Ex Parte Dextradeur

Patent Trial and Appeal BoardAug 11, 2017

13799281 (P.T.A.B. Aug. 11, 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. 13/799,281 03/13/2013 Alan Dextradeur COD5309USNP 1196 27777 7590 08/15/2017 JOSEPH F. SHIRTZ JOHNSON & JOHNSON ONE JOHNSON & JOHNSON PLAZA NEW BRUNSWICK, NJ 08933-7003 EXAMINER WENG, KAI H ART UNIT PAPER NUMBER 3761 NOTIFICATION DATE DELIVERY MODE 08/15/2017 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): j nju spatent @ corn s .j nj. com lhowd@its.jnj.com pair_jnj @ firsttofile.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte ALAN DEXTRADEUR1 Appeal 2016-005701 Application 13/799,281 Technology Center 3700 Before: JILL D. HILL, LEE L. STEPINA, and ARTHUR M. PESLAK, Administrative Patent Judges. HILL, Administrative Patent Judge. DECISION ON APPEAL STATEMENT OF THE CASE Alan Dextradeur (Appellant) appeals under 35U.S.C. § 134 from the Examiner’s final decision rejecting claims 1—3 and 5—12.2 We have jurisdiction under 35 U.S.C. § 6(b). We AFFIRM. 1 According to Appellant, the real party in interest is DePuy Synthes Products, Incorporated. See Br. 1. 2 Claim 4 was canceled. Br. 7 (Claims App.). Appeal 2016-005701 Application 13/799,281 BACKGROUND Appellant’s invention relates to shunts and siphon control devices. Claims 1 and 7 are independent. Claim 1, reproduced below, illustrates the claimed subject matter, with certain limitations italicized. 1. A siphon guard comprising: a housing having an inlet and an outlet; a primary flow path disposed within the housing and in fluid communication with the inlet and the outlet; a secondary flow path disposed within the housing and in fluid communication with the inlet and the outlet, the secondary flow path having a higher resistance to fluid flow than the primary path; and a valve disposed within the primary flow path, the valve having a valve seat and a first ball and a second ball, the first ball being movable by gravity between a valve closed position where the first ball is in contact with the valve seat and a valve open position where the first ball is spaced from the valve seat, the first ball is disposed between the second ball and the valve seat, the second ball being movable by gravity between a valve closed position and a valve open position. REJECTIONS I. Claims 1—33, 5, and 7—11 stand rejected under 35 U.S.C. § 103(a) as unpatentable over Nissels (US 6,126,628, iss. Oct. 3, 2000) and Bonnal (US 6,146,352, iss. Nov. 14, 2000). Final Act. 2. II. Claims 6 and 12 stand rejected under 35 U.S.C. § 103(a) as unpatentable over Nissels, Bonnal, and Portnoy (US 2006/0089589 Al, pub. Apr. 27, 2006). Id. at 6. 3 The heading of Rejection I includes claims 1—5 and 7—11. Claim 4 is canceled. Br. 2; Final Act. 2. We understand the inclusion of claim 4 in the heading to be a typographical error. 2 Appeal 2016-005701 Application 13/799,281 ANALYSIS The dispositive issue in this appeal is whether Nissels and Bonnal disclose a “ball being movable by gravity between a valve closed position and a valve open position.” Br. 4; Final Act. 3; Ans. 3^4. Appellant argues that Nissels, a commonly owned application, includes a ball that is “biased by a spring to overcome the force of gravity. Only sufficient fluid pressure can move the ball in Nissels.” Br. 4. Appellant, likewise, argues that Bonnal’s balls 3, 6, 6’ and 6” are “only movable by a spring or sufficient fluid pressure.” Id. Appellant, thus, contends that “the balls in both Nissels and Bonnal are not movable by gravity as in the present invention.” Id. The Examiner responds that “[w]hile the devices of the prior art have a spring bias, it does not mean that gravity is not acting on the ball.” Ans. 3. The Examiner states that “[t]he balls of the prior art devices must be movable by gravity since they both have weight.” Id. The Examiner notes that Bonnal accounts for gravity by disclosing that “the ball is then subject to a vertical downward force, which presses it onto the seat, equal to the sum of the force exerted by the spring plus the weight of the balls.” Ans. 4 (citing Bonnal col. 2,11. 24—27). Ans. 4. The Examiner notes that, moreover, Nissels explicitly accounts for gravity by disclosing that “as the patient moves to a sitting or standing position, gravity further forces the ball towards the seat.” Id. (citing Nissels col. 6,11. 61—64). The Examiner recognizes that, because of the spring bias in the references, the balls do not function exactly as Appellant’s balls, but that the claims do not recite the argued distinction of gravity and fluid pressure being the only forces acting on the balls to close them to open and close the valve. Id. 3 Appeal 2016-005701 Application 13/799,281 Appellant’s argument is not persuasive. As the Examiner correctly notes, the influence of the biasing elements on the balls of Nissels and Bonnal does not prevent the balls from being movable by gravity. That is, gravity works with Nissels’ bias element to move the ball into the closed position, as explicitly disclosed by Nissels, and also works with Nissels’ counter bias element to an opened position. See Nissels col. 6,11. 61—67; see also Ans. 4. Further, adding a second ball to Nissels, as the Examiner proposes, will not change how gravity functions on the balls. Appellant does not apprise us of Examiner error. We, therefore, sustain the rejection of independent claims 1 and 7. Appellant makes no argument that the dependent claims would be patentable over the applied references if claims 1 and 7 are not patentable over Nissels and Bonnal. Br. 4—5. We sustain Rejections I and II. DECISION We AFFIRM the rejection of claims 1—3, 5, and 7—11 as unpatentable over Nissels and Bonnal. We AFFIRM the rejection of claims 6 and 12 as unpatentable over Nissels, Bonnal, and Portnoy. 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. § 41.50(f). AFFIRMED 4