Ex Parte Glaser et al

Patent Trial and Appeal Board

Sep 14, 2016

13422571 (P.T.A.B. Sep. 14, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
13/422,571 03/16/2012
26875 7590 09/16/2016
WOOD, HERRON & EV ANS, LLP
2700 CAREW TOWER
441 VINE STREET
CINCINNATI, OH 45202
FIRST NAMED INVENTOR
John T. Glaser
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.
FCHEM-05US 7691
EXAMINER
YAGER, JAMES C
ART UNIT PAPER NUMBER
1782
NOTIFICATION DATE DELIVERY MODE
09/16/2016 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):
usptodock@whe-law.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte JOHN T. GLASER and MARK JASK0 1
Appeal2015-003676
Application 13/422,571
Technology Center 1700
Before BRADLEY R. GARRIS, JEFFREY T. SMITH, and
CHRISTOPHER C. KENNEDY, Administrative Patent Judges.
GARRIS, Administrative Patent Judge.
DECISION ON APPEAL
Pursuant to 35 U.S.C. § 134, Appellants appeal from the Examiner's
rejection of claims 3-9, 11-20, 22, and 23 under 35 U.S.C. § 103(a) as
unpatentable over AcroSeal (AcroSeal Packaging: Your Solution for Air &
Moisture Sensitive Reagents, 1-16, ©2010) in view ofMcEntee (US
6,648,853 Bl, issued Nov. 18, 2003) and Emi (US 2011/0061795 Al, pub.
Mar. 17, 2011). We have jurisdiction under 35 U.S.C. § 6.
1 Fisher Scientific Company L.L.C. is identified as the real party in interest.
Br. 1.
Appeal2015-003676
Application 13/422,571
We AFFIRM.
Appellants claim a self-resealing container assembly comprising a
container that houses a non-aqueous liquid and a self-resealing closure
assembly for the container comprising a septum having a first layer of a
resilient bromobutyl rubber (30) and a second layer of a fluoropolymer ( 40)
bonded to the first layer (sole independent claim 9, Figures 3A, 4).
A copy of representative claim 9, taken from the Claims Appendix of
the Appeal Brief, appears below.
9. A self-resealing container assembly comprising:
a container;
a non-aqueous liquid comprising an organic solvent, a
liquid organic compound, a water-reactive or oxygen-reactive
compound, or a combination thereof; and
a self-resealing closure assembly for the container,
comprising a septum having a disc shaped, laminate structure
compnsmg:
a first layer of a resilient material comprising bromobutyl
rubber and having first and second opposed surfaces, wherein
the first layer has a first layer thickness between the first and
second opposed surfaces within the range from about 1 mm to
about 10 mm; and
a second layer of a first fluoropolymer extending across,
and bonded to, the first surface of the first layer, wherein the
second layer has a second layer thickness within the range from
about 0.03 mm to about 1 mm,
wherein the laminate structure of the septum is
penetrable by a member in an axial direction and a portion of
the laminate structure being configured to elastically
distend to pass the member through a tear in the septum and to
be self-closing by returning opposite edges of the tear to a
substantially contiguous closed condition after withdrawal of
the member and which maintains a seal following member
penetration in an axial direction and withdrawal, and wherein
the septum is used for closing an opening in the container,
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Appeal2015-003676
Application 13/422,571
wherein the first layer is in an initially unbroken condition and
the tear is made by rupturing the first layer with the member.
We sustain the above rejection for the reasons given by the Examiner
and below.
The Examiner concludes that it would have been obvious to provide
the septum of AcroSeal as modified by McEntee (Final Action 6) in the form
of a first layer ofbromobutyl rubber and a second layer of perfluoroalkoxy
copolymer as taught by Emi (id. at 7).
Appellants concede that Emi discloses a stopper for a medicament
container comprising an elastomeric material such as bromobutyl rubber
with an inert layer (i.e., an inert fluorinated polymer film) but argue that
"Emi does not teach or suggest that these elastomeric materials are
chemically relatively inert to the recited non-aqueous liquid [of independent
claim 9]" (Br. 9) or inert with respect to the liquids recited in dependent
claims 11-15 (id. at 10-11 ).
This argument is not persuasive because Appellants do not identify
any claim recitation or Specification disclosure that requires the bromobutyl
rubber to be inert with respect to the recited non-aqueous liquid. According
to the Specification, it is the second layer of fluoropolymer that is in contact
with, and therefore must be inert to, the non-aqueous liquid in the container
(Spec. i-f 28). Emi similarly teaches that the fluorinated polymer film is inert
to the container contents thereby preventing interaction between the contents
and the stopper material (i-f 24) and in fact preventing the contents from even
contacting the bromobutyl rubber of the stopper (i-f 61 ). On this record,
Appellants' argument has no apparent relevance to the Examiner's rejection.
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Appeal2015-003676
Application 13/422,571
Appellants further contend "nor does Emi teach or suggest that these
elastomeric materials [ofbromobutyl rubber] would be sufficiently suitable
to maintain the chemical integrity of the non-aqueous liquid once having
been punctured by a needle" (Br. 9).
As above, Appellants do not identify claim recitation or Specification
disclosure that requires bromobutyl rubber to maintain the chemical integrity
of the non-aqueous liquid. Rather, it is the fluoropolymer layer of claim 9
and the fluorinated polymer film of Emi that are disclosed as maintaining
the chemical integrity of the container contents. In addition, we emphasize
that the bromobutyl rubber of Emi, like the bromobutyl rubber of claim 9, is
intended to be pierced or penetrated by a cannula or a needle-like member
(Emi i-f 60).
Finally, the Appeal Brief contains an argument that "the recited
assembly, which included a septum comprising bromobutyl rubber, provided
a marked unexpected improvement" (Br. 12; see also id. at 13-14), citing
Tables 1-3 as well as paragraphs 50 and 52 of the Specification as support
for this argument. 2
However, the cited Specification disclosures do not characterize any
the disclosed results as unexpected. It follows that the Appeal Brief fails to
identify any evidence that the claim 9 assembly produces results that would
have been unexpected by those having ordinary skill in this art. For these
2 The above quoted argument is undermined by the subsequent statement
that "[t]his evaluation [in paragraph 50 of the Specification] provided little,
if any, indication of the superiority ofbromobutyl rubber used in the recited
assembly" (id. at 13).
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Appeal2015-003676
Application 13/422,571
reasons, the above argument regarding unexpected results is merely an
unsupported attorney-argument that lacks persuasive merit.
The decision of the Examiner is affirmed.
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
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