13424107 - (D) (P.T.A.B. Apr. 27, 2020)

Sweeney, Shaun

Patent Trials and Appeals BoardApr 27, 2020

13424107 - (D) (P.T.A.B. Apr. 27, 2020)

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. 13/424,107 03/19/2012 Shaun Sweeney 03921-P0013B 2880 24126 7590 04/27/2020 ST. ONGE STEWARD JOHNSTON & REENS, LLC 986 BEDFORD STREET STAMFORD, CT 06905-5619 EXAMINER WITTENSCHLAEGER, THOMAS M ART UNIT PAPER NUMBER 3731 NOTIFICATION DATE DELIVERY MODE 04/27/2020 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): patentpto@ssjr.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte SHAUN SWEENEY Appeal 2019-001377 Application 13/424,107 Technology Center 3700 Before DANIEL S. SONG, CHARLES N. GREENHUT, and LEE L. STEPINA, Administrative Patent Judges. STEPINA, Administrative Patent Judge. DECISION ON APPEAL STATEMENT OF THE CASE Pursuant to 35 U.S.C. § 134(a), Appellant1 appeals2 from the Examiner’s decision to reject claims 39, 40, and 42–52.3 We have jurisdiction under 35 U.S.C. § 6(b). 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 Cygnus Medical, LLC. Appeal Br. 2. 2 Appellant presented arguments during a telephonic hearing conducted on April 2, 2020. 3 The Final Office Action (dated December 28, 2017) indicates that claims 27–38 are allowed, and claim 41 recites allowable subject matter. Final Act. 14. Claims 1–26 have been cancelled. Appeal Br. 13 (Claims App.). Appeal 2019-001377 Application 13/424,107 2 We REVERSE. CLAIMED SUBJECT MATTER The claims are directed to a wrapping protector for sterilization trays. Claim 39, reproduced below with emphasis added, is illustrative of the claimed subject matter. 39. A method of preventing damage of a sterilization pack for surgical instruments, comprising the steps of: providing a tray, said tray having a width, a length, and a depth; placing said surgical instruments inside said tray; wrapping a sterile wrap, in a form of a sheet, around said tray to form said sterilization pack; providing two or more tray belts, each of said two or more tray belts being an elongate member with two ends, said two or more tray belts comprised of a material permeable to sterilizing gases; and securing said two or more tray belts around said sterilization pack by fastening said two ends of said member; wherein a first one of said two or more tray belts extends along and adjacent to a first edge of said sterilization pack and a second one of said two or more tray belts extends along and adjacent to a second edge of said sterilization pack, wherein each of said two or more tray belts also extends adjacent to at least one corner of said sterilization pack, the at least one corners being where three sides of said sterilization pack meet. Appeal Br. 15–16 (Claims App.). REFERENCES The prior art relied upon by the Examiner is: Appeal 2019-001377 Application 13/424,107 3 Name Reference Date Fields US 6,209,723 B1 Apr. 3, 2001 Farrell US 2006/0104856 A1 May 18, 2006 Maguire US 2007/0253864 A1 Nov. 1, 2007 Davis US 2008/0253947 A2 Oct. 16, 2008 Gaynor US 8,261,963 B2 Sept. 11, 2012 Veclro® VELCRO brand BUNDLE TIES 2010 REJECTIONS I. Claims 39, 43, 46, 50, and 52 are rejected under 35 U.S.C. § 103(a) as unpatentable over Maguire, Fields, and Gaynor.4 II. Claim 40 is rejected under 35 U.S.C. § 103(a) as unpatentable over Maguire, Fields, Gaynor, and Davis. III. Claims 42, 44, 48, 49, and 51 are rejected under 35 U.S.C. § 103(a) as unpatentable over Maguire, Fields, Gaynor, and Farrell.5 IV. Claims 45 and 47 are rejected under 35 U.S.C. § 103(a) as unpatentable over Maguire, Fields, Gaynor, and Velcro®.6 4 The Final Office Action provides two different captions listing claims rejected over Maguire, Fields, and Gaynor. See Final Act. 2, 8. 5 The Final Office Action provides two different captions listing claims rejected over Maguire, Fields, Gaynor, and Farrell. See Final Act. 5, 11. 6 The Final Office Action provides two different captions listing claims rejected over Maguire, Fields, Gaynor, and Velcro®. See Final Act. 8, 10. Appeal 2019-001377 Application 13/424,107 4 OPINION Rejection I; Maguire, Fields, and Gaynor The Examiner finds that Maguire discloses many of the elements recited in claim 39, but does not disclose the step of providing at least two belts and that these belts would be permeable to sterilization gas. Final Act. 2–4. The Examiner relies on Fields to teach a method including wrapping a sheet (tool wrap 28) and two belts (loop material 22 and straps 24) around an instrument to form a pack. Id. at 3. The Examiner finds that Fields does not teach that loop material 22 and straps 24 are permeable to sterilization gas. Id. at 4. To address this deficiency, the Examiner finds Gaynor teaches “two belts (106–Fig. 7 A) [attachment means 106] that are comprised of a material permeable to sterilizing gases . . . in order to prevent some areas of a tray from not being sterilized.” Id. (citing Gaynor 12:20–25, 17:22–26). The Examiner reasons it would have been obvious “to have modified the two belts of Maguire, as already modified by Fields, by comprising them of a material permeable to sterilizing as taught by Gaynor in order to prevent some areas of a tray from not being sterilized.” Id. Appellant argues that Gaynor does not disclose that attachment means 106 are permeable to sterilization gasses. See Appeal Br. 8–9. In response, the Examiner finds that lines 20–25 of column 12 of Gaynor disclose that barrier panel 102 is permeable to sterilization gases. Ans. 14. Next, the Examiner finds that column 17, lines 22–26 of Gaynor teach that attachment means 106 and barrier panel 102 are the same material. Id. Therefore, according to the Examiner, Gaynor teaches that attachment means 106 are gas permeable because the material from which attachment means 106 are made is the same as the gas-permeable material from which barrier panel 102 of Gaynor is made. Id. Appeal 2019-001377 Application 13/424,107 5 The Examiner’s finding that attachment means 106 are made from the same material as barrier panel 102 is not supported by a preponderance of the evidence. We reproduce the paragraph from Gaynor cited by the Examiner in support of the finding that barrier panel 102 and attachment means 106 are made of the same material. As another example, the panel attachment means may be a length of fabric such as nonwoven fabric having an end or portion that is stitched, ultrasonically bonded, thermo- mechanically bonded or adhered or adhesively bonded to the barrier panel and having a hook fastener from a hook and loop fastening system joined to the other end. It is contemplated that the barrier fabric itself may function as the loop component of a hook and loop fastening system such as hook and loop fastenings systems available as VELCRO® brand fastener products from Velcro Industries B.V. Other exemplary hook systems may be used such as the hook system described in U.S. Pat. No. 5,315,740 issued to Nestegard which relates to hooks having small dimensions so they engage low cost loop materials such as nonwoven webs. Gaynor 17:17–26. Although this paragraph from Gaynor indicates that attachment means 106 may comprise various materials, we see no indication here, or elsewhere in Gaynor, that the material is the same as the material from which barrier panel 102 is made. Accordingly, the Examiner’s related finding that attachment means 106 are permeable to sterilization gas is not supported by a preponderance of the evidence. Consequently, the Examiner’s proposed combination of the teachings of Maguire, Fields, and Gaynor does not meet all of the limitations recited in claim 39. Therefore, we do not sustain the rejection of claim 39, and associated dependent claims 43, and 50, as unpatentable over Maguire, Fields, and Gaynor. Independent claim 46 and claim 52 depending therefrom also require belts comprising a material permeable to sterilizing gas, and the Examiner Appeal 2019-001377 Application 13/424,107 6 relies on the same findings of fact in support of the rejection of these claims. See Appeal Br. 18 (Claims App.); Final Act. 10. Accordingly, for the same reasons discussed above regarding the rejection of claim 39, we do not sustain the rejection of claims 46 and 52 as unpatentable over Maguire, Fields, and Gaynor. Rejections II–IV; Maguire, Fields, and Gaynor in combination with any of Davis, Farrell, and Velcro® The Examiner’s use of the teachings of Davis, Farrell, and Velcro® does not remedy the deficiency discussed above regarding Rejection I. See Final Act. 5–12. Accordingly, we do not sustain Rejections II–IV. CONCLUSION The Examiner’s rejections are reversed. DECISION SUMMARY Claims Rejected 35 U.S.C. § Basis/References Affirmed Reversed 39, 43, 46, 50, 52 103(a) Maguire, Fields, Gaynor 39, 43, 46, 50, 52 40 103(a) Maguire, Fields, Gaynor, Davis 40 42, 44, 48, 49, 51 103(a) Maguire, Fields, Gaynor, Farrell 42, 44, 48, 49, 51 45, 47 103(a) Maguire, Fields, Gaynor, Velcro® 45, 47 Overall Outcome 39, 40, 42– 52 REVERSED