Ex Parte Shaffer et al

Patent Trial and Appeal Board

Oct 7, 2014

11278885 (P.T.A.B. Oct. 7, 2014)

UNITED STATES PATENT AND TRADEMARK OFFICE
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BEFORE THE PATENT TRIAL AND APPEAL BOARD
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Ex parte THOMAS H. SHAFFER, ROBERT G. STERN, and
MARLA R. WOLFSON
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Appeal 2012-010515
Application 11/278,885
Technology Center 1600
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Before DONALD E. ADAMS, ULRIKE W. JENKS, and
ROBERT A. POLLOCK, Administrative Patent Judges.

ADAMS, Administrative Patent Judge.

DECISION ON APPEAL1
This appeal under 35 U.S.C. § 134 involves claims 1, 4, 6–12, 15, and
17–22 (App. Br. 1). Examiner entered rejections under 35 U.S.C. § 103(a).
We have jurisdiction under 35 U.S.C. § 6(b).
We reverse.

1 The Real Party in Interest is Peach Technologies, LLC (App. Br. 1).
Appeal 2012-010515
Application 11/278,885

2
STATEMENT OF THE CASE
The claims are directed to a bandage and treatment process for
promoting skin health, skin healing, and tissue healing, wherein the process
comprises applying Appellants’ bandage to a site on the skin or wound of an
animal. Claim 1 is representative and is reproduced in the Claims Appendix
of Appellants’ Brief.
Claims 1, 4, 6–9, 11, 12, 15, 17–19, 21, and 22 stand rejected under
35 U.S.C. § 103(a) as unpatentable over the combination of Rosati,2
Stephens,3 and White.4
Claims 10 and 20 stand rejected under 35 U.S.C. § 103(a) as
unpatentable over the combination of Rosati, Stephens, White, and
Augustine.5
ISSUE
Does the preponderance of evidence relied upon by Examiner support
a conclusion of obviousness based on a finding that the partial pressure of
carbon dioxide in the prior art bandage’s reservoir is 0.0?
FACTUAL FINDINGS (FF)
FF 1. Examiner’s findings concerning the scope and content of the prior art
are set forth on pages 7–13 of the Answer.
FF 2. Examiner finds that “Rosati is silent regarding the amount and partial
pressure of carbon dioxide and therefore it is considered to be atmospheric

2 Rosati, US 7,014,630 B2, issued Mar. 21, 2006.
3 Frederick O. Stephens & Thomas K. Hunt, Effect of Changes in Inspired
Oxygen and Carbon Dioxide Tensions on Wound Tensile Strength: An
Experimental Study, 173 ANNALS OF SURGERY 515–519 (1971).
4 White, US 4,366,169, issued Dec. 28, 1982.
5 Augustine, US 5,964,721, issued Oct. 12, 1999.
Appeal 2012-010515
Application 11/278,885

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pressure, which is 0.0” mm Hg (Ans. 7 (emphasis added); see also id. at 14
(“when carbon dioxide is present it is at atmospheric pressure”)).
FF 3. The atmospheric pressure of carbon dioxide is 0.3 mm Hg (Partial
Pressures of Gases6).
ANALYSIS
Appellants’ independent claims 1 and 10 require a bandage
comprising a reservoir that comprises carbon dioxide having a partial
pressure of less than 0.1 mm Hg (see Appellants’ claims 1 and 10).
Although Examiner asserts that Rosati’s wound dressing will have an
amount of carbon dioxide that is equivalent to atmospheric pressure,
Examiner fails to establish an evidentiary basis on this record to support a
conclusion that the partial pressure of carbon dioxide in the atmosphere is
0.0 mm Hg (see FF 2; Cf. FF 3; App. Br. 5 (“Examiner simply assumes that
the partial pressure of carbon dioxide in the reservoir would be the same as
the partial pressure of carbon dioxide in the atmosphere”)). Notwithstanding
Examiner’s assertion to the contrary, the partial pressure of carbon dioxide
in the atmosphere is 0.3 mm Hg, which is above that required by Appellants’
claimed invention (FF 3).
Examiner failed to establish that the combination of Stephens and
White, alone or in combination with Augustine, make up for the foregoing
deficiency in Rosati.

6 Partial Pressures of Gases, http://www.diatronic.co.uk/nds/webpub/partial_
pressures.htm, last accessed Oct. 7, 2014.
Appeal 2012-010515
Application 11/278,885

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CONCLUSION OF LAW
The preponderance of evidence relied upon by Examiner does not
support a conclusion of obviousness based on a finding that the partial
pressure of carbon dioxide in the prior art bandage’s reservoir is 0.0.
The rejection of claims 1, 4, 6–9, 11, 12, 15, 17–19, 21, and 22 under
35 U.S.C. § 103(a) as unpatentable over the combination of Rosati,
Stephens, and White is reversed.
The rejection of claims 10 and 20 under 35 U.S.C. § 103(a) as
unpatentable over the combination of Rosati, Stephens, White, and
Augustine is reversed.

REVERSED

cdc

Notice of References Cited

Application/Control No.

11/278,885
Applicant(s)/Patent Under
Reexamination
Thomas H. Shaffer et al.
Examiner

Isis Ghali
Art Unit

1600

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U.S. PATENT DOCUMENTS

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Partial Pressures of Gases,
http://www.diatronic.co.uk/nds/webpup/partial_pressures.htm, accessed Oct. 7, 2014.

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*A copy of this reference is not being furnished with this Office action. (See Manual of Patent Examining Procedure, Section 707.05(a).)
**APS encompasses any electronic search i.e. text, image, and Commercial Databases.
U.S. Patent and Trademark Office
PTO-892 (Rev. 03-98Notice of References Cited Part of Paper No. 16
PARTIAL PRESSURES OF GASES

The partial pressure of a gas is a measure of the concentration of a
gas in a mixture of gases

The partial pressure (measured in mmHg or kPa) is the pressure that
a particular gas exerts in a gas mixture. The pressure is caused by the
impact of moving molecules against a surface.

Gases which are dissolved in body fluids or tissues also have partial
pressures. The dissolved gases move around and impact against
surfaces exerting pressure in the same way a gas exerts its own
partial pressure in a gas phase.

Atmospheric pressure at sea level is approximately 760 mmHg

Oxygen constitues 21 % of the atmospere, so its partial pressure is 21
% of 760 = 159 mmHg. Nitrogen constitutes 78 %, so its partial
pressure is 78 % of 760 = 593 mmHg. Carbon dioxide constitutes only
0.04 %, so its partial pressure is 0.04 % of 760 = 0.3 mmHg.

The partial pressure of each gas in the respiratory mixture forces gas
molecules to dissolve into the alveolar membrane and then into the
blood of the pulmonary capillaries
FILL IN EVALUATION FORM
Gas Partial pressure in inspired air Partial pressure in alveolar air
H2O Variable 47 mmHg
CO2 0.3 mmHg 40 mmHg
O2 159 mmHg 105 mmHg
N2 593 mmHg 568 mmHg
Total 760 mmHg 760 mmHg
The partial pressures in the alveolar air are as a result of gas exchange. All values are
approximate.
Page 1 of 2PARTIAL PRESSURES OF GASES
10/7/2014http://www.diatronic.co.uk/nds/webpub/partial_pressures.htm

Conversely, the partial pressure of each gas already in solution in the
blood means that some gas molecules escape back into the alveoli

There is diffusion in both directions but it is the difference between
the two partial pressures that determines the net direction of
diffusion

In the case of oxygen, PO2 in inspired air is 159 mmHg and is 40
mmHg in venous blood. The net direction of diffusion therefore is from
the alveoli to the blood resulting in a PO2 in arterial blood of 95
mmHg.

In the case of carbon dioxide, PCO2 in inspired air is 0.3 mmHg and is
46 mmHg in venous blood. The net direction of diffusion therefore is
from the blood to the alveoli resulting in a PCO2 in arterial blood of
40 mmHg.
Back to gaseous exchange in the alveoli
Back to oxygen transport
Page 2 of 2PARTIAL PRESSURES OF GASES
10/7/2014http://www.diatronic.co.uk/nds/webpub/partial_pressures.htm