Ex Parte Delmotte

Patent Trial and Appeal Board

Sep 26, 2013

12055516 (P.T.A.B. Sep. 26, 2013)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________

Ex parte YVES A. DELMOTTE
____________

Appeal 2012-002415
Application 12/055,516
Technology Center 1600
____________

Before JEFFREY N. FREDMAN, ERICA A. FRANKLIN and
ANNETTE R. REIMERS, Administrative Patent Judges.

REIMERS, Administrative Patent Judge.
DECISION ON APPEAL

Appeal 2012-002415
Application 12/055,516

2
STATEMENT OF THE CASE
Yves A. Delmotte (Appellant) appeals1 under 35 U.S.C. § 134(a) from
the Examiner’s decision to reject claims 24-31. Claims 1-23 have been
withdrawn. We have jurisdiction under 35 U.S.C. § 6(b). An oral hearing
was conducted on September 10, 2013. We REVERSE.

THE INVENTION
Appellant’s invention relates to a method for forming a fibrin foam.
Spec. 4, para. [0013]; figs. 1-2.
Claim 24, the sole independent claim, is illustrative of the subject
matter on appeal and is reproduced below:
24. A method for forming a fibrin foam, the
method comprising:
combining a solution of fibrinogen with air
by passing the fibrinogen and air through an inline
mixer comprising a three-dimensional lattice
defining a plurality of tortuous, interconnecting
passages therethrough to form a first foam;
combining a solution of a clotting protein
with air by passing the clotting protein and air
through an inline mixer comprising a three-
dimensional lattice defining a plurality of tortuous,
interconnecting passages therethrough to form a
second foam; and
mixing the first and second foams to form a
fibrin foam, wherein the fibrin foam has a
viscosity sufficient for a thin coating of the fibrin
foam to adhere to a vertical surface.

1 The Real Parties in Interest are Baxter International Inc. and Baxter
Healthcare S.A. (Br. 2).
Appeal 2012-002415
Application 12/055,516

3
THE EVIDENCE
The Examiner relies upon the following evidence:

Bering US 2,492,458 Dec. 27, 1949
Redl
Morse
Hood
US 4,359,049
US 5,318,524
WO 96/39212 A2
Nov. 16, 1982
Jun. 7, 1994
Dec. 12, 1996

THE REJECTIONS2
The following rejections are before us for review:
1). Claims 24-27 and 31 are rejected under 35 U.S.C. § 103(a) as
unpatentable over Redl and Hood.
2). Claim 28 is rejected under 35 U.S.C. § 103(a) as unpatentable
over Redl, Hood and Morse.
3). Claims 29 and 30 are rejected under 35 U.S.C. § 103(a) as
unpatentable over Redl, Hood and Bering.

ANALYSIS
Obviousness over Redl and Hood - Claims 24-27 and 31
Independent claim 24 recites a method for forming a fibrin foam
including an inline mixer having “a three-dimensional lattice defining a
plurality of tortuous, interconnecting passages therethrough.” Br., Clms.
App’x. The Examiner finds that Redl discloses the limitations of claim 24
except “Redl et al. fail to teach that an inline mixer comprising a three-

2 We note that the Examiner withdrew the rejection of claim 31 under 35
U.S.C. § 112, second paragraph, as being indefinite (Advisory Action, p. 2,
mailed January 7, 2011; see also Br. 5).
Appeal 2012-002415
Application 12/055,516

4
dimensional lattice defining a plurality of tortuous interconnecting passages
is used to form each foam” (Ans. 5). As such, the Examiner turns to Hood
“[for teaching] that the mixing chamber used to form the fluid and gas
mixture may be tapered or contain grooves or ridges to enhance mixing”
(Ans. 5, citing Hood, pp. 12-13). The Examiner concludes that it would
have been obvious “to have combined the teachings of Redl et al. with those
of Hood to use a mixing chamber for each foam that contains grooves or
ridges. One would have been motivated to do so to enhance mixing” (Ans.
5).
Appellant contends that “nothing in Hood discloses or suggests a
mixer including a three-dimensional lattice defining a plurality of tortuous,
interconnecting passages therethrough” (Br. 14). Appellant further contends
that “Hood teaches a chamber [116] that relies on the entry angle of the
channels [112, 114] and, to a lesser degree, grooves and ridges in the
chamber walls, to achieve desired mixing characteristics, rather than the
lattice structure of the claimed inline mixer” (Br. 15; see also id. at 14).
In response, the Examiner takes the position that “[g]iven the broadest
reasonable interpretation of the claims in view of the instant specification, a
mixing chamber with grooves or ridges fits the claim language ‘three-
dimensional lattice defining a plurality or tortuous, interconnecting passages
therethrough’” (Ans. 9-10).
We disagree with the Examiner’s claim interpretation. Claim 24
states that the inline mixer comprises a three-dimensional lattice “defining a
plurality of tortuous, interconnecting passages therethrough.” That is, claim
24 defines the three-dimensional lattice as being a plurality of tortuous,
interconnecting passages through the inline mixer. The Specification
Appeal 2012-002415
Application 12/055,516

5
supports this claim interpretation in describing the inline mixer 36 as “a thin
disc or cylinder, a three-dimensional lattice or matrix with a plurality of
tortuous, interconnecting passages therethrough” (Spec. 7, para. [0029]; see
also id. at 14, para. [0052]) (“[t]he lattice or matrix of polymeric material
forms a plurality of essentially randomly-shaped, tortuous interconnected
passageways through the mixer.”)
The Examiner’s interpretation of the claim to read on a mixing
chamber having grooves or ridges (Ans. 10-11) is unreasonably broad since
the claim explicitly recites that the inline mixer has a three-dimensional
lattice “defining a plurality of tortuous, interconnecting passages
therethrough” - a phrase that would be understood by the skilled artisan,
when read in light of the Specification, to mean that the three-dimensional
lattice forms a plurality of tortuous, interconnecting passages through the
inline mixer. Thus, we find the Examiner’s interpretation of the inline mixer
of claim 24 to encompass Hood’s mixing chamber 116 to be unreasonable in
light of the claim and the Specification. See In re Cortright, 165 F.3d 1353,
1358 (Fed. Cir. 1999) (“Although the PTO must give claims their broadest
reasonable interpretation, this interpretation must be consistent with the one
that those skilled in the art would reach.”)
Accordingly, we are constrained to reverse the Examiner’s rejection
of independent claim 24 and its respective dependent claims 25-27 and 31 as
unpatentable over Redl and Hood.
Obviousness over Redl, Hood and either Morse or Bering - Claims 28-30
For the reasons set forth above, Redl and Hood, as they are relied
upon by the Examiner, fail to suggest Appellant’s claimed invention. Morse
and Bering fail to make up for the deficiencies in Redl and Hood.
Appeal 2012-002415
Application 12/055,516

6
Accordingly, we reverse the obviousness rejections based on Redl and
Hood in combination with either Morse or Bering.

DECISION
We REVERSE the decision of the Examiner to reject claims 24-31.

REVERSED

hh