Ex Parte Reichert et alDownload PDFPatent Trial and Appeal BoardOct 24, 201713213710 (P.T.A.B. Oct. 24, 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. 13/213,710 08/19/2011 Dirk-Stefan REICHERT 73954 8759 7590 MCGLEW & TUTTLE, PC P.O. BOX 9227 SCARBOROUGH STATION SCARBOROUGH, NY 10510-9227 EXAMINER NIESZ, JASON KAROL ART UNIT PAPER NUMBER 3753 MAIL DATE DELIVERY MODE 10/24/2017 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 DIRK-STEFAN REICHERT, WOLFGANG FALB, SVEN PASDZIOR, ERNST-GUNTER SCHARMER, and FRANK GOTTSCHALK Appeal 2016-000691 Application 13/213,710 Technology Center 3700 Before JENNIFER D. BAHR, EDWARD A. BROWN, and ANTHONY KNIGHT, Administrative Patent Judges. BAHR, Administrative Patent Judge. DECISION ON APPEAL STATEMENT OF THE CASE Dirk-Stefan Reichert et al. (Appellants)1 appeal under 35 U.S.C. § 134(a) from the Examiner’s decision rejecting claims 1, 2, 4, 7—15, and 17—19 under 35 U.S.C. § 103(a) as unpatentable over Tinker (US 7,389,801 B2, issued June 24, 2008). We have jurisdiction under 35 U.S.C. § 6(b). An oral hearing in accordance with 37 C.F.R. § 41.47 was held on October 10, 2017. We AFFIRM. 1 The Appeal Brief, dated April 9, 2015 (hereinafter “Appeal Br.”), identifies Drager Medical GmbH as the real party in interest. Appeal Br. 1. Appeal 2016-000691 Application 13/213,710 THE CLAIMED SUBJECT MATTER Claim 1, reproduced below, is illustrative of the claimed subject matter. 1. A filling system for an anesthetic dispenser, the filling system comprising: an anesthetic evaporator; a bottle adapter having an adapter neck and an outlet connection piece comprising a plurality of slots extending in the radial direction and a central opening connected to said at least one slot, wherein said central opening comprises an extension of said plurality of slots; a filling device at the anesthetic evaporator with a filling connection piece for receiving the adapter neck; and a plurality of rods fastened to the filling connection piece, said plurality of rods extending radially from a center of said filling connection piece and meshing with said central opening, said plurality of rods being connected together via a flange, said flange being arranged in the center of the filling connection piece. DISCUSSION The Examiner finds that Tinker discloses a filling system substantially as recited in claims 1, 2, 4, and 7—14, and a device as recited in claims 15 and 17—19, with the exception that, in the connection between the bottle adapter neck and the evaporator filling device of Tinker, the outlet connection piece of the bottle adapter neck comprises the plurality of rods connected together by a flange (star shaped body 11) and the filling connection piece of the evaporator filling device comprises the central opening connected to a plurality of radially extending slots (the area between spokes 26), rather than the central opening and passages being on the neck 2 Appeal 2016-000691 Application 13/213,710 connection piece and the rods connected together by a flange being on the filling connection piece, as required in independent claims 1,7, 11, and 15.2 Ans. 2, 3. In other words, in the two-part connection between the neck and the filling device, the two parts of the connection in Tinker are inverted, or reversed, from the arrangement in the claimed connection. The Examiner determines that “[i]t would have been an obvious matter of design choice ... to invert the coupling configuration of the [Tinker] apparatus by placing the plurality of rods and the flange on the filling connection piece and placing the slot structure on the bottle adapter.” Id. at 3. “The [EJxaminer notes that the modified device would perform identically to the original [Tinker] apparatus.” Id. The Examiner finds: It was well known in the fluid handling art at the time of the invention that . . . many types of fluid connections can be reversed while not materially affecting the functioning of a fluid handling apparatus. For example, a threaded pipe connection passes fluid equally well whether the male threaded portion is located on a fluid receiver or a fluid supply. Id. at 4. Appellants do not dispute the Examiner’s finding. The Examiner explains further: [Tinker] varies from [Appellants’] invention in that the rod and flange portion of the fluid connection of the instant invention is located on the filling connection piece while the opening and slots portion is located on the bottle adapter. This is merely a 2 Claim 15 recites, in the preamble, “[a] a device for interfacing an anesthetic reservoir with an anesthetic dispenser,” but the only connection structure positively recited in the body of claim 15 is between the neck and the anesthetic reservoir. See Appeal Br. 34—35 (Claims App.). In the event of further prosecution of the claimed subject matter, the Examiner may wish to reconsider where claim 15 requires the plurality of rods connected together by a flange to be located. 3 Appeal 2016-000691 Application 13/213,710 reversal of the fluid connector of [Tinker], It has been held that a mere reversal of the essential working parts of a device involves only routine skill in the art. In re Einstein, 8 USPQ 167. Id. Appellants provide arguments, under separate subheadings, for each of claims 1, 2, 4, 7—15, and 17—19. Appeal Br. 10—28. However, the respective arguments are largely repetitive. Id. One recurring theme in Appellants’ arguments is that Tinker does not provide any disclosure recognizing or addressing the problem of the unsupported arrangement of spokes 26 and “does not provide any teaching or suggestion that would direct a person of ordinary skill in the art toward connecting the spokes 26 to a flange as featured in the present invention.” See, e.g., id. at 11, 13, 15, 16, 24, 28. This argument does not identify error in the rejection because it does not address the rejection set forth by the Examiner. The Examiner does not propose to modify Tinker’s spoked wheel 25 by connecting spokes 26 thereof to a central flange. Rather, the Examiner finds that Tinker’s star shaped body 11 is an arrangement of rods connected to a central flange as called for in the claims and that Tinker’s arrangement of spokes 26 defines a plurality of slots and a central opening as called for in the claims. See Ans. 2, 4. The Examiner acknowledges that Tinker varies from Appellants’ claimed invention in that the rod and flange portion of the fluid connection of Tinker is located on the outlet connection piece of the bottle adapter neck, rather than on the evaporator filling device filling connection piece as claimed, and the opening and slots portion is located on the evaporator filling device filling connection piece, rather than on the bottle adapter neck outlet connection piece as claimed, but determines that this distinction amounts to merely an obvious reversal of parts. Ans. 2— 4 Appeal 2016-000691 Application 13/213,710 4. Moreover, Appellants’ argument insists upon an explicit teaching, suggestion, or motivation in Turker, and, such arguments have been foreclosed by the Supreme Court. See KSR Int’l Co. v. Teleflex Inc., 550 U.S. 398, 419 (2007) (the Supreme Court stating that a rigid insistence on teaching, suggestion, or motivation is incompatible with its precedent concerning obviousness). At times acknowledging that the Examiner’s rejection is premised on a determination that it would have been obvious to invert the connection arrangement disclosed by Turker, Appellants counter by submitting that “there is no teaching that supports this position.” See, e.g., Appeal Br. 11, 14, 18, 20, 24. Appellants insist that “[a] reference must provide some teaching or suggestion for the features recited in the claimed combination.” Id. at 14; see id. at 18 (arguing same). As already noted, such arguments premised on a rigid insistence on a teaching, suggestion, or motivation in the prior art have been foreclosed by the Supreme Court. KSR, 550 U.S. at 419. Appellants contend that Turker “is completely void of any disclosure as to the advantages associated with providing an outlet connection piece of a bottle adapter with a central opening and a plurality of slots extending in a radial direction forming a continuation of the central opening” as claimed. Appeal Br. 18—19. This argument is unavailing. “In determining whether the subject matter of a patent claim is obvious, neither the particular motivation nor the avowed purpose of the patentee controls. What matters is the objective reach of the claim. If the claim extends to what is obvious, it is invalid under § 103.” KSR, 550 U.S. at 419-20. The Examiner reasons that the difference between the claimed invention and Turker amounts to a simple inversion of the connecting parts of the two-part connection between 5 Appeal 2016-000691 Application 13/213,710 the neck and the filling connection piece. Ans. 3. The Examiner finds that Tiirker’s device, if modified as set forth in the rejection, by placing the plurality of rods and the flange on the filling connection piece and placing the slot structure on the bottle adaptor, would “perform identically” to the unmodified device. Id. Appellants have not specifically explained why this would not be the case. Appellants submit that Tinker’s spokes 26 lack sufficient strength and stiffness, and thus become damaged when the bottle adapter is applied to the filling device, so that they are not able to protect the valve and other elements located beyond spokes 26. Appeal Br. 23; see also Reply Br. 2 (asserting that Tinker’s “spokes 26 will bend if too much force is applied to the bottle adapter”). Appellants contend that the claimed invention solves this problem by connecting the plurality of rods/spokes to a central flange to impart increased strength and stiffness to the rods. Appeal Br. 23; Reply Br. 2. Appellants allude to “Appellants’] evidence regarding the weak cantilever connection of the spokes 26 to the filling device of Tinker . . . and the problems of the spokes 26 bending and breaking when too much force is applied” (Reply Br. 10), but Appellants do not identify where such evidence is located in the record of the present application. Rather, the only mention of spokes 26 lacking adequate strength and stiffness in the record before us appears to be contained in the attorney arguments in Appellants’ briefing. See In re Geisler, 116 F.3d 1465, 1470 (Fed. Cir. 1997) (according little weight to unsupported attorney argument). With respect to claims 10, 14, and 19, Appellants contend that Tinker’s spokes 26 “do not converge at a central punctiform portion or a virtual connection point that is defined by a flange.” Appeal Br. 17, 22, 28. 6 Appeal 2016-000691 Application 13/213,710 This argument does not identify error in the rejection, which relies on Tinker’s star shaped body 11, not spokes 26, for the rod and flange portion of the connection. Ans. 2, 4. Appellants do not specifically contest the Examiner’s finding that Tinker’s star shaped body 11 comprises a plurality of rods connected to a flange at a central connection point. See Ans. 2. For the above reasons, Appellants do not apprise us of error in the rejection of claims 1, 2, 4, 7—15, and 17—19 under 35 U.S.C. § 103(a) as unpatentable over Tinker, which we thus sustain. DECISION The Examiner’s decision rejecting claims 1, 2, 4, 7—15, and 17—19 is AFFIRMED. 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 7 Copy with citationCopy as parenthetical citation