11762862 (P.T.A.B. Jun. 9, 2014)

Ex Parte Tjelmeland

Patent Trial and Appeal BoardJun 9, 2014

11762862 (P.T.A.B. Jun. 9, 2014)

UNITED STATES PATENT AND TRADEMARK OFFICE __________ BEFORE THE PATENT TRIAL AND APPEAL BOARD __________ Ex parte KELLY TJELMELAND1 __________ Appeal 2012-004298 Application 11/762,862 Technology Center 3700 __________ Before DONALD E. ADAMS, ERIC B. GRIMES, and ULRIKE W. JENKS, Administrative Patent Judges. GRIMES, Administrative Patent Judge. DECISION ON APPEAL This is an appeal under 35 U.S.C. § 134 involving claims to a device for debriding wounds, which have been rejected as obvious. We have jurisdiction under 35 U.S.C. § 6(b). We reverse. 1 Appellant identifies the Real Party in Interest as Kelly Tjelmeland (App. Br. 2). Appeal 2012-004298 Application 11/762,862 2 STATEMENT OF THE CASE The Specification describes “a device specialized to cut and scrape dead tissue from wounds underneath a layer of skin” (Spec. 2, ¶ 2). Claims 1-3 and 5-10 are on appeal. Claim 1 is the only independent claim and reads as follows: 1. A device for the removal of tissue comprising: a rigid blade for removal of tissue from a human or animal body, said rigid blade having a proximal portion affixed to a handle and being non- retractable with respect thereto and a distal portion with a blunt, non-cutting tip, wherein said distal portion of said blade is curved with one face of said distal portion forming the inner curve of said distal portion and the other face of said distal portion forming the outer curve of said distal portion and wherein one edge of said distal portion of said blade is sharpened. DISCUSSION The Examiner has rejected claims 1-3, 5-7, and 10 under 35 U.S.C. § 103(a) as obvious based on Polk2 and Lovato3 (Ans. 4). The Examiner has rejected claims 8 and 9 under 35 U.S.C. § 103(a) as obvious based on Polk, Lovato, and Harper4 (Ans. 7). The same issue is dispositive for both rejections. The Examiner finds that Polk discloses a device meeting most of the limitations of claim 1 except that it does not include a blunt, non-cutting tip (id. at 4-5). The Examiner finds that Lovato discloses a device with a blunt, non-cutting tip and concludes that it would have been obvious to modify Polk’s device to include such a tip “because the blunt, non-cutting tip 2 Polk, US 1,452,930, Apr. 24, 1923. 3 Lovato et al., US 3,913,226, Oct. 21, 1975. 4 Harper, US 4,970,786, Nov. 20, 1990. Appeal 2012-004298 Application 11/762,862 3 prevents the tip from piercing the skin unintentionally or from penetrating deeper into the body. The motivation for the modification would be to serve as a protection against accidental piercing.” (Id. at 5.) Appellant argues, among other things, that Polk discloses a sharpened and rounded cutting tip . . . used in separating the fruit from the peel by oscillating the knife up and down. . . . There is no suggestion in Polk that the tip of the blade may not be sharpened. By contrast, Lovato discloses a round probe, not a flat blade, and the tip of the probe is also rounded. (App. Br. 7.) Appellant argues that there is no suggestion or motivation to combine Lovato’s rounded probe tip with Polk (id.). We agree with Appellant that the Examiner has not provided an adequate reason for concluding that it would have been obvious to modify Polk’s device by making its tip blunt. Polk discloses a knife for “rapidly removing the peel of citrus fruit and particularly grape fruit” (Polk 1:9-10). The blade of the knife “is preferably semi-circular or curved to substantially fit the contour of the fruit and its free end is rounded and sharpened” (id. at 1:42-45). Polk’s knife is intended to address the following problem: In the preparation of grape fruit for packing purposes it is essential that the inner skin which lies between the peel and the pulp be removed as well as the peel, as this skin is bitter and would spoil the flavor of the packed fruit. This inner skin cannot be removed by the ordinary method of . . . quartering the peel and then removing the same with the fingers, as such a method leaves this bitter inner skin adhered to the pulp of the fruit. (Id. at 1:11-22.) Appeal 2012-004298 Application 11/762,862 4 Polk describes the use of its knife as follows: The first step is to trim or cut the peel from the two ends of the fruit. . . . The fruit is grasped in one hand by the operator and the knife forced through the peel at the side until it reaches a point between the inner skin and the pulp after which, by rotating the fruit and slightly oscillating the knife, the entire peel and inner skin may be removed in a single cutting operation, leaving the pulp fully exposed. (Id. at 1:54-66.) Lovato discloses a citrus cutter that includes a skin cutter and a skin- loosening probe (Lovato col. 1, ll. 6-8). Lovato states that “to loosen the pithy portion of the skin from the juice-containing segments . . . the rounded outer end 42 of peeling probe 16 . . . is thrust through the pith outside the juice-containing segments. . . . [T]his loosens the pithy portion of the skin from the segments.” (Id. at col. 3, ll. 13-21.) Thus, Lovato’s round-tipped probe is intended to remove the pithy portion of the skin of a citrus fruit, while Polk’s sharp-tipped knife is intended to cut through and remove not only the pith but the inner skin around the pulp, in order to prevent the bitter inner skin from spoiling the flavor of packed grapefruit. Because the Examiner has not provided evidence or sound reasoning to show that a skilled artisan would have expected a blunt, non-cutting tip to perform as required by Polk, we agree with Appellant that the Examiner has not shown that it would have been obvious to modify Polk’s knife to have a blunt tip like that of Lovato’s probe. Appeal 2012-004298 Application 11/762,862 5 SUMMARY We reverse both of the rejections on appeal. REVERSED lp