John J. Landy et al.

Patent Trials and Appeals Board

Dec 11, 2019

14121749 - (D) (P.T.A.B. Dec. 11, 2019)

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.
14/121,749 10/14/2014 John J. Landy III 2012366-0011 6257
24280 7590 12/11/2019
CHOATE, HALL & STEWART LLP
TWO INTERNATIONAL PLACE
BOSTON, MA 02110
EXAMINER
SNYDER, MELISSA A
ART UNIT PAPER NUMBER
3783
NOTIFICATION DATE DELIVERY MODE
12/11/2019 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):
jnease@choate.com
patentdocket@choate.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
____________________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________________

Ex parte JOHN J. LANDY III, BELMONT INSTRUMENT, LLC,
GEORGE G. BRUSARD, TRISTAN DION
____________

Appeal 2019-002825
Application 14/121,749
Technology Center 3700
____________

Before BRETT C. MARTIN, WILLIAM A. CAPP and LISA M. GUIJT,
Administrative Patent Judges.

CAPP, Administrative Patent Judge.

DECISION ON APPEAL

STATEMENT OF THE CASE
Appellant1 seeks our review under 35 U.S.C. § 134(a) of the non-final
rejection of claims 2, 4–10, and 20–23. We have jurisdiction under 35
U.S.C. § 6(b).
We AFFIRM.

1 We use the word “Appellant” to refer to “Applicant” as defined in 37
C.F.R. § 1.42(a). Appellant identifies Belmont Instrument, LLC as the real
party in interest. Appeal Br. 2.
Appeal 2019-002825
Application 14/121,749
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THE INVENTION
Appellant’s invention relates to fluid conduit systems for use in
hyperthermia lavage medical treatment. Spec. ¶¶ 4–11. Claim 2,
reproduced below, is illustrative of the subject matter on appeal.
2. An arrangement of fluid flow lines to transfer one or
more hyperthermia fluids from a fluid processing device to a
recipient, and to receive the hyperthermia fluids from the
recipient, the arrangement of fluid flow lines comprising:
(a) a first fluid flow line providing a first flow path through
which a heated hyperthermia fluid from the fluid processing
device is to flow through in a first given direction;
(b) a second fluid flow line providing a second flow path
through which a hyperthermia fluid from the recipient is to flow
through in a second given direction;
( c) a first temperature sensing device positioned within the
first flow path to sense the temperature of the heated
hyperthermia fluid when flowing therethrough; and
( d) a second temperature sensing device positioned within
the second flow path to sense the temperature of the
hyperthermia fluid when flowing therethrough,
wherein the first fluid flow line comprises a first detachable
connector connectable to a first sub-arrangement of fluid flow
lines,
wherein the second fluid flow line comprises a second
detachable connector connectable to a second sub-arrangement
of fluid flow lines,
wherein the arrangement of fluid flow lines is external to
the fluid processing device, and
wherein the first fluid flow line and the second fluid flow
line are secured to each other to form a single dual lumen line.
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THE REJECTIONS
The Examiner relies upon the following as evidence in support of the
rejections:
NAME REFERENCE DATE
Fleming US 5,718,678 Feb. 17, 1998
Westerbeck US 6,336,911 Bl Jan. 8, 2002
Rawles US 2003/0204127 Al Oct. 30, 2003
Caballero US 8,900,652 Bl Dec. 2, 2014
The following rejections are before us for review:
1. Claims 2, 4–6, 8–10, and 20–23 are rejected under 35 U.S.C. § 103
as being unpatentable over Westerbeck, Rawles, and Fleming.
2. Claim 7 is rejected under 35 U.S.C. § 103 as being unpatentable
over Westerbeck, Rawles, Fleming, and Caballero.
OPINION
Unpatentability of Claims 2, 4–6, 8–10, and 20–23 __
over Westerbeck, Rawles, and Fleming
Claim 2
The Examiner finds that Westerbeck discloses the invention
substantially as claimed except for: (1) detachable connectors; and (2) a
dual lumen line; for which the Examiner relies on Rawles and Fleming,
respectively. Non-Final Action 3–5. The Examiner concludes that it would
have been obvious to a person of ordinary skill in the art at the time of the
invention to modify Westerbeck by the teachings of Rawles and Fleming to
achieve the claimed invention. Id. According to the Examiner, a person of
ordinary skill in the art would have done this to facilitate connection and
disconnection of lines and to provide more evenly distributed flow. Id.
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Appellant argues that Fleming is not pertinent to fluid lines for
hyperthermia fluids because it discloses a catheter that is inserted into a
narrow opening in a body. Appeal Br. 17. Appellant further argues that
Fleming teaches a co-axial dual lumen and disparages side-by-side lumen
arrangements. Id.
In response, the Examiner points out that claim 2 fails to recite any
limitation directed to dimensions. Ans. 3. The Examiner notes that Fleming
is applicable to hemodialysis applications, which entail fluid that is removed
from a patient, processed by a machine, and returned to a patient. Id. at 3–4.
With respect to the Appellant’s “side-by-side” argument, the
Examiner interprets the claims as merely requiring first and second fluid
lines that are secured to each other and, therefore, does not require a side-by-
side configuration. Id. 4. According to the Examiner, the claim does not
require the tubes to be physically and continuously attached along their
lengths and, instead, only requires that the tubes are secured to each other.
Id. Thus, under the Examiner’s interpretation, the “secured to each other”
limitation of claim 2 is satisfied by Fleming. Id.
In reply, Appellant reiterates that Fleming’s catheter must be sized to
fit into an opening in a body. Reply Br. 5 (citing Appeal Br. 19). Appellant,
therefore, concludes that:
one skilled in the art would understand that, to be inserted in a
blood vessel, at least one side of the catheter should be tapered
and smaller than the blood vessel, as shown in every figure in
Fleming. Additionally, the catheter should be able to
accommodate a guide wire to be inserted using a standard guide
wire insertion technique. See Fleming, column 2, lines 41–64.
In contrast, the present claims require, for example, the
limitation of “the second fluid flow line compris[ing] a second
detachable connector connectable to a second sub-arrangement
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of fluid flow lines”. Additionally, the single dual lumen line of
Appellant's claimed subject matter is located outside of the
patient. As the catheter of Fleming is very different from the
claimed invention, one skilled in the art would not look to
Fleming to achieve the present claims.
Id.
Westerbeck is directed to a temperature sensor for use in a
hyperthermia system. Westerbeck, Abstract. In Westerbeck, blood is
withdrawn from a first venous cutdown 12 in a patient’s leg. Westerbeck,
col. 1, ll. 57–59. The blood then passes through temperature sensor 32,
blood pump 18, heat exchanger 20, temperature sensor 30, after which it is
returned to the patient’s body via venous cutdown 14. Id., col. 1, l. 59 –
col. 2, l. 6; Fig. 1. Although Figure 1 of Westerbeck is largely drawn in
schematic form, it appears that the line out of the body and into temperature
sensor 32 is separated from or, in other words, not directly secured to, the
line out of temperature sensor 30 and into the body. Id. Fig. 1.
As anyone who has ever dealt with a plurality of lines, whether fluid
lines, electrical wires, data cables, etc., can attest, such lines can easily
become entangled with each other. Appellant acknowledges that such a
problem was known in the prior art and with respect to hyperthermia
treatment systems: “[t]here are also concerns as to the number of fluid flow
lines transitioning between the system and the patient.” Spec., Background
of the Invention Section ¶ 6. One of the questions before us, then, is
whether it would have been obvious to secure two lines to each other in
order to, among other things, alleviate the entanglement problem. We
answer such question in the affirmative.
Appellant’s argument that Fleming is not “reasonably pertinent” to the
claimed invention is unpersuasive. Appeal Br. 17. A reference qualifies as
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prior art for an obviousness determination when it is analogous to the
claimed invention. Innovention Toys, LLC. v. MGA Ent., Inc., 637 F.3d
1314, 1321 (Fed. Cir. 2011). “Two separate tests define the scope of
analogous art: (1) whether the art is from the same field of endeavor,
regardless of the problem addressed, and (2) if the reference is not within the
field of the inventor's endeavor, whether the reference still is reasonably
pertinent to the particular problem with which the inventor is involved.” In
re Bigio, 381 F.3d 1320, 1325 (Fed. Cir. 2004). The “field of endeavor” test
asks if the structure and function of the prior art is such that it would be
considered by a person of ordinary skill in the art because of similarity to the
structure and function of the claimed invention as disclosed in the
application.” Id. at 1325–26. “A reference is reasonably pertinent if . . . it is
one which, because of the matter with which it deals, logically would have
commended itself to an inventor's attention in considering his problem.” In
re Clay, 966 F.2d 656, 659 (Fed. Cir. 1992). “If a reference disclosure has
the same purpose as the claimed invention, the reference relates to the same
problem, and that fact supports use of that reference in an obviousness
rejection.” Id. Whether a prior art reference is “analogous” is a question of
fact. Id. at 658.
In the instant case, Appellant fails to contest the Examiner’s
determination that Fleming falls within the same field of endeavor as
Appellant’s invention. See generally Appeal Br., Reply Br. Thus,
Appellant’s “reasonably pertinent” argument fails to apprise us of Examiner
error. In any event, we agree with the Examiner that Fleming is reasonably
pertinent to the problem to be solved, namely, arranging fluid lines. Ans. 3.
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Appellant’s argument concerning the size of the fluid lines is similarly
unpersuasive. As acknowledged by Appellant in its Background of the
Invention section of the Specification, using fluid flow lines in connection
with hyperthermic lavage treatment is known. Spec. ¶¶ 4–7. The problems
addressed by Appellant’s invention reportedly are: (1) the arrangement of
the lines; and (2) the placement of temperature probes. Id. Thus, we infer
that the dimensions of the fluid lines for hyperthermic lavage treatment is
known in the prior art. Moreover, Appellant does not direct us to any
teaching disclosure in the Specification indicating that the size of the lines is
either unique or critical to the invention. Thus, we conclude that Appellant’s
argument based on the size of the fluid lines does not impart patentability to
the invention. See In re Rose, 220 F.2d 459, 463 (CCPA 1955) (explaining
that the mere size of an article under consideration is not ordinarily a matter
of invention).
With respect to the issue of side-by-side versus co-axial arrangement
of the fluid lines, we note that Fleming’s alleged disparagement of side-by-
side arrangements is offered in the context of comparing a prior art side-by-
side configuration to Fleming’s co-axial arrangement. Id. col. 12, ll. 38–45.
The issue presented in the instant case is whether it would have been
obvious to improve Westerbeck’s system, which features lines that are not
secured to each other, by securing one fluid line to another. In that regard, it
would have been obvious to improve Westerbeck by securing a first line to a
second line, whether the securing arrangement is side-by-side or co-axial. In
any event, it is not disputed that Fleming acknowledges that side-by-side
arrangements are known in the art. Fleming, col. 1, ll. 38–55; col. 1, l. 66 –
col. 2, l. 2; col. 2, ll. 20–40. The Examiner’s reasoning for modifying
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Westerbeck with the teachings of Fleming, namely, to provide a more stable
catheter, is in the context of the superiority of the co-axial arrangement vis-
à-vis a side-by-side arrangement. Non-Final Action 5. However, such
reasoning applies, with similar force, in the context of using a side-by-side
arrangement vis-à-vis separate lines that are not secured to each other.
Finally, it bears noting that, if you have two fluid lines for fluid
traveling in opposite directions, there are only a finite number of ways to
arrange the lines: (1) leave them separate; (2) secure them in a side-by-side
arrangement; and (3) secure them in a co-axial arrangement.
When there is a design need or market pressure to solve a
problem and there are a finite number of identified, predictable
solutions, a person of ordinary skill has good reason to pursue
the known options within his or her technical grasp. If this
leads to the anticipated success, it is likely the product not of
innovation but of ordinary skill and common sense. In that
instance the fact that a combination was obvious to try might
show that it was obvious under § 103.
KSR Int’l Co. v. Teleflex Inc., 550 U.S. 398, 421 (2007). Having reviewed
Appellant’s disclosure and claims in view of the prior art, we agree with the
Examiner that Appellant’s side-by-side arrangement is obvious as more the
product of ordinary skill and common sense rather than innovation.
Appellant argues that the proposed combination would not result in a
temperature sensor positioned in the flow path of each fluid flow line.
Appeal Br. 24. Similarly, Appellant argues that the proposed combination
lacks a connector for each line. Id. 26–27. Neither of these arguments is
persuasive. Appellant’s arguments are each predicated on a co-axial
arrangement of the lines. Id. 24–27. First of all, we have already explained
that it would have also been obvious to use a side-by-side arrangement.
Secondly, Fleming teaches that tubes 78 diverge from hub 74. Fleming,
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col. 9, ll. 16–24. It would have been a simple matter of design choice to
dispose the connectors and temperature sensors where the separate lines
diverge from the hub, thus obviating each of Appellant’s arguments.
In view of the foregoing discussion, we determine that the Examiner’s
findings of fact are supported by a preponderance of the evidence and that
the Examiner’s legal conclusion of unpatentability is well-founded. We
sustain the Examiner’s rejection of claim 2.
Claims 4–6 and 8–10
Claims 4–6 and 8–10 depend, directly or indirectly, from claim 2 and
are not separately argued. Claims App., Appeal Br. 27. They fall with
claim 2. See 37 C.F.R. § 41.37(c)(1)(iv) (failure to separately argue claims).
Claim 20
Claim 20 is an independent claim that is substantially similar in
scope to that of claim 2, except that it recites the invention in the form of a
“kit.” Claims App. In traversing the rejection, Appellant relies primarily on
arguments that we previously considered and found unpersuasive with
respect to claim 2 and find equally unpersuasive here. Appeal Br. 28–29.
Appellant attempts to raise an argument about the invention being in
“kit” form, but such does not rise to the level of a separate argument for the
patentability of the claim. See 37 C.F.R. § 41.37(c)(1)(iv) (“A statement
which merely points out what a claim recites will not be considered an
argument for separate patentability of the claim”); see also In re Lovin, 652
F.3d 1349, 1357 (Fed. Cir. 2011) (Rule 41.37 requires more than recitation
of the claim elements and a naked assertion that the elements are not found
in the prior art).
We sustain the rejection of claim 20.
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Claim 21
Claim 21 is an independent claim that is substantially similar in scope
to that of claim 2, except that it recites the invention in the form of a
“multiply configurable system.” Claims App. In traversing the rejection,
Appellant relies primarily on arguments that we previously considered and
found unpersuasive with respect to claim 2 and find equally unpersuasive
here. Appeal Br. 31–32.
Appellant attempts to raise an argument about the invention being in
“multiply configuration” form, but such fails to rise to the level of a separate
argument for the patentability of the claim. 37 C.F.R. § 41.37(c)(1)(iv);
Lovin, 652 F.3d at 1357.
We sustain the rejection of claim 21.
Claim 22
Claim 22 is an independent claim that is substantially similar in scope
to that of claim 2, except that it recites a method instead of an apparatus.
Claims App. In traversing the rejection, Appellant relies solely on
arguments that we previously considered and found unpersuasive with
respect to claim 2 and find equally unpersuasive here. Appeal Br. 33–34.
We sustain the rejection of claim 22.
Claim 23
Claim 23 depends from claim 22 and is not separately argued apart
from arguments presented with respect to claims 2 and 22, which we have
previously considered. We sustain the Examiner’s rejection of claim 23. 37
C.F.R. § 41.37(c)(1)(iv).
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Unpatentability of Claim 7
Over Westerbeck, Rawles, Fleming, and Caballero
Claim 7 depends from claim 2 and adds the limitation: “wherein the
first fluid flow line and/or the second fluid flow line are marked with
observable arrows indicating an intended direction of fluid flow.” Claims
App. The Examiner relies on Caballero as disclosing the marked with
arrows limitation. Non-Final Action 16. The Examiner concludes that it
would have been obvious to a person of ordinary skill in the art at the time
of the invention to modify Westerbeck, Rawles, and Fleming with the
teachings of Caballero to achieve the claimed invention. Id. According to
the Examiner, a person of ordinary skill in the art would have done this to
facilitate proper use of the device. Id. Claim 7 is not argued separately apart
from arguments presented with respect to claim 2, which we have previously
considered. We sustain the Examiner’s rejection of claim 7. 37 C.F.R. §
41.37(c)(1)(iv).
CONCLUSION
In summary:
Claims
Rejected
§ Reference(s) Aff’d Rev’d
2, 4-6, 8-10,
20-23
103 Westerbeck, Rawles, Fleming 2, 4-6, 8-10,
20-23

7 103 Westerbeck, Rawles, Fleming,
Caballero
7
Overall
Outcome
2, 4-10,
20-23

No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a)(1)(iv).
AFFIRMED