Linda Walther et al.

Patent Trials and Appeals Board

Feb 22, 2022

2021003611 (P.T.A.B. Feb. 22, 2022)

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. 13/339,788 12/29/2011 Linda M. Walther 9262-101014-US 3495 19407 7590 02/22/2022 Fitch, Even, Tabin & Flannery, LLP 120 South La Salle Street, Suite 2100 Chicago, IL 60603-3406 EXAMINER MORRIS, TAYLOR L ART UNIT PAPER NUMBER 3631 MAIL DATE DELIVERY MODE 02/22/2022 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 LINDA M. WALTHER, ISHWOR P. ADHIKARI, and ETHAN S. ABERNATHEY __________ Appeal 2021-003611 Application 13/339,788 Technology Center 3600 __________ Before CHARLES N. GREENHUT, MICHAEL L. HOELTER, and ANNETTE R. REIMERS, Administrative Patent Judges. HOELTER, Administrative Patent Judge. DECISION ON APPEAL STATEMENT OF THE CASE1 Pursuant to 35 U.S.C. § 134(a), Appellant2 appeals from the Examiner’s final decision to reject claims 9 and 11-14. See Appeal Br. 3, 5. We have jurisdiction under 35 U.S.C. § 6(b). 1 Application No. 13/339,788 dated 12/29/2011 was the subject of Appeal Nos. 2015-003220 (reversed) and 2019-002517 (affirmed). It is also the subject of the present appeal. Further, related Application No. 15/674,744 dated August 11, 2017 was the subject of Appeal Nos. 2019-001754 (affirmed) and 2021-003617 (affirmed). 2 We use the word “Appellant” to refer to “applicant” as defined in 37 C.F.R. § 1.42. Appellant identifies “Medline Industries, Inc.,” as the real party in interest. Appeal Br. 3. Appeal 2021-003611 Application 13/339,788 2 For the reasons explained below, we AFFIRM the Examiner’s rejections. CLAIMED SUBJECT MATTER The disclosed subject matter “relates generally to vertical support poles and more particularly to intravenous poles.” Spec. ¶ 1. Apparatus claim 9 is the sole independent claim, is illustrative of the claims on appeal, and is reproduced below. 9. An apparatus comprising: a vertical intravenous pole having a bottom portion and outwardly-extending intravenous-fluid bag support arms; a base connected to the bottom portion of the vertical intravenous pole; a blank formed on a side of the base; a tab formed on a side of the base opposite the side having the blank, wherein the at least one tab has a size and shape that is the same as the at least one blank; a plurality of rolling members disposed on an underside of the base; such that the apparatus will move during ordinary use to thereby move with a corresponding patient as the patient moves from one area to another area, and further such that the apparatus can be selectively interlocked to at least one other such apparatus by interlocking a respective tab and blank to thereby permit a plurality of vertical intravenous poles as correspond to the apparatuses to be moved in any horizontal direction as a group. REFERENCES Name Reference Date Dillon et al. (“Dillon”) US 2003/0106969 A1 June 12, 2003 West et al. (“West”) US 2010/0052274 A1 Mar. 4, 2010 Su GB 2 458 115 A Sept. 9, 2009 Appeal 2021-003611 Application 13/339,788 3 THE REJECTIONS ON APPEAL Claims 9 and 11-14 are rejected under 35 U.S.C. § 103(a) as unpatentable over West and Su. Claims 9 and 11-14 are rejected under 35 U.S.C. § 103(a) as unpatentable over Dillon and Su. ANALYSIS The rejection of claims 9 and 11-14 as unpatentable over West and Su Appellant presents arguments only with respect to sole independent claim 9. See Appeal Br. 6-10. No separate arguments are discerned regarding dependent claims 11-14. See Appeal Brief generally. Accordingly, we select claim 9 for review with claims 11-14 standing or falling with claim 9. See 37 C.F.R. § 41.37(c)(1)(iv) (2019). Claim 9 recites “a vertical intravenous pole” and the Examiner relies on West for such a teaching. See Final Act. 5 (citing West Fig. 1 depicting hanger 14 and pole 16). Appellant contends that “‘[i]ntravenous poles’ are so named because they serve to hold bags of intravenous fluids that are to be administered to a patient intravenously” and that claim 9 specifically requires “that the intravenous pole have support arms for an intravenous- fluid bag.” Appeal Br. 6, 7. According to Appellant, West is not “concerned with intravenous fluids nor with anything having to do with a patient’s veins.” Appeal Br. 7. Instead, and by way of contrast, West is “keenly and solely focused on leukoreduction” and that a skilled person would “know and understand that leukoreduction and the administration of intravenous fluids are utterly distinct and separate activities.” Appeal Br. 7; see also Reply Br. 2. Thus, Appeal 2021-003611 Application 13/339,788 4 Appellant contends that West’s “teachings literally have nothing to do with intravenous poles.” Appeal Br. 7; see also Reply Br. 2 (West’s poles “are not, in fact, ‘intravenous poles’”). The Examiner disagrees stating that West “disclose[s] poles that have arms which support fluid bags such that gravity drains the fluid from them and as such read on the claims.” Ans. 6. There is merit to the Examiner’s findings. Appellant’s contentions above are premised upon the recited “intravenous pole” being a pole that “hold[s] bags of intravenous fluids.” Appeal Br. 6. This premise is narrower than how Appellant describes this term in Appellant’s Specification. Appellant’s Specification states that an intravenous pole “typically has arms, hooks, or other features upon which medical-services providers can hang, for example, bags of intravenous fluids, medications, and various electro-mechanical apparatuses.” Spec. ¶ 2 (emphasis added). Appellant acknowledges that the broadest reasonable interpretation of the claim term “intravenous pole” is to be consistent with Appellant’s Specification. See Reply Br. 3. However, as noted above, Appellant’s Specification describes this term using language that is broader than just a pole for holding bags of intravenous fluids. Figure 1 of West depicts a cart having pole 16 and supporting hanger 14. See also West ¶ 26. West also teaches that a filter and other devices “are hung on a hook of a cart.” West ¶ 5. See also West Figs. 17, 21, 27; West ¶ 16 (“FIG. 17 depicts an upper fluid container suspended from an example hanger assembly”). Appellant does not explain how West’s device is inconsistent with how an intravenous pole is described in Paragraph 2 of Appellant’s Specification (see above). Appeal 2021-003611 Application 13/339,788 5 Instead, Appellant contends that West’s structure is “solely focused on leukoreduction” and that “those skilled in the art will know and understand that leukoreduction and the administration of intravenous fluids are utterly distinct and separate activities.” Appeal Br. 7; see also Reply Br. 2, 4 (where Appellant asks whether a skilled person would “think it reasonable to equate the leukoreduction carts of the prior art with an intravenous pole?”). Appellant further explains, as expressed above, that West’s “teachings literally have nothing to do with intravenous poles” and “that leukoreduction carts are not IV poles.” Appeal Br. 7, 10; see also Reply Br. 2. The Examiner, however, simply relies on the structure disclosed in West as teaching a pole of the type discussed in Appellant’s Specification. See Ans. 6. Appellant does not explain what structure or function might be missing in West’s pole as to cause West’s pole to fall outside Appellant’s description of an intravenous pole. See Spec. ¶ 2. Hence, Appellant’s contentions above seeking to differentiate West’s device from the recited “intravenous pole” are not persuasive of Examiner error. In addition to the above, claim 9 also recites the limitation, “the apparatus will move during ordinary use to thereby move with a corresponding patient as the patient moves from one area to another area.” See also Appeal Br. 7. The Examiner additionally relies on West for such movement teachings by addressing West’s “plurality of rolling members” 32. Final Act. 5 (referencing West Fig. 1). Indeed, West teaches that “rollers or casters 32” can be coupled to the corner of the base to “enable the cart assembly 10 to be easily transported (e.g., rolled) into and out of a room or freezer in which the cart assembly 10 is to be placed.” West ¶ 27; see Appeal 2021-003611 Application 13/339,788 6 also id. at 24 (“enables the cart assemblies to be transported through various environments”). Appellant does not dispute that West’s cart can be moved about, but instead contends that West’s “leukoreduction components are never tethered to the patient” and thus cannot perform the recited function of moving “with” a patient as the patient moves.3 Appeal Br. 7, 9, 10. The Examiner explains, however, that West “disclose bases having rolling members on their undersides” and that a skilled person “would understand that they can be moved with a user.” Ans. 6. The Examiner’s position appears to rely upon a theory of common sense. Our reviewing court has stated that “[s]ince KSR, we have repeatedly explained that obviousness findings ‘grounded in “common sense” must contain explicit and clear reasoning providing some rational underpinning why common sense compels a finding of obviousness.’” In re Van Os, 844 F.3d 1359, 1361 (Fed. Cir. 2017) (citation omitted). Here, the “explicit and clear reasoning” required can be said to stem from the fact that West’s cart incorporates a rolling base that, as expressed therein, can be “transported (e.g., rolled) into and out of a room” and “through various environments.” West ¶¶ 24, 27; see also Ans. 5. There is no indication that such a cart cannot be rolled “with” a patient as “the patient moves from one area to another area” as recited. In other words, Appellant does not identify any 3 To be clear, claim 9 does not recite that the intravenous pole be “tethered to the patient” as asserted by Appellant above. Instead, claim 9 recites that “during ordinary use” the intravenous pole will “move with a corresponding patient as the patient moves from one area to another area.” Appeal 2021-003611 Application 13/339,788 7 structure that would preclude West’s cart from being moved as recited in claim 9. Accordingly, and based on the record presented, we are not persuaded the Examiner erred in finding that West teaches an “intravenous pole” consistent with how such a pole would have been understood from a reading of Appellant’s Specification. Nor are we persuaded that West’s pole is unable to be moved “with” a “patient as the patient moves from one area to another area” as recited. Thus, we sustain the Examiner’s rejection of claims 9 and 11-14 as being obvious in view of West and Su. The rejection of claims 9 and 11-14 as unpatentable over Dillon and Su The Examiner relies on the primary reference to Dillon for teaching the recited “intravenous pole.” See Final Act. 7 (citing Dillon Figs. 3, 4 depicting items 44 and 62 therein). Dillon states that “the present invention comprises apparatus for suspending blood packs while blood therein is drained under gravity.” Dillon ¶ 7. Appellant relies on the same arguments with respect to Dillon as those presented with respect to West above. See Appeal Br. 6-10. To be clear, Dillon (like West) discloses a trolley or cart 40 having a wheeled base 42 that supports hooks 46 from which blood packs can be suspended. See Abstract, Dillon ¶ 38, Figs. 2-4. Appellant does not differentiate between the teachings of West and Dillon and instead argues both references together (and, in fact, argues the two rejections together as well). See Appeal Brief generally. In summary, Appellant does not explain how the apparatus depicted in Figures 2-4 of Dillon fails to teach a pole mounted hanger from which Appeal 2021-003611 Application 13/339,788 8 blood packs (or medications, or other devices) are to be suspended. See Dillon ¶ 7. Additionally, Appellant does not explain how Dillon’s wheeled base 42 is such that Dillon’s cart is unable to be moved “with” a “patient as the patient moves from one area to another area,” as recited. See Ans. 6. Accordingly, and for the reasons previously discussed, we are not persuaded that Dillon fails to render obvious the recited “intravenous pole” or its movement with a patient. We sustain the Examiner’s rejection of claims 9 and 11-14 as being obvious in view of Dillon and Su. CONCLUSION The Examiner’s decisions to reject claims 9 and 11-14 are affirmed. DECISION SUMMARY In summary: Claim(s) Rejected 35 U.S.C. § Reference(s)/Basis Affirmed Reversed 9, 11-14 103(a) West, Su 9, 11-14 9, 11-14 103(a) Dillon, Su 9, 11-14 Overall Outcome 9, 11-14 No time period for taking any subsequent action in connection with this appeal may be extended under 37 C.F.R. § 1.136(a)(1)(iv). AFFIRMED