null

Patent Trials and Appeals Board

Nov 27, 2019

15492864 - (D) (P.T.A.B. Nov. 27, 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.
15/492,864 04/20/2017 Michael Turturro BPMDL0121DNP2
11555U CIP2
5627
27939 7590 11/27/2019
Philip H. Burrus, IV
Burrus Intellectual Property Law Group LLC
222 12th Street NE
Suite 1803
Atlanta, GA 30309
EXAMINER
REYNOLDS, STEVEN ALAN
ART UNIT PAPER NUMBER
3735
MAIL DATE DELIVERY MODE
11/27/2019 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 MICHAEL TURTURRO, MIKE STANKEIWICZ,
BARBARA CONNELL, and MIKA HULLIBERGER

Appeal 2019-0032471
Application 15/492,864
Technology Center 3700
Before JENNIFER D. BAHR, JILL D. HILL, and
LEE L. STEPINA, Administrative Patent Judges.
STEPINA, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Pursuant to 35 U.S.C. § 134(a), Appellant2 appeals from the
Examiner’s decision to reject claims 1–20. We have jurisdiction under
35 U.S.C. § 6(b).
We REVERSE.

1 Appellant indicates that Appeal Numbers 2018-007423 and 2018-007402
are related to the present Appeal. Appeal Br. 2.
2 We use the word Appellant to refer to “applicant” as defined in 37 C.F.R.
§ 1.42. Appellant identifies the real party in interest as Medline Industries
Inc. Appeal Br. 2.
Appeal 2019-003247
Application 15/492,864

2
CLAIMED SUBJECT MATTER
The disclosure is directed to medical kits configured to facilitate
prevention of infection and other complications during medical procedures.
Spec. ¶ 2.
Claim 1, reproduced below with emphases added, is illustrative of the
claimed subject matter.
1. A medical kit, comprising:
a drape;
a plurality of pockets disposed a predefined distance from
a bottom edge of a first side of the drape in a linear, side-by-side
arrangement, wherein each pocket of the plurality of pockets
abuts at least one adjacent pocket at a
common border;
a plurality of medical implements, stowed in the plurality
of pockets on a one to-one basis;
one or more other pockets disposed along a second side of
the drape, wherein the one or more other pockets are rotated 180
degrees relative to the each pocket of the plurality of pockets;
and
medical indicia disposed along each pocket of the plurality
of pockets, the medical indicia comprising one or more
educational prompts that instruct medical personnel how to use
a particular medical implement disposed in a pocket to complete
a central catheter dressing change.
Appeal Br. 29 (Claims App.).
REFERENCES
The prior art relied upon by the Examiner is:
Appeal 2019-003247
Application 15/492,864

3
Name Reference Date
Melges US 3,503,391 Mar. 31, 1970
Morris US 4,457,026 July 3, 1984
Aruffo US 6,579,271 B1 June 17, 2003
Morelli US 2010/0274205 A1 Oct. 28, 2010
Adams US 2011/0041995 A1 Feb. 24, 2011
Tomes US 2011/0290260 A1 Dec. 1, 2011
Wiley US 2015/0101616 A1 Apr. 16, 2015

REJECTIONS
I. Claims 1 and 2 are rejected under 35 U.S.C. § 103(a) as
unpatentable over Melges, Morelli, and Wiley.
II. Claim 3 is rejected under 35 U.S.C. § 103(a) as unpatentable
over Melges, Morelli, Wiley, and Aruffo.
III. Claims 4–6 and 10–12 are rejected under 35 U.S.C. § 103 as
unpatentable over Melges, Morelli, Wiley, and Morris.
IV. Claim 7 is rejected under 35 U.S.C. § 103 as unpatentable over
Melges, Morelli, Wiley, Morris, and Tomes.
V. Claims 8 and 9 are rejected under 35 U.S.C. § 103 as
unpatentable over Melges, Morelli, Wiley, Morris, Tomes, and Adams.
VI. Claims 13–15 are rejected under 35 U.S.C. § 103 as
unpatentable over Melges, Morelli, Wiley, Morris, and Adams.
VII. Claims 16 and 19 are rejected under 35 U.S.C. § 103 as
unpatentable over Melges and Morris.
VIII. Claim 17 is rejected under 35 U.S.C. § 103 as unpatentable
over Melges, Morris, and Tomes.
IX. Claim 18 is rejected under 35 U.S.C. § 103 as unpatentable
over Melges, Morris, and Morrelli.
Appeal 2019-003247
Application 15/492,864

4
X. Claim 20 is rejected under 35 U.S.C. § 103 as unpatentable
over Melges, Morris, Morrelli, and Adams.
OPINION
Rejection I–Claims 1 and 2
The Examiner finds that Melges discloses many of the elements
recited in claim 1, including a plurality of pockets disposed on each of first
and second sides of a drape, but relies on Morelli to teach indicia provided
on pockets of a medical kit and Wiley to teach the recited requirements
relating to medical implements. Final Act. 2–4.
Appellant argues the Examiner’s interpretation of claim 1, in which
the recited first and second sides of the drape are on the same face of the
drape, is unreasonably broad. According to Appellant, the broadest
reasonable interpretation of “a first side of the drape” and a “second side of
the drape” does not place both “sides” on the same “face,” such that Melges
fails to disclose pockets on first and second sides of a drape. Appeal Br. 12–
18. In particular, Appellant contends that, in light of the Specification, the
broadest reasonable interpretation of first and second sides of a drape
corresponds to first and second faces of the drape. Id. at 16–18 (citing Spec.
¶¶ 22–27, 104, 107, 133, Figs. 19–24).
In response, the Examiner takes the position that Appellant’s
argument is an attempt to read limitations from the Specification into the
claims. See Ans. 3–7. Specifically, the Examiner states:
Regarding Appellant’s argument, the specification of the
present invention does not recite a special definition for the term
“side”, but merely describe first and second sides of the drape.
Examiner’s interpretation of the term “side” is clearly aligned
with a well-known and common definition of the term which is
Appeal 2019-003247
Application 15/492,864

5
“A position to the left or right of an object, place, or central
point” and also “Either of the two halves of an object, surface, or
place regarded as divided by an imaginary central line.”
Id. at 6 (quoting https://en.oxforddictionaries.com/definition/side). Thus, the
Examiner notes that the Specification does not explicitly define the term
“side,” and the Examiner’s interpretation corresponds to one found in a
common dictionary definition.
In reply, Appellant reiterates that the Specification uses the term
“side” as being synonymous with the word “face.” Reply Br. 9–12.
Appellant states, “[i]n the present case, as demonstrated in its Brief at pages
16-17, each and every use of ‘side’ refers to a major face of the drape. This
is most clearly evidenced by the description of FIGS. 21 and 22, each of
which shows a plan view of the drape, which indicates each view is an
opposite ‘side’ of the drape.” Id. at 11.
When claim terminology is construed during prosecution, claims are
to be given their broadest reasonable interpretation consistent with the
specification, reading claim language in light of the specification as it would
be interpreted by one of ordinary skill in the art. In re Am. Acad. of Sci.
Tech Ctr., 367 F.3d 1359, 1364 (Fed. Cir. 2004). The Federal Circuit has
described the correct inquiry for determining the broadest reasonable
construction as follows:
The correct inquiry in giving a claim term its broadest reasonable
interpretation in light of the specification is not whether the
specification proscribes or precludes some broad reading of the
claim term adopted by the examiner. And it is not simply an
interpretation that is not inconsistent with the specification. It is
an interpretation that corresponds with what and how the
inventor describes his invention in the specification, i.e., an
interpretation that is “consistent with the specification.”
Appeal 2019-003247
Application 15/492,864

6
In re Smith Int’l, Inc., 871 F.3d 1375, 1382–1383 (Fed. Cir. 2017).
Although we understand that a common dictionary definition of the
word side may allow for an interpretation as one end of a sheet (or drape), as
determined by the Examiner, the Examiner’s analysis falls short of
adequately supporting the rejection of claim 1 because the relevant terms in
this claim are “first side” and “second side,” not the word “side” in isolation.
In light of Appellant’s consistent use of the words “first side” and “second
side” in the Specification to refer to faces of the drape when describing the
location of pockets, we agree with Appellant that the Examiner’s
interpretation of claim 1 is unreasonably broad. The Brief Description of the
Drawings includes paragraphs 22–27, each describing views of a drape (in
Figures 19–24) as showing a first or second side. The structure depicted in
each of Figures 19–24 is one entire face of a drape. Moreover, paragraphs
104, 107, 108, 110, 115, 118, 119, 121, 126, 134, 136, and 141 each use one
or both of the terms “first side” or “second side” in accordance with
Appellant’s interpretation rather than with the Examiner’s interpretation.3

3 The Specification uses the term “side-by-side” to refer to the position
pockets that are adjacent each other. See e.g., Spec. ¶¶ 39, 90. The
Specification also uses the term “right side of the second partially folded
drape” to refer to an edge. Id. ¶ 87. The Specification also describes the
location of a pocket as “about twenty-four centimeters from the upper side of
the unfolded drape 1900.” Id. ¶ 109 (emphasis added). However, given the
context of these statements, we do not think they support the Examiner’s
interpretation of the terms “first side” and “second side” as they apply to the
sides of the drape on which the pockets are disposed. In this regard, we note
that claim 1 also recites the location of the pockets in terms of their distance
from a bottom edge of the drape. Thus, defining the location of the pockets
in terms of a first (or second) side of the drape, under the Examiner’s
interpretation of the term “side,” would appear to overlap with defining this
location in terms of a distance from a particular edge.
Appeal 2019-003247
Application 15/492,864

7
Accordingly, we do not sustain the rejection of claim 1, and claim 2
depending therefrom, as unpatentable over Melges, Morelli, and Wiley
because the Examiner’s finding that Melges discloses a plurality of pockets
disposed on each of first and second sides of a drape relies on an
unreasonably broad interpretation of claim 1.
Rejections II–VI—Claims 2–15
Each of Rejections II–VI relates to a claim depending from claim 1
and relies on the Examiner’s interpretation of claim 1 to support the
rejection. See Appeal Br. 29–31 (Claims App.); Final Act. 4–8.
Accordingly, for the reasons discussed above regarding the rejection of
claim 1, we do not sustain Rejections II–VI.
Rejections VII–X—Claims 16–20
Independent claim 16 recites “four pockets disposed along, and
separated from, an edge of a first side of the the [sic] drape” and “a single
pocket disposed along a second side of the drape.” Appeal Br. 31 (Claims
App.). The rejection of claim 16 relies on the same interpretation of the
terms “first side” and “second side” as discussed above regarding the
rejection of independent claim 1. See Final Act. 2–3, 8–9. For the same
reasons, we do not sustain the rejection of independent claim 16, and claim
19 depending therefrom, as unpatentable over Melges and Morris. Each of
Rejections VIII–X relates to a claim depending from claim 16 and relies on
the Examiner’s interpretation of claim 16 to support the rejection. See
Appeal Br. 32 (Claims App.); Final Act. 10–11. Accordingly, for the
reasons discussed above regarding the rejection of claim 16, we do not
sustain Rejections VIII–X.

Appeal 2019-003247
Application 15/492,864

8

CONCLUSION
The Examiner’s rejections are reversed. More specifically,
DECISION SUMMARY

Claims
Rejected
35 U.S.C. § Basis Affirmed Reversed
1, 2 103 Melges, Morelli, Wiley 1, 2
3 103 Melges, Morelli,
Wiley, Aruffo
3
4–6, 10–12 103 Melges, Morelli,
Wiley, Morris
4–6, 10–12
7 103 Melges, Morelli,
Wiley, Morris, Tomes
7
8, 9 103 Melges, Morelli,
Wiley, Morris, Tomes,
Adams
8, 9
13–15 103 Melges, Morelli,
Wiley, Morris, Adams
13–15
16, 19 103 Melges, Morris 16, 19
17 103 Melges, Morris, Tomes 17
18 103 Melges, Morris, and
Morrelli
18
20 103 Melges, Morris,
Morrelli, Adams
20

Overall
Outcome
1–20

REVERSED