Ex Parte Hoke et al

Patent Trial and Appeal Board

Nov 3, 2016

13276456 (P.T.A.B. Nov. 3, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
13/276,456 10/19/2011
27885 7590
FAY SHARPE LLP
1228 Euclid Avenue, 5th Floor
The Halle Building
Cleveland, OH 44115
11/03/2016
FIRST NAMED INVENTOR
Martin R. Hoke
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
ATTORNEY DOCKET NO. CONFIRMATION NO.
RHIN 200002US03 3982
EXAMINER
PATEL, SHEFALI DILIP
ART UNIT PAPER NUMBER
3763
MAILDATE DELIVERY MODE
11/03/2016 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 MARTIN R. HOKE
and PAUL R. METCALFE 1
Appeal2015-0003442
Application 13/276,456
Technology Center 3700
Before DONALD E. ADAMS, JEFFREY N. FREDMAN,
and TIMOTHY G. MAJORS, Administrative Patent Judges.
PERCURIAM
DECISION ON APPEAL
This is an appeal under 35 U.S.C. § 134 involving claims to a method
for irrigating a nasal cavity which have been rejected as obvious. We have
jurisdiction under 35 U.S.C. § 6(b ).
We reverse.
1 Appellants identify the Real Party in Interest as RhinoSystems, Inc. (App.
Br. 1.)
2 This Appeal is related to Appeal No. 2014-008678, Application No.
13/276,448.
Appeal2015-000344
Application 13/276,456
STATEMENT OF THE CASE
Appellants' invention "generally relate[s] to methods and devices for
irrigating and rinsing the nasal cavity and anatomical openings thereto."
(Spec. i-f 2.) The method includes "sealing the nares of a user to a hand-held
device including an associated fluid passageway in communication with a
saline solution source and a saline effluent receptacle." (Id. at i-f 23.)
Claims 1-5 and 7-13 are on appeal. Claim 1 is illustrative:
1. A method for irrigating a nasal cavity including:
sealing nares of a user to a hand-held device via first and
second nozzles to form an associated closed fluid passageway in
communication with a saline solution source and an effluent
receptacle, wherein the passageway, source and receptacle are
integrally assembled in the hand-held device, the source being
disposed above the nasal cavity and the receptacle being
disposed below the nasal cavity for defining a gravitationally
induced flowpath through the fluid passageway;
applying a relative vacuum to the effluent receptacle with
a powered suction source also included in the hand-held device;
and,
releasing saline solution from the source into the
passageway and the nasal cavity whereby a continuous flow of
the saline solution through the nares and around a posterior
margin of a nasal septum irrigates the nasal cavity, the flow being
induced by a combination of gravity and the relative vacuum.
(App. Br. 14 (Claims App'x).)
Claims 1-5 and 7-13 are rejected under 35 U.S.C. § 103(a) over
Drinan, 3 Kronenberg, 4 and Djupesland. 5
3 Drinan et al., US 6,907,879 B2, issued June 21, 2005.
4 Kronenberg, US 2,078,180, issued Apr. 20, 1937.
5 Djupesland, US 6,715,485 Bl, issued Apr. 6, 2004.
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Appeal2015-000344
Application 13/276,456
The Examiner finds that
DISCUSSION
Drinan [] teaches a method for irrigating a nasal cavity (column
6, lines 19--28) including:
sealing nares (orifice openings of nasal cavity/structures sealed
with nozzles [34]) of a user to a hand-held device (Figures 1-6,
device [5])[](column 10, lines 57---61) via first and second
nozzles [34] to form an associated closed fluid passageway
(Figures 5 and 6) in communication with a saline solution source
(first reservoir [85] with saline solution)[](column 13, lines 56-
61) and an effluent receptacle (collection reservoir [82]).
(Final Act. 5.) The Examiner finds that Drinan also discloses "the source
being disposed above the nasal cavity and the receptacle being disposed
below the nasal cavity (Figure 5)." (Id.)
The Examiner finds that "Drinan [] does not appear to teach defining a
gravitationally induced flowpath through the fluid passageway." (Id.) The
Examiner, however, turns to Kronenberg and concludes that it would have
been obvious to
modify the method, of Drinan[], to define a gravitationally
induced flowpath through the fluid passageway, as taught by
Kronenberg, as such will minimize the vacuum and pressure
necessary for inducement of the saline solution to the nasal cavity
and to the effluent receptacle as inducement will occur by gravity
(page 2, column 2, lines 29--39), thus providing a power-saving
feature to the method as less power will be supplied to the suction
source.
(Id. at 6.) According to the Examiner, "Kronenberg is only used to further
support the concept of gravitational inducement." (Ans. 7.)
The Examiner finds that "Drinan [] is silent about whether the saline
solution flows through the nares and around a posterior margin of a nasal
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Appeal2015-000344
Application 13/276,456
septum to irrigate the nasal cavity." (Final Act. 6.) The Examiner, however,
turns to Djupesland and concludes that it would have been obvious to
modify the flow of the saline solution, in the modified method of
Drinan [] and Kronenberg, to be through the nares and around a
posterior margin of a nasal septum, as taught by Djupesland, as
(Id.)
such results in a redirection of the saline solution for better and
bi-directional deposition of the saline solution to the posterior
regions of the nasal turbinates and the nasal mucosa for a better
reach of all the sinus ostia, which can improve sinus ventilation
and drainage which is essential to treat sinusitis and
inflammation of the nasal mucosa (column 7, lines 35--49).
We are not persuaded that the Examiner has established by a
preponderance of the evidence that claims 1 and 7 would have been obvious.
Each of Appellants' independent claims 1 and 7, requires, among
other things, "[a] method for irrigating a nasal cavity including: sealing
nares of a user to a hand-held device via first and second nozzles to form an
associated closed fluid passageway in communication with a saline solution
source and an effluent receptacle." (App. Br. 14--15 (Claims App'x).) The
method thus requires the step of sealing the nares (i.e., both nostrils) of the
user via first and second nozzles to form an associated closed fluid
passageway. (See App. Br. 14--15 (Claims App'x).)
The Examiner relies on Drinan to teach the claimed limitation:
"sealing nares of a user to a hand-held device via first and second nozzles to
form an associated closed fluid passageway in communication with a saline
solution source and an effluent receptacle." (App. Br. 14--15 (Claims
App'x); see Final Act. 5.)
The Examiner asserts that
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Appeal2015-000344
Application 13/276,456
"[a]s Drinan []teaches nozzles [34] (column 7, line 33), saline
solution is delivered to both first and second nares. The
secondary reference of Djupesland renders obvious the flow of
the saline solution through the nares and around a posterior
margin of a nasal septum (column 7, lines 35--49).
(Ans. 2-3.)
Appellants, however, contend that
Drinan clearly expresses that his device is an "aspiration device"
(see Title) wherein the aspiration device will "operate to first
deliver an agent contained within the device to an orifice cavity
and after an optional time delay, subsequently aspirate the
delivered agent and orifice contents from the orifice cavity and
related areas." (see Abstract). It is clearly a two-step and
sequential process of first delivering the agent, and then
removing the agent from the very same orifice cavity. This is
simply a classic and conventional aspiration device. There is no
teaching or suggestion anywhere in Drinan of a continuous flow
in one nare and out the other.
(Reply Br. 2; see also App. Br. 7-8.) Appellants further explain that"[ e ]ven
more objectionable is how the Examiner construes Drinan for the claimed
requirement of first and second nozzles sealed against the nares" and that
Drinan's element 34 in Fig. 2 is "intended to contact, and capable of only
contacting, a single orifice." (Reply Br. 3--4.)6 These arguments are
persuasive. Contrary to the Examiner's finding, Drinan does not teach the
step of "sealing nares of a user to a hand-held device via first and second
nozzles to form an associated closed fluid passageway in communication
6 As Appellants contend, "[ t ]he multiple radiating lines shown in Fig. 2 from
element 34 [of Drinan] are only intended to indicate that the nozzle may
dispense a mist or spray from a plurality of ports in the nozzle. It is not a
teaching of first and second nozzles contacting distinct nares of a user."
(Reply Br. 4.) On the present record, Appellants' interpretation of Figure 2
is the more reasonable one.
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Appeal2015-000344
Application 13/276,456
with a saline solution source and an effluent receptacle" in a method for
irrigating a nasal cavity. The Examiner has not provided findings or other
persuasive reasoning on the present record to show that Kronenberg or
Djupesland - alone or in combination - make up for the deficiencies
noted above concerning Drinan. Nor has the Examiner sufficiently
explained the modifications that would be required and predictably made by
the skilled artisan, in view of the combination of the cited art, to produce the
method claimed.
For the reasons above, the rejection of independent claims 1 and 7 are
reversed. We also reverse the rejection of claims 2-5 and 8-13 because of
their dependencies from claims 1 and 7.
CONCLUSION OF LAW
We reverse the rejection of claims 1-5 and 7-13 under 35 U.S.C.
§ 103(a) over Drinan, Kronenberg, and Djupesland.
REVERSED
6