Ex Parte Danzig et alDownload PDFPatent Trial and Appeal BoardSep 4, 201412286474 (P.T.A.B. Sep. 4, 2014) Copy Citation UNITED STATES PATENT AND TRADEMARK OFFICE __________ BEFORE THE PATENT TRIAL AND APPEAL BOARD __________ Ex parte MORRIS J. DANZIG and DONALD RAY MCKINNEY __________ Appeal 2013-003288 Application 12/286,474 Technology Center 3700 __________ Before DONALD E. ADAMS, ERIC B. GRIMES, and CHRISTOPHER G. PAULRAJ, Administrative Patent Judges. PAULRAJ, Administrative Patent Judge. DECISION ON APPEAL This is an appeal1 under 35 U.S.C. § 134 involving claims to a vacuum system for maintaining a negative pressure in a cavity between a socket of a prosthetic device and a residual limb. The Examiner rejected the claims on obviousness and obviousness-type double patenting grounds, as well as certain claims for being in an improper dependent form. We have jurisdiction under 35 U.S.C. § 6(b). We reverse the obviousness rejection and summarily affirm the other rejections. 1 Appellants identify the Real Party in Interest as Lincolnshire Manufacturing, LLC (see App. Br. 1). Appeal 2013-003288 Application 12/286,474 2 STATEMENT OF THE CASE Background The Specification is a directed to a prosthetic vacuum system designed to hold an artificial limb in place. The disadvantages of prior art vacuum systems included “size and weight,” as well as a “short battery life because of the constant need to regain an acceptable vacuum level” (Spec. 2–3). The invention described in the Specification [P]rovides an improved vacuum system for a prosthetic device using a vacuum source which is connected to the socket cavity thereby drawing the residual limb and liner into firm and total contact with the socket, in which a surge chamber allows the vacuum between the residual limb and the prosthetic device to be sustained for longer periods of time, thus reducing substantially the drain on the battery source [and providing longer periods of time between pumping] (id. at 3). According to the Specification, “[t]he current invention provides excellent control of vacuum range and maintain continuous vacuum during long periods of inaction that will not happen with a mechanically actuated vacuum pump” (id. at 4). The Claims Claims 1–11 and 16–19 are on appeal. Independent claim 1 is representative, and reads as follows: 1. A vacuum system for maintaining a negative pressure in a cavity between a socket of a prosthetic device and a residual limb on which the prosthetic device is attached, the prosthetic device having a foot portion and a heel portion, the system comprising: a vacuum pump assembly; and a vacuum surge chamber having a total volume in the range of from about 1.0 to about 1.75 cubic inches and capable of being secured between a foot portion and a heel portion of a prosthetic device, the vacuum surge chamber being capable of operative connection to a prosthetic socket and Appeal 2013-003288 Application 12/286,474 3 to the vacuum pump assembly and maintained by the vacuum pump assembly at a negative pressure. The Issues In an Office Action dated February 14, 2012, the Examiner rejected the claims as follows: I. Claims 1–5, 7–11, and 16–19 under 35 U.S.C. § 103(a) as being unpatentable over the combination of Haines2 and Segerstad.3 II. Claim 6 under 35 U.S.C. § 103(a) as being unpatentable over the combination of Haines and Segerstad, as further combined with Dean.4 III. Claims 1–11 and 16–19 provisionally under nonstatutory obviousness-type double patenting grounds as unpatentable over claims 1-19 and 22-25 of copending Application No. 11/640,150.5 IV. Claims 16 and 18 under 35 U.S.C. § 112 ¶ 4 as being of improper dependent form for failing to further limit the subject matter of independent claims 1 and 7. As Appellants have not challenged the provisional non-statutory obviousness-type double patenting rejection (Rejection III) or the rejection of claims 16 and 18 for being in improper dependent form (Rejection IV) in their Appeal Brief, we summarily affirm those rejections. See Hyatt v. Dudas, 551 F.3d 1307, 1314 (Fed. Cir. 2008) (“When the appellant fails to 2 Haines et al., US 2006/0282175 A1, published Dec. 14, 2006. 3 Segerstad, US 2,686,532, issued Aug. 17, 1954. 4 Dean, JR. et al., US 2002/0099450 A1, published July 25, 2002. 5 Application No. 11/640,150 is the subject of a related appeal, No. 2012- 005289, which we decide concurrently with this Opinion. App App cont argu such the e rejec FF1. FF2. eal 2013-0 lication 12 est a groun ment with a waiver, xaminer re tions.”). Hain vacuu Fig. 3 “FIG electr when 03288 /286,474 d of reject respect to the PTO m jected on es is direct m pump ( of Haine . 3 is a cut onic pump the limb i ion to the that groun ay affirm that groun FINDIN ed to a pro Haines, T s is reprod away view ] showing s in use” ( 4 Board, . . d of reject the rejecti d without GS OF FA sthetic de itle). uced below of the pr the intern id. at ¶ 21 . the Board ion as wai on of the g considerin CT vice utilizi : osthetic lim al compon ). may trea ved. In th roup of c g the meri ng an elec b [incorp ents as po t any e event of laims that ts of those tric orating an sitioned Appeal 2013-003288 Application 12/286,474 5 FF3. Haines discloses: As can be seen in FIG. 3, the ribbon 28 forms a loop surrounding the power source 20 and the vacuum pump 22 so that those components may be withdrawn from the pylon 14 by pulling at the ends 28a and 28b of ribbon which extend to the bottom end of pylon. FIG. 3 further illustrates the vacuum and electrical circuits formed by the various components of the prosthetic device 10. Specifically, an electrical circuit is formed by the electrical connections 24, the positive and negative contacts of the power source 20 and the positive and negative terminals of vacuum pump 22. As can be seen, one electrical connection directly connects one terminal of the power source 20 to one terminal of vacuum pump 22, while further electrical connections connect the other terminal of the power source to the other terminal of vacuum pump via electrical switch 16. Thus, by closing electrical switch 16, electrical power is supplied to the vacuum pump 22, causing the vacuum pump to operate and evacuate the socket 12. (Id. at ¶ 46.) FF4. Haines teaches that “a vacuum pump is preset to draw a particular level of vacuum once activated” (id. at ¶ 122). Haines further teaches that with the addition of either logic or a microprocessor, “it is possible to monitor socket pressure and automatically maintain the socket pressure within a patient or practitioner defined range of acceptable pressures” (id. at ¶ 123). Haines also discloses that “by appropriately locating a basic pressure transducer in the prosthetic socket, the measuring and tracking of various pressure values associated with the prosthetic socket becomes possible” (id. at ¶ 124). FF5. Segerstad is directed to “a balanced pressure or vacuum regulator, comprising a chamber, the pressure in which is controlled by a pressure control valve,” wherein the “pressure control valve is App App FF6. FF7. eal 2013-0 lication 12 actua press and t chann the su The s This of va 21). The S which const tube regul partit 03288 /286,474 ted by a fl ure in the he pressur els comm rrounding ole Figure Figure dep lve constru egerstad r is connec ricted inle 5 to which ator also h ion 2. “[C exible mem said chamb e in a seco unicates w atmosphe in Segers icts “a vie ction emb egulator h ted to a pr t tube 4, an is connec as a lower ]hamber 9 6 ber and b er, which nd chambe ith the fir re” (Seger tad is repr w in vertic odying th as an uppe essure flu d which i ted a mano compartm communi y the diffe is control r, which t st mention stad, col. oduced be al central e invention r compart id source b s further c meter 6. ent (cham cates thro rence betw led by the hrough co ed chambe 1 ll. 1–11) low: section of ” (id. at c ment (cham y means o onnected t The Seger ber 9) sep ugh an ope een the said valve nstricted r and with . one form ol. 1 ll. 19 ber 3), f a o an outle stad arated by ning 11 in , – t Appeal 2013-003288 Application 12/286,474 7 the partition 2 with the interior 12 of a membrane 13, which is arranged within the chamber 3 and has the form of a bellows and which preferably consists of a metallic material” (id. at col. 1 ll. 34–39). Additionally, “[w]ithin the bellows 13, there is provided another similar bellows 20, which is mechanically connected at its top with the bellows 13 and whose interior communicates at the bottom with the surrounding atmosphere through the intermediate of a channel 21” (id. at col. 1 l. 51–col. 2 l. 2). FF8. Segerstad discloses that “[t]he bellows 20 serves to damp the process of regulation at rapid pressure variations” (id. at col. 2 ll. 6–7). PRINCIPLES OF LAW “[R]ejections on obviousness grounds cannot be sustained by mere conclusory statements. Instead, there must be some articulated reasoning with some rational underpinning to support the legal conclusion of obviousness” . . . however, the analysis need not seek out precise teachings directed to the specific subject matter of the challenged claim, for a court can take account of the inferences and creative steps that a person of ordinary skill in the art would employ. KSR Int’l Co. v. Teleflex Inc., 550 U.S. 398, 418 (2007) (citation omitted) (emphasis added). ANALYSIS Each of independent claims 1, 7, and 15 require a “vacuum surge chamber” that is “operatively connected” or “capable of operative connection” with a prosthetic device socket and vacuum pump assembly (Cls. 1, 7, 15). The issue presented on appeal is whether it would have been Appeal 2013-003288 Application 12/286,474 8 obvious to incorporate the claimed vacuum surge chamber within a prosthetic device vacuum system. The Examiner finds that Haines discloses a prosthetic device vacuum system that meets all the claim requirements except for the vacuum surge chamber (Ans. 2–3; FF1–4). The Examiner relies upon Segerstad to assert that “[f]or solving the same problem as addressed by Appellant (i.e., prevention of frequent on and off switching of the vacuum pump-which subsequently/inherently preserves battery life) (see Segerstad: col. 2, lines 6- 7), Segerstad teaches a vacuum surge chamber (3)” (Ans. 3; FF8). The Examiner concludes that It would have been obvious to one of ordinary skill in the art at the time of the invention to use a vacuum surge chamber (for example, within element 3) as taught by Segerstad in the invention of Haines such that the vacuum surge chamber is secured between the foot portion and the heel portion of the prosthetic device of Haines or operatively connected with a pipe in the invention of Haines, the vacuum surge chamber being operatively connected to the prosthetic socket and to the vacuum pump assembly and maintained by the vacuum pump assembly of Haines at a negative pressure, in order to compensate for regulation at rapid pressure variations . . . and thus conserve battery life for the prosthesis (Ans. 3–4). We conclude that a prima facie case of obviousness has not been established based on the cited teachings of Segerstad and the rationale supplied by the Examiner. We have considered the Examiner’s response to Appellants’ arguments, but find that Appellants have the better position. In particular, Appellants argue that “[t]he vacuum regulator of Segerstad is not the equivalent of the claimed concealable vacuum surge chamber;” that Appeal 2013-003288 Application 12/286,474 9 “[t]he Segerstad regulator has numerous openings (e.g., channel 8, opening 11, channel 21, leak opening 15) which defeat any possible use of the regulator as a surge chamber at the volume required;” and that “[t]he numerous valve controls (e.g., screw 7, screw 22, screw 19) and manometer 6 would make concealing the Segerstad regulator impractical” (App. Br. 6). In our view, the Examiner has not adequately explained why chamber 3 in the vacuum regulator of Segerstad would be considered by the skilled artisan to be a “vacuum surge chamber” that could be used in a vacuum system for maintaining a negative pressure in a cavity between a socket of a prosthetic device and a residual limb. The Examiner’s only support for that position is the statement that “[t]he bellows 20 serves to damp the process of regulation at rapid pressure variations” (FF8). However, we find nothing in the Specification to indicate that the function or purpose of the claimed vacuum surge chamber is to regulate at rapid pressure variations. Rather, the Specification indicates that the “surge chamber allows the vacuum pressure between the residual limb and the prosthetic device to be sustained for longer periods of time, thus reducing substantially the drain on the battery source [and providing longer periods of time between pumping]” (Spec. 3:12–14). The Specification also indicates that “[o]ne of the purposes of the surge chamber is to prevent the frequent on-off of the pump and to maintain a good vacuum for tight attachment of the prosthesis” (id. at 9:13– 15). There is nothing of record to suggest that Segerstad’s mechanical vacuum regulator could achieve these capabilities with the electronic vacuum pump taught by Haines. Furthermore, the Specification indicates that “[a] very small leak without a surge chamber is a large loss of vacuum in the cavity, whereas, a Appeal 2013-003288 Application 12/286,474 10 comparable small leak with a surge chamber will not result in a significant loss of vacuum” (id. at 9:15–17). Thus, it appears that the claimed vacuum surge chamber is intended to minimize the loss of vacuum caused by leaks. By contrast, the design of Segerstad’s vacuum regulator purposefully includes “leak opening[s]” and “leak channel[s],” and further indicates that the bellows 20 “communicates at the bottom with the surrounding atmosphere” (FF5–7). As noted by Appellants, “the use of the Segerstad regulator would introduce leaks and arguably place greater demand on the battery of the vacuum pump” (App. Br. 10). The Examiner does not address this issue. Accordingly, we find that the Examiner has presented no reason to use the Segerstad regulator as a vacuum surge chamber that minimizes the loss of vacuum caused by leaks. We thus reverse the obviousness rejection of claims 1–5, 7–11, and 16–19. The Examiner rejected claim 6 based on the further teachings of Dean. The Examiner does not cite to any teaching in Dean that would make up for the deficiency with respect to the Segerstad reference discussed above. As such, we also reverse the obviousness rejection of claim 6. SUMMARY We reverse the rejections under 35 U.S.C. § 103(a). We summarily affirm the provisional obviousness-type double patenting rejection. We summarily affirm the rejection of claims 16 and 18 under 35 U.S.C. § 112 ¶ 4. Appeal 2013-003288 Application 12/286,474 11 No time period for taking any subsequent action in connection with this appeal may be extended under 37 C.F.R. § 1.136(a). AFFIRMED cdc Copy with citationCopy as parenthetical citation