Ex Parte Sternby

Board of Patent Appeals and Interferences

Sep 23, 2011

10471626 (B.P.A.I. Sep. 23, 2011)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________________

BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
____________________

Ex parte JAN STERNBY
____________________

Appeal 2010-002658
Application 10/471,626
Technology Center 3700
____________________

Before: GAY ANN SPAHN, WILLIAM V. SAINDON, and
MICHAEL L. HOELTER, Administrative Patent Judges.

SAINDON, Administrative Patent Judge.

DECISION ON APPEAL
Appeal 2010-002658
Application 10/471,626
2
STATEMENT OF THE CASE
Appellant appeals under 35 U.S.C. § 134 from the Examiner’s
decision rejecting claims 1-12 and 14-16. Claims 13 and 171 are canceled.
We have jurisdiction under 35 U.S.C. § 6(b). Claim 1, reproduced below
with emphasis added, is illustrative of the claimed subject matter.
1. Method of avoiding unintentional withdrawal of any of at
least one first or at least one second access device (20, 20', 30)
from a vessel (11), which comprises;
- inserting the at least one first access device in a first direction
in the vessel;
- inserting the at least one second access device in a second
direction in the vessel, the second direction being different from
the first direction; and
- interconnecting the at least one first and the at least one
second access device by providing a fixed length of an
interconnecting device (50, 50', 51', 51", 52', 52") comprising
fixing the interconnecting device between the at least
one first access device and the at least one second
access device.

References
The Examiner relies upon the following prior art references:
Dasse
Estabrook
West
US 5,171,216
US 6,506,182 B2
US 6,595,960 B2
Dec. 15, 1992
Jan. 14, 2003
Jul. 22, 2003

Rejections
I. Claims 1, 3-11, and 16 are rejected under 35 U.S.C. 102(e) as
anticipated by Estabrook.

1 Appellant’s Claim Appendix attached to the Appeal Brief filed Jun. 21,
2007 lists two claims numbered as claim 16 with the second claim 16 being
cancelled. However, the Examiner renumbered the second claim 16 to claim
17 in the Office Action mailed Sep. 22, 2004.
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Application 10/471,626
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II. Claims 2 and 12 are rejected under 35 U.S.C. 103(a) as unpatentable
over Estabrook and Dasse.
III. Claims 14 and 15 are rejected under 35 U.S.C. 103(a) as unpatentable
over Estabrook and West.

SUMMARY OF DECISION
We AFFIRM-IN-PART.

OPINION
Claims 1, 3, 4, 5, 7-9, 11, and 16
The Examiner found that Estabrook teaches two access devices
connected by a fixed length interconnecting device (interlock 215). Ans. 3
(citing to Estabrook, fig. 17). Appellant argues that Estabrook does not
describe “fixing element 215 between the access devices.” App. Br. 10.
Appellant argues claims 1, 3, 4, 5, and 7 as a group; claims 3, 4, 5, and 7
stand or fall with claim 1. Appellant argues claims 8, 9, 11, and 16
separately, but rely on the arguments presented for claim 1. Accordingly,
the issue with respect to claims 1, 3, 4, 5, 7-9, 11, and 16 is whether
Estabrook describes fixing the interconnecting device 215 between the
access devices.
Estabrook explains that the interlock means 215 links the access
devices “after the needles … have been fully inserted into the lumens” in a
manner similar to that described for the embodiment of figure 12. Col. 20,
ll. 12-17. The interlock 217 of figure 12 operates by inserting the
protuberances 220, 230 into recesses 240 in the access devices. Col. 19, ll.
6-10. Because the interlock 215 of figure 17 appears to operate in the same
manner as the interlock of figure 12, we find that Estabrook describes fixing
interlock 215 to the access devices.
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Appellant contends that Estabrook’s interconnecting device (interlock
215) is not “between” the access devices. See App. Br. 9-10; Reply Br. 2-3.
However, Appellant does not cogently explain how Estabrook’s
interconnecting device (interlock 215), which is clearly shown as extending
from one access device to the other access device and joining/connecting the
access devices2, is not “between” the access devices, as would be interpreted
by one of ordinary skill in the art. Accordingly, we sustain the Examiner’s
rejection of claim 1 as anticipated by Estabrook. Claims 3, 4, 5, and 7 fall
with claim 1. Because we did not find the arguments with respect to claim 1
persuasive, we do not find the similar arguments set forth for claims 8, 9, 11,
and 16 (App. Br. 10-11) persuasive for the same reasons. Accordingly, we
also sustain the Examiner’s rejection of claims 3, 4, 5, 7-9, 11, and 16 as
anticipated by Estabrook.

Claim 6
Appellant raises the issue of whether Estabrook describes
interconnecting the interconnecting device (interlock 215) and the access
devices before insertion, as required by claim 6. The Examiner
acknowledges that Estabrook describes how the linking “must generally be
undertaken after the needles have been fully inserted” (emphasis added), but
finds that Estabrook also describes that “the assemblies as shown … may be
connected together … prior to insertion.” Ans. 9, quoting Estabrook, col.
20, ll. 14-16 and col. 19, ll. 45-46.

2 See, e.g., WEBSTER’S THIRD NEW INTERNATIONAL DICTIONARY 209
(provided by Appellants in Evidence Appendix) (defining “between” as
“from one to the other of; JOINING, CONNECTING”).
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The portion discussing connecting the assemblies prior to insertion is
with respect to the parallel access device embodiments of figures 11, 12, 14,
15, and 16, not the inclined or non-parallel embodiment of figure 17.
Estabrook, col. 19, l. 46 and col. 20, ll. 8-10. Accordingly, this portion of
Estabrook is not stated as being applicable to the embodiment of figure 17
used by the Examiner in the anticipation rejection, which instead describes
how the linking must be done after insertion. In addition, the Examiner does
not present any technical analysis to support how the access devices could
be inserted at the appropriate angle when they are fixed together in this
inclined position before insertion. Given that the access devices must be
inserted at an angle and the fact that the interconnecting device (interlock
215) is not adjustable lengthwise, it is not apparent how the interconnecting
device (interlock 215) could be attached to the access devices prior to
insertion and still result in the access devices positioned at the appropriate
angles. As such, we do not sustain the Examiner’s rejection of claim 6.

Claim 10
Claim 10 requires, essentially, the interlocking device to be connected
pivotally to one of the access devices. The Examiner found that the
interconnecting device (interlock 215) of Estabrook allows for a pivotal
connection to one of the access devices via interlocking devices
(unnumbered pegs and holes in figure 17; same as peg 220, holes 240 in
figure 12). Ans. 4. Appellant argues that “there is no disclosure … of
element 215 of Estabrook being pivotally attached to the hubs.” App. Br.
11. There is no requirement that a reference must recognize all features of
its invention. Ex parte Obiaya, 227 USPQ 58, 60 (BPAI 1985), aff'd mem.,
795 F.2d 1017 (Fed. Cir. 1986). Accordingly, Estabrook need not explicitly
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state that there is a pivoting connection between the interconnecting device
(interlock 215) and the access devices. Instead, the issue is whether the
Examiner’s finding that Estabrook’s interconnecting device (interlock 215)
is pivotally attached to one of the access devices is supported by a
preponderance of the evidence.
The figure 17 embodiment of Estabrook depicts an interlock 215
having round pegs that fit into round holes. Further, there is a gap between
the two access bodies 205, 205ʹ, which would appear to remain after the
pegs of the interlock 215 has been inserted into the holes in the access
device bodies 205, 205ʹ. Accordingly, given that round pegs in round holes
are generally understood to rotate, that the gap allows for some pivoting to
occur, and that to avoid patient injury, interlock 215 is separable from bodies
205, 205ʹ prior to needle removal, it is more likely than not that the
interlocking device is pivotally connected to the access devices. See Perfect
Web Tech., Inc. v. InfoUSA, Inc., 587 F.3d 1324, 1329 (Fed. Cir. 2009)
(“while an analysis of obviousness always depends on evidence … it also
may include recourse to logic, judgment, and common sense available to the
person of ordinary skill that do not necessarily require explication in any
reference”).
Appellant argues (App. Br. 11) that the interconnecting device
(interlock 215) has a “snap in” connection, but snap connectors do not
necessarily imply a non-rotatable connection (e.g., clothing snaps and
audio/video snap connectors generally rotate after being snapped in place).
Appellant contends that the Examiner’s citation to Estabrook’s figure 16
embodiment is misplaced because it discloses axial rotation of the access
devices portions 205, 205ʹ relative to each other, not a pivotal connection
between the interconnecting device (interlock 215) and the access devices.
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Reply Br. 4. However, the Examiner’s previous citation to the
interconnecting device (interlock 215) in figure 17 (having pegs and holes
similar to pegs 220 and holes 240 in figure 12) tends to show that
Estabrook’s figure 17 embodiment has a pivotal connection between
interlock 215 and the access devices. Accordingly, the preponderance of the
evidence supports the Examiner’s finding that the connection between
Estabrook’s interconnecting device (interlock 215) and the access devices is
pivotal. As such, we sustain the Examiner’s rejection of claim 10.

Claims 2 and 12
Claims 2 and 12 both require, essentially, that the length of the
interconnecting device is adjustable. The Examiner found that Estabrook
does not teach an adjustable-length interconnecting device, but that Dasse
does, using bellows 60, 60ʹ. Ans. 5-6. Appellant argues that Dasse merely
discloses bellows designed to adjust the length of the individual lumens or
the access device itself, not an interconnecting device. App. Br. 11-12.
Accordingly, the issue is whether the Examiner’s proposed combination of
the teachings of Estabrook and Dasse renders obvious an interconnecting
device with an adjustable length.
Dasse teaches a device having bellows 60, 60ʹ that function as shock
absorbers for tubes 4, 4ʹ. Dasse, col. 9, ll. 1-9, fig. 7. Dasse does not
describe the bellows as part of an interconnecting structure between the two
tubes 4, 4ʹ, nor does Dasse describe the bellows as part of a structure for
adjusting the distance between the tubes 4, 4ʹ. As such, the bellows 60, 60ʹ
are used to adjust the individual access devices, not a length between access
devices. The Examiner does not explain how modifying the access device
bodies 205, 205ʹ of Estabrook by incorporating the bellows 60, 60ʹ of Dasse
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would result in an adjustable length interconnecting device. Accordingly,
the Examiner has not set forth a sufficient reason with some rational
underpinning to explain why it would have been obvious to one of ordinary
skill in the art, in view of the teachings of Estabrook and Dasse, to modify
the interconnecting device (interlock 215) to include an adjustable length
feature. See KSR Int'l Co. v. Teleflex Inc., 550 U.S. 398, 418 (2007)
(holding that “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.”). As such, we do not sustain the Examiner’s rejection of
claims 2 and 12.

Claims 14 and 15
Claims 14 and 15 are directed to a ball and ball holder serving to
connect the interconnecting device to the access devices. See, e.g., fig. 9. In
relevant part, claim 14 requires a ball holder integrated with the interlocking
device of the interconnecting device, while claim 15 requires the
interlocking device of the interconnecting device comprise a ball. The
Examiner found that West teaches a flexible needle assembly using a ball
684 in conjunction with a ball holder 681 integrated with an access device to
provide for rotational movement of the access device. Ans. 6. The
Examiner concluded that it would have been obvious to “integrat[e] a ball
and ball holder as taught by West … to either the access device or the
interconnecting member to allow for rotational movement of the access
device.” Ans. 6-7.
Appellant argues that the ball and ball holder in West is for attaching
a single needle to its own hub. Ans. 14. Accordingly, the issue is whether
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the Examiner has shown that the combined teachings of Estabrook and West
render obvious a ball and ball holder structures as required by claims 14 and
15.
The Examiner does not specifically explain how Estabrook’s device is
modified by the teachings of West. As pointed out by Appellant, the ball
and ball holder of West have nothing do to with an interconnecting device.
See, e.g., West, col. 2, ll. 63-67 (describing a needle flexible within its own
hub), fig. 7. In addition, the Examiner does not provide a sufficient reason
with some rational underpinning as to why one of ordinary skill in the art
would consider it obvious to apply this teaching of West to a different
structure, namely, the interconnecting device 215 of Estabrook. See KSR,
550 U.S. at 418. Accordingly, we do not sustain the Examiner’s rejection of
claims 14 and 15.

DECISION
We affirm the Examiner’s decision regarding claims 1, 3-5, 7-11, and
16 and reverse the Examiner’s decision regarding claims 2, 6, 12, 14, and
15.
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)(iv).

AFFIRMED-IN-PART
mls/nlk