Ex parte DORR et al.

Board of Patent Appeals and Interferences

Mar 16, 1998

07973211 (B.P.A.I. Mar. 16, 1998)

Application for patent filed November 6, 1992. According1
to appellants, this application is a continuation of Application
No. 07/788,157, filed November 6, 1991, now abandoned; which is a
continuation-in-part of Application No. 07/715,722, filed
June 14, 1991, now abandoned; which is a continuation of
Application No. 07/377,062, filed July 10, 1989, now abandoned;
which is a continuation-in-part of Application No. 07/344,213,
filed April 27, 1989, now abandoned.
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THIS OPINION WAS NOT WRITTEN FOR PUBLICATION
The opinion in support of the decision being entered
today (1) was not written for publication in a law
journal and (2) is not binding precedent of the Board.
Paper No. 27
UNITED STATES PATENT AND TRADEMARK OFFICE
________________
BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
________________
Ex parte ROBERT T. DORR and DAVID S. ALBERTS
________________
Appeal No. 95-0368
Application No. 07/973,2111
________________
ON BRIEF
________________
Before WINTERS, WILLIAM F. SMITH and JOHN D. SMITH,
Administrative Patent Judges.
WINTERS, Administrative Patent Judge.
DECISION ON APPEAL
This appeal was taken from the examiner's decision rejecting
claims 9 through 12. Claims 1 through 8 and 13 through 15, which
are the only other claims remaining in the application, stand
Appeal No. 95-0368
Application No. 07/973,211
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withdrawn from further consideration by the examiner as directed
to a non-elected invention.
REPRESENTATIVE CLAIM
Claim 9, which is illustrative of the subject matter on
appeal, reads as follows:
9. A kit for deactivating HIV infected blood and for
deactivating and decolorizing an anticancer drug, said kit
comprising:
(a) a first absorbent, fibrous towelette impregnated with an
aqueous solution containing 4-40% by weight of either calcium
hypochlorite or sodium hypochlorite; and
(b) a second absorbent, fibrous towelette impregnated with
an aqueous solution containing 4-40% by weight sodium
thiosulfate.
THE REFERENCES
The prior art references relied on by the examiner are:
Kim 4,814,335 Mar. 21, 1989
(filed June 23, 1987)
Itagaki et al. (Itagaki) 4,976,921 Dec. 11, 1990
(filed Dec. 13, 1988)
McClendon 4,998,984 Mar. 12, 1991
(filed Nov. 15, 1989)
Bargery et al. (Bargery) 5,006,339 Apr. 9, 1991
(filed July 19, 1989)
Lister 5,087,450 Feb. 11, 1992
(filed Apr. 4, 1990)
Appeal No. 95-0368
Application No. 07/973,211
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THE ISSUES
The issues presented for review are: (1) whether the
examiner erred in rejecting claims 9 through 12 under 35 U.S.C.
§ 103 as unpatentable over the combined disclosures of Bargery,
Kim and Itagaki; and (2) whether the examiner erred in rejecting
claims 9 through 12 under 35 U.S.C. § 103 as unpatentable over
Lister or McClendon, either of those "primary" references in
combination with Itagaki.
DELIBERATIONS
Our deliberations in this matter have included evaluation
and review of the following materials: (1) the instant
specification, including all of the claims on appeal; (2)
appellants' Appeal Brief; (3) the Examiner's Answer; and (4) the
above-cited prior art references.
On consideration of the record, including the above-listed
materials, we reverse both prior art rejections.
DISCUSSION
Respecting both prior art rejections, the pivotal question
is whether it would have been obvious, at the time the invention
was made, to provide a kit which contains
(b) a second absorbent, fibrous towelette impregnated
with an aqueous solution containing 4-40% by weight
sodium thiosulfate.
We answer that question in the negative.
Appeal No. 95-0368
Application No. 07/973,211
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Appellants provide a reason to use the second towelette,
which is impregnated with sodium thiosulfate. See the following
description in the specification, paragraph bridging pages 2
and 3:
In a second embodiment of the present invention,
spills or leaks of HIV infected blood and/or anticancer
drugs on stainless steel or ceramic work surfaces
vulnerable to etching by the corrosive alkaline sodium
or calcium hypochlorite solutions are inactivated with
a two-step, towelette swabbing kit and process. A
first absorbent, fibrous (preferably cotton and/or
synthetic blend) towelette, impregnated with calcium
hypochlorite or, preferably, sodium hypo-chlorite, is
swabbed over the spilled HIV infected blood- or drug-
containing work surface to deactivate the spilled
compound. A second absorbent, fibrous (preferably
cotton and/or synthetic blend) towelette, impregnated
with sodium thiosulfate, is then swabbed over the
spilled HIV infected blood- or drug-containing work
surface to neutralize the alkaline calcium or sodium
hypochlorite residue from the first towelette, so as to
prevent the alkaline residue from corroding or etching
the work surface. [Emphasis added.]
Likewise, see the specification, paragraph bridging pages 6 and
7, explaining that the second towelette, impregnated with sodium
thiosulfate, is used
[T]o neutralize the alkaline calcium or sodium hypo-
chlorite residue from the first towelette, so as to
prevent the alkaline residue from corroding or etching
the work surface.
Appeal No. 95-0368
Application No. 07/973,211
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The cited prior art, however, provides no reason, suggestion
or motivation to provide a kit containing the second towelette
impregnated with sodium thiosulfate. On the contrary, Bargery
discloses that after using the anti-viral wipe of his invention,
"subsequently any residues were mopped up." See Bargery, column
5, lines 15 and 16. Lister discloses that his virucidal wipe may
be used to remove organic materials from counter tops, walls,
floors, and instruments "not corroded by sodium hypochlorite."
See Lister, column 3, lines 34 and 35. Itagaki discloses that
sodium thiosulfate is a reducing agent, and the second essential
component of a kit, but that disclosure must be viewed in the
context of a "kit for contact lens sterilization and method for
contact lens sterilization." On this record, the examiner
provides no reason or suggestion why a person having ordinary
skill in the art would have modified Itagaki's kit by using
towelettes therein. The function of Itagaki's sodium thiosulfate
is "to make nontoxic the oxidizing agent still remaining after
sterilization" (column 2, lines 59 and 60) so that a contact lens
may be worn safely with no damage to the eye. The examiner does
not adequately explain how or why that disclosure would have led
a person having ordinary skill in the art to modify any of the
"primary" references in this case, to arrive at a kit containing
a second towelette impregnated with sodium thiosulfate.
Appeal No. 95-0368
Application No. 07/973,211
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The examiner's decision is reversed.
REVERSED
SHERMAN D. WINTERS )
Administrative Patent Judge )
)
)
)
WILLIAM F. SMITH ) BOARD OF PATENT
Administrative Patent Judge ) APPEALS AND
) INTERFERENCES
)
)
JOHN D. SMITH )
Administrative Patent Judge )
Appeal No. 95-0368
Application No. 07/973,211
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Paul F. Wille
Cahill, Sutton & Thomas
155 Park One
2141 E. Highland Ave.
Phoenix, AZ 85016