Ex Parte DixonDownload PDFPatent Trial and Appeal BoardJan 9, 201713022482 (P.T.A.B. Jan. 9, 2017) Copy Citation 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).) 2 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. 3 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, 4 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 5 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 6 Copy with citationCopy as parenthetical citation