Ex Parte Chakravarthy et al

Patent Trial and Appeal Board

Nov 29, 2018

14031716 (P.T.A.B. Nov. 29, 2018)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
14/031,716 09/19/2013
117928 7590 12/03/2018
Medline Industries, Inc.
c/o Gurr Brande & Spendlove PLLC
491 E Riverside Drive
Suite 4B
Saint George, UT 84790
FIRST NAMED INVENTOR
Debashish Chakravarthy
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.
26398 1064
EXAMINER
MARCETICH, ADAM M
ART UNIT PAPER NUMBER
3781
NOTIFICATION DATE DELIVERY MODE
12/03/2018 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):
spendlove@gbsip.com
ipdocket@gurrbrande.com
rspendlove@laubscherlaw.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte DEBASHISH CHAKRA V ARTRY and
ANDREW J. FORD
Appeal2018-004445 1
Application 14/031,716
Technology Center 3700
Before: BENJAMIN D. M. WOOD, LEE L. STEPINA, and
PAUL J. KORNICZKY, Administrative Patent Judges.
STEPINA, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Appellants appeal under 35 U.S.C. § 134 from the Examiner's
decision to reject claims 1, 5-15, 17-20, and 22. We have jurisdiction under
35 U.S.C. § 6(b).
We AFFIRM IN PART.
1 The Appellant is Medline Industries, Inc., which the Appeal Brief indicates
is the real party in interest. Br. 1.
Appeal2018-004445
Application 14/031, 716
CLAIMED SUBJECT MATTER
The claims are directed to a wound dressing containing
polysaccharide and collagen. Claim 1, reproduced below, is illustrative of
the claimed subject matter:
1. A dressing for application to a wound comprising:
a film layer;
an absorbent layer;
a cover layer;
a wound contacting layer applied to the film layer between the
film layer and a patient's
skin, the wound contacting layer consisting of:
honey;and
powdered collagen.
Claims App. 2.
REFERENCES
The prior art relied upon by the Examiner in rejecting the claims on
appeal is:
Roreger
Walsh
Vandeputte
Hofstetter
us 5,456,745
US 2007 /0032755 Al
US 2009/0291122 Al
US 2011/0313383 Al
Oct. 10, 1995
Feb. 8,2007
Nov. 26, 2009
Dec. 22, 2011
Arkadiusz Rataj ski et al., The use of Ultrasonic Methods in the Identification
of Honey Types, No. 13 TECH. SCI. 22-29 (2010) (hereinafter "Ratajski")
REJECTIONS
(I) Claims 1, 5-11, 20, and 222 are rejected under 35 U.S.C. § 103
as unpatentable over Walsh and Vandeputte.
2 Claim 22 depends from canceled claim 2. See Claims App. 2, 5.
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Application 14/031, 716
(II) Claims 12, 14, and 17-19 are rejected under 35 U.S.C. § 103 as
unpatentable over Walsh and Vandeputte, as evidenced by Ratajski.
(III) Claim 13 is rejected under 35 U.S.C. § 103 as unpatentable
over Walsh, Vandeputte, and Roreger. 3
(IV) Claim 15 is rejected under 35 U.S.C. § 103 as unpatentable
over Walsh, Vandeputte, and Hofstetter.
OPINION
Rejection(!): Walsh and Vandeputte
The Examiner finds that Walsh teaches most of the elements required
by claim 1, but does not disclose the recited film layer and the use of honey
in a dressing. Final Act. 3. The Examiner relies on the teachings of
Vandeputte to remedy these deficiencies, reasoning "it would have been
obvious to one of ordinary skill in the art at the time the invention was made
to modify Walsh with the film layer and honey of Vandeputte in order to
clean a wound and prevent infection." Id. at 3--4 (citing Vandeputte ,r,r 2,
20, 21, 23, 26).
Appellant contends that Walsh fails to disclose the use of collagen as
part of a dressing. Br. 7. Instead, Appellant asserts, Walsh applies collagen
to a wound as one of various layers, and only one of these layers (semi-
permeable dressing 40) qualifies as a dressing. Br. 7. In other words,
Appellant's position is that the various layers Walsh applies to a wound do
not, taken together, qualify as a "dressing."
3 Presumably, the rejections of claims 13 and 15 rely on the teachings of
Rataj ski to the same extent the rejection of claim 12 (from which claims 13
and 15) depend, does.
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Application 14/031, 716
In response, the Examiner notes that claims 1, 9, and 20 all call for
powdered collagen and that Walsh teaches that its collagen is provided as
either a dry particulate or a wet slurry. Ans. 14; see also Claims App. 2--4.
The Examiner finds that providing such material, even in combination with
another component denominated as a "dressing" does not mean that the
collagen provided by Walsh is not itself part of a dressing. See id. at 14--15.
In this regard, the Examiner notes that the exclusion of additional materials
via the phrase "consisting of' in claim 1 applies only to the content of the
contacting layer. Id.
The Examiner has the better position on this point. Appellant's
Specification states, "[t]he present invention relates to the formation of a
complex wound dressing consisting of a polysaccharide, such as Manuka
honey, in combination with collagen in order to suppress the efficacy of
harmful enzymes called matrix metalloproteinases ('MMPs') that are present
in chronic wounds." Spec. ,r 1. Thus, the dressing is described as only
polysaccharide (e.g., honey) and collagen. No other materials are included.
This implies that the substances used to cover a wound correspond to a
"dressing" and no particular structure of these substances is required. We
see no reason the collagen taught by Walsh and referred to by the Examiner
does not qualify as part of a dressing the same way the collagen described in
Appellant's paragraph 1 does.
Appellant next asserts that "both Walsh and Vandeputte would cease
to function for their intended purposes if combined in [ the manner proposed
by the Examiner]." 4 Br. 7. With regard to Walsh, Appellant contends that
4 Appellant's arguments focus on the modification to use honey as recited,
and Appellant does not contest the modification to use the film disclosed by
Vandeputte. See generally Appeal Br.
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Application 14/031, 716
adding honey as proposed would interfere with drainage via tube 50, which
is one of Walsh's objectives. See Br. 7-9 (citing Walsh ,r,r 4, 10, 21, 22, 24,
27, Fig. 1).
In response, the Examiner notes that Walsh provides collagen in
combination with cream or ointment and then applies vacuum in order to
facilitate drainage. Ans. 15 (citing Walsh ,r,r 23, 29). Based on this, the
Examiner further finds "Walsh intends to apply a freely moving or mobile
agent in combination with vacuum[, and] Walsh would have recognized that
vacuum will remove some of the treatment agent, but that sufficient agent
will remain at the wound to enhance healing." Id.
We disagree with Appellant's argument on this point. Appellant
provides no objective evidence or sound technical argument as to why honey
would interfere with drainage in Walsh's dressing. The Examiner's finding
that Walsh applies cream or ointment to a wound in combination with
collagen is supported by a preponderance of the evidence. See Walsh ,r 23
("protective cream or ointment 35 may be applied before gauze 30 is
positioned overlying collagen 25 on wound 10 or after drain tube 45 is
positioned adjacent wound 10."), ,r 24 ("After collagen 25, gauze 30, and
protective cream or ointment 35 are applied to wound 10, proximal end 50
of drain tube 45 preferably is positioned on top of gauze 30, as best
illustrated in FIG. 3."). We agree with the Examiner that Walsh's disclosure
of using collagen in combination with cream or ointment is evidence that
honey would not render the structure disclosed by Walsh unsuitable for its
intended use.
With respect to Vandeputte, Appellant states, "Vandeputte, in
contrast, recites honey only in combination with very different materials for
a different purpose. In particular, each example of Vandeputte that includes
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Application 14/031, 716
honey also includes a significant portion of ozonated oil. To remove the
ozonated oil would render Vandeputte unsuitable for its express purpose."
Br. 9.
We disagree with Appellant's argument because, as noted by the
Examiner (Ans. 15), Walsh, not Vandeputte, is the primary reference in
Rejection (I) (see Final Act. 3--4). Thus, the Examiner does not propose to
modify any of the structure disclosed by Vandeputte. We agree with
Appellant that Vandeputte discloses benefits of combining honey with
ozonated oil. See Vandeputte ,r,r 11-12. However, as correctly noted by the
Examiner (Ans. 15-16), Vandeputte teaches the benefits of treating wounds
with honey, even without ozonated oil. In this regard, Vandeputte states, "In
wound care, honey has been used for thousands of years." Vandeputte ,r 2.
"The major advantage of honey in wound care is the high osmotic activity
that accelerates debridement of necrotic tissue and procures the antibacterial
effect." Id. Accordingly, a person of ordinary skill in the art reading
Vandeputte would not have been dissuaded from the use of honey per se.
We have considered all of Appellant's arguments in support of the
patentability of claim 1, but find them unavailing. Accordingly, we sustain
the rejection of claim 1 as unpatentable over Walsh and Vandeputte. Aside
from arguments made for the patentability of claim 5, Appellant makes no
new arguments in support of the other claims subject to Rejection (I),
namely, claims 1, 6-11, 20, and 22. See Br. 7-12. Accordingly, claims 6-
11, 20, and 22 fall with claim 1.
Rejection (II): Walsh and Vandeputte, as evidenced by Ratajski
Independent claim 12 recites honey having a first viscosity and
"wherein the honey, the supplemental material and the collagen form a
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mixture in the wound contacting layer having a second viscosity that is
greater than the first viscosity of the honey." Appeal Br. (Claims App. 3--4).
The Examiner finds that Rataj ski discloses that honey has a viscosity
of from 3000 to 6000 centi Poise, and this corresponds to the recited first
viscosity. Final Act. 9. The Examiner finds that Vandeputte discloses that
honey mixed with another material and having a viscosity of 1 to about
12,000,000 centi Poise at room temperature, which, the Examiner finds,
corresponds to the recited second viscosity. Id. at 8. The Examiner reasons
that providing a second viscosity greater than the first viscosity would assist
in holding the honey in place on the wound. Id. at 9.
Appellant contends that Ratajski has nothing to do with the
comparison of the relative viscosities of honey and its mixture with other
materials, and, therefore, is not relevant to the limitation at issue in claim 12.
See Br. 13-14.
In response, the Examiner does not rely on the rationale of "holding
the honey in place," and, instead, states, "Ratajski shows that honey has a
lower viscosity than a mixture comprising collagen and other ingredients. In
other words, Ratajski and Vandeputte show that a mixture of collagen and
other ingredients [ with honey] has a much greater viscosity than honey
alone." Ans. 17 ( emphasis added)
We do not sustain the Examiner's rejection of claim 12 because the
Examiner's finding that a mixture of collagen and other ingredients with
honey has a higher viscosity than does honey alone is not supported by a
preponderance of the evidence. Although we agree with Examiner that the
teachings of Vandeputte and Rataj ski disclose that such relative levels of
viscosity are possible, these references show the reverse is also possible.
Specifically, honey may have a higher viscosity than its mixture with a
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supplemental material. Accordingly, we do not sustain the Examiner's
rejection of claim 12 and claims 14 and 17-19 depending therefrom as
unpatentable over Walsh and Vandeputte as evidenced by Ratajski.
Rejections (III) and (IV) pertain to claims depending from claim 12.
See Final Act. 11-13. The Examiner's use of Hofstetter and Roreger does
not remedy the deficiency discussed above regarding Rejection (II). See id.
Accordingly, for the reason discussed above regarding Rejection (II), we do
not sustain Rejections (III}-(IV).
DECISION
(I) We affirm the rejection of claims 1, 5-11, 20, and 22 as
unpatentable over Walsh and Vandeputte.
(II) Wereversetherejectionofclaims 12, 14, and 17-19as
unpatentable over Walsh and Vandeputte, as evidenced by Ratajski.
(III) We reverse the rejection of claim 13 as unpatentable over
Walsh, Vandeputte, and Roreger.
(IV) We reverse the rejection of claim 15 as unpatentable over
Walsh, Vandeputte, and Hofstetter.
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)(l )(iv).
AFFIRMED IN PART
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