Notice of Pre-AIA or AIA Status
The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA .
Response to Arguments
Applicant’s arguments, see Arguments/Remarks, filed November 24, 2025, with respect to the rejection(s) of claim(s) 1 - 34 under 35 USC § 103 have been fully considered and are persuasive. Therefore, the rejection has been withdrawn. However, upon further consideration, a new ground(s) of rejection is made in view of McMahon, US 2015/0097088 in view of Henning, US 2008/0097333.
Double Patenting
The nonstatutory double patenting rejection is based on a judicially created doctrine grounded in public policy (a policy reflected in the statute) so as to prevent the unjustified or improper timewise extension of the “right to exclude” granted by a patent and to prevent possible harassment by multiple assignees. A nonstatutory double patenting rejection is appropriate where the conflicting claims are not identical, but at least one examined application claim is not patentably distinct from the reference claim(s) because the examined application claim is either anticipated by, or would have been obvious over, the reference claim(s). See, e.g., In re Berg, 140 F.3d 1428, 46 USPQ2d 1226 (Fed. Cir. 1998); In re Goodman, 11 F.3d 1046, 29 USPQ2d 2010 (Fed. Cir. 1993); In re Longi, 759 F.2d 887, 225 USPQ 645 (Fed. Cir. 1985); In re Van Ornum, 686 F.2d 937, 214 USPQ 761 (CCPA 1982); In re Vogel, 422 F.2d 438, 164 USPQ 619 (CCPA 1970); In re Thorington, 418 F.2d 528, 163 USPQ 644 (CCPA 1969).
A timely filed terminal disclaimer in compliance with 37 CFR 1.321(c) or 1.321(d) may be used to overcome an actual or provisional rejection based on nonstatutory double patenting provided the reference application or patent either is shown to be commonly owned with the examined application, or claims an invention made as a result of activities undertaken within the scope of a joint research agreement. See MPEP § 717.02 for applications subject to examination under the first inventor to file provisions of the AIA as explained in MPEP § 2159. See MPEP § 2146 et seq. for applications not subject to examination under the first inventor to file provisions of the AIA . A terminal disclaimer must be signed in compliance with 37 CFR 1.321(b).
The filing of a terminal disclaimer by itself is not a complete reply to a nonstatutory double patenting (NSDP) rejection. A complete reply requires that the terminal disclaimer be accompanied by a reply requesting reconsideration of the prior Office action. Even where the NSDP rejection is provisional the reply must be complete. See MPEP § 804, subsection I.B.1. For a reply to a non-final Office action, see 37 CFR 1.111(a). For a reply to final Office action, see 37 CFR 1.113(c). A request for reconsideration while not provided for in 37 CFR 1.113(c) may be filed after final for consideration. See MPEP §§ 706.07(e) and 714.13.
The USPTO Internet website contains terminal disclaimer forms which may be used. Please visit www.uspto.gov/patent/patents-forms. The actual filing date of the application in which the form is filed determines what form (e.g., PTO/SB/25, PTO/SB/26, PTO/AIA /25, or PTO/AIA /26) should be used. A web-based eTerminal Disclaimer may be filled out completely online using web-screens. An eTerminal Disclaimer that meets all requirements is auto-processed and approved immediately upon submission. For more information about eTerminal Disclaimers, refer to www.uspto.gov/patents/apply/applying-online/eterminal-disclaimer.
Claims 1 - 34 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1 - 16 of U.S. Patent No. 11,018,453 and claims 1 - 14 of U.S. Patent No. 11,881,654. Although the claims at issue are not identical, they are not patentably distinct from each other because a person having ordinary skill in the art before the effective filing date of the claimed invention would consider substituting an electrical cord with a medical tubing since both are elongated flexible members and the restraints are claimed identically.
Claim Rejections - 35 USC § 103
The following is a quotation of 35 U.S.C. 103 which forms the basis for all obviousness rejections set forth in this Office action:
A patent for a claimed invention may not be obtained, notwithstanding that the claimed invention is not identically disclosed as set forth in section 102, if the differences between the claimed invention and the prior art are such that the claimed invention as a whole would have been obvious before the effective filing date of the claimed invention to a person having ordinary skill in the art to which the claimed invention pertains. Patentability shall not be negated by the manner in which the invention was made.
Claim(s) 1 - 6, 8 - 12, 14 - 23, 25 - 32 and 34 is/are rejected under 35 U.S.C. 103 as being unpatentable over McMahon, US 2015/0097088 in view of Henning, US 2008/0097333.
Regarding claim 1, McMahon discloses a medical tubing restraint (100-C) [for elongate flexible cord(s) having a diameter], the medical tubing restraint (100-C) comprising: a body (110; formed from any natural or man-made material providing sufficient heft to provide resistance against unwanted or unintentional motion of the restraint 100-C) having a diameter (see figure 8-C), wherein the body (110) forms a channel (130) having a diameter (figure 8-C) that is substantially uniform in diameter [and that is adapted for circumferentially receiving the medical tubing], the channel (130) formed through the body (110); and wherein the body (110) has a longest dimension and the channel (130) is co-extensive with the longest dimension of the body (figure 8-C).
McMahon does not explicitly disclose the medical tubing restraint (100-C) comprising: a flexible foam body in combination with a medical tubing, wherein the flexible foam body circumferentially engages the medical tubing in the channel via surface friction; and wherein the diameter of the flexible foam body is substantially greater than the diameter of the medical tubing.
Henning teaches a medical tubing restraint comprising a flexible foam body (polyethylene foam tube) in combination with a medical tubing (including IV tubing, central lines, oxygen tubing, drains, epidural Analgesia and more), wherein the flexible foam body circumferentially engages the medical tubing in the channel (circular spaces or holes seen in figure 1) via surface friction (inherent feature since the beveled perpendicular slots are dimensioned substantially less than the circular space so that the tubing can be inserted via said slot to be circumferentially engaged by the hole of the foam body).
It would have been obvious to a person having ordinary skill in the art before the effective filing date of the claimed invention to modify the material of the restraint of McMahon to be a flexible foam and in combination with a medical tubing as taught by Henning so that the diameter of the flexible foam body is substantially greater than the diameter (.750) of the medical tubing because both restraint devices retain elongated flexible members within a slotted channel and the modification would predictably allow retention of medical tubing while enabling the insertion of said tubing. It is noted that the cord retaining structure of McMahon could also hold medical tubing because both are flexible elongated members requiring retention without permanent securement. Additionally, the foam material is known to grip cylindrical objects by elastic compression so applying such material for a cord holder would predictably improve retention and allow insertion through a slot.
Claim language set in brackets [] set forth above and below in this office action are considered by the examiner to be intended use that fails to further limit the structure of the claimed invention. Since the claimed invention is directed solely to that of the restraint, the prior art must only be capable of performing the functional recitations in order to be applicable, and in the instant case, the examiner maintains that the cord holder taught by the combination of McMahon (US 2015/0097088) and Henning (US 2008/0097333), is indeed capable of the intended use statements. Note that it has been held that a recitation with respect to the manner in which a claimed apparatus is intended to be employed does not differentiate the claimed apparatus from a prior art apparatus satisfying the claimed structural limitations.
Regarding claim 2, the combination of McMahon and Henning teaches the medical tubing restraint of claim 1. McMahon further discloses a slit (120) terminating in and communicating with the channel (130), wherein the channel (130) is ingressed and egressed through the slit (120) in the flexible foam body (110 when modified).
Regarding claim 3, the combination of McMahon and Henning teaches the medical tubing restraint of claim 1. McMahon further discloses wherein the channel (130) is formed through the center of the flexible foam body (110 when modified).
Regarding claim 4, the combination of McMahon and Henning teaches the medical tubing restraint of claim 1. The combination does not expressly teach wherein the flexible foam body is constructed of a material selected from the group consisting of ethylene-vinyl acetate (EVA) foam, polyethylene-vinyl acetate (PEVA), low-density polyethylene (LDPE) foam, first grade of polyethylene (PE), nitrile rubber (NBR) foam, the copolymers of acrylonitrile (ACN) and butadiene, polychloroprene foam or neoprene, polyimide foam, polypropylene (PP) foam, including expanded polypropylene (EPP) and polypropylene paper (PPP), polystyrene (PS) foam, including expanded polystyrene (EPS), extruded polystyrene foam (XPS) and sometimes polystyrene paper (PSP), styrofoam, including extruded polystyrene foam (XPS) and sometimes expanded polystyrene (EPS), polyurethane (PU) foam, viscoelastic polyurethane foam, or low-resilience polyurethane foam (LRPu), memory foam, sorbothane, polyvinyl chloride (PVC) foam, closed-cell PVC foamboard, microcellular foam, and combinations of the foregoing.
It would have been obvious to a person having ordinary skill in the art before the effective filing date of the claimed invention to select a foam material from the list as claimed, since it has been held to be within the general skill of a worker in the art to select a known (commercially available) material on the basis of its suitability for the intended use as a matter of obvious design choice. In re Leshin, 125 USPQ 416.
Regarding claim 5, the combination of McMahon and Henning teaches the medical tubing restraint of claim 4. The combination does not expressly teach wherein the flexible foam body is constructed from polyurethane foam (PU). However, it would have been obvious to a person having ordinary skill in the art before the effective filing date of the claimed invention to select polyurethane foam (PU) as the foam material, since it has been held to be within the general skill of a worker in the art to select a known (commercially available) material on the basis of its suitability for the intended use as a matter of obvious design choice. In re Leshin, 125 USPQ 416.
Regarding claim 6, the combination of McMahon and Henning teaches the medical tubing restraint of claim 1. McMahon further discloses wherein the flexible foam body (110) is spherical (like a sphere; see figure 8-C).
Regarding claim 8, the combination of McMahon and Henning teaches the medical tubing restraint of claim 1. The combination further teaches wherein: the flexible foam body (110 of McMahon) has a shape (a geometric configuration; figure 8-C); the medical tubing (of Henning) supplies a source (IV, oxygen), function, substance or contents to be administered or removed (as configured by the restraint). It would have been obvious to further consider wherein the flexible foam body (110) is coded by shape to identify (for identifying information), restrain (via the foam body), separate (with different indicia), organize (by the ornamentation), categorize (by the ornamentation) or retrieve (via the body) the object(s) by source, function, substance or contents so that the medical tubing can be categorized by source, function, substance or contents. Further, it is noted that matters relating to ornamentation only which have no mechanical function cannot be relied upon to patentably distinguish the claimed invention from the prior art. In re Seid, 161 F.2d 229, 73 USPQ 431 (CCPA 1947)
Regarding claim 9, the combination of McMahon and Henning teaches the medical tubing restraint of claim 1. The combination further teaches wherein the medical tubing restraint is a flotation device (when the foam material is closed cell material) for medical tubing (of Henning) [for waterproof devices].
Regarding claim 10, McMahon discloses a medical tubing restraint (100-C) [for elongate flexible cord(s) having a diameter], the medical tubing restraint (100-C) comprising: a body (110; formed from any natural or man-made material providing sufficient heft to provide resistance against unwanted or unintentional motion of the restraint 100-C) having a diameter (see figure 8-C), wherein the body (110) forms a channel (130) having a diameter (figure 8-C) that is substantially uniform in diameter [and that is adapted for circumferentially receiving the medical tubing]; and wherein the body (110) has a longest dimension and the channel (130) is co-extensive with the longest dimension of the body (figure 8-C).
McMahon does not explicitly disclose the medical tubing restraint (100-C) comprising: a flexible foam body in combination with a medical tubing, wherein the foam body restrains the medical tubing therein without looping the medical tubing; and wherein the diameter of the flexible foam body is substantially greater than the diameter of the medical tubing.
Henning teaches a medical tubing restraint comprising a flexible foam body (polyethylene foam tube) in combination with a medical tubing (including IV tubing, central lines, oxygen tubing, drains, epidural Analgesia and more), wherein the flexible foam body circumferentially engages the medical tubing in the channel (circular spaces or holes seen in figure 1) via surface friction (inherent feature since the beveled perpendicular slots are dimensioned substantially less than the circular space so that the tubing can be inserted via said slot to be circumferentially engaged by the hole of the foam body) so that body restrains the medical tubing therein without looping the medical tubing.
It would have been obvious to a person having ordinary skill in the art before the effective filing date of the claimed invention to modify the material of the restraint of McMahon to be a flexible foam and in combination with a medical tubing as taught by Henning so that the diameter of the flexible foam body is substantially greater than the diameter (.750) of the medical tubing and without looping the medical tubing because both restraint devices retain elongated flexible members within a slotted channel and the modification would predictably allow retention of medical tubing while enabling the insertion of said tubing. It is noted that the cord retaining structure of McMahon could also hold medical tubing because both are flexible elongated members requiring retention without permanent securement. Additionally, the foam material is known to grip cylindrical objects by elastic compression so applying such material for a cord holder would predictably improve retention and allow insertion through a slot.
Regarding claim 11, the combination of McMahon and Henning teaches the medical tubing restraint of claim 10. McMahon further discloses a slit (120) terminating in and communicating with the channel (130), wherein the channel (130) is ingressed and egressed through the slit (120) in the flexible foam body (110).
Regarding claim 12, the combination of McMahon and Henning teaches the medical tubing restraint of claim 10. McMahon has further disclosed that the foam material can be closed or open cell foam. However, the combination does not expressly teach wherein the flexible foam body is constructed of a material selected from the group consisting of ethylene-vinyl acetate (EVA) foam, polyethylene-vinyl acetate (PEVA), low-density polyethylene (LDPE) foam, first grade of polyethylene (PE), nitrile rubber (NBR) foam, the copolymers of acrylonitrile (ACN) and butadiene, polychloroprene foam or neoprene, polyimide foam, polypropylene (PP) foam, including expanded polypropylene (EPP) and polypropylene paper (PPP), polystyrene (PS) foam, including expanded polystyrene (EPS), extruded polystyrene foam (XPS) and sometimes polystyrene paper (PSP), styrofoam, including extruded polystyrene foam (XPS) and sometimes expanded polystyrene (EPS), polyurethane (PU) foam, viscoelastic polyurethane foam, or low-resilience polyurethane foam (LRPu), memory foam, sorbothane, polyvinyl chloride (PVC) foam, closed-cell PVC foamboard, microcellular foam, and combinations of the foregoing.
It would have been obvious to a person having ordinary skill in the art before the effective filing date of the claimed invention to select a foam material from the list as claimed, since it has been held to be within the general skill of a worker in the art to select a known (commercially available) material on the basis of its suitability for the intended use as a matter of obvious design choice. In re Leshin, 125 USPQ 416.
Regarding claim 14, the combination of McMahon and Henning teaches the medical tubing restraint of claim 10. McMahon further discloses wherein: the flexible foam body (110) has a shape (a geometric configuration); the medical tubing (including IV tubing, central lines, oxygen tubing, drains, epidural Analgesia and more) supplies a source (oxygen), function, substance or contents to be administered or removed (as configured by the restraint). It would have been obvious to further consider wherein the flexible foam body (110) is coded by color (any color) to identify (for identifying information), restrain (via the foam body), separate (with different indicia), organize (by the ornamentation), categorize (by the ornamentation) or retrieve (via the body) the object(s) by source, function, substance or contents. Further, it would have been obvious to a person having ordinary skill in the art before the effective filing date of the claimed invention to further modify the foam body of the combination of McMahon and Henning to have indicia as further taught by Henning to identify information so that the medical tubing can be categorized by source, function, substance or contents. Further, it is noted that matters relating to ornamentation only which have no mechanical function cannot be relied upon to patentably distinguish the claimed invention from the prior art. In re Seid, 161 F.2d 229, 73 USPQ 431 (CCPA 1947)
Regarding claim 15, the combination of McMahon and Henning teaches the medical tubing restraint of claim 10. The combination further teaches wherein the medical tubing restraint is a flotation device (when the foam material is closed cell material) [for cords for waterproof devices].
Regarding claim 16, the combination of McMahon and Henning teaches the medical tubing restraint of claim 10. McMahon further discloses wherein the body (110) is spherical (see figure 8-C).
Concerning claims 17 - 34, given the structure of a tubing restraint and medical tubing, the structural elements of the combination of McMahon and Henning would render the claimed method steps obvious since such would be a logical manner of using the combination.
Regarding claim 17, McMahon discloses a method of restraining cords having a diameter, the method comprising the steps of: providing a flexible foam body (110) having a width and a longest dimension (along the length of the body), wherein the width of the flexible foam body (110) is substantially greater than the diameter of the cord (see figure 8-C); providing a channel (130) through the flexible foam body (110) [for circumferentially receiving the medical tubing], wherein: the channel (130) has a diameter that is substantially uniform in diameter (see figure 8-C and 2-A); and the channel (130) is co-extensive with the longest dimension of the flexible foam body (110). McMahon does not explicitly disclose a flexible foam body in combination with a medical tubing, the channel circumferentially engaging the medical tubing in the channel (130) via surface friction. Henning teaches a restraint comprising a flexible foam body (polyethylene foam tube) in combination with a medical tubing (including IV tubing, central lines, oxygen tubing, drains, epidural Analgesia and more), wherein the flexible foam body circumferentially engages the medical tubing in the channel (circular spaces or holes seen in figure 1) via surface friction (inherent feature since the beveled perpendicular slots are dimensioned substantially less than the circular space so that the tubing can be inserted via said slot to be circumferentially engaged by the hole of the foam body). It would have been obvious to a person having ordinary skill in the art before the effective filing date of the claimed invention to modify the material of the restraint of McMahon to be a flexible foam and in combination with a medical tubing as taught by Henning so that the diameter of the flexible foam body is substantially greater than the diameter (.750) of the medical tubing because both restraint devices retain elongated flexible members within a slotted channel and the modification would predictably allow retention of medical tubing while enabling the insertion of said tubing. It is noted that the cord retaining structure of McMahon could also hold medical tubing because both are flexible elongated members requiring retention without permanent securement. Additionally, the foam material is known to grip cylindrical objects by elastic compression so applying such material for a cord holder would predictably improve retention and allow insertion through a slot.
Regarding claims 18, the combination of McMahon and Henning teaches the method of claim 17. McMahon further discloses the step of providing a slit (120) terminating in and communicating with the channel (130),
Regarding claims 19, the combination of McMahon and Henning teaches the method of claim 18. McMahon further discloses the step of ingressing and egressing the channel (130) through the slit (120) in the flexible foam body (110).
Regarding claims 20, the combination of McMahon and Henning teaches the method of claim 17. McMahon further discloses wherein the step of providing the channel (130) is formed through the center of the flexible foam body (figure 8-C). It would have been obvious to a person having ordinary skill in the art before the effective filing date of the claimed invention to further modify the foam body of the combination of McMahon and Henning to have the channel be formed through the center of the body so that the medical tubing can be more securely seated in the restraint to avoid unnecessary removing of the tubing.
Regarding claims 21, the combination of McMahon and Henning teaches the method of claim 17. The combination does not expressly teach wherein the flexible foam body is constructed of a material selected from the group consisting of ethylene-vinyl acetate (EVA) foam, polyethylene-vinyl acetate (PEVA), low-density polyethylene (LDPE) foam, first grade of polyethylene (PE), nitrile rubber (NBR) foam, the copolymers of acrylonitrile (ACN) and butadiene, polychloroprene foam or neoprene, polyimide foam, polypropylene (PP) foam, including expanded polypropylene (EPP) and polypropylene paper (PPP), polystyrene (PS) foam, including expanded polystyrene (EPS), extruded polystyrene foam (XPS) and sometimes polystyrene paper (PSP), styrofoam, including extruded polystyrene foam (XPS) and sometimes expanded polystyrene (EPS), polyurethane (PU) foam, viscoelastic polyurethane foam, or low-resilience polyurethane foam (LRPu), memory foam, sorbothane, polyvinyl chloride (PVC) foam, closed-cell PVC foamboard, microcellular foam, and combinations of the foregoing. It would have been obvious to a person having ordinary skill in the art before the effective filing date of the claimed invention to select a foam material from the list as claimed, since it has been held to be within the general skill of a worker in the art to select a known (commercially available) material on the basis of its suitability for the intended use as a matter of obvious design choice. In re Leshin, 125 USPQ 416.
Regarding claims 22, the combination of McMahon and Henning teaches the method of claim 17. McMahon further discloses the step of securing the medical tubing (including IV tubing, central lines, oxygen tubing, drains, epidural Analgesia and more) in the flexible foam body (110).
Regarding claims 23, the combination of McMahon and Henning teaches a method of using the restraint of claim 10. The combination further teaches the step of using the flexible foam body (110) as a flotation device (when closed cell foam is selected as a material for the foam body) [in liquid (when placed in the liquid)].
Regarding claims 25, the combination of McMahon and Henning teaches the method of claim 17. McMahon further discloses the steps of shape coding (various shapes in figures 8-A to 8-C) the flexible foam body (110) to identify (for identifying information), restrain, separate, organize, categorize or retrieve (via the body) the object(s) by source, function, substance or contents. Further, it would have been obvious to a person having ordinary skill in the art before the effective filing date of the claimed invention to further modify the foam body of the combination of McMahon and Henning to have indicia to identify information so that the medical tubing can be categorized by source, function, substance or contents. Further, it is noted that matters relating to ornamentation only which have no mechanical function cannot be relied upon to patentably distinguish the claimed invention from the prior art. In re Seid, 161 F.2d 229, 73 USPQ 431 (CCPA 1947)
Regarding claim 26, McMahon discloses a method of restraining cords having a diameter, the method comprising the steps of: providing a flexible body (110) having a diameter (figure 8-C) and a longest dimension (along the length of the body), wherein the diameter of the flexible body (110) is substantially greater than the diameter of the cord (see figure 8-C); providing a channel (130) through the flexible body (110) [for circumferentially receiving the medical tubing], wherein: the channel (130) has a diameter that is substantially uniform in diameter (see figure 8-C and 2-A); and the channel (130) is co-extensive with the longest dimension of the flexible foam body (110). McMahon does not explicitly disclose a flexible foam body in combination with a medical tubing, the channel circumferentially engaging the medical tubing in the channel (130) via surface friction. Henning teaches a restraint comprising a flexible foam body (polyethylene foam tube) in combination with a medical tubing (including IV tubing, central lines, oxygen tubing, drains, epidural Analgesia and more), wherein the flexible foam body circumferentially engages the medical tubing in the channel (circular spaces or holes seen in figure 1) via surface friction (inherent feature since the beveled perpendicular slots are dimensioned substantially less than the circular space so that the tubing can be inserted via said slot to be circumferentially engaged by the hole of the foam body). It would have been obvious to a person having ordinary skill in the art before the effective filing date of the claimed invention to modify the material of the restraint of McMahon to be a flexible foam and in combination with a medical tubing as taught by Henning so that the diameter of the flexible foam body is substantially greater than the diameter (.750) of the medical tubing because both restraint devices retain elongated flexible members within a slotted channel and the modification would predictably allow retention of medical tubing while enabling the insertion of said tubing. It is noted that the cord retaining structure of McMahon could also hold medical tubing because both are flexible elongated members requiring retention without permanent securement. Additionally, the foam material is known to grip cylindrical objects by elastic compression so applying such material for a cord holder would predictably improve retention and allow insertion through a slot.
Regarding claims 27, the combination of McMahon and Henning teaches the method of claim 26. McMahon further discloses the step of providing a slit (120) in the flexible foam body (110), the slit (120) terminating in and communicating with the channel (130).
Regarding claims 28, the combination of McMahon and Henning teaches the method of claim 27. McMahon further discloses the step of ingressing and egressing the channel (130) through the slit (120) in the flexible foam body (110).
Regarding claims 29, the combination of McMahon and Henning teaches the method of claim 26. The combination further teaches wherein the step of providing the channel (130) through the flexible foam body (as modified) further comprises forming the channel (130) through the center of the foam body (figure 8-C). It would have been obvious to a person having ordinary skill in the art before the effective filing date of the claimed invention to further modify the foam body of the combination of McMahon and Henning to have the channel be formed through the center of the body so that the medical tubing can be more securely seated in the restraint to avoid unnecessary removing of the tubing.
Regarding claims 30, the combination of McMahon and Henning teaches the method of claim 26. The combination does not expressly teach wherein the flexible foam body is constructed of a material selected from the group consisting of ethylene-vinyl acetate (EVA) foam, polyethylene-vinyl acetate (PEVA), low-density polyethylene (LDPE) foam, first grade of polyethylene (PE), nitrile rubber (NBR) foam, the copolymers of acrylonitrile (ACN) and butadiene, polychloroprene foam or neoprene, polyimide foam, polypropylene (PP) foam, including expanded polypropylene (EPP) and polypropylene paper (PPP), polystyrene (PS) foam, including expanded polystyrene (EPS), extruded polystyrene foam (XPS) and sometimes polystyrene paper (PSP), styrofoam, including extruded polystyrene foam (XPS) and sometimes expanded polystyrene (EPS), polyurethane (PU) foam, viscoelastic polyurethane foam, or low-resilience polyurethane foam (LRPu), memory foam, sorbothane, polyvinyl chloride (PVC) foam, closed-cell PVC foamboard, microcellular foam, and combinations of the foregoing. It would have been obvious to a person having ordinary skill in the art before the effective filing date of the claimed invention to select a foam material from the list as claimed, since it has been held to be within the general skill of a worker in the art to select a known (commercially available) material on the basis of its suitability for the intended use as a matter of obvious design choice. In re Leshin, 125 USPQ 416.
Regarding claims 31, the combination of McMahon and Henning teaches the method of claim 26. The combination further teaches the step of securing the medical tubing (including IV tubing, central lines, oxygen tubing, drains, epidural Analgesia and more) in the flexible foam body (110 of McMahon).
Regarding claims 32, the combination of McMahon and Henning teaches the method of claim 26. The combination further teaches the step of using the flexible foam body (110 of McMahon) as a flotation device (when closed cell foam is selected as a material for the foam body 44) [in liquid (when placed in the liquid)].
Regarding claims 34, the combination of McMahon and Henning teaches the method of claim 26. McMahon further discloses the steps of shape coding (various shapes in figures 8-A to 8-C) the flexible foam body (110) to identify (for identifying information), restrain, separate, organize, categorize or retrieve (via the body) the object(s) by source, function, substance or contents. It would have been obvious to a person having ordinary skill in the art before the effective filing date of the claimed invention to further modify the foam body of the combination of McMahon and Henning to have indicia as further taught by Henning to identify information so that the medical tubing can be categorized by source, function, substance or contents. Further, it is noted that matters relating to ornamentation only which have no mechanical function cannot be relied upon to patentably distinguish the claimed invention from the prior art. In re Seid, 161 F.2d 229, 73 USPQ 431 (CCPA 1947).
Claim(s) 7, 13, 24 and 33 is/are rejected under 35 U.S.C. 103 as being unpatentable over McMahon, US 2015/0097088 in view of Henning, US 2008/0097333 as applied to claim 1 above, and further in view of Paleschuck et al., US 2015/0089975.
Regarding claim 7, the combination of McMahon and Henning teaches the medical tubing restraint of claim 1. Henning further teaches wherein: the flexible foam body has a color (any color); the medical tubing (including IV tubing, central lines, oxygen tubing, drains, epidural Analgesia and more) supplies a source, function, substance or contents to be administered or removed (IV tubing, central lines, oxygen tubing, drains, epidural Analgesia and more).
The combination does not expressly teach wherein the flexible foam body is coded by color to identify, restrain (via the foam body), separate (with different indicia), organize (by the ornamentation), categorize (by the ornamentation) or retrieve (via the body) the object(s) by source, function, substance or contents. Paleschuck teaches a restraint wherein the flexible foam body (10) is coded by color (see paragraph [0005]) to identify (for identifying information), restrain (via the foam body), separate (with different indicia), organize (by the ornamentation), categorize (by the ornamentation) or retrieve (via the body) the object(s) by source, function, substance or contents. It would have been obvious to a person having ordinary skill in the art before the effective filing date of the claimed invention to further modify the foam body of the combination of McMahon and Henning to have indicia as further taught by Paleschuck to identify information so that the medical tubing can be categorized by source, function, substance or contents. Further, it is noted that matters relating to ornamentation only which have no mechanical function cannot be relied upon to patentably distinguish the claimed invention from the prior art. In re Seid, 161 F.2d 229, 73 USPQ 431 (CCPA 1947).
Regarding claim 13, see the rejection of claim 7 above.
Regarding claim 24, see the rejection of claim 7 above.
Regarding claim 33, see the rejection of claim 7 above.
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure. See PTO-892 for similar art cited.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to ROWLAND DO whose telephone number is (571)270-5737. The examiner can normally be reached Monday-Thursday 8:30 - 7:00 PT.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Jason San can be reached at (571) 272-6531. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/R.D./ Examiner, Art Unit 3677
/JASON W SAN/ SPE, Art Unit 3677