Ex Parte Hodgkinson et alDownload PDFPatent Trial and Appeal BoardMay 29, 201813293215 (P.T.A.B. May. 29, 2018) Copy Citation UNITED STA TES p A TENT AND TRADEMARK OFFICE APPLICATION NO. FILING DATE 13/293,215 11/10/2011 50855 7590 Covidien LP 60 Middletown A venue Mailstop 54, Legal Dept. North Haven, CT 06473 05/31/2018 FIRST NAMED INVENTOR Gerald Hodgkinson 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. H-US-03076 (203-8232) 1727 EXAMINER TOLIN, MICHAEL A ART UNIT PAPER NUMBER 1745 NOTIFICATION DATE DELIVERY MODE 05/31/2018 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): rs. patents. two@medtronic.com mail@cdfslaw.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte GERALD HODGKINSON, AHMAD ROBERT HADBE, MICHAEL PRESCOTT, RICHARD P. STEVENSON, and ARTHURHISLOP 1 Appeal2017-004943 Application 13/293 ,215 Technology Center 1700 Before MICHAEL P. COLAIANNI, JENNIFERR. GUPTA, and PHILLIP A. BENNETT, Administrative Patent Judges. COLAIANNI, Administrative Patent Judge. DECISION ON APPEAL 1 According to Appellants, the real party in interest is Covidien LP. See Appeal Br. 1. Appeal2017-004943 Application 13/293,215 Appellants appeal under 35 U.S.C. § 134 the final rejection of claims 1-9, 11, 12, and 26. Claims 10 and 16-25 are withdrawn from consideration on the merits by the Examiner. We have jurisdiction over the appeal pursuant to 35 U.S.C. § 6(b). We AFFIRM. Appellants' invention is directed to methods of making medical devices, especially surgical implants, having a hydrophilic surface treatment for improved wettability and cellular attachment (Spec. Jr 1; claims 1 and 26). Claim 1 is illustrative: 1. A method of making an absorbent surgical buttress, compnsmg: generating a plurality of fibers; collecting the plurality of fibers so that they adhere to one another and form a non-woven material; applying heat and pressure to the non-woven material; plasma treating at least a portion of an outer surface of the non- woven material with an ionizable gas species or combination of ionizable gas species configured to chemically modify or functionalize the outer surface of the non-woven material to render the outer surface hydrophilic; and cutting the non-woven material to form a surgical buttress having the plasma treated hydrophilic outer surface and a shape corresponding to a shape of a circular surgical stapler. Appellants appeal the following rejection2 : Claims 1-9, 11, 12 and 26 are rejected under 35 U.S.C. § 103(a) as unpatentable over McKean (US 5,542,594, issued Aug. 6, 1996) in view of 2 The Examiner withdrew a 35 U.S.C. § 103(a) rejection of claims 1-9, 11, and 12 over McKean in view of Spearman, Butin, Reichmann, Stopek and Sheu. (Ans. 10). 2 Appeal2017-004943 Application 13/293,215 Spearman (US 2007/0060856 Al, published May. 15, 2007), Butin (US 3,849,241 issued, Nov. 19, 1974), Reichmann (US 2004/0166758 Al, published Aug. 26, 2004) and Stopek (US 2008/0140115 Al, published June 12, 2008), and further in view of any one of Roth (5,403,453 issued, Apr. 4, 1995), Paskalov (5,344,462, issued Sept. 6, 1994), or Patel (US 2014/0079759 Al, published Mar. 20, 2014). Appellants' arguments focus on subject matter common to claims 1 and 26 only (App. Br. 4--10). Claims 2-9, 11, and 12 will stand or fall with our analysis of the rejection of claim 1. FINDINGS OF FACT & ANALYSIS We have fully considered all of Appellants' arguments contained in the Appeal Brief and Reply Brief. We find that the preponderance of the evidence favors the Examiner's obviousness conclusion. We agree with the Examiner's analysis and response to arguments provided on pages 2 to 15 of the Answer. We add the following for emphasis. Appellants argue that Spearman teaches forming a nonwoven material wound dressing made of hydrophilic fibers bonded to each other, but does not teach forming a nonwoven material forming a buttress and then plasma treating an outer surface of the non-woven material as recited in claims 1 and 26 (App. Br. 5). Appellants argue that Butin, Reichmann, Stopek, Roth, Paskalov, and Patel fail cure the deficiencies of McKean (App. Br. 5-7). Appellants contend that none of the applied references teaches using plasma to treat medical devices. Id. Appellants contend that Roth is directed to 3 Appeal2017-004943 Application 13/293,215 using plasma to treat the surface of a wet cell battery separator, not a surgical buttress or any comparable medical device (App. Br. 6-7). Appellants argue that a person of ordinary skill in the art interested in forming surgical buttresses would not look to Roth's wet cell battery plate separator or Paskalov's dyed fabrics because there is no motivation to combine the teachings (App. Br. 7, 9). Appellants contend that although Patel teaches forming and plasma treating tissue scaffolds, Patel fails to teach generating a plurality of fibers and collecting the plurality of fibers so that they adhere to one another and form a non-woven material (App. Br. 7). Appellants contend that the Examiner has engaged in impermissible hindsight (App. Br. 9--10). As found by the Examiner, Appellants' arguments amount to an improper attack of the teachings of the references individually instead of addressing the combined teachings of the prior art (Ans. 11 ). Contrary to Appellants' arguments, the Examiner provides a reasoned analysis of why it would have been obvious to combine the teachings of McKean, Butin, Reichmann, Stopek, and either Roth, Paskalov, or Patel (Final Act. 3-8). Appellants' argument that any one reference fails to teach one or more limitations of claim 1, fails to address the Examiner's findings as to why a person of ordinary skill in the art would have used, for example, Spearman's wicking hemostatic non-woven material as McKean's non-woven, buttress material because the hemostatic properties would have been desired in McKean's surgical buttress (Final Act. 4). The Examiner's obviousness rejection is based on the combined teachings of the applied prior art. Appellants' argument that a person of ordinary skill in the art would not have looked to Roth's wet cell battery separator or Paskalov's dyed 4 Appeal2017-004943 Application 13/293,215 fabric fails to address the Examiner's analogous art analysis. Specifically, the Examiner finds that Roth teaches it is known in the art to make wound dressing having good wettability which would be in the same field of endeavor as Appellants' surgical buttresses (Ans. 14). Alternatively, the Examiner finds that Roth's teachings regarding using plasma to render a surface hydrophilic are reasonably pertinent to Appellants' problem (i.e., using plasma to render a surface hydrophilic). Id. The Examiner further finds that Paskalov's teachings regarding use of plasma to enhance hydrophilicity of a nonwoven fabric is reasonably pertinent to Appellants' problem (Ans. 15). Appellants do not respond to or otherwise show error with these findings of the Examiner (Reply Br. generally). Appellants contend that the Examiner has not articulated a reason for using Roth and/or Paskalov's teachings (Reply Br. 3). Appellants argue that the Examiner's rejection is based on impermissible hindsight (Reply Br. 3). Contrary to Appellants' arguments, we find that the Examiner has provided a reasoned obviousness analysis. See, Final Act. 2-8. The Examiner finds that one of ordinary skill in the art would have combined any one of Roth's, Paskalov's or Patel's teaching to use plasma to enhance the hydrophilic properties of a surface with McKean's surgical buttress as modified by Spearman to improve wettability of the buttress. The Examiner's reasoning is not based upon hindsight but rather the teachings and suggestions of the references. On this record, we affirm the Examiner's§ 103(a) rejection of record. DECISION The Examiner's decision is affirmed. 5 Appeal2017-004943 Application 13/293,215 No time period for taking any subsequent action in connection with this appeal maybe extended under 37 C.F.R. § 1.136(a)(l). ORDER AFFIRMED 6 Copy with citationCopy as parenthetical citation