Ex Parte Bellerose et al

Patent Trial and Appeal BoardMay 14, 2013

11103875 (P.T.A.B. May. 14, 2013)

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. 11/103,875 04/12/2005 Jean E. Bellerose SMI0108.US 9004 41863 7590 05/14/2013 TAYLOR IP, P.C. P.O. Box 560 142. S Main Street Avilla, IN 46710 EXAMINER MCKINLEY, CHRISTOPHER BRIAN ART UNIT PAPER NUMBER 3781 MAIL DATE DELIVERY MODE 05/14/2013 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 JEAN E. BELLEROSE and VALENTINE T. FAUST, III ____________ Appeal 2011-004308 Application 11/103,875 Technology Center 3700 ____________ Before JAMES P. CALVE, NEIL T. POWELL, and BEVERLY M. BUNTING, Administrative Patent Judges. CALVE, Administrative Patent Judge. DECISION ON APPEAL STATEMENT OF THE CASE Appellants appeal under 35 U.S.C. § 134(a) from the rejection of claims 1, 3-13, and 15-20. App. Br. 5. Claims 2 and 14 are cancelled. Id. We have jurisdiction under 35 U.S.C. § 6(b). We REVERSE. Appeal 2011-004308 Application 11/103,875 2 CLAIMED SUBJECT MATTER Claims 1 and 13 are independent. Claim 1 is reproduced below: 1. A surgical instrument container assembly, comprising: a container having a flat wall; and a handle assembly, including: at least one wire handle coupled with said container; and a handle grip having a longitudinally extending opening in which a portion of said wire handle is positioned radially within, said handle grip having an outer surface with a continuous elliptical cross sectional shape having a long cross sectional axis and a short cross sectional axis that is perpendicular and shorter than said long cross sectional axis, and a plurality of laterally spaced and longitudinally extending ribs on said outer surface, said longitudinally extending opening including a plurality of longitudinally extending ribs said long cross sectional axis of said handle grip being configured to be placed generally parallel to said flat wall. REJECTION Claims 1, 3-13, and 15-20 are rejected under 35 U.S.C. § 103(a) as being unpatentable over Renfrew (US 5,472,111; iss. Dec. 5, 1995), Latimer (US 5,664,520; iss. Sep. 9, 1997), Popeil (US 7,065,883 B2; iss. Jun. 27, 2006), and Mitchell (US 3,072,955; iss. Jan. 15, 1963). ANALYSIS The Examiner found that Renfrew discloses a container with a flat wall and handle assembly including a single wire handle pivotally attached to the container and a freely rotatable tube 10, but lacks an elastomeric grip Appeal 2011-004308 Application 11/103,875 3 with a continuous elliptical cross section and a longitudinally extending opening with longitudinally extending ribs on the opening and on an outer surface thereof. Ans. 3-4. The Examiner found that Latimer discloses an elastomeric handle grip with longitudinally extending opening and outer surface with longitudinally extending ribs thereby providing an enhanced gripping surface. Ans. 4. The Examiner also found that Popeil discloses a handle with a continuous elliptical cross sectional shape with short and long cross sectional axes to provide a comfortable grip with a tactile orientation. Id. The Examiner found that Mitchell teaches longitudinally extending ribs on an inner surface of an opening to provide a secure contact surface with a handle. Id. The Examiner determined that it would have been obvious to modify Renfrew with these features of Latimer, Popeil, and Mitchell to use an ergonomic handle with enhanced outer gripping surface capable of secure attachment to the wire handle. Id. The Examiner found that even though the grips of Latimer and Mitchell have longitudinal openings with a slot for insertion or removal, Mitchell depicts a slot 13 (fig. 4) while maintaining a continuous cross-section (fig. 2) so that a slot in the handle grip of Latimer does not preclude the grip from having a continuous cross section. Ans. 7. Appellants argue that the combined references do not teach a handle grip “having an outer surface with a continuous elliptical cross sectional shape” as recited in claims 1 and 13. App. Br. 14. Appellants assert that a common understanding of the word “continuous” is “[u]ninterrupted in time, sequence, substance, or extent” and the slot in the Examiner’s constructed grip fails to meet this common understanding of continuous as uninterrupted substance or extent. Reply Br. 3-4 (citing The American Heritage Dictionary of the English Language). We agree. Appeal 2011-004308 Application 11/103,875 4 The Examiner’s finding that Latimer and Mitchell disclose hand grips “having an outer surface with continuous elliptical cross sectional shape” is unreasonably broad and inconsistent with an ordinary, customary meaning of “continuous” interpreted in light of Appellants’ Specification. Ans. 5. Latimer and Mitchell disclose grips with a slotted outer surface so the grips can be opened and placed around items such as a hood prop (Latimer) or a shopping bag handle (Mitchell). See Latimer, col. 2, ll. 44-51, figs. 1, 2, 4; Mitchell, col. 1, ll. 71-72; col. 2, ll. 28-35; figs. 1-6. These slots extend through the outer surface of both grips 10, 10 so that the outer surfaces are not continuous, i.e., “marked by uninterrupted extension in space, time, or sequence.” See Merriam-Webster.com, http://www.merriam- webster.com/dictionary/continuous (last viewed May 9, 2013). Appellants disclose a handle grip 18 with an outer surface 26 having an elliptical cross sectional shape and illustrate this shape as continuous and uninterrupted in Figures 6 and 7. Spec. 4, ll. 23-24. Appellants disclose that handle grip 18 may be formed from an elastomeric material using an extrusion or injection molding process and then slid over a metal tube 24 so that the inner ribs 22 of the grip 18 frictionally engage the inner tube 24 and the wire handle may be placed in the tube 24 to rotate freely. Spec. 5, ll. 3-6; fig. 7. We do not sustain the rejection of claims 1, 3-13, and 15-20. DECISION We REVERSE the rejection of claims 1, 3-13, and 15-20. REVERSED Klh