Michael Turturro et al.

Patent Trials and Appeals Board

Aug 30, 2019

15207111 - (D) (P.T.A.B. Aug. 30, 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.
15/207,111 07/11/2016 Michael Turturro BPMDL0121DN.P1
11555U CIP
9682
27939 7590 08/30/2019
Philip H. Burrus, IV
Burrus Intellectual Property Law Group LLC
222 12th Street NE
Suite 1803
Atlanta, GA 30309
EXAMINER
REYNOLDS, STEVEN ALAN
ART UNIT PAPER NUMBER
3735
MAIL DATE DELIVERY MODE
08/30/2019 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 MICHAEL TURTURRO, ADAM ROESNER,
MIKE STANKIEWICZ, and BARBARA CONNELL1
____________________

Appeal 2018-0074232
Application 15/207,111
Technology Center 3700
____________________

Before JENNIFER D. BAHR, JILL D. HILL, and LEE L. STEPINA,
Administrative Patent Judges.

STEPINA, Administrative Patent Judge.

DECISION ON APPEAL

STATEMENT OF THE CASE
Appellant appeals under 35 U.S.C. § 134 from a rejection of claims 1–
20. We have jurisdiction under 35 U.S.C. § 6(b).
We affirm.

1 The Appeal Brief indicates that “Appellant,” Medline Industries, Inc., is
the real party in interest. Appeal Br. 2.
2 Appellant lists an Appeal of a rejection in U.S. Serial Number 15/131,839
(corresponding to Appeal Number 2018-007402) as a related case. The
claim scope, rejections, and arguments in these cases are substantially
similar.
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2
CLAIMED SUBJECT MATTER
The claims are directed to a medical kit including a drape with
pockets in which medical implements are located. Claims 1 and 16 are the
sole independent claims on appeal. Claim 1, reproduced below, is
illustrative of the claimed subject matter:
1. A medical kit, comprising:
a drape;
a plurality of pockets disposed along a bottom edge of a
first side of the drape in a linear, side-by-side arrangement;
a plurality of medical implements for use in a central
catheter dressing change operation, stowed in the plurality of
pockets on a one-to-one basis, wherein a first medical
implement disposed in a first pocket comprises an antiseptic
tool, a second medical implement disposed in a second pocket
comprises a central catheter securement device, and the first
and second pocket are interspaced by at least one interspacing
pocket;
one or more other pockets disposed along a second side
of the drape; and
medical indicia disposed along each pocket of the
plurality of pockets, the medical indicia comprising one or
more educational prompts that instruct medical personnel how
to use a particular medical implement disposed in a pocket to
complete a central catheter dressing change.
Appeal Br. 24 (Claims App.).

REFERENCES
The prior art relied upon by the Examiner in rejecting the claims on
appeal is:
Morris US 4,457,026 July 3, 1984
Krol US 4,573,576 Mar. 4, 1986
Dangman US 5,335,373 Aug. 9, 1994
Aruffo US 6,579,271 B1 June 17, 2003
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Primer US 2008/0283426 A1 Nov. 20, 2008
Adams US 2011/0041995 A1 Feb. 24, 2011
Tomes US 2011/0290260 A1 Dec. 1, 2011
Macinnes US 2012/0145589 A1 June 14, 2012
Reaux US 8,371,448 B1 Feb. 12, 2013
Wiley US 2015/0101616 A1 Apr. 16, 2015

REJECTIONS
I. Claims 1, 2, 10, 11, and 15 are rejected under 35 U.S.C. § 103
as unpatentable over Wiley, Macinnes, and Reaux.
II. Claim 3 is rejected under 35 U.S.C. § 103 as unpatentable over
Wiley, Macinnes, Reaux, and Aruffo.
III. Claims 4–6 are rejected under 35 U.S.C. § 103 as unpatentable
over Wiley, Macinnes, Reaux, and Morris.
IV. Claim 7 is rejected under 35 U.S.C. § 103 as unpatentable over
Wile, Macinnes, Reaux, Morris, and Tomes.
V. Claims 8 and 9 are rejected under 35 U.S.C. § 103 as
unpatentable over Wiley, Macinnes, Reaux, Morris, Tomes, and Adams.
VI. Claim 12 is rejected under 35 U.S.C. § 103 as unpatentable
over Wiley, Macinnes, Reaux, and Dangman.
VII. Claims 13 and 14 are rejected under 35 U.S.C. § 103 as
unpatentable over Wiley, Macinnes, Reaux, Adams, and Primer.
VIII. Claims 16, 18, and 19 are rejected under 35 U.S.C. § 103 as
unpatentable over Wiley, Macinnes, Reaux, Morris, and Tomes.
IX. Claim 17 is rejected under 35 U.S.C. § 103 as unpatentable
over Wiley, Macinnes, Reaux, Morris, Tomes, and Krol.
X. Claim 20 is rejected under 35 U.S.C. § 103 as unpatentable
over Wiley, Macinnes, Reaux, Morris, Tomes, and Primer.
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OPINION
Rejection I
Appellant argues for the patentability of the claims subject to the first
ground of rejection, i.e., claims 1, 2, 10, 11, and 15, as a group. Appeal Br.
11. We select claim 1 as representative of the group, and claims 2, 10, 11,
and 15 stand or fall with claim 1. See 37 C.F.R. § 41.37(c)(1)(iv).
Wiley
Referring to Figure 1A of Wiley, the Examiner finds this reference
discloses many of the elements required by claim 1, including a drape, but
does not disclose the recited antiseptic tool, one or more pockets disposed
along a second side of the drape, and indicia. Final Act. 3. With regard to
the drape, the Examiner states, “backing layer of 10 [(package 12)] can be
considered a drape since it can be used as a drape.” Id.; see also Ans. 2.
Appellant argues that the Examiner erred in finding that the backing
layer of kit 10 in Wiley qualifies as a drape under the broadest reasonable
interpretation of claim 1. See Appeal Br. 12–19. Appellant states, “the New
Oxford American Dictionary defines a drape as ‘a cloth for covering parts of
a patient’s body other than the part on which a surgical operation is being
performed.’ Id. electronic version 2.2.2 (203), 2017.” Id. at 12. Appellant
poses the inquiries:
Is a suitcase a drape? Is a cardboard box a drape? Is a zip-
strip sandwich bag a drape? The Examiner would have you
believe that each is indeed a drape. Why? Because it “can be
considered a drape since it can be used as a drape.” Final Office
Action, page three. If this strikes you as odd, read on. It gets
more absurd.
Id.
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Appellant points to Wiley’s use of the term “drape” (item reference
number 54) to describe a component not relied upon by the Examiner for the
recited drape as evidence that the backing layer of kit 10 in Wiley is not a
drape under the broadest reasonable interpretation of claim 1. Appeal Br.
12, 14–16; see also Reply Br. 9. Specifically, Appellant asks (and answers):
What if a reference describes two items: a drape and a
cardboard box. In this hypothetical reference, the drape is
described as being positioned inside the box. How many drapes
does the reference teach? While even a child would say one, the
Examiner says two. That is correct, gentle reader – the Examiner
will tell you the cardboard box is also a drape.
Id. at 12; see also id. at 14 (“A kit is not a drape. This is confirmed by the
reference itself. To wit, Wiley teaches the inclusion of an actual drape
within its kit.”); id. at 16 (“Thus, with respect to the principle reference, the
reference speaks of a drape and a kit being two entirely different objects.”).
Appellant’s proposed claim construction
Appellant contends that the facts of this case are strikingly similar to
the facts in In re Smith Int’l, Inc., 871 F.3d 1375 (Fed. Cir. 2017) and In re
Power Integrations, Inc., 884 F.3d 1370 (Fed. Cir. 2018). Appeal Br. 16–
17. Appellant proposes an interpretation of the term “drape,” stating that the
Specification
defines a drape as an object that can be folded (paragraph [035]),
that is protective to ensure that a sterile field is not compromised
(Id.), that can be color-coded (paragraph [065]), that is
manufactured from cloth, woven materials, nonwoven materials,
or combinations thereof (paragraph [067]), that can have a
weight of between ten and one hundred grams per square meter
(Id.), and that when unfolded has a length of between sixteen and
twenty inches and a width of between nineteen and twenty three
inches (paragraph [069]).
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Appeal Br. 16–17 (bolding added); see also Reply Br. 9.
In response, the Examiner notes that Appellant’s proposed
interpretation of claim 1 is based on statements in the Specification that
indicate what the disclosed drape can be, not what it is. Ans. 4. Further, the
Examiner finds that, even under Appellant’s proposed interpretation of claim
1, package 12 of Wiley qualifies as a drape. Id. at 3–4.
Additionally, the Examiner determines that package 12 meets the
dictionary definition of “drape.” Id. at 2 (“Furthermore, the term ‘drape’ is
defined as ‘a sterile covering used in an operating room’ [https://www.
merriam-webster.com/ dictionary/drape], or, ‘a drape is a cloth that hangs
loosely or in folds’ [http://www.yourdictionary.com/drape]. The drape of
Wiley meets all of the aforementioned definitions of a drape.”).
Regarding Wiley’s use of the term “drape” to describe a component
other than the one the Examiner relies upon in the rejection of claim 1, the
Examiner finds that package 12 satisfies the broadest reasonable
interpretation of “drape,” in light of the Specification, and this is not negated
by Wiley’s additional disclosure of another drape. Ans. 5.
Appellant replies that the Examiner has not discussed Smith
International and Power Integrations. Reply Br. 9. Appellant also states
that Wiley instructs that package 12 should be placed on top of drape 54,
and, therefore, does not provide a sterile barrier over the patient. Id. at 9–10.
Appellant characterizes as impermissible hindsight the Examiner’s finding
that one material disclosed by Appellant for use in the claimed drape is
polyethylene, and this material is disclosed by Wiley. Id. at 10 (citing
MPEP § 2142; Ecolochem, Inc. v. So. Cal. Edison Co., 227 F.3d 1361 (Fed.
Cir. 2000).
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The dispositive issue in Rejection I is whether, under the broadest
reasonable interpretation of claim 1 in light of the Specification, package 12
of Wiley qualifies as a drape. Appellant has not apprised us of Examiner
error on this point.
During examination of a patent application, pending claims are given
their broadest reasonable construction consistent with the Specification. In
re Am. Acad. Of Sci. Tech Ctr., 367 F.3d 1359, 1364 (Fed. Cir. 2004).
The correct inquiry in giving a claim term its broadest reasonable
interpretation in light of the specification is not whether the
specification proscribes or precludes some broad reading of the
claim term adopted by the examiner. And it is not simply an
interpretation that is not inconsistent with the specification. It is
an interpretation that corresponds with what and how the
inventor describes his invention in the specification, i.e., an
interpretation that is “consistent with the specification.”
Smith Int’l, 871 F.3d at 1382–83 (quoting In re Morris, 127 F.3d 1048, 1054
(Fed. Cir. 1997)).
The Summary of the Claimed Subject Matter (Appeal Br. 8–9) refers
to Appellant’s Figure 13, and we reproduce this figure below.

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Appellant’s Figure 13 depicts a fully unfolded drape 1301 including a
plurality of pockets that hold medical implements. Spec. ¶¶ 74, 86, 88.
Describing Figure 13, Appellant’s Specification states, “[a]s shown in FIG.
13, the unfolded drape 1301 includes the drape 1323 itself. In one
embodiment, a series of pockets 1302, 1303, 1304, 1305, 1306, 1307 [is]
disposed along the drape 1323 in a linear, side-by-side arrangement 1308
along a bottom edge 1309 of the unfolded drape 1301.” Id. ¶ 87. Thus,
Appellant’s Specification uses the word “drape” to describe the entire
assembly depicted in Figure 13 (drape 1301) and the fabric without pockets
(drape 1323).
We reproduce below Figure 1A of Wiley.

Figure 1A of Wiley depicts kit 10 including a body, or package, 12
that Wiley describes as flexible, generally flat, and translucent. Wiley ¶ 21.
Kit 10 includes pockets 16 in which medical implements are stored. Id.
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Appellant’s Specification describes the “drape” as being made from
any of a wide variety of materials, including “various woven, non-woven,
hydroentangled materials, and/or combinations thereof, absorbent Airlaid,
spunlace, blends of polyester, polypropylene, polyethylene, urethane, and/or
combinations thereof” and materials “such as plastic, cotton, linen, paper, or
combinations thereof.” Spec. ¶ 71. Thus, the broadest reasonable
interpretation of the term drape does not require the construction of the item
to be from cloth.3 The broadest reasonable interpretation of the term drape,
in light of the Specification, allows for plastic construction. The
polyethylene film of Wiley’s package 12 falls within this description, i.e.,
polyethylene is a plastic.
Appellant urges that the term drape is defined as an object that can be
folded and that is protective to ensure that a sterile field is not compromised.
Appeal Br. 17. Package 12 of Wiley meets these alleged requirements.
Specifically, Figures 2 and 3 of Wiley depict package 12 from Figure 1A in
a folded state, and Figure 1C depicts package 12 in an unfolded state. As for
sterilization, Wiley teaches that the kit 10 (which includes package 12) is
designed to undergo sterilization procedures. Wiley ¶ 29.
Appellant asserts that the recited drape “can be color-coded
(paragraph [065]), [and] is manufactured from cloth, woven materials,
nonwoven materials, or combinations thereof (paragraph [067]).” Appeal
Br. 17 (emphasis added). As discussed above, Appellant’s Specification
indicates that the drape can be made of plastic (Spec. ¶ 71), and Wiley’s

3 The dictionary definition provided on page 12 defines a drape as a “cloth
for covering parts of a patient’s body other than the part on which a surgical
operation is being performed.”
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package 12 meets this requirement. As for color-coding, we do not agree
that color-coding of the drape is a requirement of the broadest reasonable
interpretation of claim 1. Rather, this characteristic is merely optional, the
drape may be color-coded, or it may not be. See Spec. ¶ 69 (“In one
embodiment, the folded drape 501 is opaque. The folded drape 501 can be
color-coded to indicate that it is designed for a particular procedure as
well.”). Further, we see no reason, and Appellant does not assert, that
package 12 of Wiley cannot not be color-coded.
Appellant asserts that the recited drape “can have a weight of between
ten and one hundred grams per square meter (Id.), and that when unfolded
has a length of between sixteen and twenty inches and a width of between
nineteen and twenty three inches (paragraph [069]).” Appeal Br. 17
(emphasis added). Again, Appellant uses the term “can” in the proposed
interpretation of claim 1. We do not view this characteristic as a
requirement in claim 1, rather, this weight is merely present in one non-
limiting embodiment described in Appellant’s Specification. See Spec. ¶ 70.
Further, we see no reason why package 12 of Wiley cannot have a weight
within the broad range of between ten and one hundred grams per square
centimeter, and Appellant does not assert that it cannot.
As for Appellant’s proposed requirement that the drape have “a length
of between sixteen and twenty inches and a width of between nineteen and
twenty three inches” (Appeal Br. 17 (emphasis added)), this requirement
directly contradicts Appellant’s Specification, which states, “[i]n one or
more embodiments, the folded drape 501, when unfolded, has a length of
between sixteen and twenty centimeters, such as about seventeen and a half
centimeters plus or minus an inch.” Spec. ¶ 72 (emphasis added). The
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Specification goes on to state, “[i]n one embodiment, the patient drape has a
width of between nineteen and twenty three centimeters, such as about
twenty-one and a half centimeters, plus or minus one inch.” Id. (emphasis
added).
Appellant makes no persuasive argument that there is any structural
difference between Wiley’s package 12 and the drape recited in claim 1. See
Appeal Br. 12–19. Rather, Appellant provides the above-noted proposed
interpretation of claim 1, describes Wiley’s package 12 without contrasting
it with the proposed claim interpretation, and points out that Wiley names4 a
component in its disclosure a drape and this component is not the teaching
the Examiner relies upon in the rejection. See id. Appellant does not assert
that there is any special configuration or adaptation of the drape required by
claim 1 that would distinguish package 12 of Wiley. As is evident from a
comparison of Figure 1A of Wiley with Appellant’s Figures 13 and 19, the
structures are very similar. Further, Wiley describes package 12 as flexible
and generally flat. See Wiley ¶ 21. Moreover, as discussed above,
Appellant’s drape and package 12 are disclosed as being made from the
same material, specifically, plastic (e.g., polyethylene). See Spec. ¶ 71;
Wiley ¶ 21. Accordingly, the Examiner’s finding (Final Act. 3) that package
12 is usable as a drape is supported by a preponderance of the evidence.
Macinnes and Reaux

4 Although terms used in the prior art references can help indicate how claim
terms should be construed it is not necessary for the prior art to use identical
language to describe structures or acts disclosed therein in order to consider
claim limitations satisfied by those structures or acts. In re Neugebauer, 330
F. 2d 353, 356 n. 4 (CCPA 1964) (“In the construction of words, not the
mere words, but the thing and the meaning, are to be inquired after.”)
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The Examiner relies on Macinnes to teach certain details of claim 1
relating to indicia identifying what is held within the recited pockets and
relies on Reaux to teach pockets disposed along a second side of a drape
(any of reference numbers 12, 88, 96). Final Act. 4–5.
Appellant argues that neither of Macinnes and Reaux remedies the
alleged deficiency Wiley. See Appeal Br. 19–20. As we do not agree that
the Examiner erred in finding that package 12 qualifies as a drape,
Appellant’s comments in this regard are moot.
Appellant contends that Reaux “teaches a package” and for the same
reasons asserted against package 12 of Wiley, Reaux’s “package” is not a
drape. Id. For the reasons set forth below, we disagree. Reaux teaches
“device 12 includes a rear panel 14 that is formed from a layer of sheet
material, which may be rigid or flexible sheet material.” Reaux 2:23–25
(emphasis added). Further, “compartments 22 are formed from a flexible
sheet material that may be the same or different material from that 60
forming the rear panel 14” (id. at 2:58–60) and “compartments 22 are sized
and configured to hold used sponges, towels, etc. used in the surgical
procedure” (id. at 3:14–15). Figures 1–5 of Reaux depict devices 12, 88, 96
that appear structurally similar to the drapes depicted in Appellant’s Figures
13 and 19. Moreover, Appellant does not assert that there is any particular
structural difference between a drape as recited in claim 1 and reference
numbers 12, 88, 96 in Reaux. Rather, Appellant merely argues that a
package is not a drape (despite the fact that Appellant’s “drape” includes
pockets and, therefore, is a package the same way reference numbers 12, 88,
96 of Reaux are). Accordingly, we are not apprised of error in the
Examiner’s finding that Reaux discloses a drape.
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We sustain the Examiner’s rejection of independent claim 1 as
unpatentable over Wiley, Macinnes, and Reaux. Claims 2, 10, 11, and 15
fall with claim 1.
Rejections II–VII
Appellant does not make arguments against any of Rejections II–VII
aside from those set forth against Rejection I. See Appeal Br. 12–23.
Accordingly, for the same reasons discussed above regarding Rejection I, we
sustain Rejections II–VII.
Rejection VIII
Appellant argues for the patentability of the claims subject to the
eighth ground of rejection, i.e., claims 16, 18, and 19, as a group. Appeal Br.
20–23. We select claim 16 as representative of the group, and claims 18 and
19 stand or fall with claim 16. 37 C.F.R. § 41.37(c)(1)(iv).
Claim 16 recites, in part, “a drape; and five pockets disposed along an
edge of a first side of the drape.” Appeal Br. 26 (Claims App.). As is the
case with Rejection I, the Examiner finds that Wiley teaches a drape, stating
“Wiley discloses a medical kit (Fig. 1 A), comprising: a drape (backing layer
of 10 can be considered a drape since it can be used as a drape); and five
pockets disposed along an edge of a first side of the drape.” Final Act. 11.
Appellant argues, “[a]s demonstrated above, the only drape taught by
Wiley with pockets is shown in FIG. 12. As shown, there are no pockets
disposed along an edge of the drape, much less five.” Appeal Br. 20.
Appellant’s argument regarding Wiley’s disclosure in Figure 12 is
unpersuasive because the Examiner relies on the embodiment depicted in
Figure 1A of Wiley, not what is depicted in Figure 12. See Final Act. 11.
Additionally, as discussed above, we agree with the Examiner that package
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12 depicted in Figure 1A of Wiley qualifies as a drape under the broadest
reasonable interpretation of this term, in light of the Specification.
Appellant goes on to attack each of Macinnes, Reaux, Morris, and
Tomes as failing to remedy the alleged deficiency in Wiley. See Appeal Br.
21–22. Thus, Appellant’s argument is contingent upon the success of the
argument against the Examiner’s findings regarding Wiley and fail for the
reasons discussed above. Appellant again asserts that Reaux fails to disclose
a drape (id. at 21), and this argument fails for the reasons discussed above.
Accordingly, we sustain the rejection of claim 16 and claims 18 and 19
depending therefrom.
Rejections IX and X
Appellant does not make arguments against either of Rejections IX
and X aside from those set forth against Rejection VIII. See Appeal Br. 12–
23. Accordingly, for the same reasons discussed above regarding Rejection
VIII, we sustain Rejections IX and X.

DECISION
We affirm Rejections I–X.

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