Ex Parte Wendenburg

Patent Trials and Appeals Board

Jun 12, 2019

14183992 - (D) (P.T.A.B. Jun. 12, 2019)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR
14/183,992 02/19/2014 Frank Wendenburg
50438 7590 06/14/2019
Juneau & Mitchell Law Firm
1727 King Street
Suite 300
Alexandria, VA 22314
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.
Westphal Scalpel 8581
EXAMINER
AYALA, FERNANDO A
ART UNIT PAPER NUMBER
3724
NOTIFICATION DATE DELIVERY MODE
06/14/2019 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):
info@juneaupartners.com
tjuneau@juneaumitchell.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte FRANK WENDENBURG
Appeal2018-007763
Application 14/183 ,992 1
Technology Center 3700
Before MICHAEL C. ASTORINO, PHILIP J. HOFFMANN, and
BRUCE T. WIEDER, Administrative Patent Judges.
HOFFMANN, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Pursuant to 35 U.S.C. § 134(a), Appellant appeals from the
Examiner's rejection of claims 1, 2, and 4--17. We have jurisdiction under
35 U.S.C. § 6(b).
We REVERSE.
According to Appellant, the "invention relates to a scalpel holder."
Spec. ,r 9. Claim 1 is the sole independent claim on appeal. Below, we
1 Appellant identifies "HELMUT ZEPF MEDIZINTECHNIK GMBH" as
the real party in interest. Appeal Br. 2.
Appeal2018-007763
Application 14/183,992
reproduce the independent claim, with formatting added, as representative of
the appealed claims.
1. A scalpel holder, having
a grip piece with a longitudinal direction and
a blade holder which is connected to the grip piece and
which blade holder functions to receive a scalpel blade and hold
the same fixed,
wherein the grip piece has a slider guide running
substantially in the longitudinal direction of the grip piece,
wherein a slider received in said slider guide is movably
guided in the slider guide,
wherein the slider has a slider rod and a push rod
connected to each other in a fixed manner, and the push rod
furthermore has an end piece with a wedge-shaped design for the
purpose of allowing a person using only one hand to engage the
push rod, thereby lifting out a scalpel blade fastened on the blade
holder,
wherein the slider guide is arranged on the grip piece in
such a manner that the end piece of the slider guided in the slider
guide in the direction of the blade holder slides past the scalpel
blade while lifting the scalpel blade out of the blade holder, and
wherein the push rod is divided in cross-section into two
components, a first component comprising a shoulder edge
region, and a second component comprising the wedge-shaped
end piece extending longitudinally beyond the first component,
for the purpose of laterally lifting the scalpel blade away from
the blade holder while simultaneously pushing the scalpel blade
longitudinally away from the blade holder.
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Appeal2018-007763
Application 14/183,992
REJECTIONS AND PRIOR ART
The Examiner rejects the claims as follows:
I. Claims 1, 2, 4--7, and 11-17 under 35 U.S.C. § I02(b) as
anticipated by Abidin et al. (US 5,662,669, iss. Sept. 2, 1997)
(hereinafter "Abidin"); and
II. Claims 8-10 under 35 U.S.C. § I03(a) as unpatentable over
Abidin and Becker (US 2,521,032, iss. Sept. 5, 1950).
ANALYSIS
Re;ection I
Independent claim 1 recites, in relevant part,
wherein the push rod is divided in cross-section into two
components, a first component comprising a shoulder edge
region, and a second component comprising the wedge-shaped
end piece extending longitudinally beyond the first component,
for the purpose of laterally lifting the scalpel blade away from
the blade holder while simultaneously pushing the scalpel blade
longitudinally away from the blade holder.
Appeal Br., Claims App. (italics and underlining added). In claim 1 's
rejection, the Examiner relies on an embodiment shown in Abidin' s
Figures 26-36. Answer 2-3. In particular, the Examiner finds that Abidin's
blade 224 and cleat 221 correspond to the claimed blade and blade holder,
respectively. Id. at 2. The Examiner further finds that various structures of
Abidin's guard 202 correspond to the claimed push-rod second component.
Id. at 7. These structures include projection 233 and hook 235. Id. As
Abidin explains,
[t]he operation of this aspect of the invention will become
readily apparent with reference to F[igures] 33-35. The
guard 202 is slid forwardly (F[igure] 33) such that the
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Appeal2018-007763
Application 14/183,992
projection 233 slides underneath the rearward edge portion 239
of the blade 224 as the ejector button 238 is depressed. The first
depressible tang 228 on the side wall 203 of the handle 201
engages and depresses the second ( aligned) depressible tang 229
on the side wall 205 of the guard 202, and the proiection 233 on
the first side wall 205 of the guard 202 lifts the rearward edge
portion 239 of the blade 224 away from the longitudinal rib 222
on the cleat 221 secured to the handle 201. The hook 235 on the
second side wall 206 of the guard 202 initially engages the
rearward edge portion 239 of the blade 224 (F[igure] 34).
Continued forward sliding movement of the guard 202
completely separates the blade 224 from the cleat 221
(F[igure] 35) as the ejector button 238 is released, thereby
stripping the blade 224 from the scalpel 200.
Abidin col. 12, 11. 34--50 (italics and underlining added). Restated (using the
claim's nomenclature), as illustrated in Abidin's Figures 33-35, guard 202's
projection 233 moves blade 224 laterally away from cleat 221, and into
hook 235. See Abidin Figs. 33, 34. It is not clear, however, in Abidin that
any further lateral movement occurs during the "[c]ontinued forward sliding
movement" of guard 202, which moves blade 224 longitudinally away from
cleat 221. See id. Figs. 34, 35. Thus, it is not clear that any component or
components of Abidin' s guard 202 are either configured or able to move
blade 224 both laterally and longitudinally, at the same time, away from
cleat 221. Therefore, the Examiner does not support adequately that Abidin
discloses a second component laterally lifting the scalpel blade away from
the blade holder while simultaneously pushing the scalpel blade
longitudinally away from the blade holder, as recited in claim 1. See Appeal
Br. 12-13; see Reply Br. 8.
Based on the foregoing, we do not sustain claim 1 's anticipation
rejection. Further, we do not sustain the anticipation rejection of claims 2,
4--7, and 11-1 7 that depend from claim 1.
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Appeal2018-007763
Application 14/183,992
Reiection II
The Examiner does not rely on Becker to remedy the above-discussed
deficiency in claim 1 's rejection. Therefore, we do not sustain the
Examiner's obviousness rejection of dependent claims 8-10, based on
Abidin and Becker.
DECISION
We REVERSE the Examiner's anticipation and obviousness
rejections of claims 1, 2, and4-I7.
REVERSED
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