Ex Parte Sakamoto

Board of Patent Appeals and Interferences

Aug 31, 2009

10777293 (B.P.A.I. Aug. 31, 2009)

UNITED STATES PATENT AND TRADEMARK OFFICE
__________

BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
__________

Ex parte CARL KAORU SAKAMOTO
__________

Appeal 2009-0027141
Application 10/777,293
Technology Center 3700
__________

Decided: August 31, 2009
__________

Before TONI R. SCHEINER, DEMETRA J. MILLS, and FRANCISCO C.
PRATS, Administrative Patent Judges.

PRATS, Administrative Patent Judge.

DECISION ON APPEAL
This is an appeal under 35 U.S.C. § 134 involving claims to a
laryngoscope blade. The Examiner has rejected the claims as obvious. We
have jurisdiction under 35 U.S.C. § 6(b).
We affirm-in-part.

1 Carl Kaoru Sakamoto is the real party in interest.
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Application 10/777,293

STATEMENT OF THE CASE
Claims 1-31 are pending and on appeal (App. Br. 1). Claims 1 and 22
are representative of the appealed subject matter and read as follows:
1. A laryngoscope blade comprising:
a main blade portion having a posterior surface, a distal
end and proximal end, the main blade portion being relatively
straight between the distal end and the proximal end;
a blade tip extending from the distal end of the main
blade portion, the blade tip having a width that is flared wider
in a first direction than a width of the main blade portion, the
blade tip further being at a select angle with relation to the
posterior surface of the main blade portion;
a first tongue displacement plate coupled to the main
blade portion along a length of the blade;
a second tongue displacement plate extending from the
first tongue displacement plate in a direction that is away from
the main blade portion, wherein the second tongue
displacement plate and the first tongue displacement plate are
adapted to work together to displace a patient’s tongue during
use of the laryngoscope, the second tongue displacement plate
having at least one rounded corner; and
a blade base coupled to the proximal end of the blade,
wherein the relatively straight main blade portion extends from
the blade base at generally a right angle.

22. A laryngoscope blade, the blade comprising:
a main blade portion having a posterior surface, a distal
end and a proximal end, the posterior surface having a length
that is generally straight from the proximal end to the distal
end;
a blade tip extending from the distal end of the main
blade portion, the blade tip further extending beyond a width of
the main blade portion from a first side of the main blade
portion, the blade tip further extending from the posterior
surface of the main blade portion at a select angle;
a first tongue displacement plate extending from a second
side of the main blade portion at generally a right angle, the
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first tongue displacement portion further extending along a
select length of the main blade portion proximate the distal end
of the main blade portion;
a second tongue displacement plate extending from the
first displacement plate at generally a right angle, the second
displacement plate further extending from the first displacement
plate in a direction that is generally away from the main blade
portion, the second tongue displacement plate further having a
surface that is positioned in an opposite direction as the
posterior surface of the main blade, the surface of the second
tongue displacement plate forming a plane that is generally
parallel with an axis formed by the length of the posterior
surface; and
a blade base coupled to the proximal end of the main
blade portion, wherein the generally straight length of the
posterior surface extends from the blade base at generally a
right angle.

The Examiner cites the following documents as evidence of
unpatentability:
Roberts US 5,406,941 Apr. 18, 1995
Sakamoto US 6,095,972 Aug. 1, 2000
Cartledge et al. US 6,623,425 B2 Sep. 23, 2003

Claims 1-31 stand rejected under 35 U.S.C. § 103(a) as being obvious
in view of Cartledge, Sakamoto, and Roberts (Ans. 4-7).
OBVIOUSNESS
ISSUE
The Examiner cites Cartledge as disclosing a laryngoscope blade that
has a number of the claimed features, including “a first tongue displacement
plate (not labeled in figures) coupled to the main blade portion along a
length of the blade; a second tongue displacement plate 345 extending from
the first tongue displacement plate in a direction that is away from the main
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blade portion (see Fig. 7)” (Ans. 4). The Examiner concedes, however, that
Cartledge is “is silent with respect to wherein the blade tip having a width
that is flared wider in a first direction than a width of the main blade
portion” (id. at 5).
To meet that limitation, the Examiner cites Sakamoto as teaching an
analogous laryngoscope that has a “blade tip 12 [which] is flared wider in a
first direction than a width of the main blade portion” (id.). Based on these
teachings, the Examiner concludes that an ordinary artisan would have
considered it obvious to “flare the blade tip in the apparatus of Cartledge et
al. to give the tip more surface area to spread apart a patient’s throat tissue
and to stabilize the epiglottis while displacing it anteriorly as taught by
Sakamoto (se[e] Col. 2, lines 50- 60)” (id.).
The Examiner also concedes that Cartledge is “silent with respect to
wherein the relatively straight main blade portion extends from the blade
base at generally a right angle” (id.). To meet that limitation the Examiner
cites Roberts as disclosing an analogous laryngoscope that has a blade
adjustable to either a straight or a curved surface, depending on the
physician’s preference (id.). From these teachings, the Examiner concludes
that an ordinary artisan would have considered it obvious “to have the blade
extend at a right angle from the blade base in the apparatus of Cartledge et
al. to better accommodate different pharangeal configurations of various
patients as taught by Roberts” (id. at 6-7).
Appellant contends that the Examiner erred in finding that Cartledge
meets the limitation in claim 1 requiring the blade to have a “‘main blade
portion being relatively straight between the distal end and the proximal
end’” (App. Br. 8; see also Reply Br. 2). Specifically, Appellant argues, the
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“main blade portion of the laryngoscope blade of the Cartledge et al.
reference is curved like a Macintosh blade” (App. Br. 8 (citing Cartledge,
Figures 3 and 4)).
Moreover, Appellant argues, “[l]ike the traditional Macintosh blade
the second tongue displacement of the Cartlledge [sic] et al. reference
extends away from the main blade portion” (id. (citing Cartledge, Figure 3)).
The Examiner responds that the main blade portion of Cartledge’s
laryngoscope “is clearly straight between a distal end and a proximal end as
viewed from a bird’s eye view, or down the barrel of the handle. The blade
must be straight between its distal and proximal ends to enable passage
within a patient’s throat, as seen in Figure 11” (Ans. 8).
Appellant further contends that an ordinary artisan would not have
considered it obvious to “combine ‘main blade portion being relatively
straight between the distal end and the proximal end’ with ‘a second tongue
displacement plate extending from the first tongue displacement plate in a
direction that is away from the main blade portion,’ as is claimed in claim 1
of the present application” (App. Br. 9). Specifically, Appellant argues,
neither Cartledge nor Sakamoto would have suggested “that a modification
of what has traditionally been used for decades in the art was needed” (id.;
see also Reply Br. 2). Moreover, Appellant argues, Roberts “does not cure
this defect. The Roberts reference merely relates to a single laryngoscope
that can be shaped the way the practitioner wants it, curved or straight.
However, no tongue displacement plates are used. Hence, the Roberts
reference does not teach or suggest the use of tongue displacement plates”
(App. Br. 9).
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Appellant further contends that claim 1’s combination of a “‘main
blade portion being relatively straight between the distal end and the
proximal end’ with ‘a second tongue displacement plate extending from the
first tongue displacement plate in a direction that is away from the main
blade portion,’ . . . is an un-predictable result” (id.). Specifically, Appellant
argues:
[I]t would be predicable to one skilled in the art that a curved
blade would have a tongue displacement plate extending away
from the main blade portion and that a straight blade would
have a tongue displacement plate curved under the main blade
portion as is traditionally done but the arrangement as set out in
claim 1 is not predictable and hence patentable.
(Id.)
In view of the positions advanced by Appellant and the Examiner, the
issues with respect to this rejection are whether the Examiner erred in
finding that Cartledge meets the limitation requiring the laryngoscope blade
to have “a main blade portion having a posterior surface, a distal end and
proximal end, the main blade portion being relatively straight between the
distal end and the proximal end,” and whether the Examiner erred in finding
that the cited references suggest a laryngoscope blade that has both a “main
blade portion being relatively straight between the distal end and the
proximal end” and “a second tongue displacement plate extending from the
first tongue displacement plate in a direction that is away from the main
blade portion.”

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FINDINGS OF FACT (“FF”)
1. Appellant’s Figure 1 is reproduced below:

Figure 1 illustrates a top view of one embodiment of a
laryngoscope blade 100 of the present [invention] . . . . As
illustrated, this embodiment includes a main blade portion 106,
a blade base 108 and a blade tip 110. Also illustrated is a light
source 112 coupled to the main blade portion 106. The blade
tip 110 extends from the distal end 102 of the main blade
portion 106. As illustrated, the blade tip 110 is flared out
beyond a width 120 of the main blade portion 106. The blade
tip 110 having a width 122 that extends beyond the width 120
of the blade 106 allows for a slimmer blade than is typically
used in the prior art which adds in the maneuverability of the
blade 100 during use. Moreover, the relatively thin main blade
portion 106 allows for better vis[i]bility than a standard blade
and also provides for greater space for larger endotracheal tubes
such as double lumenum endotracheal tubes for single lung
ventilation. The blade base 108 extends from a proximal end
104 of the main blade portion 106. In this embodiment, a
second tongue displacement plate 114 extends out from an
opposite side of the main blade portion 106 as the blade tip 110.
The second tongue displacement plate 114 is adapted to
displace a patient[’]s tongue during use.

(Spec. [0022].)
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2. Appellant’s Figure 2 is reproduced below:

Figure 2 shows:
[A] side view of another embodiment of a laryngoscope
blade 200 of the present invention is illustrated. The blade 200
has a proximal end 104, a main blade portion 106 which has a
mid portion 208 and a distal end 102. Figure 2 illustrates that
the blade base 108 includes a handle connector portion 206
which is adapted to selectively couple to a standard
laryngoscope handle. Also illustrated is a first tongue
displacement plate 202 that extends down from the main blade
portion 106. The first tongue displacement plate 202 extends
along a length of the main blade portion 106.

(Spec. [0023].)
3. Appellant’s Figure 3 is reproduced below:
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Figure 3 illustrates a back view of a laryngoscope blade
300 of one embodiment of the present invention. As illustrated,
the blade base 108 includes a handle connection portion 206. In
this embodiment, a connection plate 306 couples a main blade
portion 106 to the blade base 108. Also illustrated in Figure 3
are the first tongue displacement plate 202 and the second
tongue displacement plate 114. As illustrated, in this
embodiment, the second tongue displacement plate 114 is
coupled to extend away from the first tongue displacement plate
202 in a direction that is away from the main blade portion 106.
Moreover, the second tongue displacement plate 114 is coupled
to a side of the first tongue displacement plate 202 that is
opposite the side the first tongue displacement plate 202 is
coupled to the main blade portion 106. In addition, as illustrated
in this embodiment, the second tongue displacement plate 114
extends away from the first tongue displacement plate at
generally a perpendicular angle. The first tongue displacement
plate 202 and the second tongue displacement plate 114 are
adapted to work together the move the tongue of the patent out
of the way during use of the laryngoscope 300.

(Spec. [0025].)
4. In its background section, Cartledge discusses prior art types of
laryngoscope blades:
Three types of blades are most prominently used. An example
of a first type of blade, characterized as a curved blade, is
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known in the art as the MacIntosh blade. The MacIntosh blade
is advanced into the space between the base of the tongue and
the pharyngeal surface of the epiglottis. Forward and upward
movement of this blade stretches the hypoepiglottic ligament to
cause the epiglottis to move upward to expose the glottic
opening. Two other types of prominently used blades are the
straight blade, known as the Jackson or Wisconsin blade, and
the straight blade with a curved tip, known in the art as the
Miller blade. The tip of these blades are passed beneath the
laryngeal surface of the epiglottis and moved upwardly to
elevate the epiglottis, thereby exposing the glottic opening.
(Cartledge, col. 2, ll. 2-15.)
4. To address the potential problem of damaging teeth during the use of
laryngoscope blades, Cartledge discloses “a modified laryngoscope blade
with a removable protective insert that is designed to reduce the risk of
dental injuries in the course of endotracheal intubation in patients” (id. at
col. 3, ll. 47-50).
5. Cartledge discloses that “the protective insert is preferably constructed
of a resilient, pliable material that would maintain its structural integrity, but
would absorb and diffuse mechanical stress that might be imparted to the
teeth or other body structures at risk with a completely rigid blade” (id. at
col. 6, ll. 13-17).
6. Cartledge discloses that the “inventive blade may be provided in both
straight and curved embodiments, and may incorporate fiberoptic carriers, a
distal miniature lamp for illumination, or other ancillary features whether
visually oriented or not” (id. at col. 3, ll. 53-56).
7. Figure 5 of Cartledge is reproduced below:

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FIG. 5 shows details of the buccal, or lateral side view of
the inventive blade assembly . . . . The insert 10 is shown fully
seated into the recess 25 in the blade structure 20. The distal
edge 160 of the vertical blade portion 150 is flushly abutted
with the corresponding edge of the vertical blade 325 of the
blade structure 20. Also, the maxillary or upper surface 110 of
the removable protective insert 10 is substantially flush with the
upper surface 330 of the modified blade structure 20.

(Cartledge, col. 7, l. 66, through col. 8, l. 7.)
8. Figure 8 of Cartledge is reproduced below:

“FIG. 8 shows a cross-sectional view through the inventive laryngoscope
blade assembly 100 through the plane 8-8' on FIG. 5. This shows the
seamless junction of the vertical blade 150 of the insert 10 and the vertical
blade 325 of the blade structure 20” (Cartledge, col. 9, ll. 1-5).
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9. Regarding Figure 8, Cartledge also states:
It should be noted that both the vertical blade 150 of the insert
10 and the vertical blade 325 of the blade structure 20 are
relatively thin at this level, minimizing both mechanical and
visual obstruction for the user who must both inspect the larynx
distal to this level and be able to pass an endotracheal tube or
other instrumentation around the inventive laryngoscope blade
100 at or below the level shown.

(Id. at col. 9, ll. 5-12.)
10. Sakamoto discloses a laryngoscope in which “the width of the distal
aspects of the blade tips are flared out beyond the width of the blade. This
design gives the tips more surface area to spread apart a patient’s throat
tissue and to stabilize the epiglottis while displacing it anteriorly”
(Sakamoto, col. 2, ll. 52-55).
11. In addition, Sakamoto discloses, “the widening of the blade at its
distal end allows for the width of the rest of the blade to be narrower which
enhances the maneuverability of laryngoscope and provides the operator
with greater exposure of the aditus of larynx/vocal cords” (id. at col. 2, ll.
55-59).
12. Roberts discloses “a laryngoscope which has a blade that can be
adjusted between a straight surface and a curved surface” (Roberts, col. 1, ll.
10-11).
13. Roberts discloses that,
Depending upon the preference of the
physician/anesthesiologist, the laryngoscope used may have a
straight blade or a curved blade. In some instances, the
physician/anesthesiologist may use both types as well as
laryngoscopes having blades of varying length so as to be able
to accommodate different pharangeal configurations of various
patients.
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(Id. at col. 1, ll. 20-26.)
14. Roberts discloses that its device can be interconverted from a
relatively straight blade to a relatively curved one by a rotating a cam that
forces the blade to bend to various degrees (id. at col. 2, ll. 53-64; see also
Figures 1, 4, and 6).
PRINCIPLES OF LAW
When evaluating whether a claim extends to obvious subject matter,
the PTO must interpret the claim’s terms using “the broadest reasonable
meaning of the words in their ordinary usage as they would be understood
by one of ordinary skill in the art, taking into account whatever
enlightenment by way of definitions or otherwise that may be afforded by
the written description contained in the applicant’s specification.” In re
Morris, 127 F.3d 1048, 1054 (Fed. Cir. 1997).
However, “while ‘the specification [should be used] to interpret the
meaning of a claim,’ courts must not ‘import[ ] limitations from the
specification into the claim.’ . . . [I]t is improper to ‘confin[e] the claims to
th[e] embodiments’ found in the specification . . . .” In re Trans Texas
Holdings Corp., 498 F.3d 1290, 1299 (Fed. Cir. 2007) (quoting Phillips v.
AWH Corp., 415 F.3d 1303, 1323 (Fed. Cir. 2005), citations omitted,
bracketed text in internal quotes in original); see also Sjolund v. Musland,
847 F.2d 1573, 1581 (Fed. Cir. 1988) (“[W]hile it is true that claims are to
be interpreted in light of the specification and with a view to ascertaining the
invention, it does not follow that limitations from the specification may be
read into the claims.”); In re Bigio, 381 F.3d 1320, 1325 (Fed. Cir. 2004)
(“Absent claim language carrying a narrow meaning, the PTO should only
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limit the claim based on the specification . . . when [it] expressly disclaim[s]
the broader definition.”).
Moreover, as stated in In re Zletz, 893 F.2d 319, 321 (Fed. Cir. 1989),
“during patent prosecution when claims can be amended, ambiguities should
be recognized, scope and breadth of language explored, and clarification
imposed.”
In KSR Int'l Co. v. Teleflex Inc., 550 U.S. 398, 418 (2007), the
Supreme Court pointed out that “a patent composed of several elements is
not proved obvious merely by demonstrating that each of its elements was,
independently, known in the prior art.” Rather, the Court stated:
[I]t can be important to identify a reason that would have
prompted a person of ordinary skill in the relevant field to
combine the elements in the way the claimed new invention
does . . . because inventions in most, if not all, instances rely
upon building blocks long since uncovered, and claimed
discoveries almost of necessity will be combinations of what, in
some sense, is already known.

Id. at 418-419 (emphasis added).
While it recognized the importance of providing a rationale for
practicing the claimed subject matter, the Court nonetheless reaffirmed that
“when a patent ‘simply arranges old elements with each performing the
same function it had been known to perform’ and yields no more than one
would expect from such an arrangement, the combination is obvious.” Id. at
417 (quoting Sakraida v. Ag Pro, Inc., 425 U.S. 273 (1976)). The Court
reasoned that:
When there is a design need or market pressure to solve a
problem and there are a finite number of identified, predictable
solutions, a person of ordinary skill has good reason to pursue
the known options within his or her technical grasp. If this
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leads to the anticipated success, it is likely the product not of
innovation but of ordinary skill and common sense. In that
instance the fact that a combination was obvious to try might
show that it was obvious under § 103.

Id. at 421.
The Court also noted that the analysis under 35 U.S.C. § 103 properly
“take[s] account of the inferences and creative steps that a person of
ordinary skill in the art would employ.” Id. at 418; see also id. at 421 (“A
person of ordinary skill is . . . a person of ordinary creativity, not an
automaton.”).
The Court further noted that “[a] factfinder should be aware, of
course, of the distortion caused by hindsight bias and must be cautious of
arguments reliant upon ex post reasoning. Rigid preventative rules that deny
factfinders recourse to common sense, however, are neither necessary under
our case law nor consistent with it.” Id. at 421 (citations omitted).
ANALYSIS
Appellant’s arguments do not persuade us that the Examiner erred in
finding that Cartledge meets the limitation requiring the laryngoscope blade
to have “a main blade portion having a posterior surface, a distal end and
proximal end, the main blade portion being relatively straight between the
distal end and the proximal end.” Nor are we persuaded that the Examiner
erred in finding that the cited references suggest a laryngoscope blade that
has both a “main blade portion being relatively straight between the distal
end and the proximal end” and “a second tongue displacement plate
extending from the first tongue displacement plate in a direction that is away
from the main blade portion.”
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We acknowledge that claim 1 requires the laryngoscope blade to have
a main blade portion that is “relatively straight between the distal end and
the proximal end.” We also acknowledge that the Specification discloses a
blade with a straight main portion 106 (see FF 1).
As noted above, the Examiner must give the claims their broadest
reasonable interpretation consistent with the Specification, and consistent
with an ordinary artisan’s understanding of the claims’ terms. In re Morris,
127 F.3d at 1054. The Examiner may not, however, read limitations into the
claims from the Specification. See, e.g., In re Trans Texas Holdings Corp.,
498 F.3d at 1299.
Thus, by its terms, claim 1 does not require the main blade to be
straight, only “relatively straight.” The Specification, in turn, does not
define the term “relatively straight,” nor does the Specification indicate how
much curvature or bending is encompassed by the claim, or how much is
excluded.
Moreover, the Specification does not state the basis for comparison
when interpreting the term “relatively.” Also, while the main blade portion
of claim 1 must extend from a proximal end to a distal end, at which point
the tip begins, neither claim 1 nor the Specification requires the main blade
portion or the tip to be a specific percentage of the total length of the blade.
Given the lack of a definition of the term “relatively,” and the manner
of that term’s use in claim 1, we do not agree that the Examiner erred in
finding that an ordinary artisan would consider Cartledge’s blade to be
encompassed by claim 1 when the claim is given its broadest reasonable
interpretation consistent with the Specification. Rather, we conclude that the
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term “relatively straight” encompasses main blade portions that are
somewhat curved, like Cartledge’s.
In the instant case, as the Examiner points out, and Appellant does not
dispute, Cartledge’s blade is in fact straight when viewed from above (see,
e.g., FF 8). Moreover, even when viewed from the side, an ordinary artisan
could reasonably conclude that the portion 20 identified by Cartledge as “the
blade structure” (FF 5), while somewhat curved, is in fact “relatively
straight” when compared to more curved blades, and particularly when
compared to the greater curvature of the overall structure of Cartledge’s
blade.
We acknowledge Cartledge’s disclosure that MacIntosh blades are
considered “curved” (FF 4). However, as discussed above, the language
“relatively straight” does not exclude all curved blades. Also, Appellant
points to nothing in the Specification suggesting that the language at issue
excludes MacIntosh blades.
In sum, we do not agree with Appellant that the language “relatively
straight” is sufficient to distinguish the laryngoscope blade of claim 1 from
the slightly curved blade disclosed by Cartledge. We are therefore not
persuaded that the Examiner erred in finding that Cartledge meets the
limitation requiring the laryngoscope blade to have “a main blade portion
having a posterior surface, a distal end and proximal end, the main blade
portion being relatively straight between the distal end and the proximal
end.”
Claim 1 also recites a laryngoscope blade that has both a “main blade
portion being relatively straight between the distal end and the proximal
end” and “a second tongue displacement plate extending from the first
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tongue displacement plate in a direction that is away from the main blade
portion.” As discussed above, we agree with the Examiner that the main
portion of Cartledge’s blade is encompassed by the recitation “relatively
straight.”
Appellant’s Figure 3 shows an embodiment having the first and
second tongue displacement plates configured as recited in claim 1, with
first tongue displacement plate 202 extending downwardly and second
tongue displacement plate 114 extending at right angles from the first plate
(FF 3). As seen in Cartledge’s Figure 8, Cartledge’s tongue displacement
plates are configured in the same orientation as shown in Appellant’s Figure
3, with first tongue displacement plate 325 extending downwardly, and
second tongue displacement plate 345 extending away from the main blade
portion 155 (FF 8).
We therefore do not agree with Appellant that the Examiner erred in
finding that the cited references suggest a laryngoscope blade that has both a
“main blade portion being relatively straight between the distal end and the
proximal end” and “a second tongue displacement plate extending from the
first tongue displacement plate in a direction that is away from the main
blade portion.” Nor has Appellant pointed to any specific evidence
demonstrating that an ordinary artisan would have failed to combine the
various features of different types of laryngoscope blades.
To the contrary, Cartledge explicitly discloses that its tooth-saving
insert is applicable to either curved or straight blades (FF 6). Moreover,
Roberts discloses a laryngoscope that has the same features whether it is
curved or straight (FF 12-14). In view of these teachings, an ordinary artisan
would reasonably infer that features applied to one type of laryngoscope
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would be suitably applied to other types of laryngoscopes. We are therefore
not convinced that an ordinary artisan constructing one type of laryngoscope
would ignore teachings directed to advantageous features found on other
types.
Moreover, although Appellant urges that the combination of elements
recited in the claims is unpredictable, Appellant points to no evidence
showing that the claimed laryngoscope blade produces any sort of result
which an ordinary artisan would have considered unexpected. It is well
settled that argument of counsel is no substitute for actual evidence. In re
Cole, 326 F.2d 769, 773, (CCPA 1964); In re Geisler, 116 F.3d 1465, 1471
(Fed. Cir. 1997).
In sum, a preponderance of the evidence shows that the laryngoscope
blade recited in claim 1 is merely a combination of elements known to be
suitably applied to laryngoscope blades. A preponderance of the evidence
also shows that those elements function in a predictable manner.
We are therefore not persuaded that the Examiner erred in concluding
that the laryngoscope recited in claim 1 would have been obvious to an
artisan of ordinary skill, and accordingly affirm the Examiner’s rejection of
claim 1. Because they were not argued separately, claims 2-12 fall with
claim 1. See 37 C.F.R. § 41.37(c)(1)(vii).
Appellant argues that claims 13, 27, and 28 also recite the limitations
requiring a relatively straight blade main portion combined with a second
tongue displacement plate extending from a second end of the first tongue
displacement plate in a direction away from the main displacement blade.
Therefore, Appellant argues, the arguments put forth regarding claim 1 also
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apply to claim 13 (App. Br. 10-11; see also id. at 14, 15 (same argument
with respect to claims 27 and 28 respectively)).
For the reason discussed above, we do not find Appellant’s arguments
persuasive. We therefore affirm the Examiner’s rejection of claims 13, 27,
and 28, and their dependent claims.
In arguing claim 22, Appellant reiterates the argument made with
respect to claim 1, and also argues:
[C]laim 22 further includes the aspects of “the second
tongue displacement plate further having a surface that is
positioned in an opposite direction as the posterior surface of
the main blade, the surface of the second tongue displacement
plate forming a plane that is generally parallel with an axis
formed by the length of the posterior surface.” None of the
cited references teach or suggest this aspect in combination
with the other aspects of claim 22. Moreover, the Examiner has
failed to address this aspect in the rejection of claim 22.

(App. Br. 12.)
In reviewing the record, it does not appear that the Examiner
addressed these features of claim 22 in the Final Rejection (see generally
Final Rejection mailed April 19, 2007). However, in the Examiner’s
Answer, the Examiner states:
Cartledge et al. also disclose the second tongue displacement
plate further having a surface that is positioned in an opposite
direction as the posterior surface of the main blade, the surface
of the second tongue displacement plate forming a plane that is
generally parallel with an axis formed by the length of the
posterior surface (see Figs. 6-8).

(Ans. 4-5.)
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In the Reply Brief Appellant again argues that “[n]one of the cited
references teach or suggest this aspect in combination with the other aspects
of claim 22” (Reply Br. 3).
We note that the Examiner’s Answer replies to Appellant’s assertion
by pointing to Figures 6-8 of Cartledge. However, the Examiner has not
explained which elements shown in those Figures correspond to the
limitations argued by Appellant, nor is it apparent to us how the Figures
meet the limitations at issue.
As the Supreme Court noted in KSR, “rejections on obviousness
grounds cannot be sustained by mere conclusory statements; instead, there
must be some articulated reasoning with some rational underpinning to
support the legal conclusion of obviousness.” KSR, 550 U.S. at 418 (quoting
In re Kahn, 441 F.3d 977, 988 (Fed. Cir. 2006) (emphasis added).
Because the Examiner has not adequately articulated the rationale
used in concluding that claim 22 would have been obvious over the cited
references, we are constrained to reverse the Examiner’s obviousness
rejection of that claim, and its dependents.

SUMMARY
We affirm the Examiner’s rejection of claims 1-21 and 27-31 under
35 U.S.C. § 103(a) as being obvious in view of Cartledge, Sakamoto, and
Roberts.
However, we reverse the Examiner’s obviousness rejection of claims
22-26 over those references.
21
Appeal 2009-002714
Application 10/777,293

TIME PERIOD
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-IN-PART

cdc

CARL SAKAMOTO
83 EAST PLEASANT LAKE ROAD
NORTH OAKS MN 55127
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