2021000793 (P.T.A.B. Sep. 23, 2021)

Daniel Schlatterer

Patent Trials and Appeals BoardSep 23, 2021

2021000793 (P.T.A.B. Sep. 23, 2021)

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. 15/246,051 08/24/2016 Daniel Robert Schlatterer DN0299 7321 51108 7590 09/23/2021 DAVID L. KING, SR. 5131 N.E. COUNTY ROAD 340 HIGH SPRINGS, FL 32643 EXAMINER NELSON, KERI JESSICA ART UNIT PAPER NUMBER 3786 NOTIFICATION DATE DELIVERY MODE 09/23/2021 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): davidlkingsr@windstream.net uspto@dockettrak.com valerie365@yahoo.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte DANIEL ROBERT SCHLATTERER Appeal 2021-000793 Application 15/246,051 Technology Center 3700 Before BENJAMIN D. M. WOOD, BRETT C. MARTIN, and LISA M. GUIJT, Administrative Patent Judges. MARTIN, Administrative Patent Judge. DECISION ON APPEAL STATEMENT OF THE CASE Pursuant to 35 U.S.C. § 134(a), Appellant1 appeals from the Examiner’s decision to reject claims 1, 4, and 6–8. 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 the real party in interest as Dr. Daniel Robert Schlatterer. Appeal Br. 3. Appeal 2021-000793 Application 15/246,051 2 CLAIMED SUBJECT MATTER The claims are directed to two-toned fluoroscopy drapes for orthopaedic fracture procedures. Claim 1, reproduced below, is illustrative of the claimed subject matter: 1. An operating room surgical drape comprises: a two-toned surgical drape having a base color and a contrasting or bright color with the contrasting or bright color added to a back side and a portion of an exterior or outer surface of a front side of the drape along an outer border or perimeter to evidence a non-sterile portion or half, and wherein the non-sterile portion or half of the drape having a transfer resin in a contrasting or bright color region that would transfer from the drape and stain whatever it came into contact with in either a permanent or temporary fashion. REFERENCES The prior art relied upon by the Examiner is: Name Reference Date Srivastava US 5,467,481 Nov. 21, 1995 Kaska ’549 US 8,042,549 B2 Oct. 25, 2011 Kaska ’637 US 8,286,637 B2 Oct. 16, 2012 REJECTIONS Claims 1, 4, 6, and 8 stand rejected under 35 U.S.C. § 103 as being unpatentable over Kaska ’637, Kaska ’549, and Srivastava. Final Act. 2. Claims 7 stands rejected under 35 U.S.C. § 103 as being unpatentable over Kaska ’549 and Srivastava. Final Act. 5. OPINION With regard to claims 1, 4, 6, and 8, Appellant does not argue the Examiner’s rejection in relation to either of the Kaska references, but Appeal 2021-000793 Application 15/246,051 3 focuses solely on the Srivastava reference. Regarding Srivastava, Appellant first asserts that because Srivastava utilizes a coating on the inside of a glove rather than on a surgical drape as claimed, “[t]here is no indication how such a stain made in a powder would function as it was held inside the glove, the glove acting as a container.” Appeal Br. 15. The Examiner, however, correctly finds that “Srivastava discloses that the mixture is applied to the interior surface of the glove by any suitable technique that assures a substantially uniform surface coating (column 4, lines 12 – 16) such [that] the glove itself is not acting as a container.” Ans. 9. Accordingly, the glove does not act as a container merely because the coating is applied on the inside rather than the outside. Next, Appellant argues that “[t]he present invention would mark the surgeon’s gown or surgical team’s gown in the sterile room or an external surface by incidental contact with the resin coated non-sterile area” and that Srivastava “does not provide any instruction as to how it could be used in a surgical suite on a drape.” Appeal Br. 15. Appellant’s own description of Srivastava, however, refutes this assertion. As Appellant points out, Srivastava “clearly states the resin works by incidental contact and friction and may be activated by perspiration.” Id. Seeing as both the claims and Srivastava work via incidental contact, we are not persuaded that one of ordinary skill in the art would not understand how to adapt Srivastava to the drape of Kaska ’637. Lastly, Appellant argues that “claim 4 states the resin can be used as an indicator on the exterior or outer surface of a front side along an outer border or perimeter as a substitute for the color contrast or combined with the color contrast in a specified region” and that “[i]t is unclear to appellant how any of the references suggest these limitations.” Id. As the Examiner Appeal 2021-000793 Application 15/246,051 4 correctly states, however, the combination of the two Kaska references “discloses a drape having a color-coded surface on the exterior or outer surface of a front side along an outer border or perimeter as a color contrast in specified region to indicate a non-sterile portion of the drape” and “Srivastava was only relied upon to teach using a coloring material that would transfer upon contact.” Ans. 10. In other words, the Kaska references already teach the color indication in the specified region and Srivastava is only being used to add an additional feature of a transfer resin. We do not agree that the there is any lack of clarity as to what the references teach vis-à-vis the claims. Accordingly, we are not persuaded of error in the Examiner’s rejection. Regarding claim 7, which is essentially a method version of the apparatus of claims 1 and 4, Appellant substantially relies on the arguments with regard to claims 1 and 4 above, which we have already found unpersuasive. Appeal Br. 15–17. Accordingly, we likewise sustain the Examiner’s rejection of claim 7. CONCLUSION The Examiner’s rejections are affirmed. DECISION SUMMARY In summary: Claims Rejected 35 U.S.C. § Reference(s)/Basis Affirmed Reversed 1, 4, 6, 8 103 Kaska ‘637, Kaska ‘549, Srivastava 1, 4, 6, 8 7 103 Kaska ‘549, Srivastava 7 Overall Outcome 1, 4, 6–8 Appeal 2021-000793 Application 15/246,051 5 TIME PERIOD FOR RESPONSE 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)(1)(iv). AFFIRMED