MEDLINE INDUSTRIES, INC

Patent Trials and Appeals Board

Aug 4, 2020

13872906 - (D) (P.T.A.B. Aug. 4, 2020)

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.
13/872,906 04/29/2013 Mahmoud N. Hamdan BPMDL0001MHC1
(10021U C1)
1786
27939 7590 08/04/2020
Philip H. Burrus, IV
Burrus Intellectual Property Law Group LLC
222 12th Street NE
Suite 1803
Atlanta, GA 30309
EXAMINER
CERIONI, DANIEL LEE
ART UNIT PAPER NUMBER
3791
NOTIFICATION DATE DELIVERY MODE
08/04/2020 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):
kberry@burrusiplaw.com
pburrus@burrusiplaw.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
________________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
________________

Ex parte MAHMOUD N. HAMDAN1
________________

Appeal 2019-003182
Application 13/872,906
Technology Center 3700
________________

Before ERIC B. GRIMES, JOHN G. NEW, and
DEVON ZASTROW NEWMAN, Administrative Patent Judges.

NEW, Administrative Patent Judge.

DECISION ON APPEAL

1 We use the term “Appellant” to refer to the “applicant” as defined in
37 C.F.R. § 1.142. Appellant states that the real party-in-interest is
Medline Industries, Inc. App. Br. 2.
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Application 13/872,906

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SUMMARY
Appellant files this appeal under 35 U.S.C. § 134(a) from the
Examiner’s Non-Final Rejection of claims 1–20. Specifically, claims 1, 3–
8, 11–13, and 16–20 stand rejected as unpatentable under 35 U.S.C. § 103(a)
as being obvious over the combination of Jaques et al. (US 2002/0067273
A1, June 6, 2002) (“Jaques”), Smith et al. (US 7,378,975 B1, May 27, 2008)
(“Smith”) and Ranney (US 2007/0069560 A1, March 29, 2007) (“Ranney”).
Claims 2, 14, and 15 stand rejected under 35 U.S.C. § 103(a) as being
obvious over the combination of Jaques, Smith, Ranney, and Clute (US
5,357,642, October 25, 1994) (“Clute”).
Claims 9 and 10 stand rejected as unpatentable under 35 U.S.C.
§ 103(a) as being obvious over the combination of Jaques, Smith, Ranney,
and Vrzalik et al. (US 2007/0261548 A1, November 15, 2007) (“Vrzalik”).
We have jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM.

NATURE OF THE CLAIMED INVENTION
Appellant’s invention is directed to a unitary patient monitoring
system, including an alarm, such as a loudspeaker, and a weight sensitive
switch. Each component is encapsulated in a cover member, which can be
configured as a T-shape. Abstract.

REPRESENTATIVE CLAIM
Claim 1 is representative of the claims on appeal and recites:
1. A unitary patient monitoring system, comprising:

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Application 13/872,906

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a loudspeaker;

a weight sensitive switch to actuate the loudspeaker; and

a unitary cover member encapsulating and surrounding
both the loudspeaker and the weight sensitive switch within the
unitary cover member;

the unitary cover member comprising a first portion and a
second portion extending from the first portion so as to form a
trunk from the first portion with length and width dimensions of
the first portion different than the second portion, the weight
sensitive switch disposed in the first portion and the
loudspeaker disposed in the second portion.

App. Br. 20.

ISSUE AND ANALYSIS
We adopt the Examiner’s reasoning, findings of fact, and conclusions
that the appealed claims are obvious over the cited prior art. We address the
arguments raised by Appellant below.

Issue 1
Appellant argues the Examiner erred because the combined cited prior
art neither teaches nor suggests a loudspeaker surrounded by a unitary cover,
as recited in claim 1. App. Br. 11.

Analysis
The Examiner finds that Jaques teaches a weight-sensitive switch to
actuate a loudspeaker and a unitary cover member encapsulating and
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surrounding both the loudspeaker and the switch within the unitary cover.
Non-Final Act. 3–4 (citing Jaques, Figs. 10, 12, ¶¶ 56–61).
Appellant disagrees, pointing to the Board’s Prior Decision on appeal
with respect to this application, mailed March 23, 2018 (the “Prior
Decision”). App. Br. 11. According to Appellant, the Board has already
determined that the combination of Jaques, Smith, and Ranney fails to teach
or suggest this limitation, finding that “Jaques teaches that the speaker of the
alarm is “exposed.” Id. (quoting Prior Dec. 6). Appellant reasons that an
object cannot be both surrounded and exposed at the same time: the terms
are antithetical and mutually exclusive. Id.
Appellant contends that the Examiner relies upon Figures 10 and 12
of Jaques, which depicts a control unit 164 and a pressure sensor 166 both
disposed in the same case 168. App. Br. 12 (also citing Jaques ¶ 57).
Appellant asserts that the Examiner finds, in these embodiments, that
“Jaques discloses ... a unitary cover member encapsulating and surrounding
both the loudspeaker and the weight sensitive switch within the unitary
cover.” Id. (quoting Non-Final Act. 4).
Appellant disagrees with the Examiner’s findings. Appellant asserts
that Jaques does not teach a cover member surrounding the loudspeaker, but,
rather, expressly teaches an exposed loudspeaker. App. Br. 12. Appellant
acknowledges that Jaques teaches that the control unit and pressure sensor
are located in the cover, but Appellant also contends that Jaques states that at
least a portion of the control unit is exposed. Id. (citing, e.g., Jaques ¶ 56
(“The control unit 164 is located in a pocket within the case 168 so that a
control surface is exposed and available for setting”). Appellant also points
to paragraph [0057] of Jaques, which teaches that “[t]he enclosing case 168
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is sealed around the control unit 164 leaving a control face 170 exposed to
permit adjustment of the amount of pressure necessary to cause an alarm to
be given by the pressure sensing pad 160.” Id.
Appellant next points to paragraph [0061], which details the portions
of this control unit that are exposed in Figures 9 and 10, stating that “[i]n
FIG. 12, there is shown a fragmentary perspective view of the control unit
164 within the case 168, with the case 168 sealed to the control face 170
leaving exposed the lamp 188 (not shown in FIG. 12), the speaker of the
alarm 186, the bias adjustment manual dial 190 and the on/off switch 182.”
App. Br. 12. In other words, Appellant argues, Jaques expressly teaches that
four elements are left exposed in this embodiment: (1) the lamp; (2) the
speaker of the alarm; (3) the bias adjustment manual dial; and (4) the on/off
switch. Id. at 12–13. Appellant therefore asserts that Jaques fails to teach a
cover member “surrounding” an alarm loudspeaker, as recited in claim 1.
Id. at 13.
Appellant next turns to Smith, arguing that its patient detection switch
is disposed in a first housing 380, whereas loudspeaker 395 is disposed in a
second housing 50 and is exposed. App. Br. 13. Therefore, argues
Appellant, Smith, like Jaques, neither teaches nor suggests a cover member
surrounding a loudspeaker as set forth in claim 1.
Finally, Appellant argues that Ranney does not teach a loudspeaker.
App. Br. 13. Appellant therefore asserts that none of the cited prior art
references, taken alone or in combination, teach a unitary cover surrounding
a loudspeaker and weight sensitive switch, as recited in independent claims
17. Id.
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Appellant notes that, in its Prior Decision, the Board found that
“despite what is shown in FIG. 12, paragraph 61 of Jaques teaches that the
speaker of the alarm is ‘exposed.’” App. Br. 14 (quoting Prior Decision 6).
Nevertheless, Appellant argues, the Board interpreted the term “encapsulate”
as meaning “to enclose as if in a capsule,” relying upon the online version of
the Merriam-Webster Dictionary for its construction. Id. (quoting Prior Dec.
5). Appellant alleges that, although Appellant’s loudspeaker is shown
completely surrounded by the cover member in FIGS. 5–6, the Board held:
“But even if an opening in the cover exposes a small portion of the
loudspeaker, that does not mean the speaker is not ‘enclosed’ within the
cover itself, as long as the speaker is entirely contained within the borders of
the cover,” and “no portion of the speaker extends or protruded beyond the
envelope of the enclosing cover,” then Jaques speaker was “encapsulated”
by the cover member. Id. (quoting Prior Dec. 6).
In response to the Board’s affirmance of the Examiner’s rejection of
the claims, Appellant amended independent claims 1 and 17 to recite, inter
alia, “a unitary cover member encapsulating and surrounding […] the
loudspeaker.” App. Br. 14. Appellant contends that the claim term
“surrounds,” when read in light of Appellant’s Specification, means
“completely surrounds” as depicted in Figures 5 and 6 of the Specification,
in which no part of the loudspeaker is exposed. Id.
Appellant also points to the definition of “surround” provided by the
same source employed by the Board in its Prior Decision, as meaning “to
enclose on all sides.” App. Br. 14 (quoting
https://www.merriamwebster.com/dictionary/surround (last visited by
Appellant on October 18, 2018). Therefore, argues Appellant, even using
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the broadest reasonable interpretation of the claim term “surrounding,”
claims 1 and 17 each recite a cover member that encloses, on all sides, a
loudspeaker. Id.
We are not persuaded. Appellant’s Specification provides no express
definition of the claim term “surrounding” other than a description of one
embodiment of the invention, disclosing, in relevant part, that “[t]he cover
member 101 encapsulates and surrounds the internal components of the
unitary patient monitoring system 100, which can include a loudspeaker, an
energy source, weight sensitive switches, and so forth.” Spec., ¶ 30. Absent
an express definition of the claim term, we employ the broadest reasonable
definition of the claim term consistent with the Specification as it would be
interpreted by one of ordinary skill in the art. See Phillips v. AWH Corp.,
415 F.3d 1303, 1316 (Fed. Cir. 2005). Appellant has supplied us with a
definition of “surround” taken from the same dictionary source we employed
in defining the claim term “encapsulate” viz., “to enclose on all sides.” See
App. Br. 14.
However, even if we accept Appellant’s definition, we nevertheless
arrive at the same conclusion as we did previously. In the Prior Decision,
we found that:
As is evident from Figure 12 of Jaques, as well as from the
corresponding passage of paragraph [0061] quoted by Appellant
supra, Jaques teaches that the speaker of the alarm 186 (i.e.,
Appellant’s “loudspeaker”) is contained entirely within the
envelope of the unitary cover 168 that covers the rest of the unit.
See also Jaques FIG. 10. Figure 12 shows that no portion of the
speaker of the alarm extends or protrudes outside of the envelope
of the cover, as is indicated by the dashed line indicating the
entire profile of the speaker. See id. ¶ 61 (describing control unit
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164, which is indicated in dashed lines in Figure 12, as being
“within the case 168”).

Prior Dec. 5–6. We concluded that:
Even if an opening in the cover exposes a small portion of the
loudspeaker, that does not mean that the speaker is not
“enclosed” within the cover itself, as long as the speaker is
contained entirely within the borders of the cover because, as we
have explained, no portion of the speaker extends or protrudes
beyond the envelope of the enclosing cover. We therefore agree
with the Examiner’s finding that Jaques teaches the disputed
limitation.

Id. at 6. Our reasoning remains the same with respect to the claims presently
before us. If the claim term “surrounding” is construed to mean “enclosing
on all sides,” just as “encapsulating” was previously construed to mean “to
enclose in or as if in a capsule” (see Prior Dec. 5), then we find, once again,
that the speaker is enclosed within the cover “as long as the speaker is
contained entirely within the borders of the cover because, as we have
explained, no portion of the speaker extends or protrudes beyond the
envelope of the enclosing cover.” Id. at 6. We are therefore not persuaded
by Appellant’s arguments with respect to this issue.

Issue 2
Appellant argues that neither Clute nor Vrzalik cures the alleged
deficiencies of Jaques, Smith, and Ranney. However, and for the reasons we
have explained supra, we find that the combined cited prior art references
teach the limitation reciting “a unitary cover member encapsulating and
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surrounding […] the loudspeaker,” as recited in independent claims 1 and 17
and therefore incorporated into dependent claims 1–16 and 18–20. We
consequently affirm the Examiner’s rejection of claims 1–20.

DECISION
The Examiner’s rejection of claims 1–20 as unpatentable under
35 U.S.C. § 103(a) 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)(1)(iv).

AFFIRMED

Claims
Rejected
35
U.S.C.
§
Reference(s)/Basis Affirmed Reversed
1, 3–8, 11–
13, 16–20
103(a) Jaques, Smith
Ranney

1, 3–8, 11–13,
16–20

2, 14, 15 103(a) Jaques, Smith
Ranney, Clute
2, 14, 15
9, 10 103(a) Jaques, Smith
Ranney, Vrzalik
9, 10
Overall
Outcome
1–20