Ex Parte Levinson

Board of Patent Appeals and Interferences

Feb 14, 2008

10239901 (B.P.A.I. Feb. 14, 2008)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
____________

Ex parte ORDE LEVINSON
____________

Appeal 2007-1346
Application 10/239,901
Technology Center 3700
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Decided: February 14, 2008
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Before MURRIEL E. CRAWFORD, JENNIFER D. BAHR, and DAVID B.
WALKER, Administrative Patent Judges.

BAHR, Administrative Patent Judge.

DECISION ON APPEAL
STATEMENT OF THE CASE
Orde Levinson (Appellant) appeals under 35 U.S.C. § 134 from the
Examiner’s decision rejecting claims 1-50. We have jurisdiction over this
appeal under 35 U.S.C. § 6 (2002).
Appeal 2007-1346
Application 10/239,901

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The Invention
Appellant’s claimed invention is directed to a urination apparatus for
urine sample collection, waste urine collection for disposal of urine resulting
from urination away from toilets, and simplification of urination by women
without sitting on a toilet (Spec. 1:3-7). This appeal involves four
independent claims, which read as follows:
1. A urine funnelling trumpet comprising:
a relatively narrow outlet aperture flaring
out to a bell with a rim defining a perimeter of a
urine inlet area;
wherein the inlet area has a long axis with a
pubic locating portion extending from one end of
the axis to meet a vaginal locating portion
extending from the other end of the axis, the inlet
area having a substantially symmetrical curvature
about said axis;
wherein the inlet area of the vaginal locating
portion has a vaginal locating curvature along said
axis and the inlet area of the pubic locating portion
has a pubic locating curvature along said axis;
wherein there is substantially a discontinuity
in curvature substantially where the pubic locating
portion and vaginal locating portion meet such that
the pubic locating portion is inclined relatively
towards the vaginal locating portion;
wherein the outlet aperture has an axis
which extends therefrom;
wherein a radius bisects the arc subtended
by the vaginal locating curvature; and
wherein there is an included angle of
between 125o to 145o between said outlet aperture
axis and the bisecting radius.
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20. A urine funnelling trumpet comprising:
a relatively narrow outlet aperture having an
edge which flares out to a bell with a rim defining
a perimeter of a urine inlet area;
wherein the inlet area has a long axis with a
pubic locating portion extending from one end of
the axis to meet a vaginal locating portion
extending from the other end of the axis, the inlet
area having a substantially symmetrical curvature
about said axis;
wherein the inlet area of the vaginal locating
portion has a vaginal locating curvature along said
axis and the inlet area of the pubic locating portion
has a pubic locating curvature along said axis;
wherein there is substantially a discontinuity
in curvature substantially where the pubic locating
portion and vaginal locating portion meet such that
the pubic locating portion is inclined relatively
towards the vaginal locating portion;
wherein the outlet aperture is located at least
partially within an arc subtended by the vaginal
locating curvature.
37. A urine funnelling trumpet comprising:
a relatively narrow outlet aperture flaring
out to a bell with a rim defining a perimeter of a
urine inlet area;
wherein the inlet area has a long axis with a
pubic locating portion extending from one end of
the axis to meet a vaginal locating portion
extending from the other end of the axis, the inlet
area having a substantially symmetrical curvature
about said axis;
wherein the inlet area of the vaginal locating
portion has a vaginal locating curvature along said
axis and the inlet area of the pubic locating portion
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has a pubic locating curvature along said axis
which is tilted to be inclined relatively towards the
vaginal locating curvature;
wherein the side of the bell flaring out from
the outlet aperture meets the pubic locating portion
at the rim substantially as a tangent to the pubic
locating curvature to provide a generally flat
surface in that region.
50. A urine sample collection apparatus
comprising:
a generally elongate tubular portion having
an outlet in the side thereof including a coupling
formed for releasably mounting an open topped
urine sample collection container thereto in a
direction extending at a fixed angle other than a
right angle from the axis of said tubular portion;
and
a receptor for reception of urine, the receptor
having a surface portion extending from a rim,
which bounds a generally concave shaped inlet
surface, to an aperture from which said tubular
portion extends in a direction generally away from
said inlet surface;
wherein the edge of the rim on the side
corresponding to said outlet is displaced along the
axis of the tubular portion further from said
aperture than the opposing edge of said rim.

Appeal 2007-1346
Application 10/239,901

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The Rejection
Appellant seeks review of the Examiner’s rejection of claims 1-50
under 35 U.S.C. § 103(a) as unpatentable over Steer (US 4,568,339, issued
February 4, 1986).1,2
The Examiner provides reasoning in support of the rejection in the
Answer (mailed June 21, 2006). Appellant presents opposing arguments in
the Appeal Brief (filed April 12, 2006) and Reply Brief (filed August 21,
2006). Appellant’s representative presented oral argument on January 24,
2008.

OPINION
Appellant’s Appeal Brief includes separate arguments for each of the
independent claims 1, 20, 37, and 50 and states, in effect, that the dependent
claims stand or fall together with the independent claim from which they
depend (App. Br. 5). We observe, however, that Appellant’s representative
has made absolutely no effort to comply with the provision in 37 C.F.R.
§ 41.37(c) (1)(vii) that “[a]ny claim argued separately should be placed

1 The Examiner relies on Steer in combination with the additional teachings
of Craig (GB 2 092 690 A, published August 18, 1982) in rejecting claims
12-15, 19, 29, 30, 34-36, and 46-50 (Ans. 7). There is some dispute as to
whether and to what extent the teachings of Craig relied upon by the
Examiner are incorporated by reference in Steer. In any event, to the extent
that any teachings of Craig relied upon by the Examiner are not incorporated
by reference in Steer, Appellant considers the rejection to be based on the
combination of Steer and Craig. We do likewise in our decision.
2 Appellant also seeks review of the Examiner’s objection to claim 3 as
lacking sufficient antecedent basis for “the rim” (App. Br. 4). That issue is
reviewable by petition under 37 C.F.R. § 1.181 and is not within the
jurisdiction of the Board. In re Mindick, 371 F.2d 892, 894 (CCPA 1967).
See Manual of Patent Examining Procedure (MPEP) §§ 1002 and 1201.
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under a subheading identifying the claim by number.” Inasmuch as there is
no ambiguity as to which claims are separately argued, we will nevertheless
consider each of Appellant’s independent claims as separately argued, with
the dependent claims standing or falling with the independent claim from
which they depend. Appellant’s representative is strongly advised to review
the provisions of 37 C.F.R. § 41.37 and to comply with these provisions in
the future.
Claim Interpretation
When construing claim terminology in the United States Patent and
Trademark Office (USPTO), claims are to be given their broadest reasonable
interpretation consistent with the specification, reading claim language in
light of the specification as it would be interpreted by one of ordinary skill in
the art. In re Am. Acad. of Sci. Tech. Ctr., 367 F.3d 1359, 1364 (Fed. Cir.
2004).
From our review of the disclosure on page 30 of Appellant’s
Specification and in Appellant’s Figure 7, it is apparent that: (1) the “inlet
area” recited to in claims 1, 20, and 37 corresponds to rim 5C of Appellant’s
receptor; (2) the “pubic locating portion” and “vaginal locating portion” of
claims 1, 20, and 37 correspond to portions of the rim 5C; and (3) the
“vaginal locating curvature” and “pubic locating curvature” recited in claims
1, 20, and 37 relate to the curvature of the “vaginal locating portion” and
“pubic locating portion,” respectively, of the rim 5C. We reach this
conclusion because Appellant states that “[t]he rim defines an inlet surface
for the urine funnelling trumpet” (Spec. 30:16-17), that “[t]he part of the rim
between the point P and the points M defines a pubic locating portion 6
which has a radius of curvature RP” (Spec. 30:24-26), and that “[t]he part of
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the rim between the point V and the points M defines a vaginal locating
portion 7 which has a radius of curvature RV” (Spec. 30:27-29). Moreover,
the radii RP and RV are illustrated in Appellant’s Figure 7 with respect to
portions 6 and 7 of the rim 5C.
Appellant’s Specification also states, on page 30, in lines 30-32, that
“[t]aken along the axis X, the pubic locating portion 6 subtends an arc
having an angle θP whilst the vaginal locating portion 7 subtends an arc
having an angle θV.” The arcs and angles θP and θV are illustrated in
Appellant’s Figure 7. The axis X, labeled in Appellant’s Figure 9, is
described by Appellant as the long axis of the rim 5C extending between end
points P and V (Spec. 30:21-22). Clearly, the pubic and vaginal locating
portions of rim 5C do not subtend arcs having angles θP and θV,
respectively, on the axis X, as they only pass through the axis X in the
vicinity of points P and V, respectively. Likewise, the vaginal locating
portions and pubic locating portions do not have vaginal and pubic locating
curvatures on the axis X. Thus, consistent with Appellant’s Specification
and drawings, we construe the claim language “along[3] said axis” in the
sense of beside or throughout the length of said axis (the long axis of the
inlet area or rim) or in the direction of said axis.
We also note, with reference to Appellant’s Figure 7, that Appellant’s
outlet aperture 2C is not even partially within the arc formed by the vaginal
locating curvature of the vaginal locating portion of the rim 5C. Rather, the
best that can be said of Appellant’s outlet aperture 2C is that it is located at

3 The term “along” is defined as “on or beside the length of; over or
throughout the length of.” Webster's New World Dictionary 39 (David B.
Guralnik ed., 2nd Coll. Ed., Simon & Schuster, Inc. 1984).
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least partially within an arc that subtends the angle defined by the vaginal
locating curvature of the vaginal locating portion of the rim 5C. We thus
construe the limitation in claim 20 “wherein the outlet aperture is located at
least partially within an arc subtended by the vaginal locating curvature” as
requiring that the outlet aperture be located at least partially within an arc
that subtends the angle defined by the vaginal locating curvature of the
vaginal locating portion of the rim.
Claims 1-19
Steer discloses a female incontinence device including a basin 10 with
an integral outlet pipe 12 and a pair of peripheral deflectable walls 14 and 16
and laterally extending flange 18 for connection of the device to a suitable
woman’s garment, such as panties (col. 4, ll. 55-60). The deflectable walls
14 and 16 “define a specially shaped saddle configuration designed to
contact the wearer between the base of the vagina and the anus and located
at the rear zone of the device in order to minimize the possibility of leakage
at this area” (col. 4, ll. 23-28). As illustrated in Figures 4 and 8, the walls 14
and 16 “rise to a rounded cusp or peak 32 which, when the device is worn, is
located between the base of the vagina (rearward side) and the anus” (col. 5,
ll. 48-50). Appellant argues that Steer does not disclose or suggest where
the device of Steer fits to the female anatomy or provide any reference to
any dimension of Steer’s device relative to a woman (App. Br. 6). While it
is true that Steer does not specify where the front portion of the device is
designed to fit along the female anatomy, common sense certainly dictates
that the forward end of the device must extend forward of the urethra orifice
and at least into the front pubic area in order for the device to receive urine
from the urethra orifice.
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Appellant further takes issue with the Examiner’s annotated version of
Figure 1 of Steer, reproduced in the Evidence Appendix of the Appeal Brief
as Exhibit 2, and appears to argue that Steer does not disclose a vaginal
locating portion having a vaginal locating curvature along the long axis of
the inlet area and a pubic locating portion having a pubic locating curvature
along the long axis of the inlet area, wherein there is “substantially a
discontinuity in curvature substantially where the pubic locating portion and
vaginal locating portion meet such that the pubic locating portion is inclined
relatively towards the vaginal locating portion” as called for in claim 1 (App.
Br. 7). We do not agree with Appellant. We illustrate our findings by
reference to Steer’s Figure 1, with dotted lines added to illustrate the
rearward and forward extremes of what we find to be the vaginal locating
portion and with the radius bisecting the arc subtended by the vaginal
locating curvature of the vaginal locating portion shown in the form of a
solid line. We also denote the outlet aperture axis with a dashed line in the
reproduction of Steer’s Figure 1. The rear end of the device is at the right-
hand side of Figure 1 and the front side of the device is at the left-hand side
of Figure 1 (col. 5, ll. 20-23). At approximately or “substantially” where the
pubic locating portion and vaginal portion meet (the intersection of the walls
14, 16 with the left-most dotted line), we find there is substantially a
discontinuity, that is, a noticeable change, in curvature, such that the pubic
locating portion is inclined (upwardly as shown in Figure 1) relatively
towards the vaginal locating portion, and the vaginal locating portion is
inclined relatively towards the pubic locating portion.
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Steer’s Figure 1, with annotations, is reproduced below:

Figure 1 is a side elevation of one example of Steer’s female incontinence
device and depicts the deformable walls 14 and 16, the flange 18, and the
basin 10 and integral outlet pipe 12. The front end of the device is depicted
at the left-hand side of the reproduced Figure 1 and the rear end of the
device is depicted at the right-hand side of Figure 1. In Steer’s Figure 1 as
reproduced herein, dotted lines have been added to depict the front and rear
extremes of what we find to be the vaginal locating portion, a solid line
labeled “bisecting radius” is added to depict the radius bisecting the arc
subtended by the vaginal locating curvature of the vaginal locating portion,
and a dashed line labeled “outlet axis” is added to depict the axis of the
outlet pipe 12. The bisecting radius and the outlet axis intersect to define an
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obtuse included angle, which appears to fall within the range of between
125o and 145o.
We recognize that the configuration of Steer’s deformable walls 14
and 16 differs from that of Appellant’s rim 5C, but Appellant has not
sufficiently defined that distinction in claim 1. As stated by our reviewing
court in In re Hiniker Co., 150 F.3d 1362, 1369 (Fed. Cir. 1998), “the name
of the game is the claim.” Based on our findings as detailed above, with
reference to the annotated Figure 1 of Steer, there is substantially a
discontinuity in curvature substantially where the pubic and vaginal locating
portions meet, such that the pubic locating portion is inclined (upwardly as
depicted in Steer’s Figure 1) relatively towards the vaginal locating portion
of Steer’s deformable walls 14 and 16. Moreover, the included angle
between the outlet aperture axis and the bisecting radius appears to be within
the range “between 125o and 145o” recited in Appellant’s claim 1. We thus
conclude that any difference between such included angle and the range
recited in claim 1 does not constitute a patentable distinction. See In re
Woodruff, 919 F.2d 1575, 1578 (Fed. Cir. 1990) (In cases in which the
difference between the claimed invention and the prior art is some range or
other variable within the claims, “the applicant must show that the particular
range is critical, generally by showing that the claimed range achieves
unexpected results relative to the prior art range.”)
For the above reasons, Appellant’s arguments do not persuade us the
Examiner erred in rejecting claim 1 as unpatentable over Steer. The
rejection of claim 1, as well as claims 2-11 and 16-18 standing or falling
with claim 1, as unpatentable over Steer is sustained.
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In electing to have claims 12-15 and 19 stand or fall with claim 1,
Appellant relies solely on the arguments made with respect to claim 1 for the
patentability of claims 12-15 and 19. The arguments raised with respect to
claim 1 likewise fail to persuade us the Examiner erred in rejecting claims
12-15 and 19 as unpatentable over the combination of Steer and Craig. The
rejection of claims 12-15 and 19 is thus also sustained.
Claims 20-36
Appellant argues that it “would not have been obvious to a person of
ordinary skill in the art to arrange the outlet aperture at least partially in the
vaginal locating portion as specified in claim 20” (App. Br. 7-8). As noted
above, we construe the limitation of claim 20 at issue as requiring that the
outlet aperture be located at least partially within an arc that subtends the
angle defined by the vaginal locating curvature of the vaginal locating
portion of the rim. It is readily apparent from review of the reproduction of
Steer’s Figure 1 above that Steer’s outlet aperture is clearly located within
an arc that subtends the angle defined by the vaginal locating curvature of
the vaginal locating portion of the rim (walls 14 and 16), that is, the included
angle between the two dotted lines showing the extremes of the vaginal
locating portion, thereby satisfying the claim language.
For the above reason, Appellant’s argument does not persuade us the
Examiner erred in rejecting claim 20 as unpatentable over Steer. The
rejection of claim 20, as well as claims 21-28 and 31-33 standing or falling
with claim 20, is also sustained.
In electing to have claims 29, 30, and 34-36 stand or fall with claim
20, Appellant relies solely on the argument raised with regard to claim 20
for the patentability of claims 29, 30, and 34-36. For the reason discussed
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above, Appellant’s argument with regard to claim 20 likewise fails to
persuade us the Examiner erred in rejecting claims 29, 30, and 34-36 as
unpatentable over the combination of Steer and Craig. The rejection of
claims 29, 30, and 34-36 is thus also sustained.
Claims 37-49
Independent claim 37 requires that the side of the bell flaring out from
the outlet aperture meet the pubic locating portion at the rim substantially as
a tangent to the pubic locating curvature to provide a generally flat surface4
in that region. The front or pubic locating portion of the walls 14, 16 of
Steer’s female incontinence device is at the left-hand side of Steer’s Figures
1 and 3. The (bottom) side of the basin 10 of Steer’s device does not meet
walls 14, 16, much less at anything even remotely close to a tangent to the
pubic locating curvature of the walls 14, 16. Nor does the Examiner contend
that it would have been obvious to modify Steer’s device so as to meet that
claim limitation. Appellant’s argument on page 8 of the Appeal Brief thus
demonstrates the Examiner erred in rejecting claim 37 as unpatentable over
Steer. The rejection of claim 37, as well as claims 38-45 depending from
claim 37, as unpatentable over Steer cannot be sustained. The Examiner
does not rely on Craig for any teaching that would remedy the deficiency in

4 The side of the bell flaring out from the outlet aperture and meeting the
pubic locating portion at the rim substantially as a tangent is depicted in
Appellant’s Figures 8 and 9 as a substantially curved surface, not a generally
flat surface. While it appears that the intersection of the surface at issue with
the vertical plane passing through the X axis, as depicted in Figure 7, is a
line, the surface itself is not flat, at least not in three dimensions. The
Examiner and Appellant should consider whether the language “to provide a
generally flat surface” in claim 37 should be amended to more accurately
describe the surface depicted in Figures 7-9 of the present application.
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Steer. Thus, the rejection of claims 46-49 as unpatentable over the
combination of Steer and Craig also cannot be sustained.
Claim 50
Appellant argues that Steer’s tubular portion (outlet pipe 12) does not
have an outlet in the side thereof, as required in claim 50 (Reply Br. 3). We
agree. Referring to Figure 1 of Craig, the Examiner points out that Steer’s
outlet tube 12 is configured such that any storage device attached thereto,
either directly or via additional tubing, will extend away from the axis of the
tubular portion (Ans. 7). Even assuming that were correct,5 the Examiner
has not pointed out where either Steer or Craig teaches a tubular portion
having an outlet in the side thereof, as required in claim 50, or explained
why it would have been obvious to modify Steer to provide such a tubular
portion. Appellant’s argument thus demonstrates the Examiner erred in
rejecting claim 50. The rejection cannot be sustained.

5 It is not apparent to us how the Examiner reaches this conclusion.
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CONCLUSION
The decision of the Examiner to reject claims 1-50 is affirmed as to
claims 1-36 and reversed as to claims 37-50.
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a). See 37 C.F.R.
§ 1.136(a)(1)(iv) (2007).

AFFIRMED-IN-PART

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