Ex Parte Warburton

Patent Trial and Appeal Board

Jan 18, 2013

11222956 (P.T.A.B. Jan. 18, 2013)

UNITED STATES PATENT AND TRADEMARKOFFICE
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.
11/222,956 09/09/2005 Mark Joseph Warburton 9218.4 7625
20792 7590 01/18/2013
MYERS BIGEL SIBLEY & SAJOVEC
PO BOX 37428
RALEIGH, NC 27627
EXAMINER
HOLLM, JONATHAN A
ART UNIT PAPER NUMBER
3734
MAIL DATE DELIVERY MODE
01/18/2013 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 MARK JOSEPH WARBURTON
__________

Appeal 2011-011302
Application 11/222,956
Technology Center 3700
__________

Before DEMETRA J. MILLS, STEPHEN WALSH, and SHERIDAN K.
SNEDDEN, Administrative Patent Judges.

SNEDDEN, Administrative Patent Judge.

DECISION ON APPEAL
This is an appeal under 35 U.S.C. § 134 involving claims to a single-
use disposable digital tourniquet, a method of applying occlusion pressure to
a digit, and a kit of digital tourniquets. The Examiner has rejected the
claims as anticipated and obvious. We have jurisdiction under 35 U.S.C.
§ 6(b). We affirm-in-part.

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Application 11/222,956

2
STATEMENT OF THE CASE
Claims 1-25, 33, 41, 43, 44, 47-51 and 53-61 are on appeal. There are
twelve independent claims: Claims 1, 8, 10, 15, 21, 22, 25, 33, 41, 51, 58
and 59. Claims 1, 8, 25 and 59 are representative and read as follows
(emphasis added):
1. A single-use disposable digital tourniquet, comprising:
a substantially rigid block support body defining a curved digit
contact outer surface and an opposing outer surface, the curved digit
contact surface being concave relative to the block body,
wherein the digit contact surface having first and second
channel apertures, the digit contact surface being sized and configured
to hold a target digit thereagainst,
wherein the support body and digit contact surface span at least
a major portion of a width of a target digit, the support body
comprising first and second spaced apart cuff channels sized and
configured to receive a cuff therethrough,
wherein the first and second cuff channels extend substantially
side-by-side in a depth direction of the support body between the digit
contact surface and the opposing outer surface such that, in position, a
cuff extends out of the first and second channels of the block body
from the first and second channel apertures in the digit contact
surface,
wherein the block body and cuff cooperate to provide safe
occlusive pressures to both sides of the target digit, and
wherein, in position, the depth direction is substantially
orthogonal to both sagittal and axial directions of a target digit held
against the digit contact surface of the support body.

8. A single-use disposable digital tourniquet, comprising:
a support body comprising a digit support surface and first and
second spaced apart cuff channels sized and configured to receive a
cuff therethrough, wherein the first and second cuff channels extend
under the digit support surface and are closely spaced with at least a
portion of each channel being substantially parallel to the other, and
wherein the first channel comprises an inner wall with substantially
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Application 11/222,956

3
opposing first and second inwardly extending cuff retaining shoulders
attached thereto;
a rod sized and configured to reside in the first channel and
with a respective one of opposing first and second end portions of the
rod configured to reside against a respective one of the cuff retaining
shoulders to hold a first end portion of a cuff in the support body first
channel;
a clamping member in communication with the second cuff
channel configured to hold a portion of the cuff residing below the
digit support surface proximate or in the second channel, wherein, in
operation, the rod and clamping member cooperate with the support
body to provide a cuff with a nearly closed loop figure at a desired
tension over a digit held on the support body digit support surface;
and
at least one deformable member configured to operatively
communicate with the rod holding the first end portion of the cuff, the
at least one deformable member configured to automatically yield or
break when the cuff is tensioned above a target amount to provide a
tactile and/or audible alert to a clinician that a target occlusion
pressure has been achieved.

25. A method of applying occlusion pressure to a digit,
comprising:
providing a block support body having a digit contact surface
and an opposing outer surface, the digit contact surface configured to
span at least a major portion of a width of a target digit, the block
body also having two substantially parallel spaced apart cuff channels
extending substantially vertically therethrough and a substantially
planar non-inflatable elastomeric cuff that extends through the first
and second channels and out of apertures in the digit contact surface,
the cuff having opposing first and second end portions, the first end
portion being secured to the support body proximate the first channel
with the cuff extending through the second channel in one direction
such that the second end portion extends out an aperture in the
opposing outer surface, the aperture in the opposing outer surface
being aligned with one of the apertures in the digit contact surface;
placing a digit of interest on the digit contact surface of the
support body inside a loop portion of the cuff;
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pulling the second end portion of the elastomeric cuff to tighten
the cuff snugly about at least a major portion of the digit to force the
digit against the support body;
pivoting a clamp against a portion of the cuff to clamp the cuff
against an inner surface of the second cuff channel proximate the
opposing outer surface of the block body to provide a desired safe
occlusion pressure to the digit of interest; and
automatically providing tactile and/or audible feedback to a
user in response to the pulling step when the desired safe occlusion
pressure is achieved.

59. A single-use disposable digital tourniquet, comprising:
a substantially rigid block support body defining a digit contact
outer surface and an opposing upper or lower outer surface, the digit
contact surface being concave relative to the block body and sized and
configured to hold a digit thereagainst, wherein the digit contact
surface comprises first and second cuff apertures spaced apart in a
lateral (sagittal) direction, wherein the support body and digit contact
surface span at least a major portion of a width of a target digit, the
support body comprising first and second spaced apart cuff channels
sized and configured to receive a cuff, the first cuff channel aligned
with the first cuff aperture and the second cuff aperture aligned with
the second cuff channel, wherein the first and second cuff channels
extend substantially side-by-side in a depth direction of the support
body between the digit contact surface and the opposing outer surface;
and
a non-inflatable elastomeric cuff having opposing first and
second end portions, the first end portion attached to the block support
body in the first cuff channel, the cuff extending out of the first cuff
aperture and into the second cuff aperture, wherein the cuff extends
through the second cuff channel in a single direction so that the
second end portion of the cuff resides below the opposing outer
surface of the block body, whereby the cuff and the block body
cooperate to apply a target safe occlusive pressure to arteries in
opposing sides of a target digit, and wherein the cuff and support body
are held in a sterile package for medical use.

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Application 11/222,956

5
The claims stand rejected as follows:
I. Claims 1, 3, 4, 6 and 11 stand rejected under 35 U.S.C. § 102(b) as
being anticipated by Dyer (US 5,102,075, issued Apr. 07, 1992).
II. Claim 5 stands rejected under 35 U.S.C. § 103(a) as being
unpatentable over Dyer.
III. Claim 33 stands rejected under 35 U.S.C. § 103(a) as being
unpatentable over Dyer.
IV. Claim 2 stands rejected under 35 U.S.C. § 103(a) as being
unpatentable over the combination of Dyer, Vincent (US 5,658,298,
issued Aug. 19, 1997) and Brown (US 5,129,511, issued Jul. 14,
1992).
V. Claim 59 stands rejected under 35 U.S.C. § 103(a) as being
unpatentable over the combination of Dyer, Vincent and Brown.
VI. Claims 7, 9, 12 and 50 stand rejected under 35 U.S.C. § 103(a) as
being unpatentable over the combination of Dyer and Fulton (US
3,816,878, issued Jun. 18, 1974.
VII. Claims 13, 14, 41, 53 and 54 stand rejected under 35 U.S.C. § 103(a)
as being unpatentable over the combination of Dyer, Fulton and
Knudson (US 5,715,578, issued Feb. 10, 1998).
VIII. Claims 8, 10, 51 and 58 stand rejected under 35 U.S.C. § 103(a) as
being unpatentable over the combination of Dyer, Fulton and Merser
(US 3,402,435, issued Sept. 24, 1968 ).
IX. Claims 15-17, 23 and 24 stand rejected under 35 U.S.C. § 103(a) as
being unpatentable over the combination of Dyer and Botka (US
4,272,047, issued Jun. 9, 1981).
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6
X. Claims 18-20 stand rejected under 35 U.S.C. § 103(a) as being
unpatentable over the combination of Dyer, Botka, Fulton and
Knudson.
XI. Claim 21 stands rejected under 35 U.S.C. § 103(a) as being
unpatentable over the combination of Dyer and Merser.
XII. Claim 22 stands rejected under 35 U.S.C. § 103 (a) as being
unpatentable over the combination of Dyer, Fulton, Merser and
Knudson.
XIII. Claims 25, 43, 44, 47 and 48 stand rejected under 35 U.S.C. § 103(a)
as being unpatentable over the combination of Dyer, Merser, Talen
(US 5,893,870, issued Apr. 13, 1999) and Dumcum (US 6,192,554
B1, issued Feb. 27, 2001).
XIV. Claim 49 stands rejected under 35 U.S.C. § 103(a) as being
unpatentable over the combination of Dyer, Merser, Talen, Dumcum
and Botka.
XV. Claims 55 and 56 stand rejected under 35 U.S.C. § 103 (a) as being
unpatentable over the combination of Dyer, Fulton, Vincent and
Brown.
XVI. Claim 57 stands rejected under 35 U.S.C. § 103(a) as being
unpatentable over the combination of Dyer, Fulton, Knudson, Vincent
and Brown.
XVII. Claims 60 and 61 stand rejected under 35 U.S.C. § 103(a) as being
unpatentable over the combination of Dyer, Vincent, Brown and
Botka.
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I.
Issue
The Examiner has rejected claims 1, 3, 4, 6 and 11 as being
anticipated by Dyer. The Examiner contends that “Dyer discloses the
invention substantially as claimed” (Ans. 3), including the ability to provide
a safe occlusive pressure (see e.g., Ans. 27). The Examiner contends that
the Rule 132 Declarations submitted by Appellant on the issue of whether
the device of Dyer is capable of providing a safe occlusive pressure “include
opinion and not factual evidence as to the capability of the Dyer reference to
provide safe occlusion pressures.” (Ans. 35.)
Appellant provides separate arguments for the patentability of the
elements of claims 1 and 11. Regarding claim 1, Appellant argues that “the
cable tie body proposed by Dyer does not anticipate the claimed invention at
least because it fails to provide safe occlusive pressures.” (App. Br. 20.)
Regarding claim 11, Appellant argues that the device of Dyer does not
possess the features set forth by this claim. (See e.g., App. Br. 22-24.)
Although Appellant points out what claims 3, 4 and 6 recite and assert
that the references do not teach those limitations (id. at 12-13), such
conclusions are not considered a separate argument for patentability. See In
re Lovin, 652 F.3d 1349, 1357 (Fed. Cir. 2011) (“[T]he Board reasonably
interpreted Rule 41.37 to require more substantive arguments in an appeal
brief than a mere recitation of the claim elements and a naked assertion that
the corresponding elements were not found in the prior art.”). Dependent
claims 3, 4 and 6 therefore stand or fall with claim 1. 37 C.F.R.
§41.37(c)(1)(vii).
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Application 11/222,956

8
The issues with respect to this rejection are:
1. Regarding claim 1, whether the device of Dyer may be used as
a digit tourniquet to provide safe occlusive pressures?
2. Regarding claim 11, whether the device of Dyer comprises a
pivoting clamp that allows “the user to pivot the clamp in a reverse
direction to release the cuff” as required by the claim.
Findings of Fact
FF1. Figure 1 of Dyer is reproduced below.

Figure 1 of Dyer shows a side elevation view of a cable or bundle tie
assembly 10 “shown in use securing a large telecommunications cable and a
spacer, to a stranded metal support cable.”
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Application 11/222,956

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FF2. The following excerpt of Dyer provides a description of the
above Figure 1.
For the application illustrated in FIGS. 1-2, a first end 26
of tie strap 12 is inserted into one side of tie head 14 to secure it
with one side of pawl member 24. The opposing free end 28 of
strap 12 may be threaded through slot 30 provided a side of
spacer member 20, around cable 16 and back up through slot 30
on the other side of spacer members 20 to form a strap loop
section 32. Tie head 14 is positioned over support cable 18 and
the free end 28 is inserted into the other side of the tie head 14.
Tie strap 12 is cinched or tensioned by pulling, either by hand
or with a hand tool, one or both of the strap ends up through the
tie head 14 until the loop 32 is shortened sufficiently to tighten
all of the parts of assembly 10 together. Alternatively, strap
ends 26 and 28 may be pre-assembled around the cables and
spacer member 20 and introduced into tie head 14 at about the
same time.
Cable tie arrangement 10 as shown in FIGS. 1-2 is of a
same-side, parallel-entry type, which means that the strap ends
26 and 28 are inserted from the same side of the tie head 14 and
extend through tie head housing 22 parallel to each other. In
accordance with this preferred embodiment, cable tie
arrangement 10 is intended for outdoor use and accordingly, tie
strap 12 and tie head housing 22 are preferably made from a
high strength environmentally-resistant thermoplastic material
capable of retaining its physical properties during prolonged
exposure to humidity, heat and sunlight or ultra-violet radiation.
(Dyers, col.5 ll. 50-68 and col. 6, 11. 1-10.)
FF3. The Examiner finds that “[a]s the pressure provided by the strap
of the device of Dyer depends solely upon the tension applied to the strap
and the amount of strap pulled through the cable tie head, the device of Dyer
is capable of providing a safe occlusive pressure” and further that “even
though the device [of Dyer] may generate forces in excess of what Appellant
calls ‘safe occlusive pressures’, these features do not prevent or render
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Appeal 2011-011302
Application 11/222,956

11
Passageway 50 also defines an inner or interior surface 66 and
an outer or exterior surface 68.
…
A pair of opposing lateral arms 108 and 110 extend on opposed
sides of base portion 106, intermediate the length, l, of base
portion 106. Lateral arm 108 is interconnected or cantilevered
to base portion 106 at one end by means of bight portions 112,
114. The opposing free end 116 of arm 108 is provided with
spaced apart chamfered edges defining blade contact sections
118 and 120. An intermediate cut out 122 having a generally
rectangular configuration is disposed in free end 116 to define
strap stop surface 124 extending parallel to and inwardly spaced
from blade contact sections 118 and 120.
(Dyer, col. 6, ll. 31-34 and col. 8, ll. 15-26.)
FF6. Dyer discloses that “[o]nce inserted, the strap is prevented from
being withdrawn by a biting and wedging engagement of the strap between
the pawl blade sections and the surfaces of the passageways.” (Dyer, col. 3,
lines 19-22.)
FF7. Dyer discloses that “the strap may be cut adjacent one of the
entrance openings to release the strap. The remaining portions of the strap
may be pulled completely through the exit of the other passage to disengage
the strap from the tie head.” (Dyer, col. 3, lines 34-38.)
FF8. With regard to claim 11, the Examiner finds that “the block
body [of Dyer] is capable of allowing a user to pivot the clamps (108, 110)
in a reverse direction, such as by tugging on the strap to cause deflection of
the clamps or via channel (76) providing access to pivoting clamps (108,
110), which would allow a user to pivot said clamps, for example, by
inserting a tool into said channel to move the clamps.” (Ans. 4-5.)

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Principles of Law
To anticipate a claim, a prior art reference must disclose every
limitation of the claimed invention, either explicitly or
inherently. Anticipation is an issue of fact, and the question
whether a claim limitation is inherent in a prior art reference is
a factual issue.

In re Schreiber, 128 F.3d 1473, 1477 (Fed. Cir. 1997) (citations
omitted). “It is well settled that the recitation of a new intended use for an
old product does not make a claim to that old product patentable.” Id.
[W]here the Patent Office has reason to believe that a functional
limitation asserted to be critical for establishing novelty in the claimed
subject matter may, in fact, be an inherent characteristic of the prior
art, it possesses the authority to require the applicant to prove that the
subject matter shown to be in the prior art does not possess the
characteristic relied on.

Id. at 1478, quoting In re Swinehart, 439 F.2d 210, 212 (CCPA 1971).
The Board “determines the scope of claims in patent applications not
solely on the basis of the claim language, but upon giving claims their
broadest reasonable construction ‘in light of the specification as it would be
interpreted by one of ordinary skill in the art.”’ Phillips v. AWH Corp., 415
F.3d 1303, 1316 (Fed. Cir. 2005) (quoting In re Am. Acad. of Sci. Tech. Ctr.,
367 F.3d 1359, 1364 (Fed. Cir. 2004). “Absent claim language carrying a
narrow meaning, the PTO should only limit the claim based on the
specification or prosecution history when those sources expressly disclaim
the broader definition.” Id.
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Analysis
Claim 1
With regard to claim 1, Appellant contends that “Dyer does not
anticipate the claimed invention at least because it fails to provide safe
occlusive pressures (see, e.g., Figure 2B, pp. 13-15) and/or because it is
simply not configured to support the digit in the manner required for
appropriate digit tourniquet use.” (App. Br. 20.) Specifically, Applicant
argues that “Dyer proposes a body and tie-wrap formed of a high-strength,
weather-resistant thermoplastic polyacetal material (col. 3, lines 50-54)
capable of a loop tensile strength in excess of 250 pounds and prolonged
environmental use life (col. 3, lines 46-50),” which “would not appear to be
a material that forms a cuff for providing safe occlusive pressures to a target
digit (i.e., without causing nerve or tissue damage).” (App. Br. 20; emphasis
in original.) Appellant further submits Rule 132 Declarations Zhongyu John
Li, M.D., Ph.D. and Kenneth Shull, M.D. as evidence that the device of
Dyer would not provide safe occlusive pressures to both sides of the target
digit.
We are not persuaded by Appellant’s arguments and declaratory
evidence in favor of patentability of claim 1. We note that the term “safe” is
a relative term that is not otherwise defined by the Specification. In this
regard, we agree with the Examiner’s logic that “the pressure provided by
the strap of the device of Dyer depends solely upon the tension applied to
the strap and the amount of strap pulled through the cable tie head” (FF4)
and that the device of Dyer is capable of applying pressure that would fall
within the range of pressure deemed safe for use as a digit tourniquet.
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Evidence supplied by Appellant in the form of expert opinion does not prove
that the device of Dyer is incapable of supplying safe pressures.
Accordingly, we conclude that the Examiner did not err in concluding that
claim 1 is anticipated by Dyer.
Claim 11
Appellant argues that Dyer does not teach “a pivoting clamp member
as claimed, including one that allows a user to pivot the clamp in the reverse
direction to release the cuff.” (App. Br. 24.) We agree. Dyer discloses a
device that prevents the withdrawal of the strap once inserted (FF5) and
discloses that the strap is released by cutting the strap (FF6). We therefore
conclude that the device is Dyer is not arranged with a pivot clamp
according to claim 11.
Conclusion of Law
The Examiner did not err in finding the subject matter of claim 1 anticipated
by Dyer. We conclude that the preponderance of the evidence of record
does not support the Examiner’s finding that Dyer discloses a device
meeting all of the limitations of claim 11. Claims 3, 4, and 6 have not been
argued separately and therefore fall with claim 1. 37 C.F.R.
§ 41.37(c)(1)(vii).

II.
Issue
The Examiner has rejected claim 5 as obvious over Dyer. The
Examiner contends that “[i]t would have been an obvious matter of design
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15
choice to modify the device of Dyer to have the specified dimensions for
profile depth, in order to allow the cable tie to accommodate different
sized/shaped items or bundles.” (Ans. 5).
Appellant contends that Dyer and other references cited by the
Examiner (Fulton, Knudson, Merser, Botka, and Dumcum) are non-
analogous art. (App. Br. 28-32; Reply Br. 6-13). To support this view,
Appellant submits opinion evidence from experts in the field to support the
contention that a person of ordinary skill in the art would not have looked to
the field of bundle/cable ties to design digit tourniquets. (Id.)
Appellant further contends that it would not have been obvious to
modify the device of Dyer to have the specified dimensions for profile depth
as recited in claim 5 because “Dyer provides outwardly flaring curved
surface segments 70, 72 at the lower portions of the passageways 48, 50”
and “cables of varying diameters can already be accommodated by the
device.” (App. Br. 34, citing Dyer, col. 6, lines 42-45; Figure 2; col. 7, lines
9-20.)
The issues with respect to this rejection are:
ï‚· Whether Dyer is analogous art; and
ï‚· Whether Dyer renders obvious the features of claim 5.
Additional Findings of Fact
FF9. Claim 5 provides as follows:
5. A digital tourniquet according to Claim 4, wherein the profile
is a substantially arcuate profile with a shallow depth of less
than about 5 mm.

(App. Br. 65.)

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FF10. The Examiner finds that “cable tie references are in the field of
Appellant’s endeavor (i.e., tourniquets), as evidenced by Dumcum (US
6,192,554) which explicitly teaches that cable ties may be used as
tourniquets (column 7, lines 45-49).” (Ans. 32.)
FF11. Dumcum provides as follows:
The inventive straps lend themselves to a variety of
applications in addition to bundling of items or restraining
rolled material. They can also be used as emergency tourniquets
or to hold bandages or splints in place; as a book strap; even as
an emergency belt if need be.

Dumcum, col. 7, lines 45-49 (emphasis added).

Principles of Law
A reference is analogous if it is reasonably pertinent to the particular
problem with which the inventor is involved. See In re Klein, 647 F.3d
1343, 1348 (Fed. Cir. 2011) (citing In re Bigio, 381 F.3d 1320, 1325 (Fed.
Cir. 2004)).
Obviousness analysis permits an examiner to rely upon “common
sense” or the knowledge of the skilled artisan to bridge gaps in prior art’s
explicit teachings. KSR Int'l. Co. v. Teleflex Inc., 550 U.S. 398, 420-21, 127
S.Ct. 1727, 167 L.Ed.2d 705 (2007) (“Common sense teaches ... that
familiar items may have obvious uses beyond their primary purposes, and in
many cases a person of ordinary skill will be able to fit the teachings of
multiple patents together like pieces of a puzzle.”). The examiner’s
reasoning “may include recourse to logic, judgment, and common sense
available to a person of ordinary skill that do not necessarily require
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explication in any reference or expert opinion.” Perfect Web Techs., Inc. v.
InfoUSA, Inc., 587 F.3d 1324, 1328-29 (Fed. Cir. 2009).
Analysis
Appellant asserts that the problem with which Appellant is concerned
is “digital tourniquets that control the applied occlusion pressure to digits.”
(Reply Br. 10.) The evidence of record establishes that cable ties were
known to be useful as tourniquets, even if only in emergency situations.
(FF10 and FF11.) This disclosure of Dumcum demonstrates that it was
known that cable ties can function to apply occlusion pressure in a manner
that permits them to be used as tourniquets. Whether or not the ties may be
applied to a limb, digit or other is a matter of size, which we do not find to
meaningfully impact the structure and function of the devices. Further, as
discussed above with regard to claim 1, we are not persuaded by Appellant
arguments that the cable ties of the prior art are incapable of providing
occlusion pressure in a range that would be considered “safe” within the
broad meaning of this term.
Appellant cites to evidence in the form of Rule 132 Declarations
providing the opinion of experts that cable ties “are not suitable for use as a
digit tourniquet that provides for a safe, desired and/or target occlusion
pressure and that they would not have looked to this field for devices to use
in surgery.” (App. Br. 25; emphasis omitted.) However, this evidence is
insufficient to overcome to evidence of record establishing that cable ties
were known to be suitable for use as a tourniquet. (FF10 and FF11.)
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For the reasons above, we are not persuaded by Appellant arguments
that the references cited by the Examiner related to cable ties are non-
analogous art.
Conclusion of Law
The evidence of record supports the Examiner’s finding that Dyer is
analogous art and renders obvious the features of claim 5.
III.
Issue
The Examiner has rejected claim 33 under 35 U.S.C. § 103(a) as
obvious over Dyer. The Examiner contends that “[i]t would have been
obvious to provide the kit of Dyer … with different sized block bodies, in
order to allow for the accommodation of different sized/shaped items or
bundles.” (Ans. 17-18.)
Appellant contends that Dyer is non-analogous art and submits
opinion evidence from experts in the field to support the contention that a
person of ordinary skill in the art would not have looked to the field of
bundle/cable ties to design digit tourniquets. (See App. Br. 28-32; see also
Reply Br. 6-13.) Appellant further contends that “Dyer teaches away from
the subject matter of Claim 33 as there is no special need for different tie
housings that can accommodate different tie wrap widths (cuff widths).”
(App. Br. 35.)
Appellant’s arguments related to the issue of non-analogous art are
addressed in Section II above. Thus, the remaining issue with respect to this
rejection is:
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Whether Appellant has successfully rebutted a prima facie case of
obviousness by showing that the prior art teaches away from the claimed
invention?
Principles of Law
One “may rebut a prima facie case of obviousness by showing that the
prior art teaches away from the claimed invention in any material respect.”
In re Peterson, 315 F.3d 1325, 1331 (Fed. Cir. 2003); citing In re Geisler,
116 F.3d 1465, 1469 (Fed. Cir. 1997). However, for a reference to teach
away, it must state more than a general preference for an alternative
invention. It must ‘“criticize, discredit, or otherwise discourage”’
investigation into the invention claimed. DePuy Spine, Inc. v. Medtronic
Sofamor Danek, Inc., 567 F.3d 1314, 1327 (Fed. Cir. 2009), quoting In re
Fulton, 391 F.3d 1195, 1201 (Fed.Cir. 2004).

Analysis
After reviewing the record before us, we are not persuaded that Dyer
teaches away from tie housings that can accommodate different tie wrap
widths. Dyer “does not ‘criticize, discredit, or otherwise discourage’
investigation into the invention claimed.” Depuy Spine, 567 F.3d at 1327.
The most that might be reasonably said about Dyer is that it expresses a
preference for the alternative invention (i.e., a cable tie assembly for use in
securing a large telecommunications cable (FF1)), but does not discourage
investigation into cable tie assemblies of different sizes. Appellant has
pointed to no part of Dyer that criticizes or discredits cable ties of various
sizes or a kit containing them.
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Conclusion of Law
The evidence supports the Examiner’s findings of fact and reasoning
establishing a prima facie case of obviousness.

IV.
Issue
The Examiner has rejected claim 2 under 35 U.S.C. § 103(a) as
obvious over the combination of Dyer, Vincent and Brown. The Examiner
contends that “Dyer substantially discloses the claimed invention except for
specific dimensions for cuff channel spacing, cuff width,” and asserts “that
changes in size of a device at most relate to the size of an article under
consideration which is not a matter of invention,” citing In re Rose, 220 F.2d
459 (CCPA 1955). (Ans. 36.)
Appellant contends that “claimed dimensions clearly define over Dyer
as they relate to spacings and sizes of features that provide functional
characteristics of the device for delicate surgical procedures that provide
safe occlusive pressures to be applied by the digit tourniquet” (App. Br. 36)
and that “the dimensions define a structure that allows for safe occlusive
pressures” (App. Br. 37-38).
The issue with respect to this rejection is:
Whether the Examiner has established a prima facie case of
obviousness that the claimed dimensions of the digit tourniquet are not
patentable features in view of In re Rose.
Additional Findings of Fact
FF12. Appellant’s Specification provides as follows:
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The cuff width can affect the applied occlusion pressure as
larger cuff widths provide an increased area with reduced
pressures for the same applied force P= (F/A). Further lower
pressures can be successfully used for larger cuff widths.
…
Estimates of target pressures using different cuff widths
are provided in Table 1. It will be understood that these values
can vary based on design considerations, such as cuff thickness,
cuff elasticity, cuff width and the finger circumference that a
particularly sized tourniquet body/cuff will accommodate. The
yielding and/or breaking tension of projection(s) 50, 50' can be
correlated to the desired occlusion pressure(s). In some
embodiments, the breaking/yielding tension may be a maxima
for the cuff and contemplated larger digit size and/or may be
averaged for a range of patient sizes.

(Specification, 14-15.)

FF13. Claim 2 provides as follows:

2. A digital tourniquet according to Claim 1, wherein the first and
second cuff channels and corresponding first and second channel
apertures are closely spaced in a width dimension corresponding to
the sagittal direction with axially extending centerlines of the first and
second cuff channels residing between about 1-20 mm apart in the
width dimension of the support body and with the channels extending
a distance in the axial direction to receive a cuff having a width of
between about 8-15 mm, and wherein the digital tourniquet is held in
a sterile package for medical use.
(App. Br. 64.)

Analysis
The Examiner’s reliance on In re Rose does not explain why a skilled
artisan would have modified Dyer to arrive at the claimed dimensions as a
matter of obvious design choice. Although we appreciate the Examiner's
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reliance on In re Rose for the proposition that size is not ordinarily a
patentable feature, we note that jurisprudence when used in this manner
amounts to a per se rule of unpatentability. However, our reviewing court
has carefully cautioned against the use of such per se rules. In re Ochiai, 71
F.3d 1565, 1572 (Fed. Cir. 1995) (“[R]eliance on per se rules of obviousness
is legally incorrect.”). As such, we find the Examiner’s reliance on a per se
rule to be inappropriate because the Examiner has not provided any evidence
or reason that would have prompted a person of ordinary skill in the art to
modify the cable ties of Dyer to the dimensions recited in the claim.
Furthermore, we note that Appellant’s Specification describes the
correlation between cuff size and desired occlusion pressures. (FF12; see
also App. Br. 35-38.) Hence, Appellant’s Specification provides an
indication as to the criticality of cuff size to the function of the claimed
device.
Conclusion of Law
Given that the rejection is based on a per se rule and because
Appellant has shown the criticality of cuff dimensions for the functionality
of the claimed device, we conclude that the Examiner has not established a
prima facie case of obviousness of the subject matter of claim 2.

V.
Issue
The Examiner has rejected claim 59 under 35 U.S.C. § 103(a) as
obvious over the combination of Dyer, Vincent and Brown. The Examiner
finds that “one of ordinary skill in the art would appreciate that cable ties
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could provide a predictable resulting function as ligatures in surgical
procedures, in view of Vincent et al, and Brown et al teach that placing
ligatures in a sterile package, one of ordinary skill in the art would have
found it obvious to place a cable tie device, such as that of Dyer, in a sterile
package for medical use.” (Ans. 37.)
Appellant contends that 1) “Dyer fails to provide the target safe
occlusive pressures and/or because Dyer is simply not configured to support
the digit in the manner required for appropriate digit tourniquet use;” (Ans.
40) and 2) “it simply would not be obvious to one of ordinary skill in the art
to place outdoor cable ties (such as the Dyer device) in a sterile package”
(Ans. 39)
Appellant’s arguments related to the issue of whether Dyer’s device is
capable of provided safe occlusive pressures is addressed in Section I above.
Thus, the remaining issue with respect to this rejection is: Does the
evidence of record support the Examiner’s conclusion that the cited prior art
renders Claim 59 obvious?

Additional Findings of Fact
FF14. Vincent provides as follows:

There are many occasions when it is necessary to place a
strap, belt, or ligature around a tissue or a prosthesis to fix it in
place. Such a ligature can take the form of a cable tie
commonly used for bundling electrical wires or a band such as
a gastric band for encircling a stomach. Recently, laparoscopic
methods and tools have been developed which enable the
placement of such ligatures around organs or tissues without the
need for open surgery.
(Vincent, col. 1, ll. 20-27.)
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FF15. The invention of Brown relates to a package for a
combined surgical suture-needle device. (Brown, col. 1, ll. 9-10.)
FF16. Brown provides as follows:
Most surgical suture-needle packages in current use
consist of a folded paper surgical suture-needle retainer seated
within a sterile outer envelope. The sterility of the surgical
suture-needle and envelope are maintained by a second sealed
overwrap. When the surgical suture-needle is to be used, the
overwrap is opened in the operating room and the sealed
envelope is placed within the sterile field. Sterile personnel then
tear open the sterile envelope to gain access to the surgical
suture-needle.
(Brown, col. 1, ll. 28-38.)
Analysis
The Examiner’s rationale is:
As one of ordinary skill in the art would appreciate that cable
ties could provide a predictable resulting function as ligatures in
surgical procedures, in view of Vincent et al, and Brown et al
teach that placing ligatures in a sterile package, one of ordinary
skill in the art would have found it obvious to place a cable tie
device, such as that of Dyer, in a sterile package for medical
use.
(Ans. 37.) We agree. The evidence of record supports the Examiner’s
findings that cable ties were known to be suitable for use as a medical
device. (See e.g., FF9 and FF10.) Having identified a medical use, the
Examiner contends that it would have been obvious to place a medical
device into a sterile package. (Ans. 26.)
Appellant argues that “it simply would not be obvious to one of
ordinary skill in the art to place outdoor cable ties (such as the Dyer device)
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in a sterile package.” (App. Br. 39.) We are not persuaded. After
reviewing the record before us, we find that the Examiner has provided a
rational basis for the proposed modifications. The fact that none of the
references individually disclose placing cables ties into a sterile package is
not sufficient to establish that the Examiner erred in reaching a conclusion of
obviousness based upon the combined teachings of the references. See In re
Merck & Co. Inc., 800 F.2d 1091, 1097 (Fed. Cir. 1986) (Each reference
“must be read, not in isolation, but for what it fairly teaches in combination
with the prior art as a whole.”).
Conclusion of Law
The evidence of record supports the Examiner’s conclusion that the
cited prior art renders Claim 59 obvious.
VI.
Issue
The Examiner has rejected claims 7, 9, 12 and 50 under 35 U.S.C. §
103(a) as obvious over the combination of Dyer and Fulton. Appellant’s
arguments related to the persuasiveness of declaration evidence are
addressed in Section I above. Appellant’s arguments related to the issue of
non-analogous art are addressed in Section II above.
The issue remaining with respect to this rejection is: Does the
evidence of record support the Examiner’s conclusion that the cited prior art
renders claims 7, 9, 12 and 50 obvious?
Additional Findings of Fact
FF17. Figure 10 of Fulton is provided below.
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Figure 10 is “a perspective view of a second embodiment of the cable
tie of this invention showing the strap assembled to the retaining head,
looped about a bundle of wires or the like, and locked into the retaining
head, securing the wires into a bundle.” (Fulton, col. 2, ll. 9-13.)
FF18. Figure 11 of Fulton is provided below.

Figure 11 is “an end view of the retaining head generally illustrated in
FIG. 10 showing the securing aperture two-piece cable tie referred to above
wherein the strap means thereof with the locking pawl therein.” (Fulton, col.
2, ll. 14-16.)
FF19. Fulton provides the following disclosure with reference to
Figures 10 and 11:
A second illustrative embodiment of the cable tie of this
invention, generally designated by the numeral 50 (FIGS. 10,
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14-16), is shown applied to a bundle of cables or the like 51.
Cable tie 50 is preferably made of flexible plastic and includes,
generally, an elongated flexible strap 52, a head 53, and a
locking pawl 54. Strap 52 (FIG. 13) comprises a retainer
portion 56 at one end and a tongue portion 57 at the other end.
Tongue portion 57 is provided with retaining embossments 60
on respective longitudinal tongue surface 61 and abutments or
teeth 62 are provided on a strap tooth surface 63. Each tooth 62
comprises a tooth ratchet surface 64 and a tooth retaining
surface 65 (FIGS. 13-16). A pair of lateral shoulders 66 are
provided on retainer portion 56 adjacent tongue portion 57.
(Fulton, col. 5, ll. 5-20.)
Analysis
The Examiner finds as follows:
The device of Dyer is disclosed with a symmetrical pawl
device for securing a strap instead of the cuff having an
anchoring member/rod that is inserted into a cuff channel and
the rod sitting on retaining shoulders in the body. Fulton et al
teach using a cuff having an anchoring rod (56) used with a
body having retaining shoulders (73) in a channel and a
pivoting pawl member for securing a strap (54; see figures 10-
16; column 5, lines 5-35). It would have been obvious for a
person having ordinary skill in the art at the time of the
invention to substitute a securing system including the cuff
having an anchoring member/rod that is inserted into a cuff
channel and the rod sitting on retaining shoulders in the body
and a pivoting pawl member for the securing system including
the symmetrical pawl mechanism of the device of Dryer [sic],
since the two configuration are functional equivalents and the
system taught by Fulton et al simplifies functionality by
allowing a user to only have to insert the free end of the cuff
through the channel and pull in one direction at the free end of
the cuff.
(Ans. 6-7.)
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With regard to claim 7, Appellant argues that Dyer does not teach “a
pivoting clamp member, especially one that can pivot between open and
closed positions.” (App. Br. 41.) We agree. Like Appellant, we fail to find
any disclosure in either Dyer or Fulton of a feature that can be fairly
described as a pivoting clamp member that pivots between open and closed
positions. We do not sustain the Examiner’s rejection with regard to claim
7.
With regard to claim 9, Appellant relies on their arguments with
regard to claim 7 and contend that argue that “it would not have been
obvious to modify the Dyer device to replace the non-pivoting, self-
centering symmetrical pawl with the pivoting pawl of Fulton.” (Ans. 42.)
However, unlike claim 7, claim 9 does not require a “pivoting clamping
member” or “pivoting pawl”. (See Ans. 41-42 and 65-66.) As such, we are
not persuaded by Appellant arguments as they relate to claim 9.
With regard to claim 12, Appellant argues that “Dyer does not
disclose or suggest a digital tourniquet whereby the cuff compresses the
target digit against the digit contact surface of the support body to apply the
safe occlusion pressure, much less a safe occlusion pressure that is between
about 225 mm Hg and 375 mm Hg.” (Ans. 42.) We agree. The Examiner
has not provided any evidence or reason that would have prompted a person
of ordinary skill in the art to modify the cable ties of Dyer to provide
occlusion pressures limited to between about 225 mm Hg and 375 mm Hg as
required by claim 12. We do not sustain the Examiner’s rejection with
regard to claim 12.
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With regard to claim 50, the Examiner applies a rational with reliance
on In re Rose, 220 F.2d 459 (CCPA 1955). We reverse this rejection for the
reasons explained in Section IV above regarding the rejection of claim 2,
which also requires cuffs having a width between about 1-20 mm.
Conclusion of Law
The evidence of record supports the Examiner’s conclusion of
obviousness for claim 9. The evidence of record does not support the
Examiner’s conclusion of obviousness for claims 7, 12, and 50.
VII.
Issue
The Examiner has rejected claims 13, 14, 41, 53 and 54 under 35
U.S.C. § 103(a) as obvious over the combination of Dyer, Fulton and
Knudson. Appellant’s arguments related to the persuasiveness of
declaration evidence are addressed in Section I above. Appellant’s
arguments related to the issue of non-analogous art are addressed in Section
II above. Thus, the remaining issue with respect to this rejection is:
Does the evidence of record support the Examiner’s conclusion that
the cited prior art renders claims 13, 14, 41, 53 and 54 obvious?
Analysis
Claim 13
The Examiner finds that “[i]t would have been obvious for a person
having ordinary skill in the art at the time of the invention to modify the
device of Dyer in view of Fulton et al to have the anchoring rod attached to
the first end of the cuff via a rod sleeve view of Knudson, since Knudson
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teaches that using a rod sleeve to attach an anchoring rod to a cuff facilitates
cost-effective assembly of a device (column 1, lines 50-53).” (Ans. 18.)
Appellant argues that “Dyer already includes a ‘preferred’ self-
centering pawl locking mechanism, and there would be no motivation to
include a redundant anchoring mechanism” and that “Dyer teaches that the
tie strap can be pulled from either end, and therefore teaches away from a
sleeve that would prevent one end of the strap from being pulled away from
the tie head.” (App. Br. 44.)
After reviewing the record before us, we find Appellant has failed to
traverse the Examiner’s specific findings noted above. The fact that Dyer
discloses a “preferred” self-centering pawl locking mechanism is not
sufficient to establish that the Examiner erred in reaching a conclusion of
obviousness based upon the combined teachings of the references. See In re
Merck & Co. Inc., 800 F.2d 1091, 1097 (Fed. Cir. 1986) (Each reference
“must be read, not in isolation, but for what it fairly teaches in combination
with the prior art as a whole.”). Furthermore, the fact that Dyer discloses a
“preferred” self-centering pawl locking mechanism is not enough to
establish that Dyer teaches away from an alternative locking mechanism.
For a reference to teach away, it must state more than a general preference
for an alternative invention. It must ‘“criticize, discredit, or otherwise
discourage”’ investigation into the invention claimed. DePuy Spine, Inc. v.
Medtronic Sofamor Danek, Inc., 567 F.3d 1314, 1327 (Fed. Cir. 2009),
quoting In re Fulton, 391 F.3d 1195, 1201 (Fed.Cir. 2004).
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Claims 14 and 41
Regarding claims 14 and 41, the Examiner applies a rational with
reliance on In re Rose, 220 F.2d 459 (CCPA 1955). (See Ans. 8 and 18.)
We reverse this rejection for the reasons explained in Section IV above
regarding the rejection of claim 2.
Claims 53 and 54
Claims 53 and 54 are dependent to claim 50. In section VI above, we
reversed the Examiner’s rejection of claim 50 under 35 U.S.C. § 103(a) as
obvious over the combination of Dyer and Fulton. Knudson is not relied
upon by the Examiner to overcome the stated deficiencies of the
combination of Dyer and Fulton, and thus, for the same reasons discussed in
section VI above, Appellant’s arguments do not persuade us that the
Examiner has erred in concluding that claims 53 and 54 are obvious over the
cited prior art.
Conclusion of Law
The evidence of record supports the Examiner’s conclusion of
obviousness for claims 13. The evidence of record does not support the
Examiner’s conclusion of obviousness for claims 14, 41, 53 and 54.
VIII.
Issue
The Examiner has rejected claims 8, 10, 51 and 58 under 35 U.S.C. §
103(a) as obvious over the combination of Dyer, Fulton and Merser.
Appellant’s arguments related to the persuasiveness of declaration evidence
are addressed in Section I above. Appellant’s arguments related to the issue
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Figure 4 is a section of the head and socket of the device disclosed in Merser
after the head has been inserted. (Merser, col. 1, ll. 45-46.)
FF22. Merser discloses as follows:
The exit end of the socket is slotted to form fingers 12 which
converge to surround the neck 11 closely. The device is made
of resilient material such as nylon so that as the head is inserted
the fingers expand and then snap in behind the head as shown
in FIG. 4.
(Merser, col. 1, ll. 59-64.)
Analysis
The Examiner finds as follows:
Merser teaches the use of at least one deformable projection
(12) in a body that automatically yields and then snaps to
secure a cuff (1) passing through said body (see figures 1-4;
column 1, lines 59-64; it is the examiner's position that said
snapping to secure provides a tactile and/or audible feedback
to a user). It would have been obvious for a person having
ordinary skill in the art at the time of the invention to modify
the device of Dyer in view of Fulton et al to incorporate at
least one deformable projection into the first channel to secure
the anchoring rod of said cuff in view of Merser, since Merser
teaches that using such a deformable member facilitates
securing a cuff (column 1, lines 28-32).
(Ans. 9-10.)
Appellant argues that
Merser simply does not disclose or suggest that the fingers 12
are configured to automatically yield or break when the ‘cuff’ is
tensioned above a target amount to provide a tactile and/or
audible alert to a clinician that a target occlusion pressure has
been achieved. The fingers 12 expand as the head 3 is inserted
and then snap back into place after the head 3 is inserted, but
this has nothing to do with target occlusion pressure of a digital
tourniquet.
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(App. Br. 47.) We agree with Appellant. Substantial evidence does
not support the Examiner’s conclusion that the device of Merser is
“configured to automatically yield or break” or otherwise “provide a tactile
and/or audible alert to a clinician” once a target pressure is achieved.
Conclusion of Law
The factual evidence and technical reasoning underlying the rejection
of claims 8, 10, 51 and 58 do not adequately support the Examiner’s
conclusion of obviousness.
IX.
Issue
The Examiner has rejected claims 15-17, 23 and 24 under 35 U.S.C. §
103(a) as obvious over the combination of Dyer and Botka. Appellant’s
arguments related to the persuasiveness of declaration evidence are
addressed in Section I above. Appellant’s arguments related to the issue of
non-analogous art are addressed in Section II above. Thus, the remaining
issue with respect to this rejection is:
Does the evidence of record support the Examiner’s conclusion that
the cited prior art renders claims 15-17, 23 and 24 obvious?
Additional Findings of Fact
FF23. Figures 2 and 3 of Botka are reproduced below.
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Figure 2 is a perspective view of the adjustable clamp disclosed in Botka.
(Botka, col. 1, ll. 48-51.) Figure 3 is a side view of the adjustable clamp
holding a bundle of wires. (Id. at col. 1, ll. 52-53.)
FF24. Botka discloses as follows:
When the strap end is released, the pivotable member engages
the teeth in the strap and the bundle is held in position by the
member. If the load is heavy, the strap will try to-back out,
which will counter-rotate the pivotable member and wedge it
against the side of the aperture and lock in place. If one wishes
to remove or add a wire to the bundle 60, the handle 56 is
pulled to rotate the pivotable member out of engagement with
the strap. If one wishes to remove or add a wire to the bundle
60, the handle 56 is pulled to rotate the pivotable member out of
engagement with the strap.
(Id. at col. 3, ll. 12-20.)
Principles of Law
“A patent composed of several elements is not proved obvious merely
by demonstrating that each of its elements was, independently, known in the
prior art.” KSR Int’l v. Teleflex Inc., 550 U.S. 398, 418 (2007). However, a
prima facie conclusion of obviousness may be supported by a showing that a
combination of familiar elements according to known methods yields no
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more than predictable results. See KSR, 550 U.S. at 401; citing United States
v. Adams, 383 U.S. 39, 40 (1966).
Analysis
Claims 15 and 24
The Examiner finds as follows:
Dyer discloses the invention substantially as claimed
except for the pivoting clamp including a user-accessible lever
to pivot the clamp. Botka teaches the use of a user-accessible
lever (56) on a pivoting clamp (see figure 2). It would have
been obvious for a person having ordinary skill in the art at the
time of the invention to modify the device of Dyer to
incorporate a user-accessible lever into the pivoting clamp in
view of Botka, since Botka teaches that having a user-
accessible facilitates adjustment of a cuff held by the pivoting
member (column 3, lines 18-20).
(Ans. 10.)
Appellant argues that “Dyer directly teaches away from employing a
lever configured to allow a user to pivot the clamp in a reverse direction to
release the cuff, as recited.” (App. Br. 50.)
After reviewing the record before us, we find Appellant has failed to
traverse the Examiner’s specific findings noted above. Specifically,
Appellant’s arguments do not adequately address the teachings of the
combined references, but rather focuses solely on the deficiencies of Dyer.
See In re Merck & Co. Inc., 800 F.2d 1091, 1097 (Fed. Cir. 1986) (Each
reference “must be read, not in isolation, but for what it fairly teaches in
combination with the prior art as a whole.”). We thus find Appellant’s
arguments unpersuasive.
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Claims 16 and 17
Regarding claims 16 and 17, the Examiner applies a rational with
reliance on In re Rose, 220 F.2d 459 (CCPA 1955). (See Ans. 11 and 45.)
We reverse this rejection for the reasons explained in Section IV above
regarding the rejection of claim 2.
Conclusion of Law
The evidence of record supports the Examiner’s conclusion of
obviousness for claim 15 and 24. Claim 23 stands with independent claim
15. 37 C.F.R. § 41.37(c)(1)(vii).
The evidence of record does not support the Examiner’s conclusion of
obviousness for claims 16 and 17.
X.
Issue
The Examiner has rejected claims 18-20 under 35 U.S.C. § 103(a) as
obvious over the combination of Dyer, Fulton and Knudson. Appellant’s
arguments related to the persuasiveness of declaration evidence are
addressed in Section I above. Appellant’s arguments related to the issue of
non-analogous art are addressed in Section II above. Thus, the remaining
issue with respect to this rejection is:
Does the evidence of record support the Examiner’s conclusion that
the cited prior art renders claims 18-20 obvious?
Analysis
Regarding dependent claims 18 and 19, Appellant argues that these
claims are patentable for the reasons advanced by Appellant with regard to
claims 9 and 15. (App. Br. 52.) We affirmed the rejections set forth by the
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Examiner with regard to both claim 9 and 15. Thus, for the same reasons
discussed above, Appellant’s arguments do not persuade us that the
Examiner has failed to set forth a prima facie case of obviousness in view of
the cited references.
Regarding claim 20, Appellant does not adequately address the
teachings of the combined references, but rather focuses solely on the
deficiencies of Dyer. See In re Merck & Co. Inc., 800 F.2d 1091, 1097 (Fed.
Cir. 1986) (Each reference “must be read, not in isolation, but for what it
fairly teaches in combination with the prior art as a whole.”). We thus find
Appellant arguments unpersuasive to overcome the Examiner’s rejection
under 35 U.S.C. § 103(a) as obvious over the combination of Dyer, Fulton
and Knudson.
Conclusion of Law
The evidence of record supports the Examiner’s conclusion of
obviousness for claims 18-20.
XI.
The Examiner has rejected claim 21 under 35 U.S.C. § 103(a) as
obvious over the combination of Dyer and Merser. Claim 21 is directed to a
digital tourniquet having “at least one deformable member configured to
automatically yield or break when the cuff is tensioned above a target
amount.” (App. Br. 70.) As explained in Section VIII, the evidence of
record does not support a finding that combination of Dyer and Merser
discloses this element. We do not sustain this rejection of claim 21 for the
reasons explained above.
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XII.
The Examiner has rejected claim 22 under 35 U.S.C. § 103(a) as
obvious over the combination of Fulton, Merser and Knudson. Claim 22 is
directed to a digital tourniquet having “a deformable projection arm”
configured to yield or break. (App. Br. 70-71.) As explained in Section
VIII, the evidence of record does not support a finding that combination of
Dyer and Merser discloses this element. Knudson is not relied on by the
Examiner to cure this deficiency. (See Ans. 15 and 50-53.) We do not
sustain this rejection of claim 22 for the reasons explained above.
XIII- XIV.
The Examiner has rejected claims 25, 43, 44, 47 and 48 under 35
U.S.C. § 103(a) as obvious over the combination of Dyer, Merser and Talen.
Claim 49 is rejected under 35 U.S.C. § 103(a) as obvious over the
combination of Dyer, Merser, Talen, Dumcum and Botka.
Independent claim 25 is directed to method of applying occlusion
pressure to a digit comprising “tactile and/or audible feedback to a user”.
(App. Br. 71.) As explained in Section VIII, the evidence of record does
not support a finding that combination of Dyer and Merser discloses this
element. Talen is not relied on by the Examiner to cure this deficiency.
(See Ans. 15-16 and 54-55.) We do not sustain this rejection of claim 25 for
the reasons explained above.
As claims 43, 44, and 47-49 are dependent on claim 25, and thus
incorporate all of the limitations of claim 25, we reverse the rejections as to
those claims as well.
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XV.
The Examiner has rejected claims 55 and 56 under 35 U.S.C. § 103(a)
as obvious over the combination of Dyer, Fulton, Vincent and Brown. Per
the reasoning set forth in Section VI above, we reversed the rejection of
claim 50 under 35 U.S.C. § 103(a) as obvious over the combination of Dyer
and Fulton. The Examiner does not rely on Vincent or Brown to overcome
the deficiencies of the combination of Dyer and Fulton. (See Ans. 24 and
57-59.) As claims 55 and 56 are dependent on claim 50, and thus
incorporate all of the limitations of claim 50, we reverse this rejection as to
those claims for the reasons set forth in Section VI above.
XVI.
The Examiner has rejected claim 57 under 35 U.S.C. § 103(a) as
obvious over the combination of Dyer, Fulton, Knudson, Vincent and
Brown. Per the reasoning set forth in Section VII above, we reversed the
rejection of claim 41 under 35 U.S.C. § 103(a) as obvious over the
combination of Dyer and Fulton. The Examiner does not rely on Knudson,
Vincent or Brown to overcome the deficiencies of the combination of Dyer
and Fulton. (See Ans. 24 and 57-59.) As claim 57 is dependent on claim
41, and thus incorporates all of the limitations of claim 41, we reverse this
rejection of claim 57 for the reasons set forth in Section VII above.
XVII.
The Examiner has rejected claims 60 and 61 under 35 U.S.C. § 103(a)
as obvious over the combination of Dyer, Vincent, Brown and Botka. Each
of claims 60 and 61 is directed to a tourniquet comprising a pivot
“configured with a user accessible member that allows a user to manually
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pivot the clamp between open and closed positions.” (App. Br. 77.) As
explained in Section VI above with regard to claim 7, we fail to find any
disclosure in Dyer related to a feature that can be fairly described as a
pivoting clamp member that pivots between open and closed positions. The
Examiner does not rely on Vincent, Brown or Botka to overcome this
deficiency of Dyer. (See Ans. 26 and 57-59.) We thus do not sustain this
rejection for the reasons set forth in Section VI above.

SUMMARY
We affirm the rejection of claims 1, 3, 4 and 6 under 35 U.S.C. §
102(b) as being anticipated by Dyer. We reverse the rejection of claim 11
under 35 U.S.C. § 102(b) over Dyer.
We affirm the rejection of claim 5 under 35 U.S.C. § 103(a) as being
unpatentable over Dyer.
We affirm the rejection of claim 33 under 35 U.S.C. § 103(a) as being
unpatentable over Dyer.
We reverse the rejection of claim 2 under 35 U.S.C. § 103(a) as being
unpatentable over Dyer, Vincent and Brown.
We reverse the rejection of claim 59 under 35 U.S.C. § 103(a) as
being unpatentable over the combination of Dyer, Vincent and Brown.
We affirm the rejection of claim 9 under 35 U.S.C. § 103(a) as being
unpatentable over the combination of Dyer and Fulton. We reverse the
rejection of claims 7, 12 and 50 under 35 U.S.C. § 103(a) as being
unpatentable over the combination of Dyer and Fulton.
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We affirm the rejection of claim 13 under 35 U.S.C. § 103(a) as being
unpatentable over the combination of Dyer, Fulton and Knudson. We
reverse the rejection of claims 14, 41, 53 and 54 under 35 U.S.C. § 103(a) as
being unpatentable over the combination of Dyer, Fulton and Knudson.
We reverse the rejection of claims 8, 10, 51 and 58 under 35 U.S.C. §
103(a) as being unpatentable over the combination of Dyer, Fulton and
Merser.
We affirm the rejection of claims 15, 23 and 24 under 35 U.S.C. §
103(a) as being unpatentable over the combination of Dyer and Botka. We
reverse the rejection of claims 16-17 under 35 U.S.C. § 103(a) as being
unpatentable over the combination of Dyer and Botka.
We affirm the rejection of claims 18-20 under 35 U.S.C. § 103(a) as
being unpatentable over the combination of Dyer, Botka, Fulton and
Knudson.
We reverse the rejection of claim 21 under 35 U.S.C. § 103(a) as
being unpatentable over the combination of Dyer and Merser.
We reverse the rejection of claim 22 under 35 U.S.C. § 103 (a) as
being unpatentable over Dyer in view of Fulton, Merser and Knudson.
We reverse the rejection of claims 25, 43, 44, 47 and 48 under 35
U.S.C. § 103(a) as being unpatentable over the combination of Dyer,
Merser, Talen and Dumcum.
We reverse the rejection of claim 49 under 35 U.S.C. § 103(a) as
being unpatentable over the combination of Dyer, Merser, Talen, Dumcum
and Botka.
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We reverse the rejection of claims 55 and 56 under 35 U.S.C. § 103
(a) as being unpatentable over the combination of Dyer, Fulton, Vincent and
Brown.
We reverse the rejection of claim 57 under 35 U.S.C. § 103(a) as
being unpatentable over the combination of Dyer, Fulton, Knudson, Vincent
and Brown.
We reverse the rejection of claims 60 and 61 stand rejected under 35
U.S.C. § 103(a) as being unpatentable over the combination of Dyer,
Vincent, Brown and Botka.
No time period for taking any subsequent action in connection with this appeal
may be extended under 37 C.F.R. § 1.136(a).

AFFIRMED-IN-PART

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