Ex Parte Powell et al

Patent Trial and Appeal Board

May 11, 2017

13468622 (P.T.A.B. May. 11, 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.
13/468,622 05/10/2012 Sean Powell 10139/27803 2085
76960 7590
Fay Kaplun & Marcin, LLP
150 Broadway, suite 702
New York, NY 10038
05/11/2017 EXAMINER
BATES, DAVID W
ART UNIT PAPER NUMBER
3775
MAIL DATE DELIVERY MODE
05/11/2017 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 SEAN POWELL, ROBERT LIMOUZE,
NATASHA WEEKS, RENE HAAG, and
GEORGE J. HAIDUKEWYCH
Appeal 2015-006533
Application 13/468,622
Technology Center 3700
Before: CHARLES N. GREENHUT, NATHAN A. ENGELS, and
BRENT M. DOUGAL, Administrative Patent Judges.
DOUGAL, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Appellants appeal under 35U.S.C. § 134 from a Final Rejection of
claims 1—7, 9, and 11. We have jurisdiction under 35 U.S.C. § 6(b).
We affirm.
Appeal 2015-006533
Application 13/468,622
CLAIMED SUBJECT MATTER
The claims are directed to a bone fracture fixation clamp. Claim 1,
reproduced below, is the sole independent claim and is illustrative of the
claimed subject matter:
1. A bone fixation clamp for implantation in a living body,
comprising:
a first arcuate clamp member conforming to a shape of a
target portion of a bone and extending between a first connection
end and a first free end;
a second arcuate clamp member conforming to a shape of
the target portion of the bone, a second connection end of the
second clamp member being pivotally attached to the first
connection end of the first clamp member, the second clamp
member extending between the second connection end and a
second free end; and
a driving member received in the first clamp member
passing out of the first clamp member to abut an abutment
portion of the second member so that, as the driving member is
extended further out of the first member, the driving member
pivots the second clamp member relative to the first clamp
member to draw the first and second free ends toward one
another to apply a radially compressive force to the bone.
REJECTIONS
Claims 1—7 are rejected under 35 U.S.C. § 102(b) as being anticipated
by van der Burg (US 2005/0126563 Al, pub. June 16, 2005).
Claim 11 is rejected under 35 U.S.C. § 103(a) as being unpatentable
over van der Burg.
Claim 9 is rejected under 35 U.S.C. §103(a) as being unpatentable
over van der Burg and Smith (US 1,156,440, iss. Oct. 12, 1915).
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Appeal 2015-006533
Application 13/468,622
OPINION
The Examiner finds that the device of van der Burg shown in Figure
15E (Final Act. 3), as well as that shown in Figure 17B (Adv. Act. 2) meets
all of the limitations of claim 1.
Appellants first argue “that van der Burg does not teach or suggest a
bone fixation clamp” as included in claim 1. Appeal Br. 3. Rather,
Appellants argue, the device of van der Burg is designed to “spread out
portions of the hyoid bone.” Id. Appellants further argue:
van der Burg never suggests that the brace arms are in any way
structurally capable of acting as clamping arms, nor does it
suggest any such clamping operation or describe how such an
operation could be performed. Van der Burg states only that a
rotational force may be applied to the elongated member 71 to
draw the brace arms further apart and closer together, not to
clamp any portion of bone.
Reply Br. 3; see also Appeal Br. 4.
Notably, Appellants do not argue that van der Burg is not capable of
functioning as a clamp, only that it does not suggest such a use. The
Examiner found that “regardless of the intended use of van der Berg,” van
der Burg teaches all of the “structural limitations and functional limitations
[of] . . . claim 1.” Ans. 5. Thus, the device of van der Burg is capable of
functioning as a clamp as required by the claim. Id. at 6 (“figs. 17 A and B .
. . include arcuate clamp members more similar in shape to appellant’s
invention, which are clearly capable of use as . . . argued.”). As Appellants
do not contest this point, we are not informed of error in the Examiner’s
rejection.
Appellants then argue that the device shown in Figure 15E does not
satisfy additional limitations of claim 1. Appeal Br. 4—6. However,
Appellants do not address the embodiment of Figure 17B. See generally,
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Appeal 2015-006533
Application 13/468,622
Appeal Br. Thus, even if the embodiment of Figure 15B does not disclose
all of the limitations of claim 1, Appellants’ argument does not inform us of
errors in the Examiner’s rejection based on Figure 17B of van der Burg.
DECISION
The Examiner’s rejections of claims 1—7, 9, and 11 are 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). See 37 C.F.R.
§ 1.136(a)(l)(iv).
AFFIRMED
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