Ex Parte Melsheimer et al

Patent Trial and Appeal Board

Sep 28, 2015

11842338 (P.T.A.B. Sep. 28, 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.
11/842,338 08/21/2007 Jeffry S. Melsheimer 10703/110 (PA-6230-RFB) 3206
48003 7590 09/28/2015
BGL/Cook - Chicago
PO BOX 10395
CHICAGO, IL 60610
EXAMINER
MARCETICH, ADAM M
ART UNIT PAPER NUMBER
3761
MAIL DATE DELIVERY MODE
09/28/2015 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 JEFFRY S. MELSHEIMER and CHRISTOPHER D. BOSEL
_________

Appeal 2012-009434
Application 11/842,338
Technology Center 3700
__________

Before MELANIE L. McCOLLUM, CHRISTOPHER G. PAULRAJ, and
KENNETH G. SCHOPFER, Administrative Patent Judges.

PAULRAJ, Administrative Patent Judge.

DECISION ON APPEAL
This is an appeal1 under 35 U.S.C. § 134 involving claims to a
catheter assembly. The Examiner rejected the claims for obviousness. We
have jurisdiction under 35 U.S.C. § 6(b). We reverse.

STATEMENT OF THE CASE
Background
The invention “relates generally to a catheter for use in transporting
fluids, and more particularly, to a multilumen catheter assembly for
transporting fluids from the patient’s body for extracorporeal treatment, and
returning the treated fluids to the body.” Spec. ¶ 1.

1 Appellants identify the Real Party in Interest as Cook Critical Care
Incorporated (see Appeal Br. 2).
Appeal 2012-009434
Application 11/842,338
2
The Claims
Claims 1, 3–15, and 21 are on appeal. Independent claim 1 is
representative and reads as follows:
1. A catheter assembly, comprising:
a catheter body having a plurality of lumens extending
therein, said catheter body having an aspiration port in
communication with a first lumen for transporting fluid
withdrawn from a body vessel, said first lumen having a closed
distal end, and an infusion port in communication with a second
lumen for return of fluid to said vessel, said infusion port
positioned distal of the aspiration port along a length of the
catheter body; said catheter body comprising a flap portion
extending radially from said catheter body and defining said
aspiration port, said flap portion configured and arranged to
space said aspiration port from a wall of said body vessel.
The Rejections
The Examiner has entered new grounds of rejection as follows:2
I. Claims 1, 3–8, 11, and 13–15 under 35 U.S.C. § 103(a) as being
unpatentable over Patterson.3 Ans. 4–12.
II. Claim 12 under 35 U.S.C. § 103(a) as being unpatentable over
Patterson. Id. at 13.
III. Claims 9 and 10 under 35 U.S.C. § 103(a) as being
unpatentable over the combination of Patterson and
Timmermans.4 Id. at 13–14.

2 The Examiner’s statement of the new grounds of rejection does not include
claim 21. To the extent that the rejection of that claim is maintained, we
reverse for the reasons set forth herein.
3 Patterson et al., US 2005/0261663 A1 published Nov. 24, 2005
(“Patterson”).
4 Timmermans, US 4,581,025 issued Apr. 8, 1986.
Appeal 2012-009434
Application 11/842,338
3
ANALYSIS
Because it is dispositive as to all issues on appeal, we focus our
analysis on the rejection of independent claim 1. The claimed invention is
directed to a dual lumen catheter assembly with a “flap portion extending
radially from said catheter body and defining said aspiration port, said flap
portion configured and arranged to space said aspiration port from a wall of
said body vessel.” Cl. 1.
The Examiner has rejected independent claim 1 based on a
combination of the embodiments of Fig. 55 and Figs. 111A/111B of
Patterson. In particular, the Examiner asserts that:
Patterson discloses all claimed limitations, but in
different embodiments. However, the embodiments of Figs. 55
and 111 B are combinable in an obvious manner. The
embodiment of Fig. 55 shows a catheter having a first lumen
with a closed distal end, and an infusion port positioned distal
of the aspiration port along the length of the catheter. Since the
opening of the top lumen ends before the distal tip of the
catheter, it is located along the catheter body. One would have
been able to modify this embodiment with the flap portion of
Fig. 111 B by cutting a portion of the catheter wall and
extending it outwards.
Ans. 6.
We are not persuaded that the Examiner has made a prima facie
showing of obviousness. Although a skilled artisan may have been able to
combine aspects of the different embodiments of Patterson, the Examiner
has not articulated a sufficient rationale to include the flared openings of the
embodiment of Figs. 111A/111B with the arterial inlet of the embodiment of
Fig. 55. The Examiner’s stated reason, that “the embodiment of Fig. 111B
prevents obstruction between the catheter and vessel walls” (Ans. 6), does
not address why that would be considered a problem to be solved for the
Appeal 2012-009434
Application 11/842,338
4
embodiment of Fig. 55, where the arterial inlet (i.e., the claimed aspiration
port) is located on the interior of a loop and thereby already spaced away
from the vessel wall. See In re Kahn, 441 F.3d 977, 988 (Fed. Cir. 2006)
(“[R]ejections on obviousness grounds cannot be sustained by mere
conclusory statements; instead, there must be some articulated reasoning
with some rational underpinning to support the legal conclusion of
obviousness.”).
We therefore reverse the rejections of claims 1, 3–8, and 11–15 under
35 U.S.C. § 103(a) as being unpatentable over Patterson. Additionally,
because the Examiner has not cited any teaching in Timmermans that would
make up for the foregoing deficiency in Patterson, we also reverse the
obviousness rejection of dependent claims 9 and 10. “Dependent claims are
nonobvious under section 103 if the independent claims from which they
depend are nonobvious.” In re Fine, 837 F.2d 1071, 1076 (Fed. Cir. 1988).

SUMMARY
We reverse the rejections of claims 1, 3–15, and 21 under 35 U.S.C.
§ 103(a) as being unpatentable over Patterson, alone or in combination with
Timmermans.

REVERSED

bar