Ex Parte 6543447 et al

Patent Trial and Appeal Board

Dec 10, 2012

95000161 (P.T.A.B. Dec. 10, 2012)

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.
95/000,161 07/28/2006 6543447 206233-14000-100 7361
16579 7590 12/11/2012
Foster Pepper PLLC
1111 3rd Avenue Suite 3400
Seattle, WA 98101-3299
EXAMINER
FLANAGAN, BEVERLY MEINDL
ART UNIT PAPER NUMBER
3993
MAIL DATE DELIVERY MODE
12/11/2012 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
____________

AIRCRAFT MEDICAL LTD.
Requester and Appellant

v.

VERATHON INC.
Patent Owner, Cross-Appellant, and Respondent
____________

Appeal 2012-007851
Reexamination Control 95/000,161
Patent 6,543,447
Technology Center 3900
____________

Before DANIEL S. SONG, RAE LYNN P. GUEST, and
JOSIAH C. COCKS, Administrative Patent Judges.

GUEST, Administrative Patent Judge.

DECISION ON APPEAL
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Requester Aircraft Medical Inc. (hereinafter “Requester”) appeals under
35 U.S.C. §§ 134(c) and 315(b) the Examiner’s decision to not reject claims 1, 2,
8-16, 19, 20, 26, 27, 31, 32, 34, 35, 37, 40, 41, 51, 91, 99-115, 117, 119, 120, 122,
123, 134-175, 177-183, 185-188, 190-193, 195-203, 205-212, 214-219, 221-224,
226-228, 230, 231, 233, 234, 236, 238, 239, 241-245, 247, 249, 251-260, 263-274,
276-281, 284, 286-288, 290, 292, 294, 296, 299-306, 310, 311, 317-320, 322, 323-
336, 339-348, 350-355, 357, 358, 360-365, 367, 369-374, 376-380, 383-387, 389-
405, 410-414, and 416-418.
1

Patent Owner Verathon Inc. (hereinafter “Patent Owner”) cross-appeals
under 35 U.S.C. §§ 134(b) and 315(a) the Examiner’s decision to reject
claims 322, 375, 428, and 429.
2

We have jurisdiction under 35 U.S.C. §§ 134 and 315.
We heard oral arguments from representatives of the Respondent and Patent
Owner concerning the appeal, but not the cross-appeal, on August 1, 2012, a
written transcript of which was entered into the electronic record on September 25,
2012.
We AFFIRM-IN-PART and enter NEW GROUNDS OF REJECTION.

1
See Requester’s Appeal Brief 2-3 and 6-8 (filed April 23, 2010) (hereinafter
“Req. App. Br.”); Patent Owner’s Respondent Brief ii and 2-3 (filed
May 22, 2010) (hereinafter “Req. Resp. Br.”); Right of Appeal Notice 2-29
(mailed June 5, 2009) (hereinafter “RAN.”).

2
See Patent Owner’s Appeal Brief 4 (filed April 6, 2010) (hereinafter “PO App.
Br.”); Requester’s Respondent Brief 5-15 (filed May 6, 2010) (hereinafter “Req.
Resp. Br.”); RAN 29-33.

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STATEMENT OF THE CASE
United States Patent 6,543,447 (hereinafter the “‘447 Patent”), which is the
subject of the current inter partes reexamination, issued to John A. Pacey as
US 6,543,447 B2 on April 8, 2003. A litigation between Patent Owner and
Requester regarding the ‘447 patent is currently stayed in the United States District
Court for the Northern District of Georgia (Civil Action No. 1:06-cv-01574-JEC)
pending the outcome of this reexamination (PO App. Br. 3; Req. App. Br. 2).
The ‘447 Patent relates to an intubation device, namely an laryngoscope,
with a configuration and arrangement of components that facilitate rapid, safe
placement of the instrument and associated endotracheal tube (Abstract, col. 1,
ll. 16-17, col. 2, ll. 32-35). Claim 1, which is illustrative of the appealed subject
matter, reads as follows (with underlining showing added text and brackets
showing deleted text relative to the original patent claims):
1. An intubation instrument, a portion of which is for
insertion into a patient through the patient’s mouth, the patient having
a respiratory system with an oropharynx, a laryngopharynx, and an
epiglottis, said intubation instrument comprising:
a body having a handle attached thereto;
an elongate arm having an elongate base portion operably
secured to said body at one end and an elongate lifter portion
extending from said elongate base portion toward an opposite end of
said elongate base portion thereby defining an angle between said
elongate base portion and said elongate lifter portion,
said elongate base portion having a first defined length, said
first defined length being long enough to extend through the patients
mouth into the patient’s ompharynx;
said elongate lifter portion having[;]:
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a distal end for insertion distal-end first through a
patient’s mouth[;]
a second defined length, said angle being sufficiently
small and said second defined length being long enough to
extend into the laryngopharynx and operably engage the
epiglottis of the [patent] patient when the elongate base portion
is extended into the patient’s oropharynx and the patient is in a
sniffing position;[,] and,
a smooth surface for engaging the patient’s epiglottis;
and
a camera secured to the lifter and positioned to capture a
view of the entire laryngopharynx.
(PO App. Br., Claims App’x. 2; Req. App. Br., Claims App’x 1.)

I. PATENT OWNER’S CROSS-APPEAL
On cross-appeal, Patent Owner contests the Examiner’s decision to reject the
claims as follows:
3

I. Claim 375 under 35 U.S.C. § 112, first paragraph, as failing to comply
with the written description requirement;
II. Claims 428 and 428 under 35 U.S.C. § 314 as enlarging the scope of
the claims of the patent being examined.
4

3
Patent Owner does not contest the remaining rejections of claims 116, 176, 240,
246, 321, 359, 368, 407-409, and 415 maintained by the Examiner as set forth in
the RAN (PO App. Br. 4).

4
Patent Owner also contests the Examiner’s objection to claim 322 as being
duplicative of claim 321 (PO App. Br. 4 and 16). Patent Owner cancelled
claim 321 in an Amendment filed along with Patent Owner’s Appeal Brief on
April 6, 2010. Respondent Acknowledges the filing of the April 6, 2010
Amendment (Req. Resp. Br. 3 and 12). However, the Examiner does not mention
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35 U.S.C. § 112 1
st
PARAGRAPH REJECTION – CLAIM 375
Rejection I
Issue
The issue with respect to Rejection I is:
Did the Examiner err in determining that the Specification of the ‘447 patent
lacks written descriptive support for a camera having temperature equilibration for
preventing fog or condensation?
Discussion
Claim 375 states “The intubation instrument of Claim 325 wherein the
camera is unslideably positioned in a sealed chamber substantially near where said
elongate base portion meets said elongate lifter portion of the elongate arm; and
having temperature equilibration for preventing fog or condensation.”
Regarding claim 375, the Examiner found that there was no written
description support for the limitations of a camera having “temperature
equilibration” in claim 375 (RAN 30). The Examiner found that Patent Owner’s
reliance on the temperature equilibration of a transparent sheath reaching
equilibrium with an airway temperature does not support a limitation that the
camera reaches an equilibrium temperature. (RAN 30, incorporating Requester
Comments of May 22, 2009, at p. 4-5).

the Amendment in the Examiner’s Answer (mailed June 6, 2011) (hereinafter
“Ans.”) or the Response to Rebuttal Briefs (mailed April 5, 2012) and the record
shows no indication that the Amendment has been entered. We do not have
jurisdiction to make a determination on this issue. Therefore, the Examiner’s
objection, as well as the entry of the Amendment dated April 6, 2010, is properly
addressed by way of petition. See MPEP § 1201; see also Ex Parte Frye, 94
USPQ2d 1072, 1077-78 (BPAI 2010) (precedential). Our decision rendered herein
is not affected by the duplicity of claims 321 or 322.
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Patent Owner contends that “equilibration of the sheath (which covers the
lens) amounts to the same thing as equilibration of the camera” as it is
“[e]quilibration of the structure that is tightly fitted to the lens of the camera . . . for
preventing fog or condensation” (PO App. Br. 11.). Patent Owner points to
portions of the Specification in which the sheath preferably contains nitrogen to
protect the camera and in which a preferred version of the invention has the sheath
“tightly fitted over the lens of the camera” (id.) (citing ‘447 patent, col. 9, ll. 8-22).
As pointed out by Patent Owner, we note that claim 375 depends from claim
325, which depends from claim 31. Though claims 325 and 375 recite that the
camera is “positioned in a sealed chamber” in an unslidable or secured manner, the
claims do not require that the sealed chamber be a tightly fitted sheath, as relied
upon by the Patent Owner for alleged support. We find that the scope of the
‘447 patent encompasses embodiments in which the sealed chamber is not a tightly
fitted sheath. Accordingly, even if there is support for “temperature equilibration”
in cameras sealed by at tightly fitted sheath, as argued by Patent Owner, the
Specification of the ‘447 patent does not convey to the skilled artisan that that the
inventor had possession of temperature equilibration of all sealed cameras. See In
re Kaslow, 707 F.2d 1366, 1375 (Fed.Cir.1983) ("The test for determining
compliance with the written description requirement is whether the disclosure of
the application as originally filed reasonably conveys to the artisan that the
inventor had possession at that time of the later claimed subject matter.”).
Accordingly, we affirm the Examiner’s rejection of claim 375 as failing to
comply with 35 U.S.C. § 112, first paragraph.
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35 U.S.C. § 314 REJECTION – CLAIMS 428 AND 429
Rejection II
Issue
The issue with respect to Rejection II is:
Did the Examiner err in determining that claims 428 and 429 enlarge the
scope of the original claims of the ‘447 patent?
Discussion
The Examiner determined that claims 428 and 429 enlarge the scope of the
claims of the patent being reexamined (RAN 30-31).
Patent Owner contends that the Examiner erred by comparing claims 428
and 429 to amended claim 34, rather than comparing claim 428 to original
claim 34 and comparing claim 429 to original claim 40, respectively (PO App.
Br. 12-16). Patent Owner includes side-by-side comparisons of the claim
language of original claims 34 and 40 as compared to pending claims 428 and 429,
respectively (PO App. Br. 13-15; PO Reb. Br. 2-4).
Requester does not contest the Patent Owner’s arguments in its Respondent
Brief (Req. Resp. Br. 9 and 11).
Upon review of original claim 34 and original claim 40, we agree with
Patent Owner that the Examiner erred in determining that claims 428 and 429
enlarge the scope of the original claims. We share Patent Owner’s view that the
Examiner’s rejection is predicated on incorrect claim comparisons. Claim 428
appears to include all the limitations of original claim 34 and additional narrowing
language and claim 429 appears to include all the limitations of original claim 40
and additional narrowing language.
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Accordingly, we reverse the Examiner’s rejection of claims 428 and 429 as
failing to comply with 35 U.S.C. § 314.

II. REQUESTER’S APPEAL
On appeal, Requester contests the Examiner’s decision not to reject the
claims as follows:
5

I. Claims 26, 34, 35, and 134 under 35 U.S.C. § 102(b) as anticipated by
Bellhouse;
6

II. Claims 1, 2, 8, and 9 under 35 U.S.C. § 102(b) as anticipated by
Wood;
7

III. Claims 1, 2, 8-16, 19, 26, 27, 31, 34, 35, 40, 91, 99, 100-102, 107-
115, 117, 119, 120, 122, 123, 134, 137, 139, 140, 142-144, 146, 150-156,
160, 161, 163-168, 177-179, 181, 183, 186-188, 193, 196, 197, 202, 203,
205, 206, 210, 212, 214, 231, 233, 238, 273, 274, 276, 278-280, 303-305,
310, 319, 324, 325, 328-334, 336, 340-344, 348, 350-355, 357, 358, 360,
364, 365, 367, 369, 373, 374, 376-378, 380, 384, 387, 389, 393-395, 410,
411, 414, and 416-418 under 35 U.S.C. § 103(a) as unpatentable over
Bellhouse in view of Wood;
IV. Claims 37 and 149 under 35 U.S.C. § 103(a) as unpatentable over
Berall
8
in view of Bellhouse;

5
We rely on the April 7, 2011, Decision Granting Petition and address on appeal
the Examiner’s decision not to adopt Requester’s proposed rejections.

6
GB 2 086 732 A, published May 19, 1982 (hereinafter “Bellhouse” or “GB
‘732”).
7
US 5,800,344, issued September 1, 1998 (hereinafter “Wood”).
8
US 5,827,178, issued October 27, 1998 (hereinafter “Berall”).
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V. Claims 157, 169, 180, 190, 199, 207, 215, 218, 219, 221, 277, 281,
284, 286, 287, 306, 311, 317, 318, 320, 339, 345, 361, 370, 385, 390, 398,
399, and 400 (adding a viewer and a display) under 35 U.S.C. § 103(a) as
unpatentable over Bellhouse in view of Wood and Berall;
VI. Claims 41, 51, 103-106, 135, 136, 141, 159, 171-173, 175, 182, 192,
201, 209, 211, 239, 241-244, 247, 249, 252-255, 257-259, 264, 327, 347,
363, 372, 386, 392, and 413 (adding a sheath) under 35 U.S.C. § 103(a) as
unpatentable over Bellhouse in view of Wood and Williams;
9

VII. Claims 148, 234, and 236 (adding a receiver and network for
endoscope display) under 35 U.S.C. § 103(a) as unpatentable over Bellhouse
in view of Wood and Kantor;
10

VIII. Claims 145, 158, 170, 191, 200, 208, 223, 224, 226, 227, 230, 335,
346, 362, 371, 379, 391, 396, and 402-405 (adding a display for vital signs)
under 35 U.S.C. § 103(a) as unpatentable over Bellhouse in view of Wood
and Wimmer;
11

IX. Claims 138, 267-271, 288, 290, 294, 300, 326, 383, and 412 (adding a
gas filled chamber for protection of cameras) under 35 U.S.C. § 103(a) as
unpatentable over Bellhouse in view of Wood and Wind;
12

X. Claims 217, 263, and 266 under 35 U.S.C. § 103(a) as unpatentable
over Bellhouse in view of Berall and Williams;
XI. Claim 216 under 35 U.S.C. § 103(a) as unpatentable over Bellhouse in
view of Berall and Wimmer;

9
US 5,413,092, issued May 9, 1995 (hereinafter “Williams”).
10
WO 91/04703, published April 18, 1991 (hereinafter “Kantor”).
11
US 5,473,536, issued December 5, 1995 (hereinafter “Wimmer”).
12
US 4,113,137, issued September 12, 1978 (hereinafter “Wind”).
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XII. Claims 245, 251, 256, 260, 265, and 397 under 35 U.S.C. § 103(a) as
unpatentable over Bellhouse in view of Wood, Berall and Williams;
XIII. Claims 222, 228, and 401 under 35 U.S.C. § 103(a) as unpatentable
over Bellhouse in view of Wood, Williams, and Wimmer;
XIV. Claim 323 under 35 U.S.C. § 103(a) as unpatentable over Bellhouse in
view of Wood, Williams, and Wind;
XV. Claims 272, 292, 296, 299, 301, and 302 under 35 U.S.C. § 103(a) as
unpatentable over Bellhouse in view of Wood, Berall and Wind;
XVI. Claims 20 and 32 (adding LED as light source) under 35 U.S.C.
§ 103(a) as unpatentable over Wood in view of Bellhouse and Levin;
13

XVII. Claims 147, 162, 174, 185, and 195 (adding a heater to prevent fog)
under 35 U.S.C. § 103(a) as unpatentable over Bellhouse in view of Wood
and Parker;
14

XVIII. Claims 19, 26, and 31 (and the claims that depend therefrom) under
35 U.S.C. § 314 for having enlarged the scope of the claims;
XIX. Claims 19, 26, 31, 34, 41, 51, 103, 106, 148, 135, 147, 149, 156, 157,
159, 162, 168, 169, 171, 174, 179-182, 185, 190, 192, 195, 197-199, 201,
206, 207, 209, 211, 215, 217, 222, 228, 242, 244, 245, 251, 253, 255-257,
259, 260, 263, 265, 266, 269, 272, 274, 276-278, 281, 284, 286, 287, 292,
296, 299-303, 306, 310, 311, 317- 320, 324, 327, 339, 341, 345, 347, 361,
363, 370, 372, 384-386, 389, 390, 392, 397, 401, and 413, under § 112, first
paragraph as failing to provide written descriptive support;

13
US 5,676,635, issued October 14, 1997 (hereinafter “Levin”).
14
US 5,845,634, issued December 8, 1998 (hereinafter “Parker”).
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XX. Claims 1, 19, 26, 31, 100, 143, 145, 146, 158, 161, 170, 173, 191,
200, 203, 208, 212, 216, 219, 224, 231, 234, 242, 243, 249, 254, 258, 265,
267-272, 279, 284, 286, 290, 294, 299-301, 304, 310, 311, 317, 319, 320,
324, 330, 335, 336, 346, 348, 355, 362, 365, 371, 373, 377, 379, 380, 384,
387, 391, 393, 396, 398, and 402 under § 112, second paragraph as
indefinite;
XXI. Claim 134 under 35 U.S.C. § § 112, fourth paragraph for failing to
further define claim 26;
XXII. Claims 165 and 153 under 37 C.F.R. §1.75 as being duplicative; and
XXIII. All the pending claims added by amendment on the grounds of
multiplicity.

In addressing the claims on appeal, we find it necessary to address only
proposed Rejections I, II, III, IV, VI, and XVIII.

Requester relies on the following evidence:
Declaration of Samsun Lampotang executed September 10, 2007 (Ex. 9,
Req. App. Br.) (hereinafter “Lampotang Decl.”).
Declaration of David Bowie executed September 9, 2007 (Ex. 10, Req. App.
Br.) (hereinafter “Bowie Decl.”).
Declaration of Christopher Paul Bellhouse executed September 7, 2007 (Ex.
11, Req. App. Br.) (hereinafter “Bellhouse Decl.”).
Declaration of John J. Henderson executed September 5, 2007 (Ex. 12, Req.
App. Br.) (hereinafter “Henderson Decl.”).
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Declaration of Brian Blandford executed September 8, 2007 (Ex. 13, Req.
App. Br.) (hereinafter “Blandford Decl.”).

The Patent Owner relies on the following responsive evidence:
Declaration of Jan Hemstad executed July 28, 2007 (Ex. 1, PO Resp. Br.)
(hereinafter “Hemstad Decl.”).
Declaration of Noor Gajraj executed July 27, 2007 (Ex. 2, PO Resp. Br.)
(hereinafter “Gajraj Decl.”).
Declaration of Ron Walls executed June 27, 2007 (Ex. 3, PO Resp. Br.)
(hereinafter “Walls Decl.”).
Declaration of John A Pacey executed June 28, 2007 (Ex. 4, PO Resp. Br.)
(hereinafter “Pacey Decl.”).
Declaration of Nathan Craft executed July 31, 2007 (Ex. 30, PO Resp. Br.)
(hereinafter “Craft Decl.”).
Declaration of John C. Jarosz (undated) (Ex. 32, PO Resp. Br.) (hereinafter
“Jarosz Decl.”).
Patent Owner also relies on evidence of secondary considerations presented
in Exhibits 5-29, 31, 33, 35-45 and 55 of the Appeal Brief.

35 U.S.C. § 314 REJECTION – ENLARGED SCOPE
Rejection XVIII – Claims 19, 26, 31 and the claims that depend therefrom
Issue
The issue with respect to Rejection XVIII is:
Did the Examiner err in determining that Patent Owner’s amendment to
claims 19, 26 and 31 did not enlarge the scope of the original claims of the
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‘447 patent, where the original claims were amended as follows “said elongate
lifter portion . . . extending from said elongate base portion by at least about a [5]
30 degree angle from horizontal when said handle is oriented vertically” (with
underlining show additions and brackets showing deletions)?
Discussion
“A patentee is not permitted to enlarge the scope of a patent claim during
reexamination . . . Whether amendments made during reexamination enlarge the
scope of a claim is a matter of claim construction . . . . In so doing, we must
analyze the scope of the claim prior to reexamination and compare it with the
scope of the claim subsequent to reexamination.” Creo Products, Inc. v. Presstek,
Inc., 305 F.3d 1337, 1344 (Fed. Cir. 2002) (internal citations omitted).
“A [reexamined] claim that is broader in any respect is considered to be
broader than the original claim even though it may be narrower in other respects.”
In re Freeman, 30 F.3d 1459, 1464 (Fed. Cir. 1994). During reexamination, as
with a reissue application, a claim “is broader in scope than the original claims if it
contains within its scope any conceivable apparatus or process which would not
have infringed the original patent.” Id.
During reexamination, Patent Owner amended claims 19, 26, and 31 from
language that recited at least a 5 degree angle between an elongate lifter and an
elongate base to language that recites at least about a 30 degree angle between the
elongate lifter and “the horizontal” when the handle is oriented vertically. In other
words, the claim now references an angle with respect to a line perpendicular to the
handle of the laryngoscope, irrespective of the angle of the elongate lifter to the
elongate base.
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We cannot agree with the Requester that the scope of the amended claim is
ambiguous with respect to the terms “horizontal” and “vertical.” Though these
terms are not defined in the claims, it is clear on the face of the language that the
terms reference a direction that is perpendicular to or 90 degrees from the handle.
Likewise, we cannot agree that the amended claim lacks written descriptive
support. For example, Figure 7 of the ‘447 patent describes angle 208, which is an
angle between the elongate lifter 204 and both the elongate base 202 and a line
perpendicular to the handle 24 since the elongate base 202 is disposed
perpendicular to the handle 24. Accordingly, the same angle 208 provides support
for both the originally claimed angle and the amended angle.
Nonetheless, the amendment reflects a change in scope and broadening in
one respect, from the original claims. Requester presents at least one conceivable
embodiment which is encompassed by the amended claims that is not encompassed
by the original claims, namely it encompasses a structure in which an elongate
lifter is at an angle that is at least 30 degrees with respect to a line perpendicular to
a handle, but has no perceivable angle between the elongate base and the elongate
lifter (Req. App. Br. 32-34). We agree with Requester that such a structure is a
conceivable configuration that is encompassed by the amended claims which
would not have infringed the original claims. Moreover, we find that any structure
in which an elongate lifter is at an angle that is at least 30 degrees with respect to a
line perpendicular to a handle, but has an angle up to 5 degrees between the
elongate base and the elongate lifter would also fall outside of the scope of the
original claims.
Although we note that original independent claims 34 and 40 describe no
angle necessary between the elongate lifter and the elongate base, amended
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claims 19, 26, and 31 further lack limitations arising in these original claims and
are thus broader in scope than the original claim. For example, none of claims 19,
26, and 31 require that the viewer be secured to a posterior side of the elongate
arm, as does original claims 34 and 40. We also note that original claim 1
required only “defining an angle between said elongate base portion and said
elongate lifter portion.” Yet, claims 19, 26 and 31 fail to include a requirement
that the elongate base portion have a defined length long enough to extend through
the patient’s mouth into the patient’s oropharynx,
15
as recited in original claim 1.
Thus, claims 19, 26, and 31 are still broader than all of the original claims of the
‘447 patent.
Patent Owner argues that a straight blade as argued by Requester, i.e.
having no angle between the elongate base and the elongate lifter, is disavowed in
the ‘447 patent because it cannot provide a clear view (PO Res. Br. 13) (citing
col. 2, ll. 1-31). Patent Owner further contends that the only reasonable and
consistent interpretation of the language at issue is a narrower limitation requiring
both the horizontal to elongate lifter angle and the elongate base to elongate lifter
angle to be at least 30 degrees (id.).
Patent Owner’s arguments are not persuasive because, as discussed above,
the change in scope is expanded to include not only straight blades, but also any
blade with an elongate base to elongate lifter angle of up to 5 degrees. Patent

15
Claims 19 and 26 are silent as to any length requirements for the elongate base.
Claim 34 recites that the elongate base has a defined length that is “about as long
as” the length of the elongate lifter, but is not limited to a structure with any
particular length for an elongate base and does not require that the defined length
of the elongate base function as recited in original claim 1.
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Owner makes no argument that laryngoscopes having the full range of the enlarged
scope are disavowed.
Moreover, the claims, not the specification, measure the protected patent
right to exclude others. Novo Nordisk of North America Inc. v. Genentech Inc., 77
F.3d 1364, 1369 (Fed. Cir. 1996). Patent Owner directs us to no language in the
claims that constitutes a disavowal of straight-bladed devices, only to the content
of the Specification discussing some perceived deficiencies arising from the use of
such devices. While the claims must be read in view of the specification of which
they are a part, Phillips v. AWH Corp., 415 F.3d 1303, 1315 (Fed. Cir. 2005),
Patent Owner has asked us to harmonize the Patent Owner’s narrow interpretation
with the Specification, rather than with the claim language itself. We decline to do
so when it is the Patent Owner’s burden to precisely define the invention in the
claims. See In re Morris, 127 F.3d 1048, 1056 (Fed. Cir. 1997) (citing 35 U.S.C.
§ 112 ¶ 2 (“The specification shall conclude with one or more claims particularly
pointing out and distinctly claiming the subject matter which the applicant regards
as his invention.”) (emphasis added)). Patent Owner has also provided no reason
or evidence as to why a skilled artisan would have interpreted the 30 degree angle
of the amended claims to reference both the elongate base to elongate lifter angle
and the horizontal to elongate lifter angle.
Requester further contends that the additional limitations added by the
claims that depend from claims 19, 26, and 31 “do not affect the angle between the
elongate base portion and the elongate lifter portion, their lengths, or the camera”
as argued by Requester (Req. App. Br. 34). As Patent Owner’s arguments are
directed to the interpretation of claims 19, 26, and 31, Patent Owner fails to direct
us to any of the claims that depend from claims 19, 26, and 31 which include the
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scope missing from the original claims of the ‘447 patent so as to demonstrate that
at least those dependent claims do not broaden the claim scope.
Thus, in view of the above, the Examiner’s refusal to adopt the Requester’s
proposed rejection of claims 19, 26, and 31 and the claims that depend therefrom
16

as having an enlarged scope over the original claims of the ‘447 patent is
REVERSED and denominated as a NEW GROUND OF REJECTION pursuant to
our authority under 37 C.F.R. § 41.77(a) & (b).

ANTICIPATION REJECTION – BELLHOUSE
Rejection I – Claims 34 and 35
Issue
The issue with respect to Rejection I is:
Does Bellhouse describe an intubation instrument having a viewer that is
“able to provide a clear perspective view of an entire laryngeal area even when . . .
the patient’s oral and laryngeal axes are substantially perpendicular,” as recited in
claims 34 and 35?
Claim Interpretation
Patent Owner contends that Bellhouse fails to teach a “clear perspective
view of an entire laryngeal area even when . . . the patient’s oral and laryngeal
axes are substantially perpendicular” (PO Resp. Br. 6-7). Patent Owner contends

16
The claims that depend from claims 19, 26, and 31 include claims 20, 27, 32, 91,
99, 100, 102-117, 119, 120, 122, 123, 134-183, 185-188, 190-193, 195-203, 205-
212, 214-219, 221-224, 226-228, 230, 231, 233, 234, 236, 238-247, 249, 251-260,
263-274, 276-281, 284, 286-288, 290, 292, 294, 296, 299-306, 310, 311, 317-320,
322-336, 339-348, 350-355, 357-365, 367-380, 383-387, 389-405, and 407-418.
For reference, the remaining pending claim that are not included in this rejection
are claims 1, 2, 8-16, 34, 35, 37, 40, 41, 51, 428 and 429.
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that the Bellhouse does not teach a laryngoscope that “could be used at all when
the patient’s oral and pharyngeal axes are substantially perpendicular” (PO Resp.
Br. 7). In order to assess Patent Owner’s contention, we have to first consider the
meaning of the following phrases recited in claim 34: “clear perspective view,”
“entire laryngeal area,” and “patient’s oral and laryngeal axes are substantially
perpendicular.”
Patent Owner contends that the term “perspective view” is equivalent to a
“panoramic view” (PO Resp. Br. 7) (citing the Gajraj Decl. ¶¶ 5-6). However, the
portions of the Gajraj Declaration pointed to by the Patent Owner in support of that
contention do not reference the term “perspective view” as it is used in the claims,
much less establish that the noted terms carry the same meaning.
The ‘447 patent does not provide an express definition for the term
“perspective view.” The portions of the Specification of the ‘447 patent that
reference a “perspective view” describe the positioning of a viewing device,
preferably a camera, near the transition between the base and lifter portions and
that it is “aligned to provide a perspective view toward the distal end 210 of the
lifter portion 204” and that positioning the camera away from the distal end of the
lifter portion “provides the user with a clear perspective view of the entire area”
(‘447 patent, col. 8, ll. 7-34; see also col. 2, ll. 42-49).
We find two definitions of the term “perspective” that appear to be relevant
including “a visible scene; especially: one giving a distinctive impression of
distance: vista” and “the appearance to the eye of objects in respect to their relative
distance and positions.”
17
We, however, do not discern that a “panoramic view”

17
See http://www.merriam-webster.com/dictionary/perspective (senses 3a and 4).

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conveys a view that is one of relative distance and direction.
18
We thus disagree
that the terms “perspective view” and “panoramic view” are equivalent. However,
where a perspective view is of “an entire area,” namely the “entire laryngeal area”
in claim 34, the term “perspective view” does appear to be equivalent with a
panoramic view, i.e., one that is a “complete view of an area in every direction.”
Accordingly, we must determine what is the “entire laryngeal area,” as this
term is also not expressly defined or even used in the ‘447 patent. The ‘447 patent
defines the “larynx 42” as the area “adjacent to the vocal chords 44” as illustrated
in Figures 6, 8, 10, 11a, and 11b. Figure 6 of the ‘447 patent is reproduced below
for reference.

Figure 6 of the ‘447 patent depicts a side view of a laryngoscope shown
inserted into the mouth of a human patient (col. 3, ll. 34-35 and col. 4, ll. 7-9).

18
“Panorama” is defined as “an unobstructed or complete view of an area in every
direction. See http://www.merriam-webster.com/dictionary/panoramic (sense 2a).
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The ‘447 patent states that the camera is oriented vis-à-vis the endotracheal
tube 38 such that “the advancing, leading end 38 of the [endotracheal] tube [40]
remains in the field of view of the telescope [82] (as does the glottis [36])” (col. 6,
ll. 29-36). The ‘447 patent states that “this relative positioning of the telescope
end 82 and tube end 38 greatly enhances viewing of the advancing tube as
compared to instruments that went before” (col. 6, ll. 42-45).
Neither Patent Owner nor Requester proposes a definitive meaning to the
term “entire laryngeal area.” Patent Owner references the laryngopharanx 32c in
Figure 6 above as support for the phrase “entire laryngeal area” (PO Resp. Br. 1-2).
Requester, in describing how the Bellhouse reference meets this limitation, notes
that it permits a view of “the larynx and associate structures” (Req. App. Br. 10).
We find that the ordinary meaning of the term “laryngeal area” would
reasonably consist of the area around the larynx 42 and glottis 36,
19
but would
not extend to additional anatomical structures that are positioned away from the
larynx 42 and vocal cords 44, such as the larngopharanx 32c.
Finally, the ‘447 patent only describes two positions of a patient’s head. The
first position is understood to be the “sword swallowing position,” that is when the
patient’s head is physically manipulated with the head back and the chin elevated
to provide “as straight of a path for receiving the laryngoscope as possible” (col. 1,

19
In the ‘447 patent, the positioning of reference numeral 36 (i.e. the glottis)
suggests that the glottis is the open space where the larynx 42, oral cavity 30, the
pharanx 32 (nasal passageway) and the esophagus 43 intersect. We note that most
medical dictionaries, however, refer to the glottis as the open space between the
vocal chords, which would reflect an area positioned well within the larynx 42.
See e.g., http://www.online-medical-dictionary.org/definitions-g/glottis.html (“The
vocal apparatus of the Larynx, situated in the middle section of the Larynx”)
(emphasis added).
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ll. 61-66). The ‘447 patent describes a second position that is “recumbent, face-
up, with head tipped slightly backwardly, supported in what is known as the
sniffing position” (col. 4, ll. 5-9).
We also note that Figure 6 illustrates a position that is different from that
of Figures 8, 10, 11A and 11B. In Figure 6, the patient’s nose is substantially
parallel to the larynx 42 and esophagus 43 and the patient’s chin is almost
completely on the top of the image. Figure 6, thus, appears to depict the “sword
swallowing position” or a position close thereto since the oral cavity 30 and the
larynx 42 are aligned.
In Figure 8 (reproduced below side-by-side with Figure 6 for comparison) as
well as Figures 10, 11A and 11B, however, the patient’s nose and chin are both on
the top of the image and the oral cavity 30 and the larynx 42 are not aligned.

Figure 8 of the ‘447 patent depicts a side, elevation view of a second
embodiment of a laryngoscope shown inserted into the mouth of a patient (col. 3,
ll. 39-40).
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Thus, the images of Figures 8, 10, 11A and 11B appear to illustrate the
“sniffing position” or a position close thereto.
Though Patent Owner’s experts identify a third “neutral” position (see Walls
Decl. ¶ 9 and Hemstad Decl. ¶ 10), the ‘447 patent is silent as to any positioning of
the patient in which the head is not tilted at least slightly backwards. Accordingly,
a position in which a “patient’s oral and laryngeal axes are substantially
perpendicular,” as recited in claim 34, must mean a position other than the sword
swallowing position in which the oral cavity and larynx are generally aligned, such
substantially perpendicular position including the sniffing position of Figures 8,
10, 11A and 11B.
Discussion
Patent Owner contends that Bellhouse fails to teach a “clear perspective
view of an entire laryngeal area even when . . . the patient’s oral and laryngeal
axes are substantially perpendicular” because Bellhouse only describes “direct
laryngeal” viewing, which requires “substantial axial alignment” (PO Resp. Br. 7)
(citing Bellhouse, Figure 9). However, the evidence does not support a position
that Bellhouse cannot be used without substantial axial alignment.
Figures 9 and 17 of Bellhouse illustrate using the laryngoscope on a patient
having generally perpendicular oral and pharyngeal axes, similar to that patient
orientation of Figure 8 of the ‘447 patent (Figs. 9 and 17, p. 2, ll. 98-100 and 120-
123). Bellhouse teaches a laryngoscope for a situation in which an anesthetist will
not be able to manipulate the patient’s head sufficiently into a sword swallowing
position due to “gross anatomical abnormalities” (p. 1, ll. 28-38 and p. 2, ll. 16-21).
Patent Owner’s evidence is particularly directed to the need for aligned axes in
direct laryngoscopy, which is the condition that Bellhouse attempts to overcome.
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Patent Owner’s cited evidence does not appear to support the position that
Bellhouse is not enabled for a laryngoscope that may be used in a position where
the axes are not aligned.
As to the view achieved by the laryngoscope of Bellhouse, the Patent Owner
states that “[a]ll laryngoscopes permit visualization of the larynx and associated
structures.” (PO Resp. Br. 6). We find that no more is necessary to meet the
requirement of “a perspective view of the entire laryngeal area.”
However, claim 34 requires that the recited “viewer” be capable of
providing the recited perspective view. When using the prism 10, i.e., the
“viewer” of claim 34, Bellhouse teaches that “[t]he low profile of the distal or
leading end 11 of the prism 10 precludes the possibility of a panoramic view of the
glottis but permits visualization of sufficient structures to allow orientation and
intubation even in patients with gross abnormality” (Bellhouse, p. 3, ll. 62-68).
Thus, we agree with Patent Owner that Bellhouse’s prism, in fact, does not provide
a “perspective view of the entire laryngeal area.” As discussed above a panoramic
view of the glottis is included in a perspective view of the entire laryngeal area.
We do not find the Patent Owner’s additional evidence suggesting a similar
problem with using a prism on the BelScope, a commercial embodiment of
Bellhouse, particularly relevant as it is only one embodiment of the Bellhouse
teaching. Likewise, we do not find Respondent’s additional evidence from optics
expert, Dr. Blanford, as to the field of view of prisms in general to be relevant, as it
fails to address viewing the prism in light of the particular anatomical features of a
patient during intubation.
Accordingly, we agree with the Examiner’s decision not to reject claims 34
and 35 as anticipated by Bellhouse.
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ANTICIPATION REJECTION – WOOD
Rejection II – Claims 1, 2, 8, and 9
Issue
The issues with respect to Rejection II are:
Does Wood describe an intubation instrument having an elongate arm
having an elongate base portion and an elongate lifter portion in which an angle
therebetween is sufficiently small and the elongate lifter is long enough to operably
engage the epiglottis when a patient is in a “sniffing position,” as recited in
claim 1?
Does Wood describe an intubation instrument having a camera positioned to
capture “a view of the entire laryngopharynx,” as recited in claim 1, and “aligned
to provide a perspective view directed toward the distal end of said elongate lifter
portion,” as recited in claim 2?
Does Wood describe an intubation instrument having a display remotely
connected to a camera, as recited in claim 9?
Claim Interpretation
As discussed above with respect to Figure 8, the ‘447 patent defines a
“sniffing position” as a position in which a patient is recumbent, face-up, with the
head tipped slightly backwardly (col. 4, ll. 5-9; Figure 8).
Claim 1 recites that the camera captures “a view of the entire
laryngopharynx.” Referring to, for example, Figures 6 and 8 above, the
‘447 patent states that when the laryngoscope of the ‘447 patent is inserted, the
distal end of the endotracheal tube 40 resides in the laryngopharynx 32c (col. 4,
ll. 11-19). The instrument is designed for the “telescopically observed advance of
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the leading end 38 of an endotracheal tube 40 through the glottis 36, into the
larynx 42 adjacent the vocal chords” (col. 4, ll. 22-25). Reviewing Figure 6, we
note that the location of end 38 of tube 40 is closer to the oral cavity than the
larynx (see Fig. 6). Accordingly, we determine that the camera of claim 1 must be
positioned to have a view that encompasses the entire laryngopharynx, which is an
area closer to the oral cavity than the larynx.
Claim 2 recites that the camera is “aligned to provide a perspective view
directed toward the distal end of said elongate lifter portion.” Claim 2 depends
from claim 1, so this camera view is in addition to the camera view of claim 1 that
includes the “entire laryngopharynx.” Relying on the common meaning of
“perspective view” discussed above as one of relative distance and direction, claim
2 requires a relative view in the direction of the distal end of the elongate lifter
portion. In other words, the limitation of claim 2 is a limitation of direction and
not of scope of the camera view.
Claim 9 recites that a display for viewing video output from the camera is
“remotely connected” to the camera. Patent Owner contends that a “remote”
connection must be interpreted as a wireless connection (PO Resp. Br. 9 and 11).
Requester contends that a remote connection requires only that the connected
display be “external” to the camera (Req. App. Br. 11). The ‘447 patent states that
the display 218 may be detached from or attached to the instrument (col. 9, ll. 3-5).
The ‘447 patent describes that the display 218 is operably connected to the camera
80’ either by a direct (FIG. 11B) or remote (FIG. 11A) connection (col. 8, ll. 56-
58). Remote connections include via a transmitter 222, infrared technology,
Bluetooth, or the like (col. 8, ll. 58-66). The term “remote” generally means
“situated at some distance away,” and it the broadest sense does not generally
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mean wireless. For example, a TV “remote control,” though generally known as
wireless, would nonetheless be called such if it controlled the operation of a TV
from a distance via a wire. Thus, a skilled artisan would not ordinarily understand
the term “remotely connected” to be limited to a wireless connection.
However, since the ‘447 patent distinguishes a “remote” display from a
wired connection “direct” display, even though the “direct” display of Figure 11B
is placed far away from the camera, the ‘447 patent requires more than just
distance to be “remotely connected.” Thus, it would be inconsistent with the
specification of the ‘447 patent to conclude that a “remote connection”
encompasses a wired display positioned away from the camera. “While the Board
must give the terms their broadest reasonable construction, the construction cannot
be divorced from the specification and the record evidence.” In re NTP, Inc., 654
F3d 1279, 1288 (Fed. Cir. 2011) (citing In re Suitco Surface, 603 F.3d 1255, 1259
(Fed. Cir. 2010).
Discussion
Requester explains that Wood teaches a laryngoscope having a body and
handle, with the body having an elongate arm having an elongate base portion and
an elongate lifter portion, having a smooth surface and defining an angle with the
elongate base portion (Req. App. Br. 13). Requester explains that the elongate
base is long enough to extend into the patient’s oropharynx and that the elongate
lifter portion is for insertion distal-end first through a patient’s mouth and a camera
secured to the lifter (id.). Patent Owner does not persuasively demonstrate any
error in these findings (see PO Resp. Br. 9), and we find that the Requester has
properly cited to Wood in support thereof.
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Patent Owner contends that the laryngoscope of Wood would only be
suitable for use when the head and neck is in the sword swallowing position (PO
Resp. Br. 9). Wood is silent about the necessary positioning of the patient upon
using the device. Patent Owner’s experts indicate that the straight blade of Wood
is typical of those designed for direct viewing of the larynx, a practice which
requires the sword swallowing position (see Hemstad Decl. ¶¶ 3-4 and 10; Pacey
Decl. ¶¶ 10 and 29). Dr. Garjaj testified that laryngoscopes designed for indirect
insertion generally have approximately a 90° angle and an additional viewing
mechanism, generally placed at the tip of the blade (Garjaj Decl. ¶¶ 23-24).
However, even accepting that an operator would not be able to directly view the
larynx when the patient is not in an ideal alignment, Patent Owner has not directed
us to persuasive evidence that a straight blade could not have been inserted and
operated (i.e., move the epiglottis out of the way to create a path to the larynx)
when a patient is in a sniffing position, provided that they have an additional
viewing means to see. Dr. Pacey, the inventor of the ‘447 patent, testified that
“based on [his] experience developing the [commercial embodiment of the ‘447
patent,] . . . [t]he mere placement of a video camera on a pre-existing blade will
not enable the viewer to see any more than that which is seen by the direct
laryngoscopy methods” (Pacey Decl. ¶ 29). Yet, even Dr. Pacey does not assert
that the Wood blade could not be inserted and operated when a patient is in a
sniffing position.
Likewise, Requester’s expert testifies that blind techniques are used with
straight blades in the patients where direct views are not possible (see Henderson
Decl. ¶ 4). Dr. Henderson further states that “a laryngoscope manufactured
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according to what is described in [Wood] could be used for the intubation of
patients in the neutral and sniffing positions” (Henderson Decl. ¶ 10).
Accordingly, we are persuaded that, while direct visualization is not possible
in the sniffing position, the blade of Wood would have been able to “extend into
the laryngopharynx and operably engage the epiglottis of the patient when the
elongated base portion is extended into the patient’s oropharynx and the patient is
in a sniffing position” as recited in claim 1.
Relying on the above quoted testimony of Dr. Pacey (Pacey Decl. ¶ 29),
Patent Owner contends that the camera would provide only a “keyhole” view if
positioned at the distal end of the device or no view of the larynx at all if retracted
along the curve of the blade (PO Resp. Br. 9). Dr. Pacey does not use or explain
the term “keyhole,” and Patent Owner does not explain what is meant by a
“keyhole” view.
As discussed above, with respect to claim 1, a view of the larynx itself is not
necessary. The only view need be of the laryngopharynx, which is closer to the
oral cavity than the larynx.
Requester directs us to Figure 4 of Wood showing the direction of
movement of the camera housing 52 along the curvature of the blade 12 as
evidence that “the line of sight of the camera is parallel to the lifter portion of the
laryngoscope so as to provide a view of the laryngopharynx (i.e., the entire
laryngeal area)” (Req. App. Br. 13). We also note that Dr. Blandford, a consultant
specializing in optical design, with experience in prisms and lenses for
laryngoscopes and other optical instruments (Blandford Decl. ¶ 2), testifies that the
image sensor assembly of Wood “may be moved along the laryngoscope body 12
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to adjust the field of view. This movement is but one way to obtain a perspective
or panoramic view of the laryngeal area” (Blandford Decl. ¶ 16).
When a claimed device appears to be substantially identical to a device
disclosed by the prior art, the burden properly falls to the Patent Owner to prove
that the device of the prior art does not necessarily or inherently possess
characteristics or properties attributed to the claimed product. In re Spada, 911
F.2d 705, 708 (Fed. Cir. 1990); In re Best, 562 F.2d 1252, 1255 (CCPA 1977). In
this case, we find the testimony of Dr. Blandford persuasive. It is reasonable to
find that the relative movement of the camera along the blade as disclosed in Wood
provides a view of at least the laryngopharynx at least at one point along the track
thereof.
Patent Owner has not met the burden of proving that the Wood camera does
not provide the claimed view of the laryngopharynx. Though Dr. Pacey explains
that the view from the camera of the Wood laryngoscope would be similar to that
with direct laryngoscopy (Pacey Decl. ¶ 29), from the discussion of direct
laryngoscopy, a view of the laryngopharynx indeed would be attained with direct
laryngoscopy with the patient in an optimal sword swallowing position (see e.g.
Pacey Decl. ¶ 10 (“the tracheal orifice is viewed without the benefit of a camera”)).
As such, we understand from Dr. Pacey’s testimony that a similar view could be
obtained using the camera taught by Wood when the patient is not in a sword
swallowing position.
Likewise, it is reasonable to find that the movement of the camera along the
blade as disclosed in Wood provides a perspective view directed towards the distal
end of the elongate lifter, particularly when placed as far distal as possible. Patent
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Owner has not provided sufficient explanation as to why the camera would not
have been directed accordingly.
Wood teaches that a chord 54 carries the image data signals from the image
sensor 42 to an external video processing unit (col. 3, ll. 57-61). As discussed
above, the ‘447 patent distinguished a display that is “remotely connected” from a
display that is connected via a wired connection, even if disposed away from the
camera. Accordingly, we agree that Wood does not teach a display remotely
connected to a camera as required by claim 9.
The Examiner’s refusal to adopt the Requester’s proposed rejection of
claims 1, 2 and 8 as anticipated by Wood is REVERSED and denominated as a
NEW GROUND OF REJECTION pursuant to our authority under 37 C.F.R.
§ 41.77(a) & (b). We adopt the findings of the Requester on pages 12-13 of
Requester’s Appeal Brief in light of our discussion above.
The Examiner’s refusal to adopt the Requester’s proposed rejection of
claim 9 as anticipated by Wood is AFFIRMED.

OBVIOUSNESS REJECTION – BELLHOUSE AND WOOD
Rejection III – Claims 9-16, 34, 35 and 40
Issues
The issues with respect to Rejection III are:
Would an intubation instrument having a display “remotely connected” to a
camera, as recited in claim 9, have been obvious to one of ordinary skill in the art
having the teachings of Bellhouse and Wood?
Would an intubation instrument having an base-to-lifter angle, as recited in
claims 10-12, and an elongate lifter and/or elongate base length, as recited in
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claims 13-16, have been obvious to one of ordinary skill in the art having the
teachings of Bellhouse and Wood?
Would an intubation instrument having a viewer that is “able to provide a
clear perspective view of an entire laryngeal area even when . . . the patient’s oral
and laryngeal axes are substantially perpendicular,” as recited in claims 34 and 35,
have been obvious to one of ordinary skill in the art having the teachings of
Bellhouse and Wood?
Would an intubation instrument having a camera directed toward the distal
end of an elongate lifter portion that is able to provide a perspective view of the
patient’s entire laryngeal area, when the lifter portion operably engages the
epiglottis, even while the patient is recumbent, face-up, with the head tipped only
slightly backward, as recited in claim 40, have been obvious to one of ordinary
skill in the art having the teachings of Bellhouse and Wood?
Discussion
Based on the claim interpretation discussed above, Wood presents no
meaningful evidence that a display “remotely connected” to a camera would have
been obvious to one of ordinary skill in the art at the time of the invention. Since
Bellhouse does not teach a camera, it does not cure this deficiency with respect to
claim 9. Accordingly, claim 9 is not obvious over the teachings of Bellhouse and
Wood.

With respect to claims 10-16, Requester contends that it would have been
obvious to one of ordinary skill in the art to have modified the laryngoscope of
Wood to have the dimensions of the Bellhouse laryngoscope to predictably
optimize the laryngoscope for differently sized patients (Req. App. Br. 19).
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Patent Owner contends that the particular angles and lengths recited in
claims 10-19 are not taught or suggested by either Bellhouse or Wood (Req. Res.
Br. 11)
Patent Owner’s contentions are not supported by the evidence of record.
Claims 10-12 recite base-lifter angles of about 30-85°, 30-60°, and approximately
45°, respectively. Bellhouse teaches a range for the supplementary angle of 120°
to 150° and a preferred supplementary angle of 135° (Bellhouse, p. 2, ll. 27-33).
Those supplementary angles correspond to a base-lifter angle of 30° to 60°, with a
preferred angle of 45°. The overlapping ranges of Bellhouse suggest the recited
base-lifter angles of claims 10-12. See In re Geisler, 116 F.3d 1465, 1469 (Fed.
Cir. 1997)(citing In re Malagari, 499 F.2d 1297, 1303 (CCPA 1974)(“[a] claimed
invention is rendered prima facie obvious by the teachings of a prior art reference
that discloses a range that touches the range recited in the claim.”).
Claims 13-15 recite elongated lifter portion lengths of 3-10 centimeters, 4-8
centimeters, and approximately 6 centimeters, respectively. Bellhouse teaches an
elongate lifter portion (component 24B) having a length of 50-90mm (5-9
centimeters), preferably 60-75mm (6-7.5 centimeters) (Bellhouse, p. 4, ll. 2-4),
which overlaps, and thus renders obvious, the claimed lengths. Geisler, 116 F.3d
at 1469.
Claim 16 recites that the elongate base and elongate lifter are “substantially
the same length.” Bellhouse teaches an elongate base portion (component 24A)
having a length of 40-120mm (4-12 centimeters), preferably 60-85 mm (6-8.5
centimeters) (Bellhouse, p. 3, l. 129 to p.4, l. 1). Thus, Bellhouse suggests a
preferred embodiment in which the elongate base portion is substantially the same
length as the elongate lifter portion.
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Patent Owner further contends that one of ordinary skill in the art would not
have combined the teachings of Bellhouse and Wood because the commercial
embodiment of Bellhouse, the BelScope was considered a medical and commercial
failure (Req. Res. Br. 9-10).
The teachings of Bellhouse and Wood support a determination that it would
have been obvious to one of ordinary skill in the art to utilize a camera viewer with
a laryngoscope, as taught by Wood, where the laryngoscope has the blade
dimensions described in Bellhouse, for the same reason that Bellhouse uses a
prism, to have a view of the laryngeal area in the situations where direct
laryngoscopy (i.e., via the naked eye) is not possible during intubation (see Wood,
col. 1, ll. 16-41 and 62-66; Bellhouse, p. 1., ll. 81-124 and p. 2, ll. 16-21). To do
so would be no more than the predictable use of a camera for improved viewing
over the naked eye during intubation. See KSR Int’l Co. v. Teleflex Inc., 550 U.S.
398, 417 (2007) (The question to be asked is “whether the improvement is more
than the predictable use of prior art elements according to their established
functions.”). The skilled artisan would recognize the benefits of the Wood’s
camera over the prism taught by Bellhouse. We also agree with Requester that the
skilled artisan would have been motivated to optimize the blade dimensions within
the teachings of Bellhouse for optimal use.
As discussed above with respect to the anticipation of claims 34 and 35 over
Bellhouse, the evidence does not support a position that Bellhouse cannot be used
without substantial axial alignment as argued by Patent Owner (PO Res. Br. 10).
Figures 9 and 17 of Bellhouse illustrate using the laryngoscope on a patient
having generally perpendicular oral and pharyngeal axes, similar to that patient
orientation of Figure 8 of the ‘447 patent (Figs. 9 and 17, p. 2, ll. 98-100 and 120-
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123). Bellhouse teaches a laryngoscope for a situation in which an anesthetist will
not be able to manipulate the patient’s head sufficiently into a sword swallowing
position due to “gross anatomical abnormalities” (p. 1, ll. 28-38 and p. 2, ll. 16-21).
Accordingly, Bellhouse would have suggested to one of ordinary skill in the art
using the laryngoscope when a patient’s oral and pharyngeal axes are substantially
unaligned, or in the sniffing position of Figure 8 of the ‘447 patent.
Also, considering the testimony of Dr. Blandford and the teaching of Wood,
it is reasonable to find that the relative movement of the camera along the blade as
disclosed in Wood provides a view of at least the laryngopharynx at least at one
point along the track thereof and to find that the movement of the camera along the
blade as disclosed in Wood provides a perspective view directed towards the distal
end of the elongate lifter, particularly when placed as far distal as possible.
Thus, it is reasonable to conclude that the Wood camera installed on the
blade of Bellhouse, would provide a viewer that is “able to provide a clear
perspective view of an entire laryngeal area even when . . . the patient’s oral and
laryngeal axes are substantially perpendicular,” as recited in claims 34 and 35. A
camera that moves along a track of the Bellhouse blade at some point along the
track would be positioned so as to provide a view of the larynx, glottis, and vocal
cords (i.e., the entire laryngeal area). It is not relevant that Bellhouse teaches a
lack of a panoramic view with a prism, as argued by Patent Owner (PO Res.
Br. 11), because the combination with Wood provides for improved visualization
of the laryngeal area with the use of a movable camera over that of the prism of
Bellhouse.
For the same reasons, it is reasonable to conclude that the Wood camera
installed on the blade of Bellhouse suggests a camera directed toward the distal end
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of an elongate lifter portion that is able to provide a perspective view of the
patient’s entire laryngeal area, when the lifter portion operably engages the
epiglottis, even while the patient is recumbent, face-up, with the head tipped only
slightly backward, as recited in claim 40.
We are not persuaded by Patent Owner’s substantial volume of evidence
regarding the medical and commercial failures of the BelScope.
20
The BelScope is
not the prior art being applied in the Requester’s proposed rejection. Accordingly,
negative properties of the BelScope are not indicative of negative properties of the
prior art as a whole. Bellhouse teaches that the angles and lengths of claims 10-16
of the ‘447 patent, which Patent Owner represent is an allegedly successful
invention, were well known in the art. A reference may be relied upon for all that
it would have reasonably suggested to one having ordinary skill in the art. Merck
& Co v. Biocraft Laboratories, 874 F.2d 804, 807 (Fed. Cir. 1989)(“all disclosures
of the prior art, including unpreferred embodiments, must be considered.”)(quoting
In re Lamberti, 545 F.2d 747, 750 (CCPA 1976)). In light of Bellhouse taken as a
whole, we conclude that one with ordinary skill in the art would have recognized
those characteristics as known and viable options in configuring a lifter.
Secondary Considerations
Once a prima facie case of obviousness has been established, objective
evidence of secondary considerations must be considered in making an
obviousness decision. See Stratoflex, Inc. v. Aeroquip Corp., 713 F.2d 1530, 1538-
39 (Fed. Cir. 1983). Any initial obviousness determination is reconsidered anew in
view of the proffered evidence of nonobviousness. See In re Rinehart, 531 F.2d

20
It is important to note that Patent Owner does not allege that the Bellhouse
reference is not enabled to function as a laryngoscope on the basis of the medical
and commercial failures of the BelScope (see PO Res. Br. 9-10).
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1048, 1052 (CCPA 1976); In re Eli Lilly & Co., 902 F.2d 943, 945 (Fed. Cir.
1990).
Considering the totality of the evidence, we are of the opinion that Patent
Owner’s evidence of secondary considerations is insufficient to outweigh the
evidence of obviousness of record.
Patent Owner first contends that the GlideScope provides an unprecedented
superior view, as evidenced by laudatory articles in academic journals and industry
praise (PO Resp. Br. 4-5). Patent Owner also alleges commercial success of the
GlideScope with a dramatic sales growth of 1180% and a market penetration of
nearly 25% (PO Resp. Br. 5-6). The Examiner found this evidence persuasive of
non-obviousness (RAN 27-28).
However, for objective evidence to be accorded substantial weight, an
applicant must establish a nexus between the evidence and the merits of the
claimed invention. In re GPAC, 57 F.3d 1573, 1580 (Fed. Cir. 1995) (appellant
offers no evidence that the market reaction to appellants’ invention is rooted in the
subject matter claimed). Put another way, commercial success or other secondary
considerations may presumptively be attributed to the claimed invention only
where “the marketed product embodies the claimed features, and is coextensive
with them.” Ormco Corp. v. Align Tech. Inc., 463 F.3d 1299, 1311-12 (Fed. Cir.
2006) (quoting Brown & Williamson Tobacco Corp. v. Phillip Morris, Inc., 229
F.3d 1120, 1130 (Fed. Cir. 2000)).
Although we agree with Patent Owner and the Examiner that the evidence
demonstrates that the particular GlideScope product has both commercial success,
industry praise, and a superior view, Patent Owner has not persuasively shown on
the record that the GlideScope corresponds to the intubation instrument disclosed
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in its patent as embodying the claimed invention. See Ormco, 463 F.3d at 1311-
12. Patent Owner contends that the GlideScope falls within the scope of claims 1,
34, and 40, but provides no convincing evidence or direct comparison between the
GlideScope product and the claims (see PO Resp. Br. 4-6). Page 4 of Patent
Owner’s Respondent Brief includes an image that is allegedly a GlideScope
superimposed of Figure 7 of the ‘447 patent. However, we agree with Requester
that this image is neither explained or substantiated by any evidence of record, and
thus cannot be given substantial evidentiary weight. Even if considered, this sole
image is not a detailed explanation of how the GlideScope meets the limitations of
claims 1, 34 and 40.
Moreover, Patent Owner failed to show that the commercial success and
acclaim that the GlideScope enjoyed was due to anything disclosed in the
‘447 patent which was not readily available in the prior art. Richdel, Inc. v.
Sunspool Corp., 714 F.2d 1573, 1580 (Fed. Cir. 1983) (holding claimed invention
obvious where patent holder “failed to show that such commercial success ... was
due to anything disclosed in the patent in suit which was not readily available in
the prior art”). Tokai Corp. v. Easton Enters., Inc., 632 F.3d 1358, 1369 (Fed. Cir.
2011) (“If commercial success is due to an element in the prior art, no nexus
exists.”); Ormco Corp. v. Align Technology, Inc., 463 F.3d 1299, 1312 (Fed. Cir.
2006) (“[I]f the feature that creates the commercial success was known in the prior
art, the success is not pertinent.”).
Patent Owner’s Brief does not direct us to any claimed features responsible
for the commercial success or acclaim (PO Res. Br. 4-6). Patent Owner cites to the
Jarosz Declaration ¶¶ 8-11 and 17-21,
21
the Craft Declaration ¶¶ 2, 5, and 13-16,

21
The Jarosz Declaration only contains paragraphs 1-12.
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and the Garjaj Declaration ¶ 28
22
in stating conclusively that “[t]he nexus was
firmly established” (PO Res. Br. 6).
The Craft Declaration points to evidence that the success of the GlideScope
was due to a “superior view” and “ease of use in difficult airway intubation
environments” (Craft Decl. ¶ 2-3 (“The configuration of the GlideScope and its
resultant superior view sells the device”)). However, the evidence suggests that
the superior view is merely a product of “integration of imaging technology with
laryngoscopy to provide good access space and visualization to aid in intubation of
abnormal and difficult airways” (Jarosz Decl. ¶ 5 (quoting market analysis
allegedly performed by Frost & Sullivan, which is not of record in this case)).
Patent Owner also points out that the benefit was due to 60° blade angulation
(Jarosz Decl. ¶ 8). There is some evidence to suggest that it is the combination of
the 60° angle and the camera that allows for a particularly superior view (Jarosz
Decl. ¶ 8; Craft Decl. ¶ 5 and Exhibits 1-6).
However, as discussed above, the prior art already contained a laryngoscope
having a 30-60° angle, for example in Bellhouse. To the extent that a base-lifter
angle of exactly 60° provides a superior view over all the other angles disclosed in
Bellhouse, the claims of the ‘447 patent are not limited to a 60° angle. Thus, the
evidence of a superior view at a 60° angle is not coextensive with the scope of the
claims. In addition, the prior art also contained a camera for use with a
laryngoscope, as taught by Wood. Thus, any improvement in view by the addition

22
Paragraph 28 of the Garjaj Declaration is not relevant to the issue of establishing
a nexus between the claimed invention and the evidence of secondary
consideration because it only evinces the number of “difficult airway carts” per
operating room being about a 1 to 10 ratio (Garjaj Decl. ¶ 28).
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of a camera to a laryngoscope was well known in the art. Therefore, Patent
Owner’s evidence of commercial success is not entitled to significant weight.
Patent Owner’s evidence of industry praise, and long felt need are likewise
unpersuasive in connection with their applicability to the involved claims. The
studies pointed to by Patent Owner, only appear to consider the use of a camera on
a laryngoscope as an alternative to direct laryngoscopy (i.e., viewing the chords
with the naked eye) (see e.g. Jarosz Decl. ¶ 5). Using a camera on known
laryngoscopes for the situations where direct laryngoscopy was not available was
known in the art as evidenced by Wood. There is no comparison of ease of
insertion as compared to the devices disclosed in Bellhouse or comparison with
using a camera on a conventional blade as taught by Wood, to show superiority of
view over the prior art of record. Patent Owner’s statements do not even discuss
Bellhouse or Wood in relation to the commercial success and acclaim. (see PO
Res. Br. 4-6). Asyst Techs., Inc. v. Emtrak, Inc., 544 F.3d 1310, 1316 (Fed. Cir.
2008) ("While the evidence shows that the overall system drew praise as a solution
to a felt need, there was no evidence that the success of the commercial
embodiment . . . was attributable to the . . . only material difference between [the
prior art] and the patented invention.") (citation omitted, emphasis added); In re
Kao, 639 F.3d 1057, 1068 (Fed. Cir. 2011) ("Where the offered secondary
consideration actually results from something other than what is both claimed and
novel in the claim, there is no nexus to the merits of the claimed invention"). Here,
neither the angle nor the use of a camera in laryngoscopy is novel.
Thus, Patent Owner’s commercial success and praise within the industry do
not overcome the substantial evidence that the superior view of the GlideScope
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would have been the expected and predictable result of combining well known
technologies for their intended purposes.

NEW GROUND OF REJECTION – BELLHOUSE AND WOOD
Claims 428 and 429
Claim 428 is substantially identical to claim 34 with the exception that it
adds that the perspective view of the entire laryngeal area is obtained “without
physical manipulation of the patient’s head to elevate the patient’s chin.”
Claim 429 is substantially identical to claim 40 with the exception that it adds that
the perspective view of the entire laryngeal area is obtained “without pulling the
head back to elevate the patient’s chin in an effort to provide as straight of a path
for receiving said instrument.”
As discussed above with respect to anticipation of claim 1 by Bellhouse, the
‘447 patent describes only two positions, a “sword swallowing” position (Fig. 6) in
which the chin is tiled as far back as possible and a “sniffing” position (Fig. 8),
which is described as “recumbent, face-up, with head tipped slightly backwardly,
supported in what is known as the sniffing position.” (‘447 Patent 4:6-8).
23

Accordingly, in interpreting claims 428 and 429 in light of the specification as it
would be understood by the skilled artisan, the positions recited in claims 428 and
429 are the sniffing position disclosed in the ‘447 patent.

23
There is no suggestion in the ‘447 patent that the claimed laryngoscope can be
used in a third identified “neutral” position. To the extent Patent Owner argues
that the limitations added to claims 428 and 429 could be interpreted as requiring
that an intubation instrument be operated in a “neutral” position, claims 428 and
429 would lack written descriptive support in the ‘447 patent.
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The claims are unpatentable under 35 U.S.C. § 103(a) as obvious over the
teachings of Bellhouse and Wood for the same reasons raised by the Requester
with respect to claims 34 and 40, respectively, in light of the discussion above with
respect to those rejections. The added language adds nothing to distinguish the
claims over the prior art.
Since the Examiner rejected claims 428 and 429 on different grounds, which
we reversed above, this rejection of claims 428 and 429 under 35 U.S.C. § 103(a)
is denominated as a NEW GROUND OF REJECTION pursuant to our authority
under 37 C.F.R. § 41.77(a) & (b).

OBVIOUSNESS REJECTION –BELLHOUSE, WOOD, AND WILLAIMS
Rejection VI – Claims 41 and 51
Issue
The issues with respect to Rejection VI are:
Would an intubation instrument having a substantially transparent sheath
covering at least a portion of a camera operable to repel bodily fluids of a patient,
as recited in claim 41, have been obvious to one of ordinary skill in the art having
the teachings of Bellhouse, Wood and Williams?
Discussion
Requester argues that the Examiner erred in failing to reject claims 41 and
51 as unpatentable over the teachings of Bellhouse, Wood and Williams, applying
the teachings of Bellhouse and Wood as discussed above (Req. App. Br. 25).
Requester states that Williams discloses “disposable sheaths for medical
examining devices,” particularly “when visual examination is performed through
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the sheath” via a camera (id.). As is urged by Requester, Williams discloses that
only the sheath contacts the patient’s tissue, such that the covered medical device
can be reused without being in a sterile condition (id.). Requester contends that it
would have been obvious for one of ordinary skill in the art to modify the
Bellhouse laryngoscope modified with the Wood camera to further “add the feature
of a disposable transparent (or substantially transparent) sheath as shown in
Williams to facilitate multiple uses of the laryngoscope without requiring time-
consuming sterilization of the entire device before each use” (id.).
Patent Owner contends that there has been no explanation as to why it would
have been obvious to combine the teachings of Williams with the teachings of
Bellhouse and Wood. Patent Owner also contends that Williams’ endoscope
sleeve with separate lens cover and sleeve portions teaches away from the sheath
covering of claim 41. (PO Res. Br. 19.)
Requester has provided a persuasive reason why the skilled artisan would
have incorporated a known device (sheath) for the predictable purpose of
eliminating the need to sterilize the camera for each use. “[I]f a technique has been
used to improve one device, and a person of ordinary skill in the art would
recognize that it would improve similar devices in the same way, using the
technique is obvious unless its actual application is beyond his or her skill.” KSR,
550 U.S. at 417. Patent Owner has failed to explain why a separate lens cover and
sleeve would not constitute the sheath recited in claim 41, which requires only that
a sheath cover at least a portion of a camera.
We have reviewed the Requester’s proposed rejection of claims 41 and 51
under 35 U.S.C. § 103(a) as unpatentable over Bellhouse, Wood and Williams.
Based on that review, and in light of the above, we conclude that claims 41 and 51
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would have been obvious. Accordingly, the Examiner’s refusal to adopt the
rejection is REVERSED and denominated as a NEW GROUND OF REJECTION
pursuant to our authority under 37 C.F.R. § 41.77(a) & (b).

OBVIOUSNESS REJECTION – BERALL AND BELLHOUSE
Rejection IV – Claim 37
Issue
The issues with respect to Rejection IV are:
Would an intubation instrument having all the requirements of claim 37,
including a camera with a display operably secured to the camera,
have been obvious to one of ordinary skill in the art having the teachings of Berall
and Bellhouse?
Discussion
Requester argues that the Examiner erred in failing to reject claim 37 as
unpatentable over the teachings of Berall and Bellhouse (Req. App. Br. 23).
Requester states that Bellhouse discloses “all the features of claim 37 . . .
except for the camera (or viewer) and display” (id.). Contrary to Patent Owner’s
assertion (PO App. Br. 12), Bellhouse discloses a laryngoscope with a blade
having a preferred base-lifter angle of 45° (supplementary to the disclosed 135°)
(Bellhouse, p.2, l. 31-33). Berall discloses
A laryngoscope, for use in intubating a patient’s trachea, especially in
emergency situations. The laryngoscope has a camera mounted in the
vicinity of a distal end of its blade to observe the patient’s trachea
opening and other oral internal structures in a visual field. The camera
is connected, typically via a fiber optic cable, to a lightweight portable
television screen, preferably mounted on the laryngoscope handle, for
displaying the visual field to the a Professional Intubator so as to
enable him or her to observe continuously the trachea opening and
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other oral internal structures as he or she manipulates the intubating
instrument.
Berall, Abstract.
Requester contends that it would have been obvious for the skilled artisan to
combine the camera provided on a handle of Berall with a laryngoscope having the
dimensions of Bellhouse “to facilitate intubation and improve patient safety by
providing the operator with a view of the entire laryngeal area without having to
look or turn away from the patient” (Req. Reb. Br. 13).
Patent Owner contends that there has been no explanation as to why it would
have been obvious to combine the teachings of Berall with the teachings of
Bellhouse (PO Res. Br. 12).
Requester has provided a persuasive reason why the skilled artisan would
have incorporated the camera and a display mounted on a handle of a laryngoscope
taught by Berall into the laryngoscope of Bellhouse. “[I]f a technique has been
used to improve one device, and a person of ordinary skill in the art would
recognize that it would improve similar devices in the same way, using the
technique is obvious unless its actual application is beyond his or her skill.” KSR,
550 U.S. at 417.
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Patent Owner also argues that Berall, like Wood, “would not be combined
with the medically dangerous [Bellhouse]” (PO Res. Br. 12). As we discussed
above, we are not persuaded by Patent Owner’s substantial volume of evidence
regarding the medical and commercial failures of the BelScope. It is the teachings
of Bellhouse as a whole, and not the BelScope embodiment, that is prior art being
applied in the Requester’s proposed rejection. See Merck, 874 F.2d at 807;
Lamberti, 545 F.2d at 750. Accordingly, negative properties of the BelScope are
not indicative of negative properties of the prior art as a whole.
Thus, in view of the above, the Examiner’s refusal to adopt the Requester’s
proposed rejection of claim 37 under 35 U.S.C. § 103(a) as unpatentable over
Bellhouse and Berall is REVERSED and denominated as a NEW GROUND OF
REJECTION pursuant to our authority under 37 C.F.R. § 41.77(a) & (b).

DECISION
In sum, we affirm the Examiner’s decision to reject:
Claim 375 under 35 U.S.C. § 112, first paragraph, as failing to comply
with the written description requirement.

We reverse the following rejection:
Claims 428 and 428 under 35 U.S.C. § 314 as enlarging the scope of
the claims of the patent being examined.

We affirm the Examiner’s decision not to reject:
(a) Claims 34 and 35 under 35 U.S.C. § 102 as anticipated by
Bellhouse;
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(b) Claim 9 under 35 U.S.C. § 102 as anticipated by Wood; and
(c) Claim 9 under 35 U.S.C. § 103 as unpatentable over Bellhouse and
Wood.

We enter the following new ground of rejection:
(a) Claims 19, 26, and 31 and the claims that depend therefrom (see
footnote 15, supra) under 35 U.S.C. § 314 for having enlarged the
scope of the claims;
(b) Claims 1, 2, and 8 under 35 U.S.C. § 102 as anticipated by Wood;
(c) Claims 10-16, 34, 35, and 40 under 35 U.S.C. § 103 as
unpatentable over Bellhouse and Wood;
(d) Claims 428 and 429 under 35 U.S.C. § 103 as unpatentable over
Bellhouse and Wood;
(e) Claims 41 and 51 under 35 U.S.C. § 103 as unpatentable over
Bellhouse, Wood, and Williams; and
(f) Claim 37 under 35 U.S.C. § 103 as unpatentable over Bellhouse
and Berall.

AFFIRMED-IN-PART and 37 C.F.R. § 41.77(b)

This decision contains new grounds of rejection pursuant to 37 C.F.R.
§ 41.77(b) which provides that "[a]ny decision which includes a new ground of
rejection pursuant to this paragraph shall not be considered final for judicial
review." Correspondingly, no portion of the decision is final for purposes of
judicial review. A requester may also request rehearing under 37 C.F.R. § 41.79, if
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appropriate, however, the Board may elect to defer issuing any decision on such
request for rehearing until such time that a final decision on appeal has been issued
by the Board.
For further guidance on new grounds of rejection, see 37 C.F.R. § 41.77(b)-
(g). The decision may become final after it has returned to the Board. 37 C.F.R.
§ 41.77(f).
37 C.F.R. § 41.77(b) also provides that the Patent Owner, WITHIN ONE
MONTH FROM THE DATE OF THE DECISION, must exercise one of the
following two options with respect to the new grounds of rejection to avoid
termination of the appeal as to the rejected claims:
(1) Reopen prosecution. The owner may file a response requesting
reopening of prosecution before the examiner. Such a response must be either an
amendment of the claims so rejected or new evidence relating to the claims so
rejected, or both.
(2) Request rehearing. The owner may request that the proceeding be
reheard under § 41.79 by the Board upon the same record. …

Any request to reopen prosecution before the examiner under 37 C.F.R.
§ 41.77(b)(1) shall be limited in scope to the "claims so rejected." Accordingly, a
request to reopen prosecution is limited to issues raised by the new ground(s) of
rejection entered by the Board. A request to reopen prosecution that includes
issues other than those raised by the new ground(s) is unlikely to be granted.
Furthermore, should the patent owner seek to substitute claims, there is a
presumption that only one substitute claim would be needed to replace a cancelled
claim.
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A requester may file comments in reply to a patent owner response.
37 C.F.R. § 41.77(c). Requester comments under 37 C.F.R. § 41.77(c) shall be
limited in scope to the issues raised by the Board’s opinion reflecting its decision
to reject the claims and the patent owner’s response under paragraph 37 C.F.R.
§ 41.77(b)(1). A newly proposed rejection is not permitted as a matter of right. A
newly proposed rejection may be appropriate if it is presented to address an
amendment and/or new evidence properly submitted by the patent owner, and is
presented with a brief explanation as to why the newly proposed rejection is now
necessary and why it could not have been presented earlier.
Compliance with the page limits pursuant to 37 C.F.R. § 1.943(b), for all
patent owner responses and requester comments, is required.
The examiner, after the Board’s entry of a patent owner response and
requester comments, will issue a determination under 37 C.F.R. § 41.77(d) as to
whether the Board’s rejection is maintained or has been overcome. The
proceeding will then be returned to the Board together with any comments and
reply submitted by the owner and/or requester under 37 C.F.R. § 41.77(e) for
reconsideration and issuance of a new decision by the Board as provided by
37 C.F.R. § 41.77(f).

ak

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PATENT OWNER:
Foster Pepper, PLLC
1111 3
rd
Avenue
Suite 3400
Seattle, WA 98101-3299

THIRD-PARTY REQUESTER:

Edwards & Angell, LLP
P.O. Box 55874
Boston, MA 02205