Ex Parte Reavill

Patent Trial and Appeal Board

Jul 18, 2016

13560419 (P.T.A.B. Jul. 18, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
13/560,419 07/27/2012
23117 7590 07/20/2016
NIXON & V ANDERHYE, PC
901 NORTH GLEBE ROAD, 11 TH FLOOR
ARLINGTON, VA 22203
FIRST NAMED INVENTOR
Matthew Dickson Reavill
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
ATTORNEY DOCKET NO. CONFIRMATION NO.
AMK-5032-12 9115
EXAMINER
PATEL, SHEFALI DILIP
ART UNIT PAPER NUMBER
3763
NOTIFICATION DATE DELIVERY MODE
07/20/2016 ELECTRONIC
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.
Notice of the Office communication was sent electronically on above-indicated "Notification Date" to the
following e-mail address( es):
PTOMAIL@nixonvan.com
pair_nixon@firsttofile.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte MATTHEW DICKSON REAVILL
Appeal 2014-005522
Application 13/560,419
Technology Center 3700
Before ERIC B. GRIMES, ULRIKE W. JENKS, and
ROBERT A. POLLOCK, Administrative Patent Judges.
PERCURIAM
DECISION ON APPEAL
This is a decision on appeal 1 under 35 U.S.C. § 134 from the
Examiner's rejection of claims 1-14. We have jurisdiction under 35 U.S.C.
§ 6(b ).
We affirm.
STATEMENT OF THE CASE
The Specification discloses "an apparatus and method to facilitate a
simple, closed, controlled insertion of a catheter without the need of a
guidewire or sty let." Spec. 1.
1 Appellant identifies the Real Party in Interest as Matthew D. Reavill (App.
Br. 3).
Appeal2014-005522
Application 13/560,419
Claim 1 is representative of the claims on appeal and reads as follows
(italics added):
1. A method for inserting a long catheter comprising:
securing an introducer catheter in a vessel, the introducer catheter
including a connector attached thereto;
attaching a length of infusion tubing at a distal end to the connector, a
proximal end of the infusion tubing including a valve;
inserting the long catheter into the infusion tubing, the long catheter
including a sealing assembly; and
infusing the long catheter by flowing fluid through the infusion tubing
and through and around the long catheter until the long catheter is
positioned through the introducer catheter such that the sealing assembly
forms a seal with the connector.
Issue
The Examiner has rejected claims 1-3, 6, 7, and 9-14 under 35 U.S.C.
§ 102(b) as anticipated by Smith. 2 Final Rej. 7-10. The Examiner has also
rejected claims 4, 5, and 8 under 35 U.S.C. § 103(a) as obvious in view of
Smith and Halvorsen. 3 Final Rej. 10-13. The same issues are dispositive
for both of these rejections and we will consider them together.
The issues presented are: Does the evidence of record support the
Examiner's finding that Smith discloses
(i) a method for inserting a long catheter that comprises "flowing
fluid through the infusion tubing and through and around the
long catheter until the long catheter is positioned through the
introducer catheter," as required by claim 1 (emphasis added);
and
2 Gordon E. Smith, US 4,311,139, issued Jan. 19, 1982.
3 Kenneth Halvorsen, US 4,252,122, issued Feb. 24, 1981.
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Application 13/560,419
(ii) an apparatus for inserting and advancing a long catheter that
comprises "infusion tubing with ... a connector on a distal end,
the distal end of the infusion tubing being directly coupled with
the connector," wherein the long catheter includes "a sealing
assembly that forms a seal with the connector when the catheter
is fully extended," as required by claim 6.
Analysis
We have reviewed Appellant's contentions that the Examiner erred in
rejecting claims 1-3, 6, 7, and 9-14 as anticipated by Smith. App. Br. 12-
16; Reply Br. 1-3. We disagree with Appellant's contentions and adopt the
findings concerning the scope and content of the prior art set forth in the
Examiner's Answer and Final Rejection dated March 29, 2013. For
emphasis, we highlight and address the following:
FF 1. Smith discloses "a device for inserting a flexible catheter into
the bloodstream of a patient." Smith, col. 1, 11. 8-9.
FF2. Figure 8 of Smith is shown below:
::Jl ~"~~~ n~
~~:~~,,~·,.:_:,~,~::·~_.·'.'.·_.~_:.:.~_:_·_£_~~~',
i3~ ;od FIG. 8 .. \ ~ ·
'·
Figure 8 shows a cross-sectional view of an "apparatus for catheter
insertion." Id. at col. 3, 11. 47--49. The apparatus comprises a catheter 112
which comprises "a tubular body 114, . , a beveled anterior tip 116, and a
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Application 13/560,419
cylindrical retaining ring 118 surrounding and attached to the posterior end
of the body ll 4 and having a . , . diameter larger than the diameter of the
body 114." Id. at col. 4, 1. 63---col. 5, 1. 2. '"/\ substantially tubular wall 120
has interior surfaces defining a chamber 122 having a diameter and length
selected to be large enough to contain the catheter 112 .... The chamber
122 is filled with a selected fluid such as air or normal saline.'' Id. at col. 5,
11. 2-7. "The chamber 122 bas an anteriorallv facirnr. substantiaH y circu1ar ""' .., __ ,/ .,.
rnouth 124. A headpiece 126 engages the mouth 124 in fluid-tight re1ation.''
Id. at col. 5, 11. 8-10. '"'I'he passage 128 and mouth 124 have minimum
diameters larger than the maximum diameter of the retaining ring 118,
allmving the ring to readily pass therethrough. The anterior end of the
headpiece 126 has surfaces defining a male needle fitting 138.'' Id. at col. 5,
11. 14--19. "A conventional, semi-t1exib1e, tubular catheter 151 ha[sJ an
interior diameter less than the rnaxi mum diameter of the retaining ring [ 118]
.... A hub member 153 suffmmds and is attached to the posterior end of the
catheter 151 and.,. [comprises] female needle fitting 155.'' Id. at col. 6, 11.
19-27.
FF3. Smith discloses that "[a] conventional needle 145 ... is
attached to a female needle fitting 149 in a conventional manner. A
conventional. semi-flexib1e. tubular catheter 151 having an interior diameter
/ / ........
1ess than the maxirnurn diameter of the retaining ring ... 118 ... extends in
a sleeve-like manner for substantially the length of the needle." Id. at col. 6,
11. 16-24. "The needle 145 and associated semi-flexible catheter 151 are
inserted into the vein 144. The needle 145 is withdrn\vn from the semi-
flexible catheter 151, leaving the anterior end of the semi-t1exib1e catheter
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Application 13/560,419
inserted within the vein 144." Id. at col. 6, IL 32-37. "[M]ale needle fitting
... 138 is inserted into the female needle fitting 155 ofthe semi-flexible
catheter 151.~' Id. at col. 6, IL 38--40.
FF4. Smith discloses that the "filling procedure for the apparatus ...
caus[es] the blood within the vein 144 to be drawn through the semi-flexible
catheter 151 and the headpiece passage ... 128 and into the chamber ...
122, substantially fining the chamber ... 122.'' Id. at col. 6, IL 41--45.
'"Next, the bfood contained in the chamber ... 122 is forced back through
the semi-flexible catheter 151 into the vein 144 ... by applying a positive
pressure to the contents of chamber 122, preferably by depressing the piston
139 of the syringe 137.'' Id. at col. 6, IL 46-52. "[F]riction between the
blood being expelled through the headpiece passage [128]. .. and the surface
of the tubular body [114] ... of the catheter [112] ... draws the catheter
through the headpiece passage and ... the semi-flexib1e catheter 151.'' Id. at
col. 6, IL 56-60. 'TI'Jhe retaining ring ... 118 ... comes to rest in ... the
female needle fitting 155 of the semi-flexible catheter 151.'' Id. at col. 6, IL
60-63. "The anterior end of the catheter ... 112 is thereby expelled through
the semi-flexible catheter into the vein 144.'' Id. at col. 6, IL 63---65.
Claim 1
The Examiner finds that Smith discloses a method for inserting a long
catheter that comprises "securing an introducer catheter (catheter [ 151]) in a
vessel (vein [ 144]) ... the introducer catheter including a connector (hub
member [153] having female needle fitting [155])." Final Rej. 7, citing
Smith, col. 6, IL 32-37 and Fig. 8. The Examiner finds that Smith discloses
attaching an "infusion tubing (tubular wall [120] having chamber [122]
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Application 13/560,419
connected to head piece [126] having male needle fitting [138]) at a distal
end to the connector [153][155]." Id. at 7, citing Smith, col. 6, 11. 38--41.
The Examiner finds that Smith discloses inserting a "long catheter (catheter
[112]) into the infusion tubing ... the long catheter including a sealing
assembly (retaining ring [118])." Id. at 7, citing Smith, col. 5, 11. 2-6. The
Examiner finds that Smith discloses "infusing the long catheter [112] by
flowing fluid through the infusion tubing ... and through and around the
long catheter until the long catheter is positioned through the introducer
catheter [151] such that the sealing assembly [118] forms a seal with the
connector." Id. at 7, citing Smith, col. 6, 11. 46-63.
Appellant argues that Smith discloses that friction between the blood
and tubular body 114 of the long catheter 112 draws the long catheter 112
through the semi-flexible catheter 151 and into the vein but that Smith does
not describe "that fluid in the chamber 122 flows through the catheter 112."
App. Br. 12, citing Smith, col. 6, 11. 56-63, see FF 4. Appellant argues that
Smith "refers to 'the surface of the tubular body' 114." App. Br. 13.
Appellant argues that there are "several instances in the description where
Smith refers to 'interior surfaces' of other components and 'surfaces' of
other components." App. Br. 13. Appellant argues that, "[i]f Smith
intended to refer to an 'interior' surface of the tubular body 114 ... Smith
would have specifically referred to an 'interior' surface." App. Br. 13.
Appellant argues that the Examiner's "contrary interpretation [of Smith] ...
is inconsistent with the remainder of the disclosure and is thus improperly
premised in hindsight." App. Br. 13. Appellant argues that "Smith's
reference to 'friction' exemplifies a distinction between Smith and the
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Application 13/560,419
claimed invention ... [wherein the] structure [in] Smith pinches or pushes
the catheter forward with either direct friction or indirect friction using air or
fluid on the outside of the catheter." App. Br. 15. Appellant argues that the
"structure of the claimed invention, in contrast, creates a laminar fluid
(frictionless) environment that moves the catheter forward." App. Br. 15.
Appellant argues that "Smith refers to the blood being expelled through the
headpiece passage 28 or 128 ... [wherein] the headpiece passage 128 is
downstream of the catheter 112." Reply Br. 2, citing Smith Fig. 8.
Appellant argues that Smith "specifically refers to friction between blood
being expelled through the downstream headpiece passage and the surface of
the tubular body 114 ... [which] suggest[ s] that blood does not flow through
the catheter 112." Reply Br. 2.
The Examiner responds that although "Smith only states that blood is
'expelled through the headpiece 28 or 128 and the surface of the tubular
body 14 or 114 of the catheter 12 or 112' ... that does not mean that blood
does not flow through the catheter [112]." Ans. 3, citing Smith, col. 6, 11.
56---63. The Examiner reasons that the surface of Smith "must include the
interior surface of the catheter [112], since the catheter has a lumen bounded
by the inner surface through which blood can flow. There is nothing
blocking blood from flowing into the lumen of the catheter." Ans. 3. The
Examiner reasons that 'just because Smith does not refer to 'the surface' as
'an interior surface' does not necessarily mean that Smith is not referring to
the interior or inner surface of the catheter [112]." Ans. 3.
We agree with the Examiner's reasoning and conclusion. Smith
discloses that the filling procedure for the apparatus causes the blood vvithin
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Application 13/560,419
the vein to substantially fill the chamber 122, which contains the catheter
112. FF 4. His apparent from this disclosure in Smith that blood would also
rrn the catheter because there would be nothing to block the entry of blood
into the catheter. Smith also discloses that the blood contained in the
chamber 122~ which would include the blood vvithin the catheter, is forced
back fluough the semi-flexible catheter 151 into the vein 144 with the result
<....·
that friction between the blood being expelled and the surface of the tubular
body 114 of the catheter 112 draws the catheter through the headpiece
passage through the semi-flexible catheter 151 into the vein. FF 4. Thus~
Smith discloses, at least implicitly, the step of "infusing the long catheter by
flowing fluid through the infusion tubing and through and around the long
catheter until the long catheter is positioned through the introducer
catheter," as required by claim 1 (emphasis added).
Thus, we affirm the rejection of claim 1under35 U.S.C. § 102(b).
Claims 2, 3, 13, and 14 have not been argued separately and therefore fall
with claim 1. See 37 C.F.R. § 41.37(c)(l)(iv).
Claim 6
Appellant also argues the rejection of independent claim 6, which is
set forth below (italics added):
6. An apparatus for inserting and advancing a long catheter, the
apparatus comprising:
a length of infusion tubing with a valve on a proximal end and a
connector on a distal end, the distal end of the infusion tubing being directly
coupled with the connector;
the long catheter whose outer diameter is less than an inner diameter
of the infusion tubing connector, the long catheter including a sealing
assembly that forms a seal with the connector when the catheter is fully
extended, wherein the long catheter is substantially the same length as the
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Application 13/560,419
infusion tubing such that substantially an entire length of the long catheter is
simultaneously movable within the length of infusion tubing;
an introducer catheter with an inner diameter large enough to allow
the long catheter to pass within, the introducer catheter being connectable to
the infusion tubing at the connector, wherein at least a portion of the
introducer catheter is concentric with at least a portion of the connector; and
an infusion source cooperable with the infusion tubing valve.
Appellant argues that claim 6 requires an infusion tubing with "a
connector on a distal end ... [wherein] the distal end of the infusion tubing
is directly coupled with the connector." App. Br. 13. Appellant argues that
claim 6 also requires that "the long catheter includes a sealing assembly that
forms a seal with the connector when the catheter is fully extended." App.
Br. 13. Appellant argues that, therefore, "the long catheter forms a seal with
the structure to which the distal end of the infusion tubing is directly
coupled." App. Br. 13. Appellant argues that, in Smith, "the tubular wall
120 ... is connected at its distal end to a headpiece 126" which comprises at
passage with a diameter that allows the retaining ring [ 118] of the long
catheter to pass through. App. Br. 13, citing Smith, col. 5, 11. 14--17.
Appellant argues that, therefore, Smith lacks "the feature of the invention
wherein the long catheter forms a seal with the same component (i.e.,
connector) to which the distal end of the infusion tubing is directly coupled."
App. Br. 13. Appellant argues that "the Examiner relies on a collection of
components in Smith to purportedly define the claimed structure." App. Br.
15. Appellant argues that the Examiner asserts the connector is comprised
of the headpiece [126] with male needle fitting [138] and hub member [153]
with female needle fitting [155]. App. Br. 15-16. Appellant argues that
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Application 13/560,419
"such an arbitrary designation of multiple components is improper under §
102." App. Br. 15-16.
The Examiner responds that the "infusion tubing is constituted by the
tubular wall [120] having chamber [122] of Smith." Ans. 4. The Examiner
finds that the "connector is constituted by the headpiece [126] having male
needle fitting [138] connected to the hub member [153] having a female
needle fitting [155]." Id. The Examiner finds that the "long catheter [112]
forms a seal via the sealing assembly [ 118] with the same component
[126][138][153][155] ... that the distal end of the infusion tubing
[120][122] is directly coupled to." Id. (citing Smith, col. 6, 11. 56-63). The
Examiner reasons that claim 6 "does not require the connector to be a single
component." Ans. 4.
We agree with the Examiner's reasoning and conclusions. "[D]uring
examination proceedings, claims are given their broadest reasonable
interpretation consistent with the specification." In re Hyatt, 211 F.3d 1367,
1372 (Fed. Cir. 2000). The Specification does not disclose that the
connector is necessarily a unitary piece, and thus the broadest reasonable
interpretation of claim 6 does not require that the connector is a unitary
piece, rather than being composed of multiple components.
Appellant argues that "claim 6 recites that at least a portion of the
introducer catheter is concentric with at least a portion of the connector."
App. Br. 14, citing the Spec., Fig. 5. Appellant argues that because "claim 6
defines the connector as structure to which the infusion tubing is directly
coupled ... Smith lacks [this] corresponding structure." App. Br. 14.
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Application 13/560,419
The Examiner responds that Smith discloses "that at least a portion of
the introducer catheter [ 151] is concentric, or has the same center, with at
least a portion of the connector [126][138][153][155]." Ans. 4, citing Smith,
Fig. 8.
We agree with the Examiner, and are not persuaded by Appellant's
arguments for the reasons discussed above. That is, Appellant's argument
appears to be that, in Smith, the same component is not both concentric with
the introducer connector and directly coupled to the infusion tubing. As
discussed above, however, we agree with the Examiner that the combination
of elements 126, 138, 153, and 155 corresponds to the connector of claim 6.
In view of this reasoning, the connector of Smith is both directly coupled to
the infusion tubing and concentric with the introducer catheter.
Thus, we affirm the rejection of claim 6 under 35 U.S.C. § 102(b).
Claim 10
Appellant also argues the rejection of independent claim 10. Claim 10
is similar to claim 6 and is directed to apparatus for inserting and advancing
a long catheter that comprises, among other things, an "infusion tubing with
... a connector on a distal end, the distal end of the infusion tubing being
directly coupled with the connector" and a long catheter "including a sealing
assembly that forms a direct seal with the connector when the long catheter
is fully extended."
Appellant argues that, "[ w ]ith reference to the discussion above
concerning claim 6, Appellant submits that the rejection of claim 10 is also
misplaced." App. Br. 14.
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Application 13/560,419
Appellant's arguments are not persuasive because, as discussed above
with regard to claim 6, above we have found that Smith discloses an
apparatus with these disputed limitations.
Thus, we affirm the rejection of claim 10 under 35 U.S.C. § 102(b).
Appellant also argues the rejection of dependent claims 7 and 12.
App. Br. 14. Claims 7 and 12 read as follows (italics added):
7. The apparatus of claim 6, wherein the sealing assembly
comprises a collar at a trailing end of the long catheter to stop
the long catheter from moving beyond the connector and form
the seal.
12. The apparatus of claim 10, wherein the sealing
assembly comprises a collar secured to a trailing end of the long
catheter, the collar sealingly engaging the connector in a fully
extended position of the long catheter.
Appellant argues that "the headpiece 126 in Smith to which the tubular wall
120 is directly coupled is not cooperable \vith the cylindrical retaining ring
118 as the headpiece is sized so that the catheter 112 and retaining ring 118
can pass readily through." App. Br. 14.
Appellant's argument is not persuasive for the reasons discussed
above. Thus, we affirm the rejection of claims 7 and 12 as anticipated by
Smith.
Appellant also argues the rejection of dependent claims 9 and 11.
App. Br. 14. Claims 9 and 11 depend from claims 6 and 10, respectively,
and further require that "the sealing assembly comprises a reverse taper on a
trailing end of the long catheter, the reverse taper sealingly engaging the
connector in a fully extended position." Appellant argues that claims 9 and
11 recite that the sealing assembly includes a reverse taper wherein "the
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reverse taper sealingly engages the connector in a fully extended position."
App. Br. 14. Appellant argues that "[ n Jo structure in Smith provides a seal
with the headpiece 126." App. Br. 14.
Appellant's argument is not persuasive because, as discussed above,
Smith discloses that the retaining ring of the catheter 112 engages with the
connector, i.e., elements 126, 138, 153, and 155, wherein the retaining ring
118 comes to rest in the female needle fitting 155of153. FF 4.
The Examiner has also rejected dependent claims 4, 5, and 8 under
35 U.S.C. § 103(a) as obvious over the combination of Smith and Halvorsen.
Final Rej. 10-13. Claims 4 and 5 depend from claim 1, and claim 8 depends
from claim 6.
Appellant argues that "these dependent claims are allowable at least
by virtue of their dependency on an allowable independent claim." App. Br.
16. Appellant argues that Halvorsen "does not provide any suggestion to
modify the Smith structure to overcome the shortcomings noted above with
regard to independent claims 1 and 6." App. Br. 16.
Appellant's arguments are not persuasive because, as discussed above,
we have found that Smith discloses the method of claim 1 and the apparatus
of claim 6. Thus, we affirm the rejection of claims 4, 5, and 8 as being
obvious in view of Smith and Halvorsen.
Conclusion of Law
The evidence of record supports the Examiner's finding that Smith
discloses
(i) a method for inserting a long catheter that comprises "flowing
fluid through the infusion tubing and through and around the
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Application 13/560,419
long catheter until the long catheter is positioned through the
introducer catheter," as required by claim 1 (emphasis added);
and
(ii) an apparatus for inserting and advancing a long catheter that
comprises "infusion tubing with ... a connector on a distal end,
the distal end of the infusion tubing being directly coupled with
the connector," wherein the long catheter includes "a sealing
assembly that forms a seal with the connector when the catheter
is fully extended," as required by claim 6.
SUMMARY
We affirm the rejection of claims 1-3, 6, 7, and 9-14 under 35 U.S.C.
§ 102(b) as anticipated by Smith.
We also affirm the rejection of claims 4, 5, and 8 under 35 U.S.C.
§ 103(a) as obvious in view of Smith and Halvorsen.
TIME PERIOD FOR RESPONSE
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a).
AFFIRMED
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