Ex Parte Freedman et al

Patent Trial and Appeal Board

Aug 29, 2018

13915600 (P.T.A.B. Aug. 29, 2018)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
13/915,600 06/11/2013
26191 7590 09/07/2018
FISH & RICHARDSON P.C. (TC)
PO BOX 1022
MINNEAPOLIS, MN 55440-1022
UNITED ST A TES OF AMERICA
FIRST NAMED INVENTOR
Brett A. Freedman
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
ATTORNEY DOCKET NO. CONFIRMATION NO.
38334-0003004 6302
EXAMINER
TREYGER, IL YA Y
ART UNIT PAPER NUMBER
3761
NOTIFICATION DATE DELIVERY MODE
09/07/2018 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):
P ATDOCTC@fr.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte BRETT A. FREEDMAN and ROBERT L. PAULY
Appeal2017-001855
Application 13/915,600
Technology Center 3700
Before STEVEN D.A. McCARTHY, NATHAN A. ENGELS, and
PAUL J. KORNICZKY, Administrative Patent Judges.
KORNICZKY, Administrative Patent Judge.
DECISION ON APPEAL
Appeal2017-001855
Application 13/915,600
STATEMENT OF THE CASE
Pursuant to 35 U.S.C. § 134(a), Appellant1 appeals from the
Examiner's decision, as set forth in the Final Office Action dated November
19, 2015 ("Final Act."), rejecting claims 15-32.2 An oral hearing was held
on August 23, 2018. We have jurisdiction under 35 U.S.C. § 6(b).
We REVERSE.
THE CLAIMED SUBJECT MATTER
The claims are directed to a sub-atmospheric wound-care system.
Claim 15, the only independent claim on appeal, is reproduced below with
disputed limitations italicized for emphasis:
15. A method for treating a wound with a negative pressure
wound therapy system, comprising:
applying a dressing system to a wound, the dressing
system including: a silver-impregnated fine mesh layer having a
lower face in contact with the wound, a layer of nonwoven
polymer material engaged with an upper face of the silver-
impregnated fine mesh layer and having no free dangling edges,
an interface chamber positioned over a central region of
the layer of non-woven polymer material opposite from the
silver-impregnated fine mesh layer, the interface chamber
comprising an upper central coupling to receive a fluid tube and
a lower region defining a plurality of rigid air chambers fixedly
positioned relative to one another and in fluid communication
with the upper central coupling, and a clear adhesive material
being affixed to a skin region surround the wound so as to secure
the interface chamber, the layer of nonwoven polymer material,
and the silver-impregnated fine mesh layer in an airtight region
over the wound;
J&M Shuler Medical, Inc. ("Appellant") is the applicant pursuant to
37 C.F.R. § 1.46, and is identified as the real party in interest. Appeal Brief,
dated May 17, 2016 ("Appeal Br."), at 1.
2 Claims 1-14 are cancelled. Appeal Br. 13 (Claims Appendix).
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Appeal2017-001855
Application 13/915,600
connecting the fluid tube between the upper central
coupling of the interface chamber and an electronic
programmable vacuum regulator unit, the electronic
programmable vacuum regulator unit having an intake connector
configured to accept flow from a vacuum source;
connecting the intake connector of the electronic
programmable vacuum regulator unit to a fluid line coupled to
the vacuum source so that the dressing system applies negative
pressure wound therapy to the wound; and
irrigating the wound with intermittent doses of an
irrigation fluid that is delivered through the interface chamber
and the non-woven polymer material of the dressing system.
REFERENCES
In rejecting the claims on appeal, the Examiner relied upon the
following prior art:
Heaton
Karpowicz
Blott
Fleischmann
Watt
US 6,345,623 B 1
US 7,438,705 B2
US 8,162,909 B2
US 8,376,972 B2
US 2007 /0225663 Al
REJECTIONS
The Examiner made the following rejections:
Feb. 12,2002
Oct. 21, 2008
Apr. 24, 2012
Feb. 19,2013
Sept. 27, 2007
1. Claims 15-25 and 30-32 are rejected under 35 U.S.C. § I03(a) as
being unpatentable over Blott, Heaton, and Watt.
2. Claims 26 and 27 are rejected under 35 U.S.C. § I03(a) as being
unpatentable over Blott, Heaton, Watt, and Fleischmann.
3. Claims 28 and 29 are rejected under 35 U.S.C. § I03(a) as being
unpatentable over Blott, Heaton, Watt, and Karpowicz.
Appellant seeks our review of these rejections.
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Appeal2017-001855
Application 13/915,600
DISCUSSION
The Rejections of Claims 15-32
Claims 15-32
Appellant asserts that the Examiner's rejection of independent claim
15 and its dependent claims is erroneous for two reasons. First, Appellant
argues that the Examiner erroneously finds the Heaton's projections 32
correspond to the "plurality of rigid air chambers" recited in claim 15.
Appeal Br. 5-8 ( citing the Declaration of Dr. Michael Shuler ("the Shuler
Deel."), ,r,r 7, 11, 12); Reply Brief, dated November 15, 2016 ("Reply Br."),
at 2. According to Appellant, the "projections 32 [are a] series of nubs
projecting from the surface, not chambers" (Appeal Br. 4), and "are solid
structures that do not communicate negative pressure" (id. at 8). See Reply
Br. 2. We agree. Although air channels may be formed between Heaton's
projections 32, there is no reason to regard the projections themselves as "air
chambers."
Second, Appellant argues that the Examiner's proposed combination
is erroneous because the Examiner's proposal to modify Blott so that
Heaton's filler foam 73 is disposed between Blott's irrigation pipes 97 and
the wound bed would defeat the purpose of Blott's irrigation pipes. Appeal
Br. 9-11 (citing the Shuler Deel. ,r,r 13-15); Reply Br. 2. Appellant raises a
reasonable issue concerning the lack of functionality resulting from the
Examiner's proposed combination, but the Examiner provides no response.
Appeal Br. 9; Reply Br. 2.
For the reasons above, the rejection of independent claim 15, and its
dependent claims 16-32, cannot be sustained.
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Appeal2017-001855
Application 13/915,600
Claims 16-18
Appellant also asserts that the Examiner's rejection of claim 16, and
its dependent claims 17 and 18, is erroneous. Claim 16 recites that "said
connecting the intake connector comprises connecting the intake connector
of the electronic programmable vacuum regulator unit to a fluid line coupled
to a wall vacuum source so that the dressing system applies negative
pressure wound therapy to the wound." Appellant asserts that the Examiner
cannot rely on Blott's generic teaching of a "piped supply of vacuum" to
meet a specific limitation directed to "a wall vacuum source." Appeal Br. 12
(citing Blott 16:32-35); Reply Br. 2. We agree.
Although a wall vacuum may be a type of piped vacuum source, a
piped vacuum source is not necessarily a wall vacuum source. Appeal Br.
12; Reply Br. 2. The Examiner does not address persuasively Appellant's
argument about the differences between the claimed subject matter and
Blott. Thus, the rejection of claim 16 and its dependent claims 17 and 18
cannot be sustained.
DECISION
For the above reasons, the Examiner's rejections of claims 15-32 are
REVERSED. 3
REVERSED
3 Appellant states that this appeal is related to Appeal No. 2017-
003182, which was decided on February 1, 2018. Appeal Br. 1. The claims
in this appeal appear to be substantially identical to the claims in Appeal No.
2017-003182 and US 10,058,643, issued on August 28, 2018. The
Examiner and Appellant may wish to consider whether the claims in this
appeal are patentably distinct over the claims in US 10,058,643, and whether
a Terminal Disclaimer is necessary to avoid obviousness-type double
patenting issues.
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