Ex Parte Turturro et al

Patent Trials and Appeals Board

May 15, 2019

14500662 - (D) (P.T.A.B. May. 15, 2019)

United States Patent and Trademark Office
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.
14/500,662 09/29/2014 Michael Turturro BPMDL0089MK (10852U) 6388
27939 7590 05/16/2019
Philip H. Burrus, IV
Burrus Intellectual Property Law Group LLC
222 12th Street NE
Suite 1803
Atlanta, GA 30309
EXAMINER
MARMOR II, CHARLES ALAN
ART UNIT PAPER NUMBER
3791
MAIL DATE DELIVERY MODE
05/16/2019 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 PATENT TRIAL AND APPEAL BOARD
Ex parte MICHAEL TURTURRO, ANDY MILLS,
MARY M. PEPLINSKI, SUSAN GIBBONS, FRANCESCA OLIVER, ED
DROWER, MEGAN HENKEN, and MICHAEL KOBIDA1
Appeal 2018-008876
Application 14/500,662
Technology Center 3700
Before CHARLES N. GREENHUT, JILL D. HILL, and
MICHAEL L. WOODS, Administrative Patent Judges.
WOODS, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Michael Turturro, Andy Mills, Mary M. Peplinski, Susan Gibbons,
Francesca Oliver, Ed Drawer, Megan Henken, and Michael Kobida
(“Appellants”) appeal under 35 U.S.C. § 134 from the Examiner’s decision
rejecting claims 1—20. See Appeal Br. 2 (noting correctly that claims 1—20
are pending and each claim was rejected in the Final Office Action); see also
Final Act. 3—15 (rejecting all pending claims 1—20).
1 According to Appellants, the real party in interest is Medline Industries
Inc. Appeal Br. 2.
Appeal 2018-008876
Application 14/500,662
We have jurisdiction over this appeal under 35 U.S.C. § 6(b).
SUMMARY OF THE DECISION
We AFFIRM.
CLAIMED SUBJECT MATTER
Appellants’invention relates to blood pressure cuffs. Spec. 1. Claims
1 and 19 are independent. Appeal Br. 27—29 (Claims App.) Claim 1 is
illustrative and reproduced below, with emphases added to limitations
discussed in this Decision.
1. A liner system for use with a blood pressure cuff,
the liner system comprising:
a plurality of layers of material, arranged in a stack,
each layer of material:
peelable from other layers of material such that an
uppermost layer of the stack can be peeled from the stack
after use to reveal a next upper most layer of the stack;
and
comprising a tab to facilitate peeling the each layer
of material from the stack, each tab being staggered from
other tabs of the stack;
a lowermost layer of the stack comprising a fixative to
attach the stack to an inner surface of the blood pressure cuff
wherein the each tab comprises an indication, wherein
indications of tabs identify both how many layers remain on the
stack and which layer is an uppermost layer.
Id. (emphases added).
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Appeal 2018-008876
Application 14/500,662
THE REJECTIONS
The Examiner rejected:
(a) Claims 1—6, 11—13, 15, and 16 under 35 U.S.C. § 103(a) as
unpatentable over McCaughey (US 2010/0089408 Al, published
Apr. 15, 2010), Lankenau (US 2012/0017361 Al, published Jan.
26, 2012), Weidman (US 6,009,971, issued Jan. 4, 2000), and
Stiegler (DE 25 12 223 Al, published Oct. 10, 1976). Final Act. 3.
(b) Claims 7, 8, and 17 under 35 U.SC. § 103(a) as unpatentable over
McCaughey, Lankenau, Weidman, Stiegler, and Augustine (US
6,537,307 Bl, issued Mar. 25, 2003). Final Act. 10.2
(c) Claims 9 and 10 under 35 U.S.C. § 103(a) as unpatentable over
McCaughey, Lankenau, Weidman, Stiegler, and Corbett-Jenkins
(US 9,326,691 Bl, issued May 3, 2016). Final Act. 11.
(d) Claim 14 under 35 U.S.C. § 103(a) as unpatentable over
McCaughey, Lankenau, Weidman, Stiegler, and Moser (US
2011/0093035 Al, published Apr. 21,2011). Final Act. 12.
(e) Claim 18 under 35 U.S.C. § 103(a) as unpatentable over
McCaughey, Lankenau, Weidman, Stiegler, and Byrd (US
5,228,448, issued July 20, 1993). Final Act. 12.
(f) Claims 19 and 20 under 35 U.S.C. § 103(a) as unpatentable over
McCaughey and Weidman. Final Act. 13.
2 Citations to Stiegler will be to its English-language translation.
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Application 14/500,662
ANALYSIS
I. Claims 1—6, 11—13, 15, and 16 Rejected as Unpatentable Over
McCaughev, Lankenau, Weidman, and Stiegler
A. Examiner’s Rejection
The Examiner relies on McCaughey for teaching a liner system for
use with a blood pressure cuff, in which the liner includes a plurality of
layers arranged in a stack, where each layer of material peels away from
other layers, as called for in the claims. See Final Act 3^4 (citations
omitted). We reproduce Figures 4 and 5 of McCaughey, to illustrate
McCaughey’s blood pressure cuff, below.
According McCaughey, Figure 4 (above-left) depicts a liner attached to
blood pressure cuff 420. McCaughey 140. Figure 5 (above-right) depicts
plurality of liners 502 “assembled for easy and convenient dispensing.” Id. 1
41.
The Examiner acknowledges that McCaughey is silent regarding the
layers comprising tabs, and relies on Fankenau for teaching a stack of liners
with tabs to facilitate removal of the liners, and reasons that one of ordinary
skill in the art would modify McCaughey to include tabs, as taught by
Fankenau, in order to “increase the accessibility of the layers.” Final Act. 4
(citations omitted).
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The Examiner also relies on Stiegler for teaching numbering the
layers in order to help the user identify the number of sheets remaining. Id.
(citations omitted). The Examiner further proposes to modify McCaughey
and Lankenau to include Stiegler’s teaching “so that a user can be informed
of when the stack is full and when it is soon to be depleted based on the
number of layers remaining.” Id.
The Examiner further acknowledges that McCaughey “only teaches
individually removing a layer from the stack to adhesively attach to the
blood pressure cuff.” Id. (citing McCaughey Figs. 4, 5; Tflf 40, 41). The
Examiner relies on Weidman for its teaching of a stack of liner layers fixed
to the inner surface of a measurement interface. Final Act. 4. We reproduce
Figure 6 of Weidman, below.
Weidman describes Figure 6 as depicting a stack of a plurality of shields
individually removed from the head of a stethoscope. Weidman, col. 4,11.
31-33.
To satisfy the claimed “lowermost layer of the stack comprising a
fixative to attach the stack to an inner surface of the blood pressure cuff,” the
Examiner proposes to modify McCaughey to fix the lowermost layer of
McCaughey’s stack of liners to the inner surface of its blood pressure cuff.
Final Act. 4—5 (citations omitted). The Examiner asserts that this
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modification is taught by Weidman and reasons that the modification would
improve McCaughey’s device by helping “to avoid unnecessary contact with
the layers.” Id.
B. Analysis
Appellants argue that the Examiner’s proposed modification would
change the principle of operation of McCaughey. Appeal Br. 21; see also id.
at 12—21 (presenting a similar argument in contesting the rejection of
independent claim 19). Specifically, Appellants argue that McCaughey only
“teaches the application of only a single liner to either a patient’s arm or to
the blood pressure cuff itself,” and using a single liner “is a fundamental
requirement for proper operation.” Id. at 14. Appellants assert that
McCaughey consistently teaches only a single liner to be used, citing
McCaughey’s paragraphs 34, 36, and 40. Id. at 14—15.
We reproduce a copy of McCaughey’s excerpts relied upon by
Appellants, below:
rMcCaughev 134:1 The liner (102) has an adhesive tape
strip (112) located at the first short end (108) of the liner, so
that the liner (102) can be easily attached to a patient during a
blood pressure measurement.
[McCaughey 136:1 FIG. 2 shows a liner of FIG. 1 as it
is used on a patient in preparation for a blood pressure
measurement... To attach the liner (202) to the patient's arm
(218), the removable cover sheet (214) is peeled away to
expose the adhesive tape strip (212) underneath the cover
sheet. . . Once the liner (202) is attached around a patient's
arm, the caregiver then attaches the blood pressure cuff over the
top of the liner (202) to measure the patient's blood pressure.
rMcCaughev 140:1 FIG. 4 shows how a liner of FIG. 3
can be attached to a blood pressure cuff (420).
Id. at 15.
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Appellants’ argument does not apprise us of Examiner error as it too
narrowly defines the principle of operation of McCaughey. In other words,
even if we agree with Appellants that McCaughey consistently describes
only a single liner being used throughout the disclosure, this does not
support Appellants’ assertion that McCaughey’s principle of operation relies
on only a single liner to be used.
Moreover, we find nothing in Appellants’ citation to McCaughey
(reproduced supra) that criticizes, discredits, or otherwise discourages using
multiple layers, such as the one taught by Weidman. See In re Fulton, 391
F.3d 1195, 1201 (Fed. Cir. 2004) (“The prior art’s mere disclosure of more
than one alternative does not constitute a teaching away from any of these
alternatives because such disclosure does not criticize, discredit, or
otherwise discourage the solution claimed”). As pointed out correctly by the
Examiner, McCaughey’s “disclosed embodiments . . . never limit the blood
pressure cuff to the use of only a single liner, or advise against a
configuration in which a stack of liners could be used.” Ans. 2.
Appellants further argue, “[tjhere is no teaching — anywhere of record
— that multiple layers can be applied to a blood pressure cuff while still
making accurate measurements.” Appeal Br. 16.
It is well-established, however, that one cannot show non-obviousness
by attacking references individually where the rejection is based upon the
teachings of a combination of references. See In re Merck & Co., 800 F.2d
1091, 1097 (Fed. Cir. 1986). In other words, even if a single cited art
reference fails to disclose “multiple layers . . . applied to a blood pressure
cuff,” such a failure would not, without more, demonstrate error in the
Examiner’s proposed combination, which is to modify McCaughey to fix
multiple layers to its inner cuff based on Weidman’s teaching of multiple
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layers attached to the interface of a medical measurement device,
specifically, a stethoscope. Final Act. 4—5 (citations omitted).
Appellants further argue that Weidman’s blood pressure device would
simply not work, because “Weidman is directed to acoustic transfer devices,
not fluid mechanics and hydraulics, as the case with McCaughey.” Reply
Br. 8; see also Appeal Br. 17 (“Weidman is directed to a ‘shield’ for a
stethoscope. Unlike blood pressure cuffs, which are hydraulic devices that
interrupt the flow of blood, stethoscopes are acoustic devices that transfer
sound waves from a source.”).
Appellants cite no evidence to support its assertion that McCaughey’s
blood pressure device would fail to work with multiple layers, however, or
that McCaughey’s device would not benefit from using multiple layers fixed
to the inner cuff by “avoiding] unnecessary contact with the layers,” just as
Weidman fixes layered liners on the inner surface of its stethoscope.
Appellants have provided neither evidence nor technical reasoning to
explain the specific reasons why a skilled artisan would not have at least a
reasonable expectation that the proposed combination would be successful
See In re OTarrelX 853 F.2d 894, 903-04 (Fed. Cir. 1988).
Appellants further point out that Lankenau and Stiegler are directed to
toilet seat covers and argue that one of ordinary skill in the art would not
look to these references in modifying McCaughey’s blood pressure device.
See Appeal Br. 21 (“One of ordinary skill in the art, when creating hydraulic
pressure-measurement devices . . . would not be guided by technologies
related to toilet seats.”).
To the extent Appellants’ contention is that Lankenau and Stiegler are
non-analogous art, this argument is not persuasive. Prior art is analogous if
it is from the same field of endeavor or if it is reasonably pertinent to the
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particular problem the inventor is trying to solve. Circuit Check Inc. v. QXQ
Inc., 795 F.3d 1331, 1335 (Fed. Cir. 2015). In the present case, the
Examiner relies the problem that Appellants were attempting to solve. Spec.
1 5 (“When a blood pressure cuff is used across patients, i.e., to measure the
blood pressure of a first person, then another, and then another, etc., the cuff
itself can act as a vector for pathogens, microbes, viruses, and bacteria.”).
Lankenau’s “stack of sanitary sheets that may be removed individually to
ensure that a next user may sit on a sanitary sheet when using the toilet”
(Lankenau 11) and Stiegler’s toilet seat cover for discouraging
“transmission of germs of various kinds [among toilet users]” (Stiegler, p. 1)
each address similar issues of cross-contamination and are therefore
reasonably pertinent to Appellants’ stated problem. Appellants have not
apprised us of any evidence or reasoning explaining why the problems
encountered by Appellants were unique to blood pressure cuffs. See, e.g., In
re Paulsen, 30 F.3d 1475, 1481-2 (Fed.Cir.1994).
The Examiner relies on Lankenau for its teaching of using tabs to
“increase the accessibility of the layers” (Final Act. 4), and Stiegler for its
teaching of using numbered sheets “so that a user can be informed of when
the stack is full and when it is soon to be depleted” (Final Act. 5).
Appellants present no evidence or technical reasoning to explain why a
skilled artisan would not expect the Examiner’s proposed modifications to
be successful. See App. Br. 21.
Finally, in contesting the rejection of dependent claims 9 and 10,
which rely on Corbett-Jenkins, Appellants point out that Corbett-Jenkins
discloses that its blood pressure cuff protective “[bjarrier film 102 ideally
has a thickness in the range of approximately 0.001 inch to 0.003 inch (1-3
mils). It is important that the protective barrier film 102 not interfere with
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the accuracy of any blood pressure measurements made with a
sphygmomanometer 120 or other blood pressure measurement apparatus.”
Appeal Br. 23 (citing Corbett-Jenkins, col. 3,11. 60—65).
Appellants’ final argument is not persuasive, as it presumes that the
stack of layers fixed to McCaughey’s cuff would exceed .003 inches (or 3
millimeters). Indeed, if the stack of layers is less than 3 millimeters, based
on Corbett-Jenkins’ teachings, McCaughey’s sphygmomanometer would
presumably continue to work. As explained by the Examiner,
[T]he Examiner maintains that a stack of liners of equal
thickness to a single liner taught in the prior art provides the
same functionality as the single liner with regards to blood
pressure measurement accuracy, since a single liner layer with a
thickness of 0.003 inch provides the same degree of skin
separation and sphygmomanometer accuracy as layer of a stack
of three liners that are each 0.001 inch in thickness.
Ans. 3.
For the foregoing reasons, we affirm the rejection of claims 1—6, 11—
13, 15, and 16 as unpatentable over McCaughey, Lankenau, Weidman, and
Stiegler.
II. Claims 7, 8, and 17 Rejected as Unpatentable Over McCaughey,
Lankenau, Weidman, Stiegler, and Augustine
Dependent claims 7, 8, and 17 depend indirectly from claim 1 and the
Examiner relies on Augustine for satisfying these additional limitations. See
Final Act. 10—11 (citations omitted).
In contesting this rejection, Appellants rely on the same arguments
discussed supra with regards to independent claim 1. See Appeal Br. 22
(“[T]he combination suffers from the same deficiencies as McCaughey,
Lankenau, Weidman, and Stiegler.”).
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For the same reasons Appellants’ arguments contesting the rejection
based on McCaughey, Lankenau, Weidman, and Stiegler are unpersuasive,
Appellants’ arguments contesting the rejection based on McCaughey,
Lankenau, Weidman, Stiegler, and Augustine are also unpersuasive.
Accordingly, we affirm the rejection of claims 7, 8, and 17 as unpatentable
over McCaughey, Lankenau, Weidman, Stiegler, and Augustine.
III. Claims 9 and 10 Rejected as Unpatentable Over McCaughey,
Lankenau, Weidman, Stiegler, and Corbett-Jenkins
Dependent claims 9 and 10 depend directly from claim 1 and the
Examiner relies on Corbett-Jenkins for satisfying these additional
limitations. See Final Act. 11 (citations omitted).
In contesting this rejection, Appellants rely on the same arguments
discussed supra. See Appeal Br. 22—24.
For the same reasons Appellants’ arguments contesting the rejection
based on McCaughey, Lankenau, Weidman, and Stiegler are unpersuasive,
Appellants’ arguments contesting the rejection based on McCaughey,
Lankenau, Weidman, Stiegler, and Corbett-Jenkins are also unpersuasive.
Accordingly, we affirm the rejection of claims 9 and 10 as unpatentable over
McCaughey, Lankenau, Weidman, Stiegler, and Corbett-Jenkins.
IV. Claim 14 Rejected as Unpatentable Over McCaughey, Lankenau,
Weidman, Stiegler, and Moser
Dependent claim 14 depends directly from claim 1 and the Examiner
relies on Moser for satisfying the additional limitations. See Final Act. 12
(citations omitted).
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In contesting this rejection, Appellants rely on the same arguments
discussed supra with regards to independent claim 1. See Appeal Br. 24.
For the same reasons Appellants’ arguments contesting the rejection
based on McCaughey, Lankenau, Weidman, and Stiegler are unpersuasive,
Appellants’ arguments contesting the rejection based on McCaughey,
Lankenau, Weidman, Stiegler, and Moser are also unpersuasive.
Accordingly, we affirm the rejection of claim 14 as unpatentable over
McCaughey, Lankenau, Weidman, Stiegler, and Moser.
V. Claim 18 Rejected as Unpatentable Over McCaughey, Lankenau,
Weidman, Stiegler, and Byrd
Claim 18 depends indirectly from claim 1 and the Examiner relies on
Byrd for satisfying the additional limitations. See Final Act. 12—13
(citations omitted).
In contesting this rejection, Appellants rely on the same arguments
discussed supra with regards to independent claim 1. See Appeal Br. 25.
For the same reasons Appellants’ arguments contesting the rejection
based on McCaughey, Lankenau, Weidman, and Stiegler are unpersuasive,
Appellants’ arguments contesting the rejection based on McCaughey,
Lankenau, Weidman, Stiegler, and Byrd are also unpersuasive.
Accordingly, we affirm the rejection of claim 18 as unpatentable over
McCaughey, Lankenau, Weidman, Stiegler, and Byrd.
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VI. Claims 19 and 20 Rejected as Unpatentable Over McCaughey and
Weidman
As with independent claim 1, independent claim 19 and its dependent
claim 20 similarly recite, inter alia, “providing a blood pressure cuff coupled
to a plurality of layers of material, arranged in a stack.” Appeal Br. 29
(Claims App.). To meet this limitation, the Examiner proposes to modify
McCaughey with Weidman’s teachings, as similarly discussed above in
relation to independent claim 1. Compare Final Act. 13—14, with id. at 3—5.
In contesting this rejection, Appellants rely on the same arguments
discussed supra with regards to independent claim 1. See Appeal Br. 12—20.
For the same reasons Appellants’ arguments contesting the rejection
based on McCaughey, Fankenau, Weidman, and Stiegler are unpersuasive,
Appellants’ arguments contesting the rejection based on McCaughey and
Weidman are also unpersuasive. Accordingly, we affirm the rejection of
claims 19 and 20 as unpatentable over McCaughey and Weidman.
SUMMARY
We affirm the rejection of claims 1—6, 11—13, 15, and 16 under 35
U.S.C. § 103(a) as unpatentable over McCaughey, Fankenau, Weidman, and
Stiegler.
We affirm the rejection of claims 7, 8, and 17 under 35 U.SC. § 103(a)
as unpatentable over McCaughey, Fankenau, Weidman, Stiegler, and
Augustine.
We affirm the rejection of claims 9 and 10 under 35 U.S.C. § 103(a) as
unpatentable over McCaughey, Fankenau, Weidman, Stiegler, and Corbett-
Jenkins.
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We affirm the rejection of claim 14 under 35 U.S.C. § 103(a) as
unpatentable over McCaughey, Lankenau, Weidman, Stiegler, and Moser.
We affirm the rejection of claim 18 under 35 U.S.C. § 103(a) as
unpatentable over McCaughey, Lankenau, Weidman, Stiegler, and Byrd.
We affirm the rejection of claims 19 and 20 under 35 U.S.C. § 103(a)
as unpatentable over McCaughey and Weidman.
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a)(l)(iv).
AFFIRMED
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