Ex Parte Schryver et al

Board of Patent Appeals and Interferences

Oct 21, 2009

10934800 (B.P.A.I. Oct. 21, 2009)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________________

BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
____________________

Ex parte CHARLES SCHRYVER and MASON WAGES
____________________

Appeal 2009-006659
Application 10/934,800
Technology Center 3700
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Decided: October 22, 2009
____________________

Before JAMESON LEE, SALLY GARDNER LANE, and
SALLY C. MEDLEY, Administrative Patent Judges.

LEE, Administrative Patent Judge.

DECISION ON APPEAL

A. STATEMENT OF THE CASE
This is a decision on appeal by an Appellant under 35 U.S.C. § 134(a)
from a final rejection of claims 6 and 7. We have jurisdiction under 35
U.S.C. § 6(b). We affirm.
Appeal 2009-006659
Application 10/934,800

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References Relied on by the Examiner
Kramer, Sr. et al. (“Kramer”) 4,113,828 Sep. 12, 1978

The Rejections on Appeal
The Examiner rejected claims 6 and 7 under 35 U.S.C. § 102(b) as
anticipated by Kramer.

The Invention
The invention relates to a mixing tube for mixing two fluids as they
pass through the tube. (Spec. 4:6-9.)
Independent claim 6 is reproduced below (App. Br. 13 Claims
App’x.):
6. A mixing tube having unitary construction and being operable
for mixing two or more fluids, said mixing tube comprising an
extruded length of a flexible elastomeric tube having a first end and a
second end and a lumen therebetween, said lumen having a mixing
portion operable for creating turbulent flow in a fluid flowing
therethrough and wherein said mixing portion of said lumen has an
inner diameter wherein said inner diameter varies sequentially and
periodically along the length of the mixing portion of the lumen and
said first end lumen and said second end lumen each have a smooth
internal surface.

B. ISSUE
Has the Appellant shown that the Examiner was incorrect in finding
that Kramer discloses a lumen having “an inner diameter wherein said inner
diameter varies sequentially and periodically along the length of the mixing
portion of the lumen and said first end lumen and said second end lumen
each have a smooth internal surface”?
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Application 10/934,800

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C. FINDINGS OF FACT
1. Kramer discloses a method for making flexible corrugated
rubber tubing. (Kramer Abstract.)
2. The flexible tubing is disclosed as carrying fluid, for example,
in making gas connections in medical applications. (Id. at 2:12-13).
3. Kramer’s Figure 1 is reproduced below:

The figure above depicts an apparatus for forming a length of
corrugated tubing.

4. As shown in Figure 1, a sleeve 10 (i.e., a tube) of rubber is
placed around a mandrel 11 having a plurality of radial air ports 12 formed
therein. (Id. at 3:45-62.)
5. Tube 10 and mandrel 11 are inserted into an external form 15
having a generally corrugated shape defined by annular ridges 16. (Id. at
3:63-4:8.)

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6. Kramer’s Figure 3 is reproduced below:

The figure above shows tube 10 assembled within external form 15.
7. Once tube 10 is within external form 15, air under pressure is
supplied through mandrel 11 such that tube 10 is inflated to form annular
bulges 22 in spaces between annular grooves 17 of the external form. (Id. at
4:14-24.)
8. Tube 10 is then removed from external form 15 and cured to
form a tube with a central corrugated section as shown, for instance, in
Figure 8, which is reproduced below (Id. at 4:25-5:11):

The figure above shows a partial length of corrugated tubing.

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Application 10/934,800

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D. PRINCIPLES OF LAW
Anticipation is established when a single prior art reference discloses
all elements of the claimed invention. In re Spada, 911 F.2d 705, 708 (Fed.
Cir. 1990).
The question of whether or not a reference is analogous art is
irrelevant in an anticipation rejection. In re Schreiber, 128 F.3d 1473, 1478
(Fed. Cir. 1997). “A reference may from an entirely different field of
endeavor than that of the claimed invention or may be directed to an entirely
different problem from the one addressed by the inventor, yet the reference
will still anticipate if it explicitly or inherently discloses every limitation
recited in the claims.” (Id.)
E. ANALYSIS
The Examiner rejected claims 6 and 7 as anticipated by Kramer.
Dependent claim 7 is argued collectively with independent claim 6. We
focus on the disputed limitations.
Claim 6 requires a lumen having “an inner diameter wherein said
inner diameter varies sequentially and periodically along the length of the
mixing portion of the lumen and said first end lumen and second send lumen
each have a smooth internal surface.” The Appellant contends that Kramer
does not disclose that limitation. (App. Br. 10:18-25.)
Kramer discloses a method for making flexible corrugated rubber
tubing. (Kramer Abstract.) The flexible tubing is disclosed as carrying
fluid, for example, in making gas connections in medical applications. (Id.
at 2:12-13.)

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Kramer’s Figure 1 is reproduced below:

The figure above depicts an apparatus for forming a length of
corrugated tubing.

As shown in Figure 1, a sleeve 10 (i.e., a tube) of rubber is placed
around a mandrel 11 having a plurality of radial air ports 12 formed therein.
(Id. at 3:45-62.) Tube 10 and mandrel 11 are inserted into an external form
15 having a generally corrugated shape defined by annular ridges 16. (Id. at
3:63-4:8.)
Kramer’s Figure 3 is reproduced below:

The figure above shows tube 10 assembled within external form 15.

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Once tube 10 is within external form 15, air under pressure is supplied
through mandrel 11 such that tube 10 is inflated to form annular bulges 22 in
spaces between annular grooves 17 of the external form. (Id. at 4:14-24.)
Tube 10 is then removed from external form 15 and cured to form a tube
with a central corrugated section as shown, for instance, in Figure 8 which is
reproduced below (Id. at 4:25-5:11):

The figure above shows a partial length of corrugated tubing.

In view of those teachings, the Examiner determined that Kramer
discloses a tube that would be capable of mixing fluids and has an inner
diameter wherein said inner diameter varies sequentially and periodically
along the length of the mixing portion of the lumen and said first end lumen
and second send lumen each have a smooth internal surface, as required by
the claims. (Ans. 3:17-4:9.) That determination is correct. The tube formed
in Kramer includes end sections with un-corrugated, i.e., smooth, inner walls
on either side of a central corrugated section. The corrugated section of the
tube has an inner diameter that varies sequentially and periodically along the
tube length. The Appellant does not address the Examiner’s determination
much less explain why it is incorrect. Thus, no error has been shown in the
Examiner’s determination.
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The Appellant also argues that Kramer is non-analogous art and thus
not available as prior art in rejecting its claims. (App. Br. 11:19-12:14.)
The Appellant’s argument is misplaced. The rejection at issue is one
of anticipation. The question of whether or not a reference is analogous art
is irrelevant in an anticipation rejection. In re Schreiber, 128 F.3d at 1478.
In particular, “[a] reference may from an entirely different field of endeavor
than that of the claimed invention or may be directed to an entirely different
problem from the one addressed by the inventor, yet the reference will still
anticipate if it explicitly or inherently discloses every limitation recited in
the claims.” (Id.) Here, the Appellant has not shown that the Examiner was
incorrect in finding that all the limitations of claim 6 are disclosed in
Kramer.
For all the foregoing reasons, we sustain the rejection of claims 6 and
7 as anticipated by Kramer.
F. CONCLUSION
The Appellant has not shown that the Examiner was incorrect in
finding that Kramer discloses a lumen having “an inner diameter wherein
said inner diameter varies sequentially and periodically along the length of
the mixing portion of the lumen and said first end lumen and said second
end lumen each have a smooth internal surface.”
G. ORDER
The rejection of claims 6 and 7 under 35 U.S.C. § 102(b) as
anticipated by Kramer is affirmed.

AFFIRMED
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Application 10/934,800

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