Ex Parte van Oudenallen

Patent Trial and Appeal Board

Sep 17, 2018

13217120 (P.T.A.B. Sep. 17, 2018)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
13/217, 120 08/24/2011
23117 7590 09/19/2018
NIXON & V ANDERHYE, PC
901 NORTH GLEBE ROAD, 11 TH FLOOR
ARLINGTON, VA 22203
FIRST NAMED INVENTOR
Robertus Gerardus van Oudenallen
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
ATTORNEY DOCKET NO. CONFIRMATION NO.
SDJ-4851-0109 5415
EXAMINER
COLLIER, JAMESON D
ART UNIT PAPER NUMBER
3765
NOTIFICATION DATE DELIVERY MODE
09/19/2018 ELECTRONIC
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.
Notice of the Office communication was sent electronically on above-indicated "Notification Date" to the
following e-mail address(es):
PTOMAIL@nixonvan.com
pair_nixon@firsttofile.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte ROBERTUS GERARDUS VAN OUDENALLEN
Appeal2017-010181
Application 13/217, 120
Technology Center 3600
Before BIBHU R. MOHANTY, KENNETH G. SCHOPPER,
MATTHEWS. MEYERS, Administrative Patent Judges.
MOHANTY, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
The Appellant seeks our review under 35 U.S.C. § 134 from the final
rejection of claims 17--42 which are all the claims pending in the
Application. We have jurisdiction under 35 U.S.C. § 6(b ).
SUMMARY OF THE DECISION
We AFFIRM.
Appeal2017-010181
Application 13/217, 120
THE INVENTION
The Appellant's claimed invention is directed to a garment for
warming the body to prevent redistribution hypothermia (Spec., paras. 3, 7).
Claim 17, reproduced below, is representative of the subject matter on
appeal.
17. A system for warming a patient to prevent redistribution
hypothermia, said system comprising:
a garment configured to cover a lower body portion of
the patient, said garment having a pair of leg portions and a
waist portion, said garment including an air chamber, said air
chamber having a first surface that is air permeable, said first
surface being proximate the patient when the patient is wearing
said garment, said air chamber having a second surface that is
air impermeable, said second surface being an outside surface
of said garment, said garment including an inlet port
penetrating said air chamber wherein when an air hose is
connected to said inlet port said air chamber receives
conditioned air; and
a gown configured to cover an upper body portion of the
patient, said gown having a length sufficient to overlap said
waist portion of said garment when said garment and said gown
are worn by the patient, said gown having an opening
proximate said inlet port when said garment and said gown are
worn by the patient, said opening configured and dimensioned
to accommodate the air hose when the air hose is connected to
said inlet port.
THE REJECTIONS
The Examiner relies upon the following as evidence in support of the
rejections:
Panetta
Farnworth
Naaman
Nocente
us 5,383,918
US 2006/0174392 Al
US 7,117,687 B2
US 2007 /0289050 Al
2
Jan. 24, 1995
Aug. 10, 2006
Oct. 10, 2006
Dec. 20, 2007
Appeal2017-010181
Application 13/217, 120
The following rejections are before us for review:
1. Claim 41 is rejected under 3 5 U.S. C. § 101 as being directed to
non-statutory subject matter.
2. Claim 40 is rejected under 35 U.S.C. § 112, first paragraph for
failing to show possession of the claimed invention.
3. Claims 17-24, 29, 30, 32, 33, 35, 36, and 39--42 are rejected
under 35 U.S.C. § 103(a) as unpatentable over Panetta and Farnworth.
4. Claims 17--42 are rejected under 35 U.S.C. § 103(a) as
unpatentable over Naaman and Nocente.
FINDINGS OF FACT
We have determined that the findings of fact in the Analysis section
below are supported at least by a preponderance of the evidence 1.
ANALYSIS
Rejection under 35 U.S.C. § 101
The Examiner has determined that the claim "appears to claim parts of
the human body, which is not directed to statutory subject matter (i.e. human
per se )" in reciting the limitation for:
said garment including an inlet port penetrating said air
chamber wherein when an air hose is connected to said inlet
port said air chamber receives conditioned air from the air hose
and vents conditioned air out of the air chamber towards
the feet and the waist of said patient
1 See Ethicon, Inc. v. Quigg, 849 F.2d 1422, 1427 (Fed. Cir. 1988)
( explaining the general evidentiary standard for proceedings before the
Patent Office).
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Application 13/217, 120
(Final Act. 6; see also Ans. 4).
The Appellant argues that this rejection is improper (App. Br. 11;
Reply Br. 2, 3).
We agree with the Appellant. Here the cited claim limitation simply
does not claim parts of the human body but is rather directed to a garment
that is used to cover parts of the body, and thus, this rejection is not
sustained.
Rejection under 35 U.S. C. § l l 2(a) first paragraph
The Examiner has determined that claim 40, which recites: "'wherein
the lower body garment does not extend above the waist of the patient
when said lower body garment is worn by the patient,'" is not supported by
the Specification (Final Act. 5). However, the Examiner at the same page 5
also states that "some drawings appear to agree with this functional
language." A similar statement is made in the Answer at page 3.
In contrast, the Appellant argues that the cited claim limitation is
supported by Figures 1 and 5 and by the Examiner's own statements that
some of the Figures disclose the cited claim limitation (Ans. 10; Reply Br. 1,
2).
We agree with the Appellant. Here, the Examiner has stated in the
Final Rejection at page 5 that "some drawings appear to agree with this
functional language" and there is no requirement that all the Figures do this.
Accordingly a prima facie case has not been established and this rejection is
not sustained.
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Appeal2017-010181
Application 13/217, 120
Rejections under 35 U.S. C. § 103 (a)
The Appellant first argues that the rejection of claim 17 is improper
because Panetta does not disclose a "gown" (App. Br. 11-13; Reply Br. 3,
4). The Appellant argues that the definition of a gown depending on the
cited source is for a "loose-fitting, flowing garment covering at least the
upper body" but provides no specific citation to such a definition in the
Specification (App. Br. 11 ). In contrast, the Examiner has determined that
the rejection is proper (Ans. 4, 5). We agree with the Examiner as Figure 1
of Panetta shows the outline of the body having space from the suit edge 13
and, thus, the garment is "loose-fitting" under a broadest reasonable
interpretation. The Appellant also makes similar arguments for the rejection
of claim 17 made with Naaman and Nocente as not disclosing a "gown"
(App. Br. 17, 18; Reply Br. 7, 8). These arguments are also not deemed
persuasive as Naaman in the cited combination discloses a garment depicted
in Figure 3B that appears to loosely fit under a broadest reasonable
interpretation as well.
The Appellant next argues in regard to claim 1 7 that Panetta does not
disclose the gown "having an opening proximate said inlet port" (App. Br.
13; Reply Br. 4). In contrast, the Examiner has determined that the rejection
is proper (Ans. 6, 7). We agree with the Examiner as in Panetta's portals
such as A, B, C, and D for example are at least "proximate" an opening
under a broadest reasonable interpretation.
The Appellant next argues in regard to claim 21 that Panetta does not
disclose the gown having "an opening providing access to said inlet port of
said garment" (App. Br. 14; Reply Br. 4). In contrast, the Examiner has
determined that the rejection is proper in this regard (Ans. 6, 7). We agree
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Appeal2017-010181
Application 13/217, 120
with the Examiner in this regard as in Panetta the portals such as A, B, C,
and D, can be accessed from the garment opening.
The Appellant argues in regard to claim 42 that Panetta does not
disclose an opening in the "overlap region" (App. Br. 14, 15; Reply Br. 4,
5). Here, the term "region" is broad enough to include the openings in the
overlap region in the cited combination. Regardless, the placement of an
opening at any desired location for cooling at that location would have been
an obvious, predictable modification to one of ordinary skill in the art in
making the combination of record for cooling at that location. In KSR Int 'l
Co. v. Teleflex Inc., 550 U.S. 398 (2007) the Court stated that when
considering obviousness that "the analysis need not seek out precise
teachings directed to the specific subject matter of the challenged claim, for
a court can take account of the inferences and creative steps that a person of
ordinary skill in the art would employ." KSR at 418.
The Appellant next argues in regard to claim 17 that Panetta does not
disclose an "opening configured and dimensioned to accommodate the air
hose" (App. Br. 15; Reply Br. 5, 6). In contrast, the Examiner has
determined that the rejection is proper in this regard (Ans. 8, 9). We agree
with the Examiner as the opening is sized to accommodate an air hose of
some size.
The Appellant next argues that in regard to claim 17 that Naaman
does not disclose a system "warming a patient to prevent redistribution
hypothermia" (App. Br. 15, 16; Reply Br. 6). In contrast, the Examiner has
determined that the rejection is proper in this regard (Ans. 10, 11 ). We agree
with the Examiner in this regard as the Appellant argues the reference
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piecemeal when the rejection is made from the combination of references
and the rationale provided.
The Appellant next argues that in regard to claim 17 that Naaman
does not disclose a garment "configured to cover a lower body portion of the
patient" (App. Br. 6, 17; Reply Br. 6, 7). In contrast, the Examiner has
determined that the rejection is proper (Ans. 10, 11 ). We agree with the
Examiner in this regard as the Appellant argues the reference piecemeal
when the rejection is made from the combination of references and rationale
provided.
The Appellant also argues with regard to claim 17 that there is
insufficient motivation to modify Naaman and Nocente (App. Br. 18, 19;
Reply Br. 8). In contrast, the Examiner has asserted that there is a proper
rationale for the cited combination. We have reviewed the rejection of
record and arguments presented in the Final Rejection at pages 22-25 and
the Appeal Brief at pages 12 and 13 in this regard. The rejection states that
it would have been obvious to modify the garment ofNaaman to include leg
portions to cover the entire body. We agree with and adopt the rationale in
the rejection of record and this argument is not deemed persuasive.
We have reviewed the Appellant's arguments presented in both the
Appeal Brief and Reply Brief and do not find them persuasive with regard to
the arguments made for claims 17, 21, and 42 addressed above for the
rejections of record. Accordingly these argued rejections of record are
sustained. The Appellant has presented the same arguments for the
remaining claims and the rejection of these claims is sustained as well.
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Application 13/217, 120
CONCLUSIONS OF LAW
We conclude that Appellant has shown that the Examiner erred in
rejecting claim 41 under 35 U.S.C. § 101.
We conclude that Appellant has shown that the Examiner erred in
rejecting claim 40 under 35 U.S.C. § 112, first paragraph for failing to show
possession of the invention.
We conclude that Appellant has not shown that the Examiner erred in
rejecting claims 17-24, 29, 30, 32, 33, 35, 36, and 39--42 under 35 U.S.C.
§ 103(a) as unpatentable over Panetta and Farnworth.
We conclude that Appellant has not shown that the Examiner erred in
rejecting claims 17--42 under 35 U.S.C. § 103(a) as unpatentable over
N aaman and N ocente.
DECISION
The Examiner's rejection of claims 17--42 is sustained.
AFFIRMED
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