Ex Parte Freedman et al

Patent Trial and Appeal Board

Jan 30, 2018

13843507 (P.T.A.B. Jan. 30, 2018)

United States Patent and Trademark Office
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
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR ATTORNEY DOCKET NO. CONFIRMATION NO.
13/843,507 03/15/2013 Brett A. Freedman 38334-0003003 3284
26191 7590 02/01/2018
FISH & RICHARDSON P.C. (TC)
PO BOX 1022
MINNEAPOLIS, MN 55440-1022
EXAMINER
TREYGER, ILYA Y
ART UNIT PAPER NUMBER
3761
NOTIFICATION DATE DELIVERY MODE
02/01/2018 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):
PATDOCTC@fr.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte BRETT A. FREEDMAN, ROBERT L. PAULY,
and J&M SHULER MEDICAL, INC.
Appeal 2017-003182
Application 13/843,507
Technology Center 3700
Before: STEVEN D.A. MCCARTHY, CHARLES N. GREENHUT, and
MICHELLE R. OSINSKI, Administrative Patent Judges.
GREENHUT, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Appellants appeal under 35 U.S.C. § 134 from a rejection of claims
15—32. We have jurisdiction under 35 U.S.C. § 6(b).
We reverse.
Appeal 2017-003182
Application 13/843,507
CLAIMED SUBJECT MATTER
The claims are directed to a sub-atmospheric wound-care system.
Claim 15, reproduced below, is illustrative of the claimed subject matter:
A method for treating a wound with a negative pressure wound
therapy system, comprising:
applying a dressing system to a wound, the dressing
system including: a silver impregnated fine mesh layer having a
lower face in contact with the wound, a layer of non-woven
polymer material engaged with an upper face of the silver-
impregnated fine mesh layer, an interface chamber positioned
over a central region of the layer of non-woven polymer material
opposite from the silver-impregnated fine mesh layer, the
interface chamber comprising an upper central coupling to
receive a fluid tube and a lower region defining a plurality of
rigid air chambers fixedly positioned relative to one another and
in fluid communication with the upper central coupling, and a
clear adhesive material being affixed to a skin region surround
the wound so as to secure the interface chamber, the layer of non-
woven polymer material, and the silver-impregnated fine mesh
layer in an airtight region over the wound;
connecting the fluid tube between the upper central
coupling of the interface chamber and an electronic
programmable vacuum regulator unit, the electronic
programmable vacuum regulator unit having an intake connector
configured to accept flow from a wall vacuum source;
connecting the intake connector of the electronic
programmable vacuum regulator unit to a fluid line coupled to
the wall vacuum source so that the dressing system applies
negative pressure wound therapy to the wound; and
irrigating the wound with intermittent doses of an
irrigation fluid that is delivered through the dressing system.
App. Br. 12 (Claims Appendix).
REJECTIONS
Claims 15—25 and 30-32 are rejected under 35 U.S.C. § 103(a) as
being unpatentable over Blott (US 8,162,909 B2, iss. Apr. 24, 2012), Heaton
2
Appeal 2017-003182
Application 13/843,507
(US 6,345,623 Bl, iss. Feb. 12, 2002), and Watt (US 2007/0225663 Al,
pub. Sept. 27, 2007).
Claims 26 and 27 are rejected under 35 U.S.C. § 103(a) as being
unpatentable over Blott, Heaton, Watt, and Fleischmann (US 8,376,972 B2,
iss. Feb. 19, 2013).
Claims 28 and 29 are rejected under 35 U.S.C. § 103(a) as being
unpatentable over Blott, Heaton, Watt, and Karpowicz (US 7,438,705 B2,
iss. Oct. 21, 2008).
OPINION
Appellants raise three issues with the Examiner’s rejection of
independent claim 15, the sole independent claim before us. First,
Appellants argue that the projections 32 of Heaton are not reasonably
regarded as the recited “plurality of rigid air chambers” according to claim
15 and the Examiner’s rejection thereof. App. Br. 6—7. Second, Appellants
argue that the imposition of Heaton’s filler, foam 73, between Blott’s
irrigation pipes 97 and the wound bed would defeat the purpose of Blott’s
irrigation pipes. App. Br. 8—10. Third, Appellants argue that the Examiner
cannot rely on a generic teaching of “piped supply of vacuum” to meet a
specific limitation directed to “a wall vacuum source.” Appellants are
correct on all three points.
First, although air channels may be formed between projections 32 in
Heaton, that is no reason to regard the projections themselves as “air
chambers.”1 Second, Appellants raise a reasonable issue concerning the lack
1 It is noted that the phrase “air chambers” does not appear to have
antecedent basis in the Specification, which, in relevant part, describes
3
Appeal 2017-003182
Application 13/843,507
of functionality resulting from the Examiner’s proposed combination, to
which the Examiner provides no response. App. Br. 8; Reply Br. 2. Third,
although a wall vacuum may be a type of piped vacuum source, a piped
vacuum source is not necessarily a wall vacuum source. App. Br. 10; Reply
Br. 2. This must be regarded as a difference between the claimed subject
matter and the prior art under the Graham inquiry for which the Examiner
has not accounted.
For these reasons, the rejections cannot be sustained on the basis set
forth by the Examiner.
DECISION
The Examiner’s rejections are reversed.
REVERSED
“columns of plastic” separating the layers into “uniform air channels.” Spec,
para. 35. If the Examiner has not already done so, the Examiner may wish
to consider whether the original disclosure provides sufficient support for
the phrase “air chambers,” inserted by amendment. Although the Board is
authorized to reject claims under 37 C.F.R. § 41.50(b), no inference should
be drawn when the Board elects not to do so. See MPEP § 1213.02.
4