Ex Parte Lother et alDownload PDFPatent Trial and Appeal BoardDec 28, 201713800695 (P.T.A.B. Dec. 28, 2017) Copy Citation 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. 13/800,695 03/13/2013 Troy Lother 9262-130628-US (10749U) 6312 19407 7590 12/28/2017 Fitch, Even, Tabin & Flannery, LLP 120 South La Salle Street, Suite 1600 Chicago, IL 60603-3406 EXAMINER HAWTHORNE, OPHELIA ALTHEA ART UNIT PAPER NUMBER 3772 MAIL DATE DELIVERY MODE 12/28/2017 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 TROY LOTHER and AMANDA JARON Appeal 2017-002557 Application 13/800,695 Technology Center 3700 Before STEFAN STAICOVICI, WILLIAM A. CAPP, and GEORGE R. HOSKINS, Administrative Patent Judges. CAPP, Administrative Patent Judge. DECISION ON APPEAL STATEMENT OF THE CASE Appellants1 seek our review under 35 U.S.C. § 134 of the final rejection of claims 1, 2, 4-14, and 17-19 as unpatentable under 35 U.S.C. § 103(a) over DeAngelis (US 6,497,233 Bl, iss. Dec. 24, 2002) and Adams (US 2011/0041995 Al, pub. Feb. 24, 2011), and claims 3, 15, and 16 over DeAngelis, Adams, and Menzies (US 6,835,256 B2, iss. Dec. 28, 2004). We have jurisdiction under 35 U.S.C. § 6(b). We AFFIRM. 1 Medline Industries, Inc. is the real-party-in-interest. Appeal Br. 3 Appeal 2017-002557 Application 13/800,695 THE INVENTION Appellants’ invention relates to sterile drapes for multi-tier tables. Spec. ^ 1. Claim 1, reproduced below, is illustrative of the subject matter on appeal. 1. A drape for use with a multi-tier back table having a lower table surface and an upper table surface, the drape comprising: a first fabric portion configured to substantially cover the lower table surface; a second fabric portion configured as a pocket that receives at least a substantial portion of the upper table surface, the pocket further including at least one hand slot configured to receive a user's hand such that the user can lift the second fabric portion and slide the pocket over the upper table surface; a third fabric portion configured as a vertical panel that connects the first fabric portion to the second fabric portion. OPINION Unpatentability of Claims 1, 2, 4—14, and 17—19 Over DeAngelis and Adams Appellants argue claims 1, 2, 4-14, and 17-19 as a group. Appeal Br. 7-11. Claim 1 is representative. See 37 C.F.R. § 41.37(c)(l)(iv). The Examiner finds that DeAngelis discloses the claimed invention except for the hand slot. Final Action 2-3. The Examiner relies on Adams as disclosing hand slots (or pockets) on a medical equipment drape. Id. at 3. The Examiner concludes that it would have been obvious to a person of ordinary skill in the art at the time of the invention to incorporate Adams’ pockets into DeAngelis’ drape. Id. According to the Examiner, a person of ordinary skill in the art would have done this to facilitate placement of the drape on a multi-tier table. Id. 2 Appeal 2017-002557 Application 13/800,695 Appellants argue that a person of ordinary skill in the art would not have combined DeAngelis and Adams as proposed by the Examiner. Appeal Br. 7-10. Appellants argue that DeAngelis’ drape has tabs that are used to remove the drape from its package and place it over a table. Id. According to Appellants, the tabs would need to be retained to facilitate removal of the drape from its package even if hand pockets were added to facilitate placement of the drape over a table. Id. Appellants perceive this redundancy as economically inefficient. Id. at 10. Being aware of such market forces, and employing their own good common sense, the skilled artisan will therefore have no reason to substitute Adams' cuffs for DeAngelis' tabs nor to provide a drape having both tabs and cuffs. Id. at 10-11. In response, the Examiner points out that maintenance of sterility is not the overriding consideration as to whether a person of ordinary skill in the art would have combined DeAngelis and Adams. Ans. 5. The Examiner observes that it would have been appropriate to incorporate hand slots into the envelope of the drape to provide support in the center of the envelope as taught by Adams. Id. at 6. Clearly one of ordinary skill in the art would recognize that the hand slot as taught by Adams is located in the center of the folded surgical drape and used to maneuver the drape to place it over a patient and provide a sterile environment under the drape and over the patient. Id. The Examiner finds, and we agree, that the only difference between the instant invention and DeAngelis is using pull tabs versus hand slots to place the envelope on the top tier. Ans. 7. With respect to the cost issue raised by Appellants, the Examiner points out any increased manufacturing cost could be offset by losses caused 3 Appeal 2017-002557 Application 13/800,695 by things such as broken tabs. Id. “Clearly it would be cheaper to incorporate a hand slot into the envelope than to dispose of an entire drape because its sterilization becomes compromised because one of the tabs breaks or shears off from the drape and it can't be placed onto the top tier without the tab.” Id. In reply, Appellants assign error to the Examiner’s reference in the Answer to Adams’ drape being placed over a “patient” instead of a piece of medical equipment. Reply Br. 2. While Appellants are correct in this regard, any such error is harmless, particularly taking into account that Appellants’ drape is placed over a table and not over a patient. We find the Examiner’s position more persuasive. We discount Appellants’ argument based on manufacturing cost. Appellants’ tabs plus hand slot argument is premised on maintaining a level of sterility that is not required by the claims. Furthermore, Adams’ drape uses only pockets (i.e., without tabs). Thus, it is known to place a drape over medical equipment using hand slots (pockets) and, in the instant case, the drape is placed over a table, which we view as a substantially similar product application to the C Arm drape of Adams. Moreover, “[ujnder the correct analysis, any need or problem known in the field of endeavor at the time of invention and addressed by the patent can provide a reason for combining the elements in the manner claimed.” KSR Int’l Co. v. Teleflex Inc., 550 U.S. 398, 420 (2007). The Examiner’s reasoning, namely, “to use the hand pockets to place the drape upon the multi-tier table,” is adequate to support the rejection. Final Action 3. 4 Appeal 2017-002557 Application 13/800,695 We have considered the remaining arguments of Appellants, including all arguments discussed in the Reply Brief, and find them unpersuasive. Accordingly, we sustain the rejection of claims 1, 2, 4-14, and 17-19. Unpatentability of Claims 3, 15, and 16 Over DeAngelis, Adams, and Menzies Appellants do not argue for the separate patentability of claims 3,15, and 16 apart from arguments presented with respect to claim 1 which we have previously considered and found unpersuasive. See Appeal Br. 11. We sustain the rejection of claims 3, 15, and 16. See 37 C.F.R. § 41.37(c)(l)(iv) (failure to separately argue claims). DECISION The decision of the Examiner to reject claims 1-19 is affirmed. No time period for taking any subsequent action in connection with this appeal may be extended under 37 C.F.R. § 1.136(a)(l)(iv). AFFIRMED 5 Copy with citationCopy as parenthetical citation