11089183 (B.P.A.I. Aug. 29, 2011)

Ex Parte Peppel

Board of Patent Appeals and InterferencesAug 29, 2011

11089183 (B.P.A.I. Aug. 29, 2011)

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. 11/089,183 03/24/2005 Peter W. Peppel 1135-51-PA-TD 3314 22145 7590 08/29/2011 KLEIN, O'NEILL & SINGH, LLP 18200 VON KARMAN AVENUE SUITE 725 IRVINE, CA 92612 EXAMINER VU, QUYNH-NHU HOANG ART UNIT PAPER NUMBER 3763 MAIL DATE DELIVERY MODE 08/29/2011 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 BOARD OF PATENT APPEALS AND INTERFERENCES ________________ Ex parte PETER PEPPEL ________________ Appeal 2009-011566 Application 11/089,183 Technology Center 3700 ________________ Before JENNIFER D. BAHR, LINDA E. HORNER and STEVEN D.A. McCARTHY, Administrative Patent Judges. McCARTHY, Administrative Patent Judge. DECISION ON APPEAL The Appellant appeals under 35 U.S.C. § 134 from the Examiner’s 1 final decision rejecting claims 19-27, 29-31, 33, 34 and 36. The Examiner 2 rejects claims 19, 20, 22-24, 27, 30, 31 and 34 under 35 U.S.C. 3 § 102(b) as being anticipated by Sivert (US 4,915,687, issued Apr. 10, 4 1990); claims 21, 25 and 26 under 35 U.S.C. § 103(a) as being unpatentable 5 over Sivert and Raines (US 5,147,333, issued Sep. 15, 1992); claims 29 and 6 Appeal No. 2009-011566 Application No. 11/089,183 2 36 under § 103(a) as being unpatentable over Sivert and Leason (US 1 5,360,413, issued Nov. 1, 1994); and claim 33 under § 103(a) as being 2 unpatentable over Sivert and Schnell (US 5,980,741, issued Nov. 9, 1999). 3 The Examiner has withdrawn claims 1-18, 28, 32, 35 and 37-44. We have 4 jurisdiction under 35 U.S.C. § 6(b). 5 We REVERSE 6 Claim 19 is the sole independent claim on appeal: 7 19. A needleless injection port valve comprising 8 an inlet connector assembly comprising 9 a nozzle comprising an inlet lumen; 10 a valve housing comprising at least one port and 11 an integrally molded valve stem positioned at an 12 angle to the at least one port; 13 the valve stem comprising a hollow 14 interior cavity and at least one rib positioned in 15 the hollow interior cavity for reinforcing a section 16 of the valve stem; 17 wherein the valve stem projects, at 18 least in part, through the inlet lumen of the inlet 19 connector assembly and the inlet connector 20 assembly is secured to the valve housing along a 21 sealing seam. 22 (Italics added.) 23 Sivert describes a needleless injection port arrangement 10 including a 24 valve housing unit 11 and a valving unit 12. (Sivert, col. 2, ll. 40-41). 25 Sivert’s valve housing unit 11 includes a dual port upper housing member 13 26 and a single port lower housing member 14. The dual port upper housing 27 member 13 defines an enlarged fluid chamber 15. The enlarged fluid 28 chamber 15 is in open fluid communication with a medicant fluid port 18 29 formed in a generally cylindrical hollow tubular projection 19 of the dual 30 port upper housing member 13. (Sivert, col. 2, ll. 42-50). 31 Appeal No. 2009-011566 Application No. 11/089,183 3 Sivert’s valving unit 12 includes a valve support member 30; a 1 resilient biasing member 40 and a valve head member 50. (Sivert, col. 3, ll. 2 1-4). The valve head member 50 includes an enlarged generally circular 3 valve head element 51 having a central recess 52 formed in its lower end. 4 (Sivert, col. 3, ll. 21-25). The resilient biasing member 40 is received in the 5 central recess 52 of the valve head element 51. The resilient biasing 6 member 40 biases the valve head element 51 toward a valve seat 23 7 surrounding the medicant fluid port 18 at the junction between the dual port 8 upper housing member 13 and the generally cylindrical hollow tubular 9 projection 19. (Sivert, col. 3, ll. 25-28 and fig. 2; see also id., col. 3, ll. 50-10 55). 11 Figure 2 of Sivert depicts the central recess 52 as having a 12 substantially cylindrical profile with no internal ribs. Figure 2 depicts the 13 resilient biasing member 40 as essentially filling the central recess 52. 14 The Examiner finds that Sivert’s dual port upper housing member 13 15 corresponds to the “valve housing” recited in claim 19. The Examiner also 16 finds that Sivert’s valve head element 51 corresponds to the “valve stem” 17 recited in the claim. The Examiner next finds that Sivert’s valve head 18 element 51 “comprises” the enlarged fluid chamber 15 in which the lower 19 portion of the valve head element 51 sits. Finally, the Examiner finds that 20 the central recess 52 of the valve head element 51 is a “rib.” (Ans. 3). 21 The Appellant correctly contends that Sivert’s enlarged fluid chamber 22 15 cannot be the “hollow interior” recited in claim 19 because Sivert’s valve 23 head element 51 does not “comprise” the enlarged fluid chamber 15 under a 24 reasonable interpretation of the term “comprise.” (See App. Br. 7). Even 25 were one to assume for purposes of this appeal only that the central recess 26 Appeal No. 2009-011566 Application No. 11/089,183 4 52 is a hollow interior of the valve head element 51, Sivert does not describe 1 or depict any rib positioned in this hollow interior. Even were one to grant 2 the Examiner the benefit of the doubt, for purposes of this appeal only, that 3 the wall portion of the valve head element 51 surrounding the central recess 4 52 might be a rib, that rib would not be in the central recess 52. 5 The Examiner does not appear to respond to the Appellant’s 6 contentions. (See generally Ans. 6-8). Since the Examiner has not 7 persuasively explained how Sivert might describe each and every element of 8 independent claim 19, we do not sustain the rejection of claims 19, 20, 22-9 24, 27, 30, 31 and 34 under § 102(b) as being anticipated by Sivert. 10 Raines discloses a needleless injection port including a polycarbonate 11 housing and a spool valve formed from a thermoplastic elastomer or 12 synthetic rubber. (Raines, col. 1, ll. 63-66 and col. 2, ll. 18-22). Leason 13 discloses a needleless access device including a cap 14 sonically welded to a 14 body 16. (Leason, col. 2, ll. 53-56 and col. 5, ll. 22-27). Schnell discloses a 15 dialysis machine 10 including a flow-through bubble trap chamber 20 with 16 an injection site port 28. (Schnell, col. 5, ll. 21-37). 17 The Examiner does not persuasively explain how one of ordinary skill 18 in the art familiar with the teachings of Sivert and Raines would have had 19 reason to modify Sivert’s needleless injection port arrangement 10 to 20 remedy the deficiencies discussed with regard to the rejection of claim 19. 21 We do not sustain the rejection of dependent claims 21, 25 and 26 under 22 § 103(a) as being unpatentable over Sivert and Raines. 23 Neither does the Examiner persuasively explain how one of ordinary 24 skill in the art familiar with the teachings of Sivert and Leason would have 25 had reason to modify Sivert’s needleless injection port arrangement 10 to 26 Appeal No. 2009-011566 Application No. 11/089,183 5 remedy the deficiencies discussed with regard to the rejection of claim 19. 1 We do not sustain the rejection of dependent claims 29 and 36 under 2 § 103(a) as being unpatentable over Sivert and Leason. 3 Neither does the Examiner persuasively explain how one of ordinary 4 skill in the art familiar with the teachings of Sivert and Schnell would have 5 had reason to modify Sivert’s needleless injection port arrangement 10 to 6 remedy the deficiencies discussed with regard to the rejection of claim 19. 7 We do not sustain the rejection of dependent claim 33 under § 103(a) as 8 being unpatentable over Sivert and Schnell. 9 10 DECISION 11 We REVERSE the Examiner’s decision rejecting claims 19-27, 29-31, 12 33, 34 and 36. 13 14 REVERSED 15 16 Klh 17