Ex Parte Wilkinson

Board of Patent Appeals and Interferences

Feb 23, 2011

11270330 (B.P.A.I. Feb. 23, 2011)

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.
11/270,330 11/09/2005 Bradley Wilkinson 3896-053419 (P-6642/3) 6215
28289 7590 02/23/2011
THE WEBB LAW FIRM, P.C.
700 KOPPERS BUILDING
436 SEVENTH AVENUE
PITTSBURGH, PA 15219
EXAMINER
RYCKMAN, MELISSA K
ART UNIT PAPER NUMBER
3773
MAIL DATE DELIVERY MODE
02/23/2011 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 BOARD OF PATENT APPEALS
AND INTERFERENCES
____________________

Ex parte BRADLEY WILKINSON
____________________

Appeal 2009-009674
Application 11/270,330
Technology Center 3700
____________________

Before: JENNIFER D. BAHR, JOHN C. KERINS, and KEN B.
BARRETT, Administrative Patent Judges.

BAHR, Administrative Patent Judge.

DECISION ON APPEAL1

1 The two-month time period for filing an appeal or commencing a civil
action, as recited in 37 C.F.R. § 1.304, or for filing a request for rehearing,
as recited in 37 C.F.R. § 41.52, begins to run from the “MAIL DATE”
(paper delivery mode) or the “NOTIFICATION DATE” (electronic delivery
mode) shown on the PTOL-90A cover letter attached to this decision.
Appeal 2009-009674
Application 11/270,330
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STATEMENT OF THE CASE
Bradley Wilkinson (Appellant) appeals under 35 U.S.C. § 134 from
the Examiner’s decision rejecting claims 1-7, 10-14, 25, and 26. The
Examiner has withdrawn claims 8, 9, 15-24, and 27-29 from consideration.
No other claims are pending in the application. Appellant’s representative
presented oral argument on February 8, 2011. We have jurisdiction under
35 U.S.C. § 6(b).

THE INVENTION
The claims are directed to medical puncturing devices known as
lancets, which are used to take blood samples from patients. Spec. 1, para.
2. Claim 1, reproduced below, is illustrative of the claimed subject matter.
1. A lancet device, comprising:
a housing comprising opposing lateral sides extending
between a forward end and a rearward end, the housing further
comprising a plurality of longitudinal ribs extending along a
portion of at least one of the opposing lateral sides, the plurality
of longitudinal ribs forming a finger grip on the at least one of
the opposing lateral sides; and
a shield coaxially and movably associated with the
housing such that axial pressure applied by the user against the
finger grip moves the housing and the shield with respect to
each other from a first position in which the shield extends
outwardly from the forward end of the housing to a second
position in which the shield is at least partially moved within
the housing.

REJECTIONS
The Examiner has rejected claims 1, 2, 10-14, 25, and 26 under 35
U.S.C. § 102(e) as being anticipated by Boehm (US 2005/0159768 A1, pub.
Jul. 21, 2005).
Appeal 2009-009674
Application 11/270,330
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The Examiner has rejected claims 3-7 under 35 U.S.C. § 103(a) as
being unpatentable over Boehm and Peckham (Des. 387,865, iss. Dec. 16,
1997).

SUMMARY OF DECISION
We REVERSE.

OPINION
Independent claim 1 is directed to a lancet device comprising a
housing comprising a plurality of longitudinal ribs forming a finger grip and
a shield coaxially and movably associated with the housing
such that axial pressure applied by the user against the finger
grip moves the housing and the shield with respect to each other
from a first position in which the shield extends outwardly from
the forward end of the housing to a second position in which
the shield is at least partially moved within the housing.
Independent claim 11 is directed to a lancet device comprising, inter
alia, a housing, “a shield extending coaxially through the forward end of the
housing and movably associated with the housing,” and “a lancet assembly
disposed in the housing and adapted to extend through an opening in a
forward end of the shield upon movement of the shield with respect to the
housing.”
In rejecting these claims, the Examiner reads the claimed “shield” on
exterior nozzle 18 of Boehm. Ans. 3, 4. Appellant acknowledges that
Boehm’s exterior nozzle 18 is axially adjustable relative to housing 12.
App. Br. 13. Appellant argues, however, that at no point does axial pressure
on trigger 24 cause exterior nozzle 18 to move, even partially, within
housing 12. Id. Thus, according to Appellant, Boehm does not satisfy the
Appeal 2009-009674
Application 11/270,330
4
limitation of claim 1 of “a shield . . . such that axial pressure applied by the
user against the finger grip moves the housing and the shield with respect to
each other from a first position . . . to a second position in which the shield is
at least partially moved within the housing.” Appellant further argues, with
respect to claim 11, that Boehm fails to teach or suggest that the needle
portion 82 of lancet 20 is caused to extend through the lancet opening upon
movement of the exterior nozzle 18 with respect to the housing 12. App. Br.
14.
Claims 1, 2, and 10
We agree with Appellant that the axial adjustment of the exterior
nozzle 18 by rotation of the collar pin 51, collar 50, and exterior nozzle 18
together about the periphery of the interior nozzle 22, as described by
Boehm in paragraph 57 and illustrated in figures 9 and 10, does not result, at
any point, in movement of the nozzle 18 to a position in which the shield is
at least partially moved within the housing (rearward body 12), as called for
in claim 1. See also Boehm, paras. 54-56. Thus, the Examiner has failed to
establish a prima facie case that Boehm anticipates the subject matter of
claim 1, or of claims 2 and 10, which depend from claim 1. We reverse the
rejection of these claims.
Claims 11-14, 25, and 26
As described by Boehm in paragraphs 43 and 48, when in the loaded
state, a trigger extension notch 37 in trigger extension 35 engages a corner
19 of the interior tube 26, so as to oppose longitudinal movement of the
lancet holder 34, which holds lance 20, and to oppose the release of the
compressed internal spring 32. To propel the lancet 20 (i.e., to cause the
needle section 82 of lancet 20 to extend through the opening in contact
surface 21 of exterior nozzle 18), the user actuates the trigger 24, by radially
Appeal 2009-009674
Application 11/270,330
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inward pressure, to release engagement of notch 37 with the interior tube 26
to thereby release the spring 32, which then moves the lancet holder 34
longitudinally to propel the lancet 20. Boehm, para. 44.
As discussed above, with regard to the rejection of claim 1, the
exterior nozzle 18, on which the Examiner reads the claimed “shield,” is
axially adjustable relative to the housing (rearward body 12). However, as
correctly pointed out by Appellant on page 13 of the Appeal Brief, this
adjustment merely changes the lancing depth of the lance. Boehm, para. 57.
Axial adjustment of the exterior nozzle 18 does not cause the lancet 20 to
extend through the opening in contact surface 21 of exterior nozzle 18.
Based on the above findings, Boehm describes a lancet assembly
(lancet 20) adapted to extend through an opening in a forward end (contact
surface 21) of the shield (exterior nozzle 18) upon actuation of the trigger
24, which causes release of spring 32, not a lancet assembly adapted to
extend through an opening in a forward end of the shield upon movement of
the shield with respect to the housing, as called for in claim 11. Thus, the
Examiner has not established a prima facie case that Boehm anticipates the
subject matter of claim 11, or of claims 12-14, 25, and 26, which depend
from claim 11. We reverse the rejection of these claims.

Claims 3-7
The Examiner does not rely on Peckham for any teaching that would
make up for the deficiency of Boehm discussed above in regard to claim 1,
from which claims 3-7 depend, or otherwise articulate any reason why it
would have been obvious to modify Boehm to overcome this deficiency.
Thus, we also reverse the rejection of claims 3-7 as unpatentable over
Boehm and Peckham.
Appeal 2009-009674
Application 11/270,330
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DECISION
For the above reasons, the Examiner’s decision is reversed.
REVERSED

hh

THE WEBB LAW FIRM, P.C.
700 KOPPERS BUILDING
436 SEVENTH AVENUE
PITTSBURGH, PA 15219