Ex Parte Dupps et al

Patent Trial and Appeal Board

Jan 17, 2019

14165796 (P.T.A.B. Jan. 17, 2019)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR
14/165,796 01/28/2014 William J. Dupps
26294 7590 01/22/2019
TAROLLI, SUNDHEIM, COVELL & TUMMINO L.L.P.
1300EASTNINTH STREET, SUITE 1700
CLEVELAND, OH 44114
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.
CCF-022002 US ORD 3985
EXAMINER
HUANG, GIGI GEORGIANA
ART UNIT PAPER NUMBER
1613
NOTIFICATION DATE DELIVERY MODE
01/22/2019 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):
docketing@tarolli.com
rkline@tarolli.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte WILLIAM J. DUPPS and IBRAHIM SEVEN 1
Appeal 2017-011800
Application 14/165, 796
Technology Center 1600
Before RICHARD M. LEBOVITZ, JOHN E. SCHNEIDER, and
RACHEL H. TOWNSEND, Administrative Patent Judges.
SCHNEIDER, Administrative Patent Judge.
DECISION ON APPEAL
This is an appeal2 under 35 U.S.C. § 134 of the Examiner's final
rejection of claims to a method for treating astigmatism which have been
rejected as obvious. We have jurisdiction under 35 U.S.C. § 6(b ).
We AFFIRM-IN-PART.
1 Appellants identify the Real Party in Interest as The Cleveland Clinic
Foundation. Appeal Br. 3.
2 We have considered and herein refer to the Specification of Jan. 28, 2014
("Spec."); Final Office Action of Oct. 13, 2016 ("Final Act."); Appeal Brief
of Apr. 13, 2017 ("Appeal Br."); Examiner's Answer of July 31, 2017
("Ans."); and Reply Brief of Sept. 27, 2017 ("Reply Br.").
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Application 14/165, 796
STATEMENT OF THE CASE
"Astigmatism is an optical defect in which vision is blurred
due to the inability of the optics of the eye to focus a point object into
a sharp focused image on the retina." Spec. ,r 3. The Specification
describes a method for treating astigmatism. Spec. ,r 4.
Claims 1-3, 8, 10, 11, 13, 14, 16, and 20 are on appeal. 3 Claim 1 is
representative and reads as follows:
1. A method for treating astigmatism in an eye of a patient
compnsmg:
determining an axis of greater curvature of the eye; and
applying a stiffening process to a cornea of the eye in a
pattern defined from the axis of greater curvature of the eye.
The claims stand rejected as follows:
Claims 1-3, 8, 10, 11, 13, 14, 16, and 20 have been rejected under
35 U.S.C. § I03(a) as unpatentable over El Hage4 in view ofBozkurt. 5
Claims 1-3, 8, 10, 11, 13, 14, 16, and 20 have been rejected under
35 U.S.C. § I03(a) as unpatentable over Karageozian6 in view ofBozkurt.
3 Claims 4--7, 9, 12, 15, and 17-19 are pending in the application but have
been withdrawn from consideration. Final Act. 1.
4 El Hage, US 2009/0171305 Al, published July 2, 2009 ("El Hage").
5 Bozkurt et al., Topographical analysis of corneal astigmatism in patients
with tilted-disc syndrome, 21 Cornea 458 (2002) (abstract only) ("Bozkurt").
6 Karageozian et al., US 6,537,545 Bl, issued Mar. 25, 2003
("Karageozian").
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DISCUSSION
El Hage Combined with Bozkurt
Issue
The issue with respect to this rejection is whether a preponderance of
the evidence supports the Examiner's conclusion that the subject matter of
the claims would have been obvious over El Hage combined with Bozkurt.
The Examiner finds
El Hage teaches a method of treating astigmatism by
correcting the corneal shape by providing a corrective lens for
controlled kerato-reformation (CKR) by corneal topograph data
from the patient's cornea (reverse geometry of the cornea),
monitoring the reformation, and applying a crosslinking agent
to the reformed cornea in the amount and manner needed.
Final Act. 4. The Examiner also finds that "El Hage does not expressly
teach the shape of the astigmatism such as the bow tie form, but does teach
treating the astigmatism by reshaping the cornea after topographical analysis
of the cornea and applying a crosslinking agent to the reformed cornea in the
amount and manner needed." Id. The Examiner goes on to find "Bozkurt et
al. teaches that topographic analysis showed that the corneal astigmatism
presented with bow tie pattern (i.e. symmetrical, or asymmetric) and had
various axis including oblique astigmatism (skewed axis) in patients." Id.
The Examiner concludes
it would have been obvious before the effective filing date of
the claimed invention to apply the stiffening process to the
areas of corneal astigmatism error such as the bow tie and
reshape the cornea to correct the refractive error, as suggested
by Bozkurt et al., and produce the claimed invention. It is prima
facie obvious to address a known shape causing the astigmatism
being treated like the bowtie form as El Hage expressly teaches
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treating astigmatism by correcting the corneal shape with a
reverse geometry lens which would be the presented form like a
bowtie shape as addressed by Bozkurt and then crosslinked to
help maintain the reformed cornea allowing the period of CKR
lens wear from once a day to about once a week or once a
month or longer; with a reasonable expectation of success
absent evidence of criticality for a particular stiffening process
or process step.
Id. at 4--5.
Appellants argue that the references do not teach or suggest applying
a stiffening process to the cornea in a pattern defined by the axis of greater
curvature of the eye. Appeal Br. 6. Appellants contend that neither El Hage
nor Bozkurt teach applying the crosslinking treatment in a pattern defined by
the axis of greater curvature. Id. at 7. Appellants argue that selectively
applying the crosslinking agent would render the process of El Hage
unsuitable for its intended process. Id. Appellants contend that the
references do not address or teach the different patterns which can be used in
practice of the invention. Id. at 8. Appellants also argue that El Hage is
limited to use of a corrective lens to reshape the cornea and that the
Examiner has not shown how the lens would act to stiffen the cornea. Id. at
9.
Findings of Fact
We adopt the Examiner's findings, including with regard to the scope
and content of, and motivation to modify or combine, the prior art. Final
Act. 3--4. The following findings are included for emphasis and reference
purposes.
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FF 1. El Hage discloses a non-surgical method for reshaping and
altering the shape of the cornea. El Hage ,r 7.
FF2. El Hage teaches that the disclosed method can be used to treat
astigmatism. Id. ,r 14.
FF3. El Hage teaches
In one embodiment, the cross-linking agent is applied in
an amount sufficient to saturate the cornea and/ or be present in
the anterior chamber of the eye. When the cross-linking agent is
Riboflavin/UV, the riboflavin is applied in an amount and
manner that provides a yellow coloration in the anterior
chamber of the cornea when viewed, for example, via a slit-
lamp. Preferably, the corneal tissue and the anterior chamber
show a similar or the same yellow coloration due to riboflavin.
In another embodiment, the cross-linking agent is applied in an
amount and manner sufficient to increase the rigidity of the
cornea (R). The crosslinking agent preferably penetrates at least
3/4 of the corneal tissue, for example, at least 300 mm.
Id. f 11.
FF4. El Hage teaches
The present invention is directed to methods for
maintaining a desired shape of the cornea following the wear of
corrective CKRâ„¢ contact lens(es), for example, reverse
geometry contact lens( es) for an extended period of time post-
wear. Typically, once the patient's cornea has achieve a desired
reshaping and visual acuity, the patient may wear the corrective
contact lens for a period of time, for example, 3-8 hours,
typically overnight, and retain visual improvement and
reshaped cornea for about 12-48 hours. As discussed in the
examples below, administering to the CKRâ„¢-reformed cornea
an effective collagen cross-linking amount of a crosslinking
agent such as a photosensitizer (e.g., riboflavin) solution in
combination with UV light effectively extends the amount of
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time the reformed cornea maintains a desired corneal shape and
improved vision.
Id. f5I.
FF5. El Hage also teaches
To effect treatment of astigmatism where the patient's
corneal dome has more than one curvature, each at a given axis,
the reverse-geometry lens's curvature places the pressure zone
to apply pressure at the steepest meridian to effect its reduction
and to minimize or eliminate differences in the curvatures. The
characteristics of the reverse-geometry lens for treating
astigmatism are similar to those for a mold for correcting
myopia.
Id. ,I 58.
FF6. Bozkurt reports the corneal topography of patients with corneal
astigmatism. Bozkurt Abstract.
FF7. Bozkurt reports that "Corneal astigmatism was symmetric bow
tie pattern in 10 eyes ( 45 .45% ), asymmetric bow tie pattern in 11 eyes ( 50%)
and irregular in 1 eye (4.5%)." Id.
FF8. Bozkurt also reports that among patients with a bow-tie pattern
"14 eyes had with-the-rule astigmatism, 1 eye had against-the-rule
astigmatism, and 6 eyes had oblique astigmatism." Id.
Principles of Law
[T]he examiner bears the initial burden, on review of the prior
art or on any other ground, of presenting a prima facie case of
unpatentability. If that burden is met, the burden of coming
forward with evidence or argument shifts to the applicant.
After evidence or argument is submitted by the applicant
in response, patentability is determined on the totality of the
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record, by a preponderance of evidence with due consideration
to persuasiveness of argument.
In re Oetiker, 977 F.2d 1443, 1445 (Fed. Cir. 1992).
Analysis
With the exception of claim 20 discussed below, we find the
Examiner has established that the subject matter of the claims would have
been obvious to one of ordinary skill in the art at the time the invention was
made over El Hage combined with Bozkurt. Appellants have not produced
evidence showing, or persuasively argued, that the Examiner's
determinations on obviousness are incorrect. Only those arguments made by
Appellants in the Briefs have been considered in this Decision. Arguments
not presented in the Briefs are waived. See 37 C.F.R. § 4I.37(c)(l)(iv)
(2015). We have identified claim 1 as representative. Claims 8, 13, and 20
have been argued separately. The remaining claims fall with claim 1. We
address Appellants' arguments below.
Appellants contend that the references do not teach or suggest
patterned crosslinking to adjust the shape of the cornea without the use of
corrective lens. Appeal Br. 6. Appellants also contend that the references
do not teach applying the crosslinking treatment in a pattern defined by the
axis of greater curvature of the cornea. Appeal Br. 7.
We have considered Appellants' arguments and find them
unpersuasive. While El Hage teaches the use of a corrective lens to adjust
the shape of the cornea, El Hage also teaches application of a crosslinker to
maintain the adjusted shape when the lens is removed. FF4. The crosslinker
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helps the cornea maintain its shape by increasing the rigidity of the cornea.
FF3. Thus, El Hage teaches a stiffening process.
With respect to determining the axis of greater curvature and defining
a pattern based on that axis, El Hage teaches that the shape induced by the
reshaping process is determined based on the curvature of the cornea, FF5,
and Bozkurt teaches that astigmatism occurs in bowtie shaped patterns. FF7.
While neither reference specifically uses the term axis of greater curvature,
we find that one skilled in the art would have understood the references to
refer to an axis of curvature and to patterns based on that axis.
Appellants contend that the modification of El Hage proposed by the
Examiner would render the El Hage system unsuitable for its intended
purpose. Appeal Br. 7. Appellants, however, have offered no evidence to
support this contention. Attorney argument does not take the place of
evidence. Johnston v. IVAC Corp., 885 F.2d 1574, 1581 (Fed. Cir. 1989).
Appellants argue that the combination of references does not teach or
suggest the "application of corneal hardening in a pattern matching the
presentation of the disease, nor would such application be effective."
Appeal Br. 7-8. We find this argument unpersuasive.
First, as the Examiner points out, claim 1, as drafted, is relatively
broad and is not limited to the use of applying a crosslinking agent in a
specific pattern. Ans. 8. All that is required is that the stiffening process is
applied "in a pattern defined from the axis of greater curvature of the eye."
El Hage specifically teaches the shaping of the cornea using a pattern based
in the presentation of the disease. FF5. Bozkurt teaches patterns associated
with astigmatism including the species of patterns elected by Appellants.
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FF7 & 8; Final Act. 2-3. El Hage teaches application of the crosslinking
agent after a contact lens has imposed a pattern on the cornea. FF4. Thus,
the stiffening process is necessarily applied in that pattern. Consequently,
we agree with the Examiner that the stiffening process of El Hage meets the
requirements of claim 1 calling for the application of the stiffening process
in a pattern.
Appellants contend that El Hage requires the use of a corrective lens
to induce the shape on the cornea and the present claims do not call for the
use of a corrective lens. Appeal Br. 9. Appellants also argue that the use of
the lens in El Hage does not, by itself, induce stiffening of the cornea. Id.
Appellants' arguments are unpersuasive. The present claims use the
term "comprising" which allows for the use of additional steps which can
include the application of a corrective lens. Ans. 9.
Claim 8
Claim 8 depends from claim 1, and further recites "wherein the
pattern is defined such that substantially none of the axis of greater curvature
of the cornea is included in the application of the stiffening process."
Appellants contend that claim 8 calls for the stiffening pattern to be defined
such that substantially none of the axis of greater curvature is included in the
stiffening process. Appeal Br. 9. Appellants contend that the references do
not teach or suggest such a pattern. Id. We find this argument unpersuasive.
Appellants elected the patterns shown in Figures 2 and 7 (shown
below) of the application for examination. Final Act. 2-3.
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36 ...-1
I
40 I ,-30
~32-"\ I
- T .;;. E-, I -34-
\. 38 !
I
I
FIG. 2
,' ,136~
FIG. 7
Figures 2 and 7 of El Hage showing patterns for treating astigmatism.
In the figures lines 36 and 132 represent the axes of greater curvature.
Spec. ,r,r 23 and 31. Shaded areas 32, 34, 134, and 136 represent the pattern
for stiffening. Id. As shown in the figures the bowtie patterns do not
include a significant portion of the axes of greater curvature. Bozkurt
teaches symmetric and asymmetric bowtie patterns associate with
astigmatism. FF7. One skilled in the art would understand that these bowtie
patterns would lie about an axis of curvature as suggested by El Hage. FF5.
The patterns taught by Bozkurt do not include a substantial portion of the
axis of curvature. El Hage directs one of ordinary skill in the art to apply the
cross-linking agent to maintain the desired corneal shape. FF4. Because the
pattern is substantially outside the axis of curvature, as the Examiner found,
one of ordinary skill in the art would not have had reason to stiffen it along
such axis. Thus, the references do teach or suggest the pattern embraced by
claim 8.
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Claim 13
Claim 13 depends from claim 1 and further recites: "wherein
applying a stiffening process to a cornea of the eye comprises applying the
stiffening process such that one of a stiffening agent dosage, a penetration
depth, an exposure time, and a spatial energy profile of an associated light
source of the stiffening process is a function of at least one other optical
parameter."
Appellants contend that neither El Hage nor Bozkurt teach or suggest
the claimed limitation. Appeal Br. 10-11.
We find Appellants' argument unpersuasive. As taught by the
Specification, another optical parameter is a parameter other than the axis of
greater curvature which can include the magnitude of the astigmatism. Spec.
,r,r 5, and 16. El Hage teaches correcting astigmatism by minimizing or
eliminating the difference in more than one curvature of the cornea, and thus
the additional curvature would serve as at least one other parameter. FF5.
We find that one skilled in the art would understand that one would need to
know the magnitude of the astigmatism in order to determine if the
stiffening process produced the desired change in curvature.
El Hage also teaches adjusting the amount of crosslinking agent and
UV light exposure to achieve the desired results. See, e.g., El Hage ,r,r 64,
65, and 68. Thus, El Hage teaches the additional elements of claim 13.
Claim 20
With respect to independent claim 20, Appellants contend that the
references do not teach or suggest the second recited stiffening process
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which is applied in a homogeneous pattern across the entire cornea. Appeal
Br. 12. We agree with Appellants that the references do not teach a second
stiffening step.
The Examiner contends that the application of the corrective lens in El
Hage constitutes the first stiffening step and the application of the chemical
agents constitutes the second stiffening step. Ans. 9. We do not agree with
the Examiner's interpretation of El Hage. While El Hage teaches that the
application of the corrective lens induced shape changes in the cornea, El
Hage also teaches that the changes induced by the corrective lens are short
lived absent application of the crosslinker. See El Hage ,r 5 (need to wear
lens each day for three to eight hours with improved vision maintained when
not wearing the lenses.) El Hage is directed to a method for improving the
duration of the shape changes induced by the corrective lenses. El Hage ,r 7.
We agree with Appellants that the application of the corrective lens does not
constitute a first stiffening step as recited in claim 20.
Conclusion of Law
We conclude that a preponderance of the evidence supports the
Examiner's conclusion that the subject matter of claims 1, 8, and 13 would
have been obvious over El Hage combined with Bozkurt.
We conclude that a preponderance of the evidence does not support
the Examiner's conclusion that the subject matter of claim 20 would have
been obvious over El Hage combined with Bozkurt.
Claims 2, 3, 10, 11, 14, and 16, have not been argued separately and
therefore fall with claim 1. 37 C.F.R. § 4I.37(c)(l)(iv).
Karageozian Combined with Bozkurt
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Issue
The issue with respect to this rejection is whether a preponderance of
the evidence supports the Examiner's conclusion that the subject matter of
the claims would have been obvious over Karageozian combined with
Bozkurt.
The Examiner finds that Karageozian teaches "a method of treating
astigmatism by providing a corneal hardening agent (i.e. crosslinker) either
before placement or within a rigid corrective lens with the desired
configuration, monitoring the reformation, and then removing the lens after
the reformation is complete." Final Act. 7. The Examiner finds that
Karageozian teaches that the method can be used to treat astigmatism. Id.
The Examiner goes on to find that while Karageozian does not teach the
elected bowtie pattern, Karageozian teaches that the "lens configuration can
be any pattern necessary to accommodate the needs [ of the] patient." Final
Act. 8. The Examiner finds that Bozkurt's "topographic analysis showed
that the corneal astigmatism presented with bow tie pattern (i.e. symmetrical,
or asymmetric) and had various axis including oblique astigmatism ( skewed
axis) in patients." Id.
The Examiner concludes
it would have been obvious before the effective filing date of
the claimed invention to apply the corneal hardening and/or
lens process which can also have the corneal hardener within
the lens; to the areas of corneal astigmatism error such as the
bow tie and reshape the cornea to correct the refractive error, as
suggested by Bozkurt et al., and produce the claimed invention.
It is prima facie obvious to address the shape causing the
astigmatism being treated like the bowtie form as Karageozian
expressly teaches treating astigmatism by correcting the corneal
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Id.
shape with a corneal hardener and a corrective ( e.g. reverse
geometry) lens that can be in whatever any pattern necessary to
accommodate the needs of a patient which would be the
presented form like a bowtie shape as addressed by Bozkurt;
with a reasonable expectation of success absent evidence of
criticality for a particular stiffening process or process step.
Appellants contend that the references do not teach or suggest
applying a stiffening process to the cornea in a pattern defined by the axis of
greater curvature. Appeal Br. 13. Appellants contend that the same
arguments presented with respect to the combination of El Hage and Bozkurt
are applicable to the combination of Karageozian and Bozkurt.
Findings of Fact
FF9. Karageozian discloses a method for "accelerating non-surgical
corneal reshaping involving the release of corneal hardening agents which
facilitate reshaping of the cornea to correct refractive errors of the eye."
Karageozian col. 1, 11. 20-22.
FFlO. Karageozian teaches that the disclosed method can be used to
treat astigmatism. Karageozian col. 17, 11. 4 7--48.
FF 11. The method of Karageozian includes the steps of
selecting a pharmaceutically acceptable corneal
hardening agent on the basis of its being able to harden the
cornea in said eye of said subject mammal without causing
damage to said cornea;
administering to said eye of said subject mammal a
corneal hardening amount of said agent so that said cornea can
be reshaped from a first configuration to a desired second
configuration;
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fitting said cornea with a rigid contact lens having a
concave curvature of said desired second configuration;
permitting said cornea to reshape to said desired second
configuration under the influence of said lens; and
removing said lens when said cornea is capable of
maintaining said desired second configuration without the
support of said lens; wherein said corneal hardening agent is
glyceraldehyde.
Karageozian col. 47, 1. 27 -col. 48, 1. 11 (claim 1).
FF 11. Karageozian teaches
Astigmatism is a refractive error of the lens system,
caused usually by an oblong shape of the cornea. In this
condition, the central corneal curvature is uneven, resulting in a
stretching of the image on the retina. The horizontal and
vertical central meridians are of different curvatures. The
astigmatism contact lenses may use toric and aspheric base
curves, intermediate curves, and peripheral curves that may
incorporate prism and/ or truncation. The initially flatter central
meridian of the eye is reshaped to take on a steeper curvature
and the initial steeper curvature and the initial steeper central
meridian is reshaped to take on a flatter curvature. This process
reshapes the central corneal curvature to a spherical shape and
eliminates astigmatism.
Karageozian col. 25, 11. 10-22.
FF12. Karageozian teaches an examination of the cornea including
the clarity of the cornea; pachymnetry to measure the thickness of the
cornea; computer-assisted corneal topography to evaluate surface
topographical changes; measurement of the tensile strength of the cornea;
measurement of the distensibility of the cornea; keratometry to measure
central corneal curvature; and retinoscopy to measure the refractive error of
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the cornea can be used to determine the nature and amount of the hardening
agent used. See Karageozian col. 11, 11. 24--46.
Analysis
With the exception of claim 20 discussed below, we find the
Examiner has established that the subject matter of the claims would have
been obvious to one of ordinary skill in the art at the time the invention was
made over Karageozian combined with Bozkurt. Appellants have not
produced evidence showing, or persuasively argued, that the Examiner's
determinations on obviousness are incorrect. Only those arguments made by
Appellants in the Briefs have been considered in this Decision. Arguments
not presented in the Briefs are waived. See 37 C.F.R. § 4I.37(c)(l)(iv)
(2015). We have identified claim 1 as representative. Claims 8, 13, and 20
have been argued separately. The remaining claims fall with claim 1. We
address Appellants' arguments below.
Appellants contend that the references do not teach or suggest
applying a stiffening process to the cornea in a pattern defined by the axis of
greater curvature. Appeal Br. 13-14. We are not persuaded by Appellants'
argument.
As discussed above, we do not read claim 1 as requiring that the
hardening agent be applied in a pattern only that the stiffening process be in
a pattern. Like El Hage, Karageozian discloses a method for treating
astigmatism by reshaping the cornea in a specific pattern using a hardening
agent to maintain the pattern for a period of time. FF9-11. As in El Hage,
Karageozian taches the application of the contact lens to impose a pattern on
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the cornea which is then locked-in using the hardening agent. Bozkurt
discloses that astigmatism occurs in specific patterns including the bowtie
pattern elected by Appellants. FF7. We agree with the Examiner that it
would have been obvious to one skilled in the art to use the bowtie pattern of
Bozkurt in the method of Karageozian to treat astigmatism. In so doing,
because the stiffening process is applied when the pattern is imposed on the
cornea, the stiffening process of Karageozian meets the requirements of
claim 1 calling for the application of the stiffening process in a pattern.
Appellants remaining arguments mirror those made with respect to El
Hage discussed above. For the reasons stated above, we find these
arguments unpersuasive.
Claim 8
Appellants argue that the references do not teach using a pattern that
does not include a substantial portion of the axis of greater curvature.
Appeal Br. 15-16. We are not persuaded.
As discussed above, the bowtie patterns disclosed by Bozkurt do not
include a substantial portion of the axis of greater curvature and there would
be no reason to harden outside these regions. According, the Examiner's
determination that combination Karageozian and Bozkurt renders the
subject matter of claim 8 obvious is supported by a preponderance of the
evidence.
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Claim 13
As with the rejection based on El Hage combined with Bozkurt,
Appellants contend that the combination of Karageozian and Bozkurt does
not teach "applying the stiffening process such that one of a stiffening agent
dosage, a penetration depth, an exposure time, and a spatial energy profile of
an associated light source of the stiffening process [as] a function of at least
one other optical parameter." Appeal Br. 16.
We have considered Appellants' argument and find it unpersuasive.
Karageozian teaches that the nature and amount of hardening agent can be is
assessed using optical parameters such as the thickness and topography of
the cornea. FF12. Thus, Karageozian uses such information to determine
the efficacy of the hardening agent and its dosage to apply to the human
cornea.
Claim 20
With respect to claim 20, Appellants contend that the references do
not teach or suggest a second stiffening process applied in a homogeneous
pattern across the entire cornea. Appeal Br. 17-18. We agree with
Appellants that the references do not teach a second stiffening step.
The Examiner contends that the application of the corrective lens in
Karageozian constitutes the first stiffening step and the application of the
chemical agents constitutes the second stiffening step. Ans. 11. We do not
agree with the Examiner's interpretation of Karageozian. While
Karageozian teaches that the application of the corrective lens induced shape
changes in the cornea, Karageozian also teaches that the changes induced by
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the lens are short lived absent application of the crosslinker. See
Karageozian col. 2, 1. 60-67 ( contact lenses must be worn to stabilize the
changes.) Like El Hage, Karageozian is directed to a method for improving
the duration of the shape changes induced by the corrective lenses.
Karageozian col. 3, 11. 23-35. We agree with Appellants that the application
of the corrective lens does not constitute a first stiffening step as recited in
claim 20.
Conclusion of Law
We conclude that a preponderance of the evidence supports the
Examiner's conclusion that the subject matter of claims 1, 8, and 13 would
have been obvious over Karageozian combined with Bozkurt.
We conclude that a preponderance of the evidence does not support
the Examiner's conclusion that the subject matter of claim 20 would have
been obvious over Karageozian combined with Bozkurt.
Claims 2, 3, 10, 11, 14, and 16, have not been argued separately and
therefore fall with claim 1. 37 C.F.R. § 4I.37(c)(l)(iv).
SUMMARY
We affirm the rejections of claims 1-3, 8, 10, 11, 13, 14, and 16 under
35 U.S.C. § 103(a).
We reverse the rejections of claim 20 under 35 U.S.C. § 103(a).
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Application 14/165, 796
TIME PERIOD FOR RESPONSE
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a).
AFFIRMED-IN-PART
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