Ex Parte Dixon

Patent Trial and Appeal Board

Jan 9, 2017

13022482 (P.T.A.B. Jan. 9, 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.
13/022,482 02/07/2011 DAVID M. DIXON 132728.00020 6771
34282 7590 01/11/2017
QUARLES & BRADY LLP
Attn: IP Docket
ONE SOUTH CHURCH AVENUE, SUITE 1700
EXAMINER
SCHMIDT, EMILY LOUISE
TUCSON, AZ 85701-1621 ART UNIT PAPER NUMBER
3763
NOTIFICATION DATE DELIVERY MODE
01/11/2017 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):
pat-dept@quarles.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte DAVID M. DIXON1
Appeal 2015-003479
Application 13/022,482
Technology Center 3700
Before DONALD E. ADAMS, JEFFREY N. FREDMAN,
and TIMOTHY G. MAJORS, Administrative Patent Judges.
PER CURIAM
DECISION ON APPEAL
This is an appeal under 35U.S.C. § 134 involving claims to a method
to secure an intravenous line which have been rejected as obvious. We have
jurisdiction under 35 U.S.C. § 6(b).
We reverse.
1 Appellant identifies the Real Party in Interest as the inventive entity, David
M. Dixon. (App. Br. 1.)
Appeal 2015-003479
Application 13/022,482
STATEMENT OF THE CASE
Appellant’s “invention relates to an intravenous line support sleeve,
and a method using same.” (Spec. 1:8—9.) More particularly, the “invention
relates to an apparatus to prevent tears or damage to the skin caused by
various adhesive tapes after securing one or more intravenous lines to a
patient’s forearm.” (Id. at 1:20—22.)
Claims 7—13 are on appeal. Claim 7 is illustrative:
7. A method to secure an intravenous line, comprising:
supplying a planar assembly comprising a trapezoidal­
shaped center portion comprising a first side and an opposing
second side and not formed to include one or more apertures
extending therethrough;
supplying an intravenous catheter and an intravenous line
comprising a flexible tubular member;
forming a tubular intravenous line support sleeve around
the patient's forearm by wrapping said planar assembly around a
patient’s forearm and attaching said first side to said second side;
wherein said tubular intravenous line support sleeve
comprises a free floating platform disposed around but not
attached to the patient’s forearm or hand;
removeably disposing said intravenous catheter in a vein
disposed within the patient’s hand;
wherein pronational rotation of said patient’s forearm
having said tubular intravenous line support sleeve disposed
therearound does not cause rotation of said tubular intravenous
line support sleeve; and
subinational [sic] rotation of said patient’s forearm
having said tubular intravenous line support sleeve disposed
therearound does not cause rotation of said tubular intravenous
line support sleeve.
(App. Br. Supp. App’x “A” (emphasis added).)
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Appeal 2015-003479
Application 13/022,482
The claims stand rejected as follows:
I. Claims 7—9 under 35 U.S.C. § 103(a) over Widman2 and Fritts.3
II. Claims 10 andl 1 under 35 U.S.C. § 103(a) over Widman, Fritts,
and Marais.4
III. Claims 12 and 13 under 35 U.S.C. § 103(a) over Widman,
Fritts, Marais, and Rose.5
DISCUSSION
REJECTIONS /-///
These rejections rely upon the combination of Widman and Fritts, and
so we focus on the Examiner’s findings with respect to these references.
The Examiner finds that Widman teaches
pronational rotation of said patient’s forearm having said tubular
intravenous line support sleeve disposed therearound does not
cause rotation of said tubular intravenous line support sleeve (the
Examiner finds that as the device is not directly attached to the
skin depending on how tightly it’s attached the device is capable
of such movement); and su[p]inational rotation of said patient’s
forearm having said tubular intravenous line support sleeve
disposed therearound does not cause rotation of said tubular
intravenous line support sleeve (the Examiner finds that as the
device is not directly attached to the skin depending on how
tightly it’s attached the device is capable of such movement).
(Final Act. 3^4.)
The Examiner finds that “Widman does not disclose a trapezoidal­
shaped center portion.” {Id. at 4.) The Examiner turns to Fritts and finds
that it “teaches making a sleeve for holding an intravenous member around a
2 Widman, US 4,671,787, issued June 9, 1987.
3 Fritts, US 5,188,608, issued Feb. 23, 1993.
4 Marais et al., US 4,316,461, issued Feb. 23, 1982.
5 Rose, US 2004/0138623 Al, published July 15, 2004.
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Appeal 2015-003479
Application 13/022,482
forearm which forms a tapered trapezoidal sleeve when wrapped around the
arm because this allows the sleeve to fit the shape of the arm more closely
which would provide a more secure fit (Col. 4 lines 26—31).” (Id.) The
Examiner concludes that it would have been obvious to “use a trapezoid
sleeve in the device of Widman because Fritts teaches that such a tapered
sleeve is beneficial because when wrapped around the users arm it will more
closely fit the shape of the arm and provide a more secure fit.” (Id.)
We are not persuaded that the Examiner has established by a
preponderance of the evidence that claim 7 would have been obvious. We,
instead, agree with Appellant that
neither Widman nor Fritts, singly or in combination, teaches use
of the tubular intravenous line support sleeve comprises a free
floating platform disposed around but not attached to the
patient’s forearm or hand such that rotation of the patient’s
forearm having the tubular intravenous line support sleeve
disposed therearound does not cause rotation of the tubular
intravenous line support sleeve.
(App. Br. 12.)
We recognize, but are not persuaded by, the Examiner’s assertion that
these limitations are functional and are not specific method steps
but rather capabilities of the sleeve device. The Examiner also
notes that these limitations are drawn only to the relationship
between the arm and the sleeve and are silent as to the tubing.
The portion of Widman cited by the Appellant refers to
securement of the tube by the wrap as opposed to securement of
the wrap around the forearm. The Examiner maintains that as
these limitations are functional and there is nothing in the device
of Widman which directly attaches or fixes the wrap in place
around the limb to prevent it from such movement, the device of
Widman is capable of the recited limitations. The device of
Widman is secured based on how tightly the VELCRO is secured
and one of ordinary skill would be able to apply the wrap such
that it is capable of meeting the recited limitations. Additionally,
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Appeal 2015-003479
Application 13/022,482
though Fritts teaches “tight securement” there is no specific
teaching away and there are no features added from the
combination with Fritts that would prevent the VELCRO from
Widman being secured as desired.
(Ans. 3—4.)
As Appellant points out, which the Examiner does not appear to
dispute,
Widman requires that his support wrap be tightly disposed
around a patient’s forearm. “FIG. 8 shows the completed
application of the support wrap with the loop of IV tubing 40
being securely confined by the support wrap 10.” Col. 4 at Line
43—44 (emphasis added).
Similarly, Fritts teaches that his stabilizing sleeve be
tightly disposed around a patient’s forearm. “Since end 29 is
where tube 35 exits from beneath the sleeve, it is desired to
tightly secure the sleeve around the arm at this location in order
to anchor the tube 35 to the arm and thereby stabilize the needle.”
Col. 4 at Lines 50—53.
(App. Br. 12; see also Reply Br. 6—7.)
Further and importantly, claim 7 is directed to “[a] method to secure
an intravenous line” as opposed to an apparatus. (App. Br. Supp. App’x “A”
(emphasis added).) We thus agree with Appellant that “method claims are
inherently ‘functional.’ Moreover, Appellant respectfully submits that these
claim elements limit a third claim element, namely ‘forming a tubular
intravenous line support sleeve around the patient’s forearm by wrapping
said planar assembly around a patient’s forearm and attaching said first side
to said second side.’” (Reply Br. 5.)
Even considering the Examiner’s assertion that the device of Widman
is “capable of meeting the recited limitations” and that “there is no specific
teaching away and there are no features added from the combination with
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Appeal 2015-003479
Application 13/022,482
Fritts that would prevent the VELCRO from Widman being secured as
desired” (Ans. 3—4), the Examiner has not provided sufficient “articulated
reasoning with some rational underpinning” — based on Widman, Fritts, or
otherwise — why the skilled artisan would make the changes necessary to
arrive at a method to secure an intravenous line as claimed. KSR Int 7 Co. v.
Teleflex Inc., 550 U.S. 398, 418 (2007) (quoting In re Kahn, 441F.3d 977,
988 (Fed. Cir. 2006). More particularly, the Examiner has not provided a
reason why the skilled artisan would modify Widman’s method of securing
an intravenous line by, instead, providing a free floating sleeve that is not
attached to the patient’s forearm or hand such that the sleeve remains
stationary when the patient’s forearm is rotated.
In addition, the Examiner failed to establish that Marais or Rose,
alone or in combination, make up for the foregoing deficiencies in the
combination of Widman and Fritts.
For the reasons above, the rejection of independent claim 7 is
reversed. So too, we reverse the rejection of claims 8—13 because of their
dependencies from claim 7.
CONCLUSION OF LAW
We reverse the rejection of claims 7—9 under 35 U.S.C. § 103(a) over
Widman and Fritts.
We reverse the rejection of claims 10 and 11 under 35 U.S.C. § 103(a)
over Widman, Fritts, and Marais.
We reverse the rejection of claims 12 and 13 under 35 U.S.C. § 103(a)
over Widman, Fritts, Marais, and Rose.
REVERSED
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