the collapse of gas chamber 13, causes a jet of air or gas to discharge from gas chamber 13 into the adjacent product reservoir 14. The air jet fluidizes and dispenses powdered product 25 in product reservoir 14 and out through delivery tube 15. (Id. at col. 3, ll. 20-45.) 4. Schenk discloses: an oral inhaler for use in inhaling a powdered or particulate medical product and comprising a chamber for containing the medical product [14], a gas flow passage [17] defining a Appeal 2011-011048 Application 11/630,987 5 restriction or throat [18], and means defining a connecting passage interconnecting the product chamber and the flow passage at the restriction or adjacent thereto so as to allow product to be drawn into the gas flow passage. (Schenk 3: 8-14 & Abstract). 5. Schenk also discloses: [W]hen the inhaler according to the invention is operated a relatively small volume of gas or air is caused to flow through the restriction of the gas flow passage at a relatively high velocity. . . . The low static pressure, which is thereby generated in the restriction, causes that medical product from the product chamber [to be] rapidly sucked into the restriction of the gas flow passage. When the product is moved further through the gas flow passage it will become influenced by the concentrated, high velocity air or gas flow from the restriction giving rise to heavy turbulence, whereby the product particles are disintegrated into respirable particles. Because a relatively small gas or air volume is used for operating the inhaler, the flow emerging from the restriction or throat will soon expand, whereby the flow velocity is rather rapidly reduced to about 0 even when the expansion volume is relatively small. Then the air or gas with the respirable particles dispersed therein may be inhaled in a normal manner. Thus, the vigorous gas or air flow formed in the restriction of the gas flow passage has a double function. Firstly, it should cause suction of medical product from the product chamber into the gas flow passage, and, secondly, it should cause disintegration of the product into respirable particles to an extent which cannot be obtained by conventional inhalers apart from aerosol inhalers in which a propellant gas under a rather high pressure is used. (Id. at 6: 3-25.) 6. In addition, Schenk discloses: In order to obtain a sufficiently high velocity of the gas or air flow in the restriction of the air flow passage to form the desired respirable particles, the diameter of the restriction or Appeal 2011-011048 Application 11/630,987 6 throat must be relatively small. In a preferred embodiment the diameter of the restriction should be greater than 0.1 mm and smaller than 1 mm. (Id. at 8: 1-5.) Analysis Dirksing discloses a unit dose dispenser comprising “three chambers; a gas or air chamber 13, a product reservoir 14 and a delivery tube 15,” wherein a “rupturable seal 17 separates gas chamber 13 from product reservoir 14” (Findings of Fact (FF) 1-2). It is undisputed that Dirksing does not teach a capillary tube connecting gas chamber 13 and product reservoir 14 (Ans. 5). Instead, the Examiner relies on Schenk for teaching a capillary tube (id.). Specifically, the Examiner finds that Schenk’s restriction 18 is a capillary tube (id. at 5 & 8-9). However, even if we assume that Schenk’s restriction 18 would be considered a capillary tube, we conclude that the Examiner has not adequately explained why it would have been obvious to include Schenk’s restriction 18 to connect Dirksing’s gas chamber 13 and product reservoir 14. The Examiner concludes that it would have been obvious “to use a capillary tube constriction in the device of Dirksing because Schenk et al. teach that such is beneficial to provide the necessary velocity for delivery” (Ans. 5). However, as noted by Appellant (App. Br. 7), Schenk discloses that “the vigorous gas or air flow formed in the restriction of the gas flow passage . . . cause[s] suction of medical product from the product chamber into the gas flow passage, and . . . cause[s] disintegration of the product into respirable particles” (FF 5). Given that the Examiner’s combination would Appeal 2011-011048 Application 11/630,987 7 incorporate Schenk’s restriction 18 upstream of Dirksing’s product chamber 14 (Ans. 4-5; see also FF 3), the Examiner has not adequately explained why this incorporation would have been beneficial to Dirksing’s dispenser. Conclusion The Examiner has not set forth a prima facie case that it would have been obvious to modify Dirksing’s dispenser to connect chamber 13 and product reservoir 14 via a capillary tube. We therefore reverse the obviousness rejection of claim 12 and of claims 13, 15, 16, 18, 19, and 22- 24, which depend from claim 12. II In rejecting claims 14, 17, 20, and 21, which depend from claim 12, the Examiner includes Welker, Fuchs, and/or Garcia to address features recited in these dependent claims. However, the Examiner does not explain how Welker, Fuchs, and/or Garcia suggest a capillary tube. We therefore also reverse the obviousness rejections of claims 14, 17, 20, and 21. REVERSED lp Copy with citationCopy as parenthetical citation