Ex Parte Keil et al

Patent Trial and Appeal Board

Apr 13, 2015

12102425 (P.T.A.B. Apr. 13, 2015)

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.
12/102,425 04/14/2008 Charles C. Keil 0128533.0616781 1130
123455 7590 04/13/2015
Midmark Corporation c/o Frost Brown Todd LLC
3300 Great American Tower
301 East Fourth Street
Cincinnati, OH 45202
EXAMINER
CONLEY, FREDRICK C
ART UNIT PAPER NUMBER
3673
MAIL DATE DELIVERY MODE
04/13/2015 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 CHARLES C. KEIL and JOHN A. OWCZARCZAK
____________

Appeal 2013-003450
1

Application 12/102,425
Technology Center 3600
____________

Before NINA L. MEDLOCK, PHILIP J. HOFFMANN, and
ROBERT L. KINDER, Administrative Patent Judges.

HOFFMANN, Administrative Patent Judge.

DECISION ON APPEAL

STATEMENT OF THE CASE
Appellants appeal under 35 U.S.C. § 134 from the rejection of
claims 1–9.
2
We have jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM-IN-PART.
According to the Specification, Appellants’ “invention relates to
tables for examining and performing procedures on animals, and[,] more
particularly[,] to a veterinary procedure table with an equipment support.”

1
Appellants state, “[t]he real party in interest is Midmark Corporation.”
Appeal Br. 3.
2
Our decision references Appellants’ Specification (“Spec.,” filed Apr. 14,
2008), Appeal Brief (“Appeal Br.,” filed July 24, 2012), and Reply Brief
(“Reply Br.,” filed Dec. 27, 2012), as well as the Examiner’s Answer
(“Answer,” mailed Oct. 15, 2012).
Appeal 2013-003450
Application 12/102,425

2

Spec. ¶ 1. We reproduce below claim 1 as representative of the appealed
claims.
1. A veterinary procedure table, comprising:
a vertically extending frame;
an animal support assembly having first and
second spaced apart ends defining a lengthwise
dimension, and having first and second spaced
apart sides defining a widthwise dimension, said
lengthwise dimension being greater than said
widthwise dimension, said animal support
assembly slidably coupled to said vertically
extending frame only at said first end such that
said animal support assembly is cantilevered from
said vertically extending frame, with said second
end extending outwardly from said vertically
extending frame, and such that said animal support
assembly is movable from a position very close to
a floor surface, such that a large animal can be
placed onto the animal support assembly, to a
plurality of elevations relative to said vertically
extending frame, to raise the animal from the floor
surface;
a sink associated with said animal support
assembly, said sink including a bottom wall and at
least one sidewall defining a reservoir adapted to
receive fluid or debris;
a grille associated with said animal support
assembly and extending over and across said sink,
said grille comprising a plurality of spaced-apart
rods extending between peripheral frame members
and defining a substantially planar structure
adapted to support the animal thereon and to pass
fluid or debris therethrough into said sink; and
an equipment support movably coupled to said
vertically extending frame or said animal support
assembly, wherein said equipment support
Appeal 2013-003450
Application 12/102,425

3

includes a proximal end secured to said animal
support assembly or said vertically extending
frame, and a distal end selectively, movably
positionable relative to said animal support
assembly and configured to support a device or
surgical tool used during veterinary procedures at a
selected position relative to said animal support
assembly.
Appeal Br., Claims App.
REJECTIONS AND PRIOR ART
Appellants appeal the following rejections made by the Examiner:
claims 1–4 and 6–9 are rejected under 35 U.S.C. § 103(a) as
unpatentable over Keil (US 7,073,464 B2, iss. July 11, 2006) and Foster
(US 5,186,337, iss. Feb. 16, 1993); and
claim 5 is rejected under 35 U.S.C. § 103(a) as unpatentable over
Keil, Foster, and Cheng (US 6,467,112 B1, iss. Oct. 22, 2002).
ANALYSIS
With respect to claims 1–4 and 6–9, we note that Appellants do not
argue the claims under a separate heading as required by 37 C.F.R. § 41.37,
so that claims 1–4 and 6–9 stand or fall together. Thus, inasmuch as we
sustain the rejection of independent claim 1 for the below reasons, we also
sustain the rejection of claims 2–4 and 6–9. Regardless, we also find that
Appellants fail to establish persuasively that the rejection of independent
claims 3 and 9 is erroneous.
With respect to claim 1, we have carefully considered Appellants’
arguments (see Appeal Br. 9–11; see also Reply Br. 2–4). Nonetheless, we
agree with the Examiner that the combination of references renders claim 1
obvious (see Answer 3–9).
Appeal 2013-003450
Application 12/102,425

4

In KSR, the Supreme Court emphasized “the need for caution in
granting a patent based on the combination of elements found in the prior
art.” KSR Int’l Co. v. Teleflex Inc., 550 U.S. 398, 415 (2007). The Court
discussed circumstances in which a patent might be determined to be
obvious without an explicit application of the teaching, suggestion, or
motivation test. In particular, the Supreme Court reaffirmed that, “[t]he
combination of familiar elements according to known methods is likely to be
obvious when it does no more than yield predictable results.” Id. at 416. In
this case, with respect to claim 1, the Examiner relies on Keil to disclose
almost every limitation of the claimed veterinary procedure table including a
vertically extending frame (see, e.g., Answer 3), relies on Foster to disclose
a similar structure including an equipment support that is coupled to a
similar vertically extending frame (see, e.g., id. at 3), and concludes, “[i]t
would have been obvious . . . to employ . . . [Foster’s] supports . . . on . . .
the vertically extending column of Kiel[,] yielding predictable results . . .
[of] provid[ing] optimal access to equipment that is more easily reached with
greater flexibility in positioning and moving equipment and surgical tools
. . . during a medical procedure” (id. at 4–5) (emphasis omitted). Thus,
despite any of Appellants’ arguments to the contrary, we agree with the
Examiner that the Examiner’s proposed modification amounts to the use of
known elements in known ways to yield predictable results.
We find that claim 1 is obvious, and thus we are not persuaded that
the rejection is erroneous. For example, we find unpersuasive Appellants’
contention that Foster’s vertically extending “column . . . does not itself
support the removable bed or an animal support surface, and nothing in
Foster . . . suggests mounting an equipment support . . . on a stationary,
Appeal 2013-003450
Application 12/102,425

5

vertically extending frame (such as the vertical frame of Keil . . .) to which
an animal support assembly is coupled for movement between plural
elevations” (Appeal Br. 10). Similarly, we do not agree with Appellants that
the “modification of Keil . . . as alleged by the Examiner is contrary to the
teachings of Foster . . . [because] Foster . . . states that it is the pivoting
feature of the . . . [vertically extending] column of Foster . . . that provides
such optimal access to a patient” (id. at 10). Regardless of how Foster
provides access to a patient, we determine above that the Examiner
reasonably concludes that it would have been obvious to use Foster’s
equipment support (that is coupled to a vertically extending column) on a
similar vertically extending column disclosed in Keil, and that doing so
would result predictably in the combination providing similar or the same
advantages provided by the support used in Foster.
Thus, based on the foregoing, we sustain the rejection of claim 1, as
well the rejection of claims 2–4 and 6–9.
Notwithstanding that we sustain the rejection of independent claims 3
and 9 because they were not argued properly separate from claim 1, we
disagree with Appellants’ arguments that these claims require limitations not
shown or suggested by the combination of Keil and Foster. For example, we
disagree that the combination of references does not render obvious
claim 3’s limitation of “a cantilever member having a proximal end affixed
to said vertically extending frame . . ., wherein said equipment support is
coupled to said cantilever member” or claim 9’s limitation of “a video
display associated with said vertically extending frame” (Appeal Br., Claims
App.). The proposed modification of Keil, which includes a vertically
extending column, to include Foster’s cantilever member or video display
Appeal 2013-003450
Application 12/102,425

6

that is attached to a similar vertically extending column, amounts to the use
of known elements combined to provide predictable results (see Answer
5–9).
With respect to claim 5, the claim requires “said cantilever member
[having a proximal end affixed to a vertically extending frame and a distal
end projecting over an animal support assembly, an equipment support
coupled to the cantilever member] includes a passage for passing at least one
utility service line through said passage to said equipment support.” Appeal
Br., Claims App. We agree with Appellants that the Examiner does not
demonstrate sufficiently that it would have been obvious to modify the
proposed combination of Keil and Foster, based on Cheng, to include the
claimed passage. In particular, we agree that the Examiner fails to establish
that “Cheng . . . teaches or suggests that mechanical arm . . . includes a
passage through which a utility service line may be provided” (Reply Br. 4).
Thus, we do not sustain the rejection of claim 5.
DECISION
We REVERSE the Examiner’s obviousness rejection of claim 5.
We AFFIRM the Examiner’s obviousness rejections of claims 1–4
and 6–9.
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a)(1)(iv).

AFFIRMED-IN-PART
rvb