Jeffrey Ward. Cash

Patent Trials and Appeals Board

Jul 17, 2019

14613803 - (D) (P.T.A.B. Jul. 17, 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.
14/613,803 02/04/2015 JEFFREY WARD CASH CASH 1 5034
99344 7590 07/17/2019
Patent Law of Virginia, PLLC
PO Box 9319
Richmond, VA 23227
EXAMINER
ZHANG, JENNA
ART UNIT PAPER NUMBER
3783
NOTIFICATION DATE DELIVERY MODE
07/17/2019 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):
brian@patentlawva.com
brianjteague@gmail.com
eofficeaction@appcoll.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
____________________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________________

Ex parte JEFFREY WARD CASH
____________________

Appeal 2018-004469
Application 14/613,803
Technology Center 3700
____________________

Before JEREMY M. PLENZLER, ARTHUR M. PESLAK, and
ALYSSA A. FINAMORE, Administrative Patent Judges.

PESLAK, Administrative Patent Judge.

DECISION ON APPEAL

STATEMENT OF THE CASE
Jeffrey Ward Cash (“Appellant”) appeals under 35 U.S.C. § 134(a)
from the Examiner’s decision rejecting claims 10, 12, 14–21, 25, and 26.
We have jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM-IN-PART.

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THE CLAIMED SUBJECT MATTER
Claim 10, reproduced below, is representative of the claimed subject
matter.
10. A system for intraoral fluid delivery comprising:
a rate-controlled and/or volume-controlled fluid supply
device comprising a regulated pumping device programmable
to pump a defined volume of fluid over a defined period of
time;
a reservoir for holding one or more fluids to be delivered
to a patient’s oral cavity;
a head-worn appliance comprising a fluid conduit and a
fluid outlet at a distal end of the fluid conduit adapted for
placement within the patient’s oral cavity when the appliance is
secured to the patient’s head; and
tubing to carry the one or more fluids from the reservoir
via the fluid supply device to the appliance.

REJECTIONS
1) The Examiner rejected claims 17–20 as indefinite under 35 U.S.C.
§ 112(b).
2) The Examiner rejected claims 10, 16–21, 25, and 26 under 35
U.S.C. § 102(a)(1) as anticipated by Martin (US 2011/0270166
A1, published Nov. 3, 2011).1
3) The Examiner rejected claims 12 and 14 under 35 U.S.C. § 103 as
unpatentable over Martin and Yokell (US 2011/0124948 A1,
published May 26, 2011).

1 The Examiner notes in the heading of this rejection that Martin
incorporates by reference US 2010/0016908 A1 (“Martin 908”). Final Act.
4. We note, however, that the rejection of claim 10 does not rely on Martin
908. Id.
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4) The Examiner rejected claim 15 under 35 U.S.C. § 103 as
unpatentable over Martin and Brown (US 2006/0141423 A1,
published June 29, 2006).

DISCUSSION
Rejection 1
The Examiner rejected claims 17–20 as indefinite under 35 U.S.C.
§ 112(b) for lack of antecedent basis. Final Act. 3. Appellant does not
address this rejection in the Appeal Brief. See Br. 6–10. Therefore, we
summarily sustain this rejection.
Rejection 2
Claims 10 and 16–21
Appellant argues claims 10 and 16–21 as a group. Br. 6–10. We
select claim 10 as representative of the group, and claims 16–21 stand or fall
with claim 10. 37 C.F.R. § 41.37(c)(1)(iv).
Appellant contends that Martin fails to disclose “a rate-controlled
and/or volume-controlled fluid supply device . . . programmable to pump a
defined volume of fluid over a defined period of time” as recited in claim 10.
Br. 6. Appellant further contends that Martin discloses “the application of
pulses of air to a patient’s oral cavity” which does not correspond to “a
defined volume of fluid over a defined period of time” because this phrase
“is a term of art and would be understood by a person having ordinary skill
in the art as having a pumping rate needed to pump the specified volume in
the specified period of time.” Id. at 6–7. According to Appellant, “Martin
does not teach specifying a volume to be pumped and a corresponding
pumping time, but rather specified frequency and duration of pulses and
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duration of the pulse train.” Id. at 7 (citing Martin 908 ¶¶ 62–66). Appellant
also contends that Martin and Martin 908 “teach away from . . . a steady
fluid supply as would be provided by the regulated pumping device of
independent Claim 10.” Id.
The Examiner responds that “the limitations of ‘defined volume of
fluid’ and ‘a defined period of time’ have been interpreted as being the
volume of air in an air-pulse and the duration of an air pulse.” Ans. 2–3.
The Examiner asserts that
Martin explicitly discloses that air-pulse trains were controlled
with an Agilent signal generator and LABneb air-pressure
regulator connected to a medical air source . . . to cause air
volume delivered to be in the range of 1.2ml to 4.2 ml . . .
wherein the defined volume delivered is dependent on the
properties controlled as shown in the tables. . . . Similarly
Martin also discloses tables for a 2-second pulse train and a 3-
second pulse train to further illustrate how specifying the
frequency, duration of pulses, and duration of pulse train by
Martin causes a defined volume to be delivered during the pulse
duration of 50 msec.
Id. at 3 (citing Martin ¶¶ 102–103). For the following reasons, we sustain
the rejection of claim 10.
As the Examiner correctly notes, Martin discloses defined fluid
volumes for 2 second and 3 second pulse trains at various delivery pressures.
Martin ¶¶ 102–103. Appellant’s argument that one of ordinary skill in the
art would understand the claim language “a defined volume of fluid over a
defined period of time . . . as having a pumping rate needed to pump the
specified volume in the specified period of time” does not persuade us of
Examiner error because the argument is not supported by evidence, and is
not commensurate with the scope of claim 10. Likewise, Appellant’s
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contention that Martin’s disclosure of air pulses teaches away from “a steady
fluid supply” as allegedly required by claim 10 does not persuade us of error
because it is not commensurate with the scope of claim 10, which does not
require a steady fluid supply.
Claim 10 requires that the pumping device is “programmable to pump
a defined volume of fluid over a defined period of time.” Appellant’s
Specification provides that “pumping device 14 must be able to regulate the
flow rate of fluid(s) to the mouthpiece 16,” “should have an adjustable flow
rate,” and “should have a setting to pump a defined volume.” Thus, the
broadest reasonable interpretation of “programmable” in the context of claim
10 requires the device to have flow rate settings that are pre-programmed,
and “programmable” means the ability to select/adjust those settings. To the
extent that Appellant contends the “programmable” limitation of claim 10 is
not met by Martin apart from the flow requirement, the Examiner correctly
finds that Martin’s disclosure satisfies the “programmable” limitation
because Martin’s “air-pulse trains were controlled with an Agilent signal
generator and LABneb air-pressure regulator” and “Martin discloses tables
for a 2-second pulse train and a 3-second pulse train to further illustrate how
specifying the frequency, duration of pulses, and duration of pulse train by
Martin causes a defined volume to be delivered during the pulse duration of
50 msec.” Ans. 3.
We, therefore, sustain the rejection of claim 10. Claims 16–21 fall
with claim 10.
Claim 25
Claim 25, which depends from claim 10, recites that “the pumping
device is programmable to have time-adjusted flow rates, such that the
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pumping device can pump at different flow rates at different times of day.”
Br. 15 (Claims App.). The Examiner relies on paragraphs 120–122 of
Martin for disclosure of the limitations of claim 25. Final Act. 5. Appellant
argues that Martin does not “disclose[] a device that is programmable to
have time-based adjustable flow rates, as recited in claim 25.” Br. 8. The
Examiner responds that “the system of Martin is capable of being
programmed to have time-based adjustable flow rates” as claim 25 requires
because it “discloses how air-pulses during drinking or mealtime eating must
be different than air-pulses delivered at other times.” Ans. 5 (citing Martin
¶¶ 65, 102). For the following reasons, we do not sustain the rejection of
claim 25.
None of the passages of Martin cited by the Examiner disclose or
suggest “a pumping device programmable to have time-adjusted flow rates .
. . at different times of day” as required by claim 25. Paragraphs 102 and
120–122 of Martin cited by the Examiner in the Final Action disclose a
study of patients supplied with air pulses, but do not disclose or suggest “a
pumping device programmable to have time-adjusted flow rates” as required
by claim 25. See Martin ¶¶ 102, 120–122. Paragraph 65 discloses, in
general terms, a device that may be used to control air flow to the patient.
Id. ¶ 65. The Examiner’s assertion that Martin is “capable of being
programmed to have time-based adjustable flow rates” does not satisfy the
“programmable” limitation as we have construed this term because the
Examiner has not pointed to evidence that Martin discloses pre-programmed
settings meeting the limitations of claim 15. The rejection is, thus, based on
speculation and not evidence of record. Therefore, we do not sustain the
rejection of claim 25.
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Claim 26
Claim 26, which depends from claim 10, recites that “the pumping
device is programmable to have different flow rates based on normal
salivary flow at specific times of day.” Br. 16 (Claims App.). The
Examiner relies on paragraphs 99 and 119 and Figure 2 of Martin for
disclosure of the limitations of claim 26. Final Act. 6. Appellant contends
that the cited portions of Martin do not satisfy the limitations of claim 26
because Martin “merely disclose[s] that Martin’s air pulses ‘are effective in
increasing saliva swallowing rates.’” Br. 9. The Examiner responds that the
pumping device of Martin is “capable of being programmed to have
different flow rates based on normal salivary flow at different times of day”
because it “discloses a range of pressures, pulse type, pulse frequency and
pulse durations for delivering air to the patients so to achieve an acceptable
swallowing rate for the patient” and the “‘normal saliva swallowing rate’
may be different for each patient.” Ans. 6. For the following reasons, we do
not sustain the rejection of claim 26.
Paragraphs 99 and 119 of Martin describe the study of patients and
some results in general terms but contain no disclosure of a pumping device
programmable to have different flow rates based on normal salivary flow at
specific times of day. See Martin ¶¶ 99, 119. The Examiner’s assertion that
Martin is “capable of being programmed to have different flow rates based
on normal salivary flow at different times of day” as recited in claim 26 is,
thus, based on speculation and not evidence of record. Therefore, we do not
sustain the rejection of claim 26.

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Rejections 3 and 4
Claims 12, 14, and 15 depend from claim 10. Br. 13–14 (Claims
App.). Appellant relies on the same arguments for patentability of these
dependent claims as for claim 10. Br. 8. We, therefore, sustain the rejection
of claims 12, 14, and 15 for the same reasons as discussed above in
connection with claim 10.

DECISION
The Examiner’s decision rejecting claims 17–20 under 35
U.S.C.§ 112(b) is affirmed.
The Examiner’s decision rejecting claims 10 and 16–21 under 35
U.S.C. § 102(a)(1) is affirmed.
The Examiner’s decision rejecting claims 25 and 26 under 35 U.S.C.
§ 102(a)(1) is reversed.
The Examiner’s decision rejecting claims 12, 14, and 15 under 35
U.S.C. § 103 is affirmed.
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a). See 37 C.F.R.
§ 1.136(a)(1)(iv).

AFFIRMED-IN-PART