Ex Parte Chernoff

Patent Trial and Appeal Board

Aug 14, 2013

11681214 (P.T.A.B. Aug. 14, 2013)

UNITED STATES PATENT AND TRADEMARK OFFICE
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BEFORE THE PATENT TRIAL AND APPEAL BOARD
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Ex parte GREGORY W. CHERNOFF
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Appeal 2011-009444
Application 11/681,214
Technology Center 3700
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Before: JAMES P. CALVE, WILLIAM A. CAPP, and
JEREMY M. PLENZLER, Administrative Patent Judges.

PLENZLER, Administrative Patent Judge.

DECISION ON APPEAL

Appeal 2011-009444
Application 11/681,214

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STATEMENT OF THE CASE
Appellant seeks our review under 35 U.S.C. § 134 of the Examiner’s
decision rejecting claims 4 and 5. Claims 1 and 2 are withdrawn and claims
3 and 6-12 are cancelled. We have jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM.

CLAIMED SUBJECT MATTER
Claims 4 and 5 are independent. Claim 4, reproduced below, is
illustrative of the claimed subject matter:
4. A method of treatment of a scar comprising treating the
scar with laser therapy, and applying a topical fluid silicone gel
not released from silicone gel sheeting to the scar.

REJECTIONS
1. Claim 4 is rejected under 35 U.S.C. § 103(a) as being unpatentable
over Tankovich (US 6,050,990; iss. Apr. 18, 2000) and Kushner (US
5,741,509; iss. Apr. 21, 1998); and
2. Claim 5 is rejected under 35 U.S.C. § 103(a) as being unpatentable
over Tankovich, Kushner, and Black (US 5,531,740; iss. Jul. 2, 1996).

OPINION
Claim 4
The Examiner finds that Tankovich discloses each of the features of
claim 4 except the application of a topical fluid silicone gel not released
from silicone gel sheeting to the scar. Ans. 3-4. The Examiner finds that
Kushner discloses this feature and explains that it would have been obvious
Appeal 2011-009444
Application 11/681,214

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to use a silicone fluid as an equivalent to the contaminant discussed in
Tankovich for treating scars. Ans. 4.
Appellant argues that the silicone gel from Kushner would not absorb
light energy well at the wavelength of the laser in Tankovich and, therefore,
there would be no expectation of success when using the silicone gel from
Kushner in place of the contaminant from Tankovich. App. Br. 7.
Regardless of whether the silicone gel would be a suitable replacement for
the contaminant in Tankovich, the Examiner alternatively explains that
Tankovich teaches the need for healing the wound using any of the
commonly known post-operative healing methods and that it would have
been obvious to apply a topical silicone gel composition as taught by
Kushner to the treatment site after the laser ablation of the scar tissue in
Tankovich in order to promote healing of the scar. Ans. 8-9. Appellant
argues that Tankovich does not contemplate use of silicone gel after laser
treatment. Reply Br. 5. This argument is not persuasive because the
Examiner relies on Kushner teaching use of silicone gel. Appellant fails to
provide any further argument regarding why one skilled in the art would not
apply silicone gel to a scar after laser treatment based on the combined
teachings of Tankovich and Kushner as suggested by the Examiner.
For these reasons, we are not apprised of Examiner error and we
sustain the rejection of claim 4.

Claim 5
Claim 5 is similar to claim 4 with the exception of the laser therapy
being specified as a “flash lamp pumped pulse dye laser therapy.” The
Examiner relies on similar findings and reasoning as set forth in the rejection
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Application 11/681,214

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of claim 4, and additionally finds that Black discloses use of a flash lamp
pumped pulse dye laser for dermatological treatment and explains it would
have been obvious to further include a flash lamp pumped pulse dye laser in
the proposed modifications to Tankovich as an equivalent alternative energy
source for providing scar treatment. Ans. 4-5.
Appellant reiterates the arguments presented regarding claim 4 which
are unpersuasive for the reasons set forth above. App. Br. 8. Appellant
further argues that the rejection is improper because Black does not
specifically discuss the use of the laser for scar treatment. App. Br. 9.
Appellant has failed to explain why the use of the laser from Black would
not be appropriate for use in the scar treatment of Tankovich.
For these reasons, we are not apprised of Examiner error and we
sustain the rejection of claim 5.

DECISION
We AFFIRM the Examiner’s decision to reject claims 4 and 5.
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a)(1)(iv).

AFFIRMED

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