Ex Parte Lother et al

Patent Trial and Appeal Board

Dec 28, 2017

13800695 (P.T.A.B. Dec. 28, 2017)

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.
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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
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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.
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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
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