10778366 (B.P.A.I. Jul. 19, 2011)

Ex Parte Schryver

Board of Patent Appeals and InterferencesJul 19, 2011

10778366 (B.P.A.I. Jul. 19, 2011)

UNITED STATES PATENT AND TRADEMARKOFFICE 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. 10/778,366 02/12/2004 Charles Schryver MSH-484RCE 7146 8131 7590 07/20/2011 MCKELLAR IP LAW, PLLC 784 SOUTH POSEYVILLE ROAD MIDLAND, MI 48640 EXAMINER AUGHENBAUGH, WALTER ART UNIT PAPER NUMBER 1782 MAIL DATE DELIVERY MODE 07/20/2011 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 CHARLES SCHRYVER ____________ Appeal 2009-013103 Application 10/778,366 Technology Center 1700 ____________ Before CHARLES F. WARREN, PETER F. KRATZ, and BEVERLY A. FRANKLIN, Administrative Patent Judges. FRANKLIN, Administrative Patent Judge. DECISION ON APPEAL Appellant appeals under 35 U.S.C. § 134 from the Examiner's rejection of claim 10. We have jurisdiction under 35 U.S.C. § 6. STATEMENT OF THE CASE Claim 10 is representative of the subject matter on appeal and is set forth below: 10. A medical drain operable for collecting and conducting body fluids from the body of a person, the drain having a length and comprising: Appeal 2009-013103 Application 10/778,366 2 (a) an extension portion having an axial lumen; (b) a collection portion adapted for implantation within the body, said collection portion thereafter being operable for collection and conducting body fluids to said axial lumen of said extension portion for conduction from the body; and (c) a radiopaque strip [sic, stripe] coextensive with said length of said drain wherein a portion of said radiopaque stripe coextensive with said drain is bifurcated along the collection portion and wherein said medical drain is of unitary construction and has a transverse cross-section orthogonal to said length, said cross- section comprised of a first weight of a first extrudable material and a second weight of a second extrudable material that is different from said first extrudable material wherein aid [sic, said] first and second extrudable materials are homogeneously distributed throughout said transverse cross- section and wherein the ratio of said first weight to said second weight in said transverse cross-section varies along said length of said drain. The prior art relied upon by the Examiner in rejecting the claims on appeal is: Oreopoulos 4,392,855 Jul. 12, 1983 Hammersmark 5,429,617 Jul. 4, 1995 Appeal 2009-013103 Application 10/778,366 3 THE REJECTION 1. Claim 10 is rejected under 35 U.S.C. 103(a) as being unpatentable over Oreopoulos in view of Hammersmark. ISSUE Did the Examiner err in determining that the applied art suggests that the “medical drain is of unitary construction”? We answer this in the negative and AFFIRM. ANALYSIS (with Findings of Fact and Principles of Law) Appellant argues that the applied art does not suggest a medical drain that is of a “unitary construction” as recited in claim 10. Appellant defines the term unitary in their Specification on page 10 as meaning “that no portions of the article are joined to one another by adhesive means to form a joint between the portions of the article.” It is the Examiner’s position that the medical drain of Oreopoulos is of a unitary construction. Ans. 9. We agree. Figure 2 of Oreopoulos depicts a catheter that “carries a stripe 38 of a radiopaque material.” Oreopoulous, col. 2, ll. 58-60. In reaching this agreement with the Examiner’s position, we note that Oreopoulos does not indicate that adhesive means is used to attach item 38 to the catheter. Nor has Appellant pointed to evidence to indicate such. Also, Appellant has not established that use of adhesive Appeal 2009-013103 Application 10/778,366 4 means would be the only way to construct the medical drain in Oreopoulos. 1 Hence, on this record before us, we are not convinced of error and affirm the Examiner’s rejection. CONCLUSIONS OF LAW AND DECISION The rejection is affirmed. 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)(1). AFFIRMED cam 1 On the other hand, the Examiner points to evidence in Hammersmark, for example, showing that means other than adhesive means are known in the art. Ans. 6.