Ex Parte Moriwaki et alDownload PDFPatent Trial and Appeal BoardJan 18, 201310551898 (P.T.A.B. Jan. 18, 2013) Copy Citation UNITED STATES PATENT AND TRADEMARK OFFICE ____________________ BEFORE THE PATENT TRIAL AND APPEAL BOARD ____________________ Ex parte KUNIHARU MORIWAKI, SUSUMU HONGO, and TAKAFUMI KIYONO ____________________ Appeal 2011-000478 Application 10/551,898 Technology Center 3700 ____________________ Before: LINDA E. HORNER, JOHN W. MORRISON, and SCOTT E. KAMHOLZ, Administrative Patent Judges. KAMHOLZ, Administrative Patent Judge. DECISION ON APPEAL Appeal 2011-000478 Application 10/551,898 2 STATEMENT OF CASE Appellants appeal under 35 U.S.C. § 134(a) from the decision of the Examiner to reject claims 1 and 4-7 under 35 U.S.C. 103(a) as being unpatentable over Teraoka (EP 1 048 311 A2; pub. Nov. 2, 2000) and Whisson (US 5,762,632; iss. Jun. 9, 1998). We have jurisdiction under 35 U.S.C. § 6(b). An oral hearing was held on January 10, 2013. We reverse. THE CLAIMED SUBJECT MATTER The claimed subject matter is directed to a medical needle device with winged shield. Claim 1, reproduced below, is representative of the claimed subject matter: 1. A medical needle device with winged shield, comprising: a winged shield that has a substantially cylindrical shield tube and a pair of wings positioned at a front end side of the shield tube; a hub that is inserted into an inner bore of the shield tube so as to be movable in an axial direction; a needle that is mounted to a front end of the hub; and an infusion tube connected to a rear end of the hub, a tip of the needle being capable of being stored in the inner bore of the shield tube, wherein at least a part of the hub is made of a material having flexibility, the needle is inserted into and coupled with a bore of the hub at a front end thereof and the rear end portion of the hub is inserted into and coupled with the infusion tube, and the shield tube and the hub are bendable together at least in a part of a range along an axial direction when the needle protrudes from the front end of the shield tube and is latched to the shield tube so as to be in a puncturing position. Appeal 2011-000478 Application 10/551,898 3 ANALYSIS The Examiner found that Teraoka discloses all limitations of claim 1 except “wherein at least a part of the hub is made of a material having flexibility” and “the shield tube and the hub are bendable together at least in a part of a range along an axial direction when the needle protrudes from the front end of the shield tube and is latched to the shield tube.” Ans. 3-4. The Examiner further found that Whisson discloses “a flexible delivery tube [13] within a flexible tubular duct [23]” that “are bendable” when needle 12 “is latched to the shield tube (col. 4, lines 24-28).” Ans. 4. The Examiner concluded that it would have been obvious “to have included the flexible delivery tube [13] and the flexible duct [23] of Whisson as a hub and a shield tube, respectively, in the medical needle of Teraoka” in order to implement Whisson’s “destructive bending or ‘kinking’” to prevent re-use of the device. Ans. 4-5. We cannot sustain a rejection premised on a finding of fact that is not supported by a preponderance of the evidence of record. The Examiner relied upon Whisson for the teaching that the shield tube and the hub are bendable together “when the needle… is latched to the shield tube” (emphasis added). The Examiner cited to Whisson col. 4, lines 24-28 as evidence supporting this finding. But this passage explains that dimple 34 on the interior of tubular portion 15 engages needle 12. It does not disclose that needle 12 is ever engaged with or otherwise latched to flexible duct 23, which is the structure the Examiner identified as corresponding to the shield tube recited in claim 1. We therefore determine that a preponderance of the evidence of record does not support the Examiner’s finding that the prior art Appeal 2011-000478 Application 10/551,898 4 discloses latching between a needle and shield tube. As this finding is essential to the Examiner’s determination of obviousness, the rejection fails. DECISION For the above reasons, the Examiner’s decision to reject claims 1 and 4-7 is REVERSED. REVERSED mls Copy with citationCopy as parenthetical citation