Ex Parte Ritter

Patent Trial and Appeal BoardApr 11, 2016

11639004 (P.T.A.B. Apr. 11, 2016)

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. 11/639,004 12/14/2006 Ralf Ritter HG 46 4056 7590 04/11/2016 KLAUS J. BACH & ASSOCIATES PATENTS AND TRADEMARKS 4407 TWIN OAKS DRIVE MURRYSVILLE, PA 15668 EXAMINER KIRSCH, ANDREW THOMAS ART UNIT PAPER NUMBER 3781 MAIL DATE DELIVERY MODE 04/11/2016 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 RALF RITTER ____________ Appeal 2014-0023001,2 Application 11/639,004 Technology Center 3700 ____________ Before PHILIP J. HOFFMANN, KENNETH G. SCHOPFER, and MATTHEW S. MEYERS, Administrative Patent Judges. HOFFMANN, Administrative Patent Judge. DECISION ON APPEAL STATEMENT OF THE CASE Appellant appeals under 35 U.S.C. § 134(a) from the rejection of claims 1–6. We have jurisdiction under 35 U.S.C. § 6(b). We REVERSE. According to Appellant, “[t]he invention resides in a rigid salt container of plastic material for [] hemodialysis which is sealed in an airtight 1 Our decision references Appellant’s Specification (“Spec.,” filed Dec. 14, 2006), Appeal Brief (“Appeal Br.,” filed July 15, 2013), and Reply Brief (“Reply Br.,” filed Nov. 29, 2013), as well as the Final Office Action (“Final Action,” mailed May 15, 2013) and the Examiner’s Answer (“Answer,” mailed Oct. 2, 2013). 2 According to Appellant, the real parties in interest are “Ralf Ritter” and “RITTER GmbH.” Appeal Br. 2. Appeal 2014-002300 Application 11/639,004 2 manner and includes a coupling arrangement for communication with a dialysis apparatus.” Spec. 1, ll. 1–4. Claim 1, which we reproduce below, is the only independent claim under appeal and is representative of the appealed claims. 1. A hemodialysis salt container (1, 2) in the form of a one- way container having rigid walls provided with a coupling arrangement (3) for establishing a flow, connection with a dialysis apparatus but which is otherwise sealed in an airtight manner, said container including a venting valve (4) with a venting opening (41) formed in the container wall and a seal member (42) connected to the container wall by local cementing or welding connections so as to cover the venting opening (41) on the inside of the container wall, the cementing or welding connections being so dimensioned that, when a certain pressure difference between the ambient air pressure and a vacuum generated by the dialysis apparatus in the interior of the container is reached, the seal member (4) is at least locally ripped open. Appeal Br., Claims App. REJECTIONS AND PRIOR ART The Examiner rejects the claims as follows: claims 1–4 and 6 under 35 U.S.C. § 103(a) as unpatentable over Blake (US 5,045,077, iss. Sept. 3, 1991) and Cooper (US 2,440,462, iss. Apr. 27, 1948); and claim 5 under 35 U.S.C. § 103(a) as unpatentable over Blake, Cooper, and Schutz (US 5,908,129, iss. June 1, 1999). See Final Action 2–8. Appeal 2014-002300 Application 11/639,004 3 ANALYSIS Independent claim 1, from which claims 2–6 depend, recites a venting valve (4) with a venting opening (41) formed in the container wall and a seal member (42) connected to the container wall by local cementing or welding connections so as to cover the venting opening (41) on the inside of the container wall, the cementing or welding connections being so dimensioned that, when a certain pressure difference between the ambient air pressure and a vacuum generated by the dialysis apparatus in the interior of the container is reached, the seal member (4) is at least locally ripped open. App. Br., Claims App. The Examiner finds that Blake discloses the claimed seal member that is “at least locally ripped open” as claimed. See, e.g., Final Action 2–3. In response to Appellant’s argument that Blake fails to disclose the claimed seal member because “the seal member 78 of Blake is lifted off the seat. There are no connections [in Blake] which are ripped” (Appeal Br. 6), the Examiner determines absent any specific definition in the specification, [the claim] is interpreted by the dictionary definition of “rip” which is “to tear or split apart or open.” The seal 80 of Blake splits or separates from the bottom surface of wall 48 during opening under a specific negative pressure within the vacuum chamber. Appellant has not claimed that any irreversible damage is imparted to the seal during opening. Appellant also argues that there are no connections which are ripped. However, this limitation is currently not claimed, as claim 1 only recites that “the seal member is at least locally ripped open[,]” and does not recite that the connections are what is ripped. Answer 9–10. In reply, Appellant argues that the Examiner’s interpretation of the claim limitation “ripped open” is unreasonably broad, “not[ing] that another dictionary definition [of ‘rip’] is ‘to tear vigorously as cloth along a seam’ or ‘to remove by tearing rigorously,’” as occurs in Appellant’s Appeal 2014-002300 Application 11/639,004 4 invention. Reply Br. 3–4. Neither the Examiner nor Appellant provides a citation for their definitions, although both sets of definitions appear to be reasonable. For example, we note that definitions of “rip” include “1. a. To cut, tear apart, or tear away roughly or energetically. . . . b. To cause to be pulled apart.” From http://www.thefreedictionary.com/rip, last visited April 6, 2016. It is well established that “the PTO must give claims their broadest reasonable construction consistent with the specification.” In re ICON Health & Fitness, Inc., 496 F.3d 1374, 1379 (Fed. Cir. 2007) (citations omitted). In this case, there is no express definition of “rip” or “ripped open” in Appellant’s Specification. Nonetheless, Appellant’s Specification describes (and Appellant’s claim requires) a welded or cemented connection between a seal and a container wall, which we conclude would be expected to result in damage (such as tearing or breaking) to any or all of the seal, the wall, or the connection. Further, the Examiner’s proffered definition of “ripped” appears to cover any seal that is opened. Based on the above discussion, we conclude that the Examiner’s definition is unreasonably broad. Instead, we interpret that “ripped open” would require damage to any or all of the seal, the wall, or the welded or cemented connection. Inasmuch as the Examiner does not establish by a preponderance of the evidence that any reference discloses a seal that is “ripped open,” or that it would be obvious to replace Blake’s valve that opens and closes (without damage) with a seal that is “ripped open,” we do not sustain the rejection of claim 1. We also do not sustain the rejections of claims 2–6 that depend from claim 1, inasmuch as the Examiner does not establish that any other reference, for example, remedies the deficiency in the rejection of claim 1. Appeal 2014-002300 Application 11/639,004 5 DECISION We REVERSE the Examiner’s rejections of claims 1–6 under 35 U.S.C. § 103(a). REVERSED