Michael Campagna

Patent Trials and Appeals Board

Mar 2, 2021

2020005787 (P.T.A.B. Mar. 2, 2021)

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.
13/251,985 10/03/2011 Michael Campagna CMPNA01 6281
151174 7590 03/02/2021
Addy Hart P.C.
Robert Hart
401 North Michigan Avenue
Suite 1200-1
Chicago, IL 60611
EXAMINER
NGUYEN, CAMTU TRAN
ART UNIT PAPER NUMBER
3786
NOTIFICATION DATE DELIVERY MODE
03/02/2021 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):
gbgulliver@addyhart.com
meredith@addyhart.com
robert@addyhart.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte MICHAEL CAMPAGNA
Appeal 2020-005787
Application 13/251,985
Technology Center 3700
Before DANIEL S. SONG, BRETT C. MARTIN, and
MICHELLE R. OSINSKI, Administrative Patent Judges.
MARTIN, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Pursuant to 35 U.S.C. § 134(a), Appellant1 appeals from the
Examiner’s decision to reject claims 22–69. See Final Act. 1. Oral
arguments were heard in this case on February 19, 2021, a transcript of
which will be entered into the record in due course. We have jurisdiction
under 35 U.S.C. § 6(b).
We REVERSE.

1 We use the word Appellant to refer to “applicant” as defined in 37 C.F.R.
§ 1.42. Appellant identifies the real party in interest as Michael Campagna.
Appeal Br. 3.
Appeal 2020-005787
Application 13/251,985
2
CLAIMED SUBJECT MATTER
The claims are directed to an articulating radiolucent anatomical
positioning joint. Spec. 5. Claim 22, reproduced below, is illustrative of the
claimed subject matter:
22. A rotatable joint, comprising:
a rotatable joint portion made from radiolucent laminar
sheeting, having variable angular articulation, and further
including:
a buttress member including a buttress planar portion;
an anatomic support member including an anatomic planar
portion;
a radiolucent connection point, where the anatomic planar
portion is pivotably attached to the buttress planar portion to
provide rotation of the anatomic support member; and
where the buttress member and the anatomic support
member are operable to receive the load forces.
REFERENCE
The prior art relied upon by the Examiner is:
Name Reference Date
Dinkler US 2002/0032927 A1 Mar. 21, 2002

REJECTION
Claims 22–69 stand rejected under 35 U.S.C. § 102(b) as being
anticipated by Dinkler. Final Act. 5.
OPINION
Appellant argues, inter alia, that the Examiner erred in finding that
Dinkler’s device is radiolucent as required by the claims at issue. See, e.g.,
Reply Br. 4. More specifically, Appellant argues that “just because a
material is radiolucent does not mean it can be imaged through” and “[t]he
Appeal 2020-005787
Application 13/251,985
3
thickness of the material has to be taken into account.” Id. The Examiner’s
sole response to this argument, which is also made in the Appeal Brief, is
that “paragraph 0033 in appellant’s originally-filed specification describes
carbon fiber as radiolucent, which material is also described by paragraph
0067 in Dinkler reference,” and thus, “the structure of Dinkler is radiolucent
and reads on the claim.” Ans. 17.
This response does not address Appellant’s argument. Appellant’s
argument asserts that the structure of Dinkler is thicker than the claimed
laminar sheeting and thus it is unknown whether that structure is radiolucent
or not. See, e.g., Appeal Br. 16. Appellant further points out that both
carbon fiber and epoxy resin are more dense than human bone. Appeal Br.
17. Appellant also notes that “thick human bone is not radiolucent.” Id.
Given that bone is less dense than Dinkler’s materials, Appellant is correct
that we simply do not know whether Dinkler’s apparatus, which is not made
of laminar sheeting as claimed, is radiolucent. The mere fact that the
materials comprising the apparatus may be radiolucent is not dispositive.
Essentially, the Examiner finds that it is inherent that an apparatus made of
radiolucent material is itself radiolucent even though Appellant provides
evidence that this is simply not true and whether the apparatus is translucent
would depend on the thickness of the radiolucent material making up the
apparatus. Because the independent claims at issue require “radiolucent
laminar sheeting” and Dinkler fails to teach laminar sheeting that, in
practice, is actually radiolucent, we do not sustain the Examiner’s rejection.
CONCLUSION
The Examiner’s rejection is REVERSED.
Appeal 2020-005787
Application 13/251,985
4
DECISION SUMMARY
Claims
Rejected
35 U.S.C. § Reference(s)/Basis Affirmed Reversed
22–69 102(b) Dinkler 22–69

REVERSED