Ex Parte Dixon

Patent Trial and Appeal Board

Oct 10, 2013

11581196 (P.T.A.B. Oct. 10, 2013)

UNITED STATES PATENT AND TRADEMARK OFFICE
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BEFORE THE PATENT TRIAL AND APPEAL BOARD
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Ex parte DAVID M. DIXON
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Appeal 2012-003393
Application 11/581,196
Technology Center 1600
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Before JEFFREY N. FREDMAN, ERICA A. FRANKLIN, and SHERIDAN
K. SNEDDEN, Administrative Patent Judges.

FRANKLIN, Administrative Patent Judge.

DECISION ON APPEAL
This is an appeal under 35 U.S.C. § 134(a) involving claims to a
binder composition and process for direct compression of poorly
compressible drugs into tablets. The Patent Examiner rejected the claims as
obvious. We have jurisdiction under 35 U.S.C. § 6(b). We reverse.
STATEMENT OF THE CASE
Claims 9-11 and 19 are on appeal. Claim 9 is representative and reads
as follows:
1. A method to treat a patient having a wound area, comprising the steps
of:
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Application 11/581,196

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providing a plurality of epidermal and/or dermal cells;
providing a wound care dressing comprising a first nonwoven blanket
formed from fibers consisting of a first water soluble saccharide and a
second nonwoven blanket formed from fibers consisting of a second water
soluble saccharide, wherein said first saccharide has a first rate of
dissolution in water, and wherein said second saccharide has a second rate
of dissolution in water, wherein said first rate of dissolution is greater than
said second rate of dissolution;
disposing said plurality of epidermal and/or dermal cells in said
wound care dressing;
covering said wound area with said would care dressing.

(Emphasis added.)

The Examiner rejected the claims as follows:
• claims 9 and 11 under 35 U.S.C. § 103(a) as unpatentable over
Dimoudis,1 Fuisz,2 and Torr;3
• claims 9-11 under 35 U.S.C. § 103(a) as unpatentable over
Dimoudis, Fuisz, Torr, and Inlow;4
• claims 9, 11, and 19 under 35 U.S.C. § 103(a) as unpatentable over
Dimoudis, Fuisz, Torr, and Bay.5
OBVIOUSNESS
The Examiner found that Dimoudis taught a method to treat a patient
having a wound area comprising providing a plurality of epidermal and/or
dermal cells and placing the plurality of cells on a wound area with an
appropriate dressing, such as a hydroactive dressing. (Ans. 5.) The

1 US Patent No. 5,980,888 issued to Nikolaos Dimoudis et al., Nov. 9, 1999.
2 US Patent No. 4,855,326 issued to Richard C. Fuisz, Aug. 8, 1989.
3 US Patent No. 3,070,095 issued to David Torr, Dec. 25, 1962.
4 US Patent No. 6,048,728 issued to Duane Inlow et al., Apr. 11, 2000.
5 US Patent No. 5,064,652 issued to Michael Bay, Nov. 12, 1991.
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Application 11/581,196

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Examiner found that Dimoudis did not specifically teach using a protective
dressing comprising two nonwoven blankets, each formed of fibers
consisting of water soluble saccharide having different rates of dissolution in
water. (Id. at 5-6.)
The Examiner found that Fuisz taught a wound dressing comprising a
water-soluble nonwoven blanket formed from fibers consisting of
saccharides such as sucrose, glucose, lactose and cellulosic materials. (Id. at
6.) The Examiner also found that Torr taught multi-ply dressings that may
be applied to wounds. (Id.) The Examiner found that Torr taught a dressing
that may comprise nonwoven cellulose fibers, wherein the fiber of the two
layers may vary so that “one layer is more water soluble than another layer
(i.e., the ply, a nonwoven felted sheet, that is closest to the subject to which
it is applied is more water soluble than the outer ply, which may be thicker
or comprised of a different material….” (Id.)
According to the Examiner, a person of ordinary skill in the art at the
time the invention was made would have been motivated to use the
hydroactive dressing of Fuisz in the method of Dimoudis because Dimoudis
taught that any dressing, including hydroactive dressings may be used. (Id.
at 6-7.) Additionally, according to the Examiner:
One would further have been motivated to combine the
teachings of Dimoudis and Fuisz with the teachings of Torr to
use two types of nonwoven blankets, each with a different
solubility in water, because Torr teaches that the use of multiple
layers in a dressing, such as a body touching layer, a water
absorbent layer of water-soluble polysaccharide, and a water-
impervious outer layer, can be useful in a wound care dressing
to absorb wound fluids and prevent their leakage from the
dressing (col. 1, lines 41-50, col. 4, lines 50-56).

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(Id. at 7.)
Appellant contends, among other things, that one of ordinary skill in
the art following the teachings of Torr would find no motivation to use a
wound care dressing comprising a first and second nonwoven blankets
formed from fibers consisting of a first and second water soluble
saccharides, wherein the first saccharide has a rate of dissolution that is
greater than that of the second. (App. Br. 9.) According to Appellant:
Torr teaches a multi-ply napkin comprises three layers,
including a body-touching sheet, a water-impervious sheet, and
an intermediate layer, wherein at least two of those layers are
non-water soluble layers. Col. 1 at Lines 41-50. “The body-
touching ply is a thin, soft, absorbent cellulose-type sheet.” Col.
1 at Lines 51-53. Torr further teaches that this body-touching
sheet must retain strength when wet. More specifically, Torr
requires that the body-touching sheet comprise “sufficient wet
strength to retain its continuity and not tear while in the set state
on the wearer.” Appellant trusts the Board will appreciate that
Torr’s body-touching sheet cannot be formed from a water
soluble material. Such a water soluble material clearly could not
maintain the requisite “wet strength to retain its continuity ...”.
“The water-impervious ply likewise can be composed of
a cellulose-type sheet such as used for the body-touching ply ...
Water-imperviousness is imparted to this sheet by application
to one or both sides of it of a water-repellant coating that is
inert or harmless to the skin of the wearer.” Col. 2 at Lines 10-
20. Torr clearly teaches a non-water soluble water-impervious
ply.

(App. Br. 9.)
The Examiner responds that “[t]he Torr reference is relied upon solely
for teaching that a dressing can comprise a number of layers, one of which is
a water-soluble polysaccharide layer.” (Ans. 15.)
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Application 11/581,196

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We agree with Appellant that the Examiner has not established a
prima facie case of obviousness. While Torr provides a motivation to add an
additional layer to the dressing of Fuisz, what is missing from the
Examiner’s rejection is some teaching or suggestion to motivate a skilled
artisan to provide such layers, i.e., nonwoven blankets, wherein the first
nonwoven blanket is formed from fibers consisting of a first water soluble
saccharide and the second nonwoven blanket is formed from fibers
consisting of a second water soluble saccharide, wherein the rate of
dissolution in water of the first water soluble saccharide is greater than that
of the second water soluble saccharide, as required by independent claim 1.
See In re Fine, 837 F.2d 1071, 1074 (Fed. Cir. 1988)(A conclusion that the
claimed subject matter is prima facie obvious must be supported by evidence
that would have led that individual to combine the relevant teachings of the
references to arrive at the claimed invention.).
Accordingly, we reverse the obviousness rejection of independent
claim 9 and dependent claim 11 over Dimoudis, Fuisz, and Torr.
Because the Examiner relied on the combination of Dimoudis, Fuisz,
and Torr as teaching the elements of independent claim 9 for each of the
rejections (see Ans. 8-17) we also reverse the rejection of claims 9-11 over
Dimoudis, Fuisz, Torr, and Inlow, and the rejection of claims 9, 11, and 19
over Dimoudis, Fuisz, Torr, and Bay.

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SUMMARY
We reverse each of the obviousness rejections.

REVERSED