Ex Parte Bijloo et al

Patent Trial and Appeal Board

Jan 29, 2019

14430347 (P.T.A.B. Jan. 29, 2019)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR
14/430,347 03/23/2015 Michie! Dirk Augustinus Bijloo
24737 7590 01/31/2019
PHILIPS INTELLECTUAL PROPERTY & STANDARDS
465 Columbus A venue
Suite 340
Valhalla, NY 10595
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
ATTORNEY DOCKET NO. CONFIRMATION NO.
2012P00430WOUS 5775
EXAMINER
ZAM ORY, JUSTIN L
ART UNIT PAPER NUMBER
3783
NOTIFICATION DATE DELIVERY MODE
01/31/2019 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):
patti. demichele@Philips.com
marianne.fox@philips.com
katelyn.mulroy@philips.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte MICHIEL DIRK AUGUSTINUS BIJLOO,
RACHEL ESTELLE THIL WIND, LEONARDUS MARIA POPPELIER,
and ARNOLD AALDERS
Appeal 2017-011744
Application 14/430,347
Technology Center 3700
Before BIBHU R. MOHANTY, BART A. GERSTENBLITH, and
PHILIP J. HOFFMANN, Administrative Patent Judges.
MOHANTY, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
The Appellants 1 seek our review under 35 U.S.C. § 134 of the
Examiner's decision rejecting claims 2-15, which are all the claims pending
in the application. We have jurisdiction under 35 U.S.C. § 6(b ).
SUMMARY OF THE DECISION
We REVERSE.
1 According to the Appellants, the real party in interest is KONINKLIJKE
PHILIPS N.V. See App. Br. 2.
Appeal2017-011744
Application 14/430,347
THE INVENTION
The Appellants' claimed invention is directed to a breast pump system
(Spec. 1 ). Claims 9 and 15 are independent. Claim 15, reproduced below, is
representative of the subject matter on appeal.
15. An operating unit for a breast pump system comprising a
housing and a vacuum pump disposed in said housing, the
housing having a connector configured for attachment of a first
end of a tube and an elongated outer surface region about which
the tube can be wrapped;
at least part of the elongated outer surface region being
curved so as to provide a first path for guiding and supporting
the tube without buckling as said tube is wrapped around the
housing; and
the connector being disposed in a recess of the housing
defined, at least in part, by a curved surface region shaped so as
to provide a second path for guiding and supporting the tube
from the connector to the first path without buckling.
THE REJECTIONS
The following rejections are before us for review:
1. Claims 2--4, 7-9, and 15 are rejected under 35 U.S.C. § 102(b)
as anticipated by SPECTRA 300 DEW ELECTRONIC BREAST PUMP
(http://www.onebabyworld.com/spectra-dew-300-electric-breast-pump-p-
1996.html) (WayBackMachine (June 16, 2011)) (henceforth "Spectra 300")
and Larsson (US 5,071,403; iss. Dec. 10, 1991).
2. Claims 5 and 6 are rejected under 35 U.S.C. § 103(a) as
unpatentable over Spectra 300, Larsson (US 5,071,403; iss. Dec. 10, 1991)
and Whitley, II (US 5,094,591; iss. Mar. 10, 1992).
3. Claim 8 is rejected under 35 U.S.C. § 103(a) as unpatentable
over Spectra 300, Larsson, and Kriesel (US 5,807,335; iss. Sept. 15, 1998).
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Appeal2017-011744
Application 14/430,347
4. Claims 10 and 12-14 are rejected under 35 U.S.C. § I03(a) as
unpatentable over Spectra 300 and Utterberg (US 2007 /0093762 Al; publ.
Apr. 26, 2007).
5. Claim 11 is rejected under 35 U.S.C. § I03(a) as unpatentable
over Spectra 300, Larsson, and Kamen (US 2009/0281497 Al; publ.
Nov. 12, 2009).
FINDINGS OF FACT
We have determined that the findings of fact in the Analysis section
below are supported at least by a preponderance of the evidence. 2
ANALYSIS
The Appellants argue that the rejection of claim 15 under 35 U.S.C.
§ 102(b) is improper because the cited prior art fails to disclose the claim
limitation for the connector being disposed in a recess of the housing defined
by at least in part by:
a curved surface region shaped so as to provide a second path for
guiding and supporting the tube from the connector to the first path
without buckling
(App. Br. 6 (emphasis added)). Support for this claim limitation is found in
the Specification at page 7, lines 19-26, page 8, lines 17-23, and Figures 4,
5, and 8.
In contrast, the Examiner has determined that the rejection of record is
proper, and that the cited claim limitation is shown in Spectra 300 at
2 See Ethicon, Inc. v. Quigg, 849 F.2d 1422, 1427 (Fed. Cir. 1988)
( explaining the general evidentiary standard for proceedings before the
Patent Office).
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Appeal2017-011744
Application 14/430,347
Figure 1 (Ans. 3, 8-10). The Answer provides an annotated version of
Figure 1 to show how this limitation is taught by Spectra 300 (Ans. 3).
We agree with the Appellants. Turning first to the copy of the
reference Spectra 300 at Figure 1, it is unclear from this figure that the
connector surface region is formed to function in the claimed manner to
provide "a second path for guiding and supporting the tube from the
connector to the first path without buckling" beyond speculation into
probabilities and possibilities, as Figure 1 is inconclusive in this regard. In
the Answer at page 9, an additional figure is provided that is not seen in the
reference of record, but instead retrieved from the Internet on July 23, 2017.
In this figure provided on page 9 of the Answer, however, it also remains
unclear beyond speculation into probabilities and possibilities that the
curved portion is shaped in such a manner for "guiding and supporting the
tube from the connector to the first path without buckling," and in contrast it
appears that the tube would actually have to be bent to reach the curved
portions. Here, the argued claim limitation is not shown in the cited prior art
without speculation into probabilities and possibilities of how the device is
formed and operates. For this reason, the rejection of claim 15 and its
dependent claims under 35 U.S.C. § 102(b) is not sustained. Independent
claim 9 contains a similar limitation, and the rejection of this claim and its
dependent claims under 35 U.S.C. § 102(b) is not sustained as well, for the
same reason.
The rejections made under 35 U.S.C. § 103(a) are not sustained, as the
references cited in those rejections fail to cure the deficiency in the
Spectra 300 reference.
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Appeal2017-011744
Application 14/430,347
CONCLUSIONS OF LAW
We conclude that the Appellants have shown that the Examiner erred
in rejecting the claims under 35 U.S.C. § 102(b) and 35 U.S.C. § 103(a) as
listed in the Rejections section above.
DECISION
The Examiner's rejections of claims 2-15 are reversed.
REVERSED
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