Ex Parte Collins et al

Patent Trial and Appeal Board

Jun 28, 2017

10986143 (P.T.A.B. Jun. 28, 2017)

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.
0119/0042 6119
EXAMINER
MENDOZA, MICHAEL G
ART UNIT PAPER NUMBER
3731
MAIL DATE DELIVERY MODE
10/986,143 11/12/2004
135866 7590 06/28/2017
LAW OFFICE OF LOUIS WOO
717 NORTH FAYETTE STREET
ALEXANDRIA, VA 22314
Michael Norman Collins
06/28/2017 PAPER
Please find below and/or attached an Office communication concerning this application or proceeding.
The time period for reply, if any, is set in the attached communication.
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte MICHAEL NORMAN COLLINS and
ERIC PAGAN
Appeal 2016-000543
Application 10/986,143
Technology Center 1600
Before DEMETRA J. MILLS, ERIC B. GRIMES, and LORA M. GREEN,
Administrative Patent Judges.
MILLS, Administrative Patent Judge.
DECISION ON APPEAL
This is an appeal under 35U.S.C. § 134. The Examiner has rejected
the claims for anticipation or obviousness. We have jurisdiction under 35
U.S.C. § 6(b).
We AFFIRM.
Appeal 2016-000543
Application 10/986,143
STATEMENT OF CASE
The following claims are representative:
10. A laryngeal mask assembly according to Claim 11, wherein said
airway tube and mount are molded of polyurethane.
11. A method of forming a laryngeal mask assembly comprising the
steps of:
injection molding from a plastics material at the same time an integral
one piece first component of a tube and mount together, said mount being
formed at and projecting radially and outwardly as an integral extension of a
patient end of said tube;
and extending a second component in the form of an annular sealing
cuff around the patient end of said mount, said annular sealing cuff being
formed entirely of a thin, flexible plastics material and said material of said
cuff being attached with said mount to provide support for said cuff.
14. A laryngeal mask assembly comprising: a tube; a mount at a
patient end of said tube, said mount having a shaped patient end; and an
annular sealing cuff formed into an annulus formed entirely of a thin flexible
plastics material having the same shape as the patient end of said mount and
said material of said cuff being attached around the patient end of said mount
to provide support for said cuff, said tube and said mount being molded
together from a plastics material as an integral, single-piece component with
said mount projecting radially and outwardly from and as an extension of the
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Application 10/986,143
patient end of said tube, wherein an inflation line extends along the assembly,
one end of said inflation line extending towards a patient end and opening
into said sealing cuff, and wherein said sealing cuff and is adapted to seal
with tissue in the region of the hypopharynx.
Cited References
Collins US 6,799,574 Oct. 5, 2004
Sato US 5,392,774 Feb. 28, 1995
Brain US 5,305,743 Apr. 26, 1994
Grounds of Rejection
1. Claims 9, 11, 13, and 14—22 are rejected under pre-AIA 35 U.S.C.
§ 102(b) as being anticipated by Brain.
2. Claim 10 is rejected under pre-AIA 35 U.S.C. § 103(a) as being
unpatentable over Brain in view of Sato.
3. Claims 12 and 23 are rejected under 35 U.S.C. § 103(a) as being
unpatentable over Brain in view of Collins.
(Ans. 2).
FINDINGS OF FACT
The Examiner’s findings of fact are set forth in the Non-Final Action
at pages 3—5.1 The following facts are highlighted.
Please refer to the Non-Final Office Action, mailed Aug. 2, 2014 (“Non-
Final Act.”); the Appeal Brief filed Feb. 18, 2015 (“Br.”), and the
Examiner’s Answer mailed Jul. 28, 2015 (“Ans.”).
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Appeal 2016-000,543
Application 10/986,143
1. Below is the only Figure of the present Specification, with
Appellants’ annotation, as reproduced on page 10 of Appellants’
Brief.
| One integral pfeoe made of moulded
| together mount 20 and tube 1
m?. ''S
SO $
The Figure show one integral piece made of moulded together
mount 20 and tube 1. Spec. 3.
2. Figures 1 and 2 A of the artificial airway device of Brain is
reproduced below.
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Fig. 1 shows the artificial airway device of Brain. Figure 2 A of
Brain is a sectional view of a second component part of the mask.
Col. 3,11. 49-50. Fig. 2A shows a second molded part or back
plate 12 of the mask of the artificial airway device. Figure 2 A,
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Application 10/986,143
element 40, is a cylindrical counter bore for assembly connection
to the airway tube. Col. 6,11. 36-37. Component 12 is separately
molded. Col. 6,11. 20-21.
PRINCIPLES OF LAW
In making our determination, we apply the preponderance of the
evidence standard. See, e.g., Ethicon, Inc. v. Quigg, 849 F.2d 1422, 1427
(Fed. Cir. 1988) (explaining the general evidentiary standard for proceedings
before the Office).
In order for a prior art reference to serve as an anticipatory reference,
it must disclose every limitation of the claimed invention, either explicitly or
inherently. See In re Schreiber, 128 F.3d 1473 (Fed. Cir. 1997).
Anticipation Rejection
Appellants do not argue individual claims separately with respect to
this rejection, therefore we select claim 11 as representative claim.
The Examiner finds that
Brain discloses a method of forming a laryngeal mask assembly
comprising the steps of: injection molding from a plastics material
(col. 7, lines 41-43) at the same time an integral one piece first
component of a tube (40) and mount together (12), (fig. 2, the
applicant has not specifically claimed the length of the tube, the
cylindrical section 40 of Brain can be interpreted as the tube), said
mount being formed at and projecting radially and outwardly as an
integral extension of a patient end of said tube (figs. 1, 2);, [sic] and
extending a second component in the form of an annular sealing cuff
(13) around a the patient end of said mount, said annular sealing cuff
being formed entirely of a thin, flexible plastics material and said
material of said cuff being attached with said mount to provide
support for said cuff (col. 1, lines 15-17).
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Application 10/986,143
Non-Final Act. 3-4.
“Appellants submit that the examiner has ignored the specific
teachings of Brain in asserting that the component shown in Fig. 2 A may be
considered to be a one piece molded tube and mount.” Br. 11. Appellants
argue that, “Each of independent claims 11,14 and 19 requires that the tube
(1) and mount (20) of the laryngeal mask assembly be an integral one piece
(or single piece) component, that has attached to the mount a sealing cuff
(21).” Br. 12.
Appellants state that Brain discloses the following:
The mask of FIG. 1 is then completed by assembling the separately
moulded vlate component 12 (FIG. 2A) thereto. This component 12 is
seen to be of thicker wall structure than skirt 30 and is therefore less
compliant, although it may be moulded from the same silicone-rubber
material as is the intermediate product of FIG. 2. Its bottom surface 16
is a flat generally elliptical annulus, conforming to the profile of the
flat upper surface of flange 31 and extending slightly beyond so as to
additionally lap the flat underside of skirt flange 37, after skirt 30
reversal and assembly to notch 38. Again, the bottom surface 16 of
plate 12 and the upper exposed surface of flange 31 (with flange 37 in
assembled position) will be understood to have been precoated with
suitable adhesive, so as to retain the parts of FIGS. 2 and 2A, once
they are assembled. The plate 12 of FIG. 2A will then offer its
cylindrical counterbore 40 for assembling connection to the
airway tube 11, and the inflation formation 17 of the inflatable ring
13 will be ready to accept assembly of the flexible inflation/deflation
supply tubing 41 shown in FIG. 1. (Col. 6, at 20-37). Emphasis added.
Br. 11.
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Application 10/986,143
Appellants argue:
Thus, what is shown in Fig. 2A in actually is the “separately moulded
plate component 12”, where reference number 40 actually designates
the cylindrical counterbore of the plate component 12 to which the
airway tube 11 is inserted. See Fig. 1 of Brain reproduced above.
Thus, despite the assertion made by the examiner, the component
shown in Fig. 2A is plate 12 that does not have a tube.
that airway tube 11 and plate 12 are separate
components, which invariably means that the respective dimensions
of the tube 11 and the counterbore 40 have to be rigidly maintained. In
contrast, by moulding the tube and the mount together as an integral
piece, the thickness of the wall or shape of the instant invention
component could be varied. See specification, p.4, last paragraph.
Br. 11.
ANALYSIS
We agree with the Examiner’s fact finding, statement of the rejection
and responses to Appellants’ arguments as set forth in the Answer. We find
that the Examiner has provided evidence to support a prima facie case of
obviousness.
We are not persuaded by Appellants’ arguments. We agree with the
Examiner that Brain
Figure 2a [sic 2A] shows a one piece component having a mount (12)
and a tube [with cylindrical bore (40)]. The claims do not recite any
specific length for the tube. As shown in figure 2a, (40) clearly meets
the definition of a tube: a hollow usually cylindrical body of metal,
glass, rubber, or other material, used especially for conveying or
containing liquids or gases. Brain meets all of the limitations as set
forth in independent claims 11 and 14. The claims do not exclude
connecting any addition components.
Ans. 2-3.
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Application 10/986,143
Remaining arguments of Appellants are addressed fully in the Answer
at page 3. The anticipation rejection is affirmed for the reasons of record.
Obviousness Rejection
Appellants contend that
The device described by Sato has two sealing balloons attached
directly to the shaft of a tube. The upper sealing cuff 3 of Sato seals in
approximately the same region as does a laryngeal mask but it is clear
that this sealing cuff is not attached at the patient end of the tube in
the manner required by the claims of the present application.
Furthermore, both sealing cuffs 2 and 3 of Sato are attached directly
to the airway tube and not to a mount formed at the patient end of the
tube in the manner required by the amended claims. Whether Sato is
combinable with Brain is therefore questionable.
Br. 13.
We agree with the Examiner that Brain depicts the sealing cuff around
the patient end of the mount. Non-Final Act. p. 3. See element 14 around
mount 12 in Figure 1 (FF2). Appellants do not argue obviousness rejection
3, and indicate that claims 12 and 23 stand or fall with the patentability of
claims 11 and 19. We affirm rejection 3 for the reasons indicated for
rejection 1.
The obviousness rejections are also affirmed for the reasons of record.
CONCLUSION OF LAW
The cited references support the Examiner’s anticipation and
obviousness rejections, which are affirmed for the reasons of record. All
pending, rejected claims fall.
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Application 10/986,143
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a). See 37 C.F.R.
§ 1.136(a)(l)(iv).
AFFIRMED
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