Ex Parte Rioux et al

Patent Trial and Appeal Board

Mar 27, 2013

11879537 (P.T.A.B. Mar. 27, 2013)

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.
11/879,537 07/18/2007 Robert Rioux 04-0270US2 (4010/158) 5035
106953 7590 03/27/2013
Mayer & Williams
251 North Avenue West
Suite 201
Westfield, NJ 07090
EXAMINER
CRANDALL, LYNSEY P
ART UNIT PAPER NUMBER
3769
MAIL DATE DELIVERY MODE
03/27/2013 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 ROBERT RIOUX,
RAYMOND LAREAU, and KRISTIAN DIMATTEO
__________

Appeal 2011-011047
Application 11/879,537
Technology Center 3700
__________

Before LORA M. GREEN, MELANIE L. McCOLLUM, and
ERICA A. FRANKLIN, Administrative Patent Judges.

McCOLLUM, Administrative Patent Judge.

DECISION ON APPEAL
This is an appeal under 35 U.S.C. § 134 involving claims to an
indwelling catheter. The Examiner has rejected the claims as anticipated or
obvious. We have jurisdiction under 35 U.S.C. § 6(b). We reverse.
STATEMENT OF THE CASE
Claims 1-13, 17-21, and 23-35 are pending and on appeal (App.
Br. 2). We will focus on claim 1, which reads as follows:
1. An indwelling catheter comprising a catheter shaft and a hub from
which said catheter shaft projects, wherein said hub comprises a light source
or wherein said hub is adapted to receive light from a light source, said hub
Appeal 2011-011047
Application 11/879,537

2
further comprising a port that is adapted to allow fluids to be delivered to
patient, from the patient, or both, wherein said indwelling catheter is
configured such that light is transmitted from said light source into said
catheter shaft, and wherein said catheter shaft is formed of a polymeric
material that transmits a quantity of said light from said light source that is
effective to inactivate microorganisms on a surface of said catheter shaft
when said light source is activated.
Claims 1-11, 13, 17-21, 23-30, and 33 stand rejected under 35 U.S.C.
§ 102(b) as anticipated by Crossley (US 2001/0047195 A1, Nov. 29, 2001)
(Ans. 3).
Claims 32 and 35 stand rejected under 35 U.S.C. § 103(a) as obvious
over Crossley (Ans. 6).
Claim 31 stands rejected under 35 U.S.C. § 103(a) as obvious over
Crossley in view of Biel (US 2002/0165594 A1, Nov. 7, 2002) (Ans. 7).
Claim 12 stands rejected under 35 U.S.C. § 103(a) as obvious over
Crossley in view of Zhong (US 5,702,754, Dec. 30, 1997) (Ans. 7).
Claim 34 stands rejected under 35 U.S.C. § 103(a) as obvious over
Crossley in view of Chen et al. (US 5,445,608, Aug. 29, 1995) (Ans. 8).
ANTICIPATION
The Examiner finds:
Crossley discloses a catheter that incorporates at least one
photosensitizer which releases a toxic substance when activated
by the light energy which destroys bacteria on or around the
catheter device . . . . The catheter comprises a light source (26,
Fig. 1) and a catheter shaft (12, Fig. 1) comprised of a
polymeric material, specifically polyurethane or silicone . . . .
The light is transmitted from the light source (26, Fig. 1) to the
catheter shaft (12, Fig. 1) through optical fibers (22 and 23,
Fig. 1). . . . Crossley discloses a hub (12a, Fig. 1) from which
the catheter shaft (12) projects. This hub is adapted to receive a
Appeal 2011-011047
Application 11/879,537

3
light emitting component, specifically optical fibers (22 and 23,
Fig. 1) or diodes mounted directly on the hub (12a) itself.
(Ans. 3-4.)
Issue
Has the Examiner set forth a prima facie case that Crossley discloses a
hub having, among other features, a port that is adapted to allow fluids to be
delivered to a patient, from the patient, or both?
Findings of Fact
1. The Specification discloses an indwelling catheter comprising a
catheter shaft, wherein the “catheter either comprises a light source or is
adapted to receive light from a light source, and is configured such that light
is transmitted from the light source into the catheter shaft” (Spec. ¶ [0003]).
2. Specification Figure 1B is set forth below:

Specification Figure 1B is a schematic cross-sectional view of an indwelling
catheter (Spec. ¶¶ [0007]-[0008]).
3. In Specification Figure 1B:
[A] hub assembly 202 is shown which includes a hub
portion 204 having a proximal end and a distal end. At the
proximal end of the hub portion 204 is a port 224. . . . A
lumen 228 extends longitudinally through the hub portion. An
end of a hollow shaft 220 (i.e., a catheter tube) extends through
a passage 222 at the distal end of the hub portion 204 and into
the lumen 228 of the same.
Appeal 2011-011047
Application 11/879,537

4
(Id. at ¶ [0044].)
4. Crossley Figure 1 is set forth below:

Crossley Figure 1 depicts a catheter 10 comprising a cannula 12 having a
lumen 13, “a standard medical connector or fitting 14 . . . at the proximal
end of cannula 12,” and “optical fibers 22, 23[, which] are incorporated into
the cannula wall” and “exit cannula 12 at a shoulder 12a” (Crossley,
¶¶ [0039]-[0042]).
Appeal 2011-011047
Application 11/879,537

5
Analysis
We note initially that there is a dispute about the meaning of the term
“hub.” Appellants argue:
the hub of a catheter is a component of the catheter located at or
near the proximal end of the catheter (i.e., outside the patient),
which allows for access to the catheter lumen for a variety of
functions, such as the injection of fluids such as drugs (e.g.,
from an exchangeable syringe via a luer lock) and/or the
introduction of a guidewire.
(App. Br. 5.) The Examiner “contends that this is an accepted definition of a
hub, but is not the only definition” (Ans. 9). For example, the Examiner
notes that the term “hub” can be defined as “„a center around which other
things revolve or from which they radiate‟” (id. at 10). In addition, the
Examiner concludes that Appellants‟ definition is not consistent with the
Specification (id. at 9). We disagree.
The Specification refers to “a hub assembly 202 . . . which includes a
hub portion 204 having a proximal end and a distal end” (Finding of Fact
(FF) 3). The Specification states that the port 224 is at “the proximal end of
the hub portion 204” (id.). Thus, we agree with Appellants that “hub
portion 204 is . . . located at the proximal end of [Appellants‟] device and
[that] it allows for access to the catheter lumen” via port 224 (Reply Br. 7).
On the contrary, it is not clear to us, nor does the Examiner adequately
explain, how it is consistent with the Specification to define the term “hub”
as “„a center around which other things revolve or from which they radiate‟”
(Ans. 10).
In addition, even if we consider shoulder 12a to be a “hub,” claim 1
specifically recites that the hub comprises “a port that is adapted to allow
Appeal 2011-011047
Application 11/879,537

6
fluids to be delivered to patient, from the patient, or both.” We agree with
Appellants that Crossley does not teach that shoulder 12a comprises a port
that is adapted to allow fluids to be delivered to and/or from a patient (Reply
Br. 6-7).
Conclusion
The Examiner has not set forth a prima facie case that Crossley
discloses a hub having, among other features, a port that is adapted to allow
fluids to be delivered to a patient, from the patient, or both. We therefore
reverse the anticipation rejection of claim 1 and of claims 2-11, 13, 17-21,
23-30, and 33, which depend from claim 1.
OBVIOUSNESS
In rejecting claims 12, 31, 32, 34, and 35 as obvious, the Examiner
relies on Crossley as discussed above (Ans. 6-8). However, as noted above,
we conclude that the Examiner has not set forth a prima facie case that
Crossley discloses a hub having, among other features, a port that is adapted
to allow fluids to be delivered to a patient, from the patient, or both, nor has
the Examiner explained why this would have been obvious. We therefore
reverse the obviousness rejections of claims 12, 31, 32, 34, and 35.

REVERSED

cdc