Ex Parte Siniaguine et alDownload PDFPatent Trial and Appeal BoardFeb 23, 201612436071 (P.T.A.B. Feb. 23, 2016) Copy Citation UNITED STA TES p A TENT AND TRADEMARK OFFICE APPLICATION NO. FILING DATE 12/436,071 0510512009 758 7590 02/25/2016 FENWICK & WEST LLP SILICON VALLEY CENTER 801 CALIFORNIA STREET MOUNTAIN VIEW, CA 94041 FIRST NAMED INVENTOR Oleg Siniaguine 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. 26198-14429 4656 EXAMINER PAULS, JOHN A ART UNIT PAPER NUMBER 3626 NOTIFICATION DATE DELIVERY MODE 02/25/2016 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): PTOC@Fenwick.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte OLEG SINIAGUINE, DMITRY KRASNOV, THEO BROWER, and DMITRIY SINY AGIN Appeal2013-005896 Application 12/436,071 Technology Center 3600 Before ANTON W. PETTING, BIBHU R. MOHANTY, and TARA L. HUTCHINGS, Administrative Patent Judges. MOHANTY, Administrative Patent Judge. DECISION ON APPEAL STATEMENT OF THE CASE The Appellants seek our review under 35 U.S.C. § 134 of the final rejection of claims 1-21 and 24--29 which are all the claims pending in the application. We have jurisdiction under 35 U.S.C. § 6(b). SUMMARY OF THE DECISION We AFFIRM-IN-PART. Appeal2013-005896 Application 12/436,071 THE INVENTION The Appellants' claimed invention is directed to customizing wound dressings for a specific wound of a patient (Spec. i-f 2). Claim 1, reproduced below, is representative of the subject matter on appeal. 1. A computer-implemented method of customizing a wound dressing for a wound of a patient, comprising: receiving a first set of parameters associated with the wound, the first set of parameters comprising dimensions of the wound; generating, at a computing device, a wound dressing specification by a wound dressing customization algorithm based on the first set of parameters, the wound dressing specification including a second set of parameters of the wound dressing, the wound dressing customization algorithm implementing a clinical protocol for customizing a wound dressing, the wound dressing specification indicating at least a shape or a size of a layer in the wound dressing; storing a result of the wound treatment using a wound dressing fabricated according to the wound dressing spec1ficat1on; analyzing the result of the wound treatment and the applied wound dressing by statistical tools; and generating an updated wound dressing customization algorithm based on the analysis. THE REJECTIONS The following rejections are before us for review: 1. Claims 1, 3-5, 9-11, 13, 14, 17-20, and 24--29 are rejected under 35 U.S.C. § 103(a) as unpatentable over Cellura (US 2009/0216553 Al, pub. Aug. 27, 2009), IMPAC Introduces Comprehensive Cancer Outcomes Analytical Suites, BUSINESS WIRE (Mar. 7, 2000), http://www.thefreelibrary.com/ /print/PrintArticle.aspx?id= 59999887 2 Appeal2013-005896 Application 12/436,071 last visited 1/20/2016 (hereafter "HvIP AC"), Reineke (US 6,297 ,420 B 1, iss. Oct. 2, 2001 ), and Carolina Weller & Geoff Sussman, Wound Dressings Update, 36 J. PHARMACY PRACTICE AND RESEARCH 318 (2006) (hereinafter "Wounds Dressing Update"). 2. Claims 2, 12, and 21 are rejected under 35 U.S.C. § 103(a) as unpatentable over Cellura, IMP AC, Reineke, Wounds Dressings Update, and Raduchel (US 2009/0037224 Al, pub. Feb 5, 2009). 3. Claims 6, 7, and 15 are rejected under 35 U.S.C. § 103(a) as unpatentable over Cellura, IMP AC, Wounds Dressings Update, and Reineke. 4. Claims 8 and 16 are rejected under 35 U.S.C. § 103(a) as unpatentable over Cellura, IMP AC, Wounds Dressings Update, and Patel (US 2007/0237812 Al, pub. Oct. 11, 2007). 5. Claims 1, 3, 11, and 20 are provisionally rejected on the ground of nonstatutory obviousness-type double patenting as being unpatentable over claims 14, 18, 19, 23, 25, 26, 35, and 36 of co-pending Application No.12/110,228. FINDINGS OF FACT We have determined that the findings of fact in the Analysis section below are supported at least by a preponderance of the evidence. 1 1 See Ethicon, Inc. v. Quigg, 849 F.2d 1422, 1427 (Fed. Cir. 1988) (explaining the general evidentiary standard for proceedings before the Patent Office). 3 Appeal2013-005896 Application 12/436,071 ANALYSIS The Appellants argue first that the rejection of claim 1 is improper because IMP AC fails to disclose "analyzing ... by statistical tools; and generating an updated wound dressing customization algorithm based on the analysis" because it directed to cancer outcomes and not customizing wound dressings (App. Br. 11-13 (emphasis omitted)). The Appellants also argue that the prior art fails to disclose the claim limitation for "generating ... a wound dressing specification ... based on the first set of parameters ... the wound dressing specification indicating at least a shape or size of a layer in the wound dressing" (App. Br. 13-16 (emphasis omitted); Reply Br. 2, 3). In contrast, the Examiner has determined that the rejection is proper and that the argued claim limitations are found in Cellura (paras. 13-21, 27, 29, 36), Reineke (col. 6:52---65), Wound Dressings Update, and IMP AC (Final Act. 2--4; Ans. 2, 3). We agree with the Examiner. Here, the Appellants have attacked the references individually when the rejection is made using the combination of references. For example, the Appellants have argued that IMP AC fails to disclose "generating an updated wound customization algorithm" but IMP AC has been cited to teach the use of tools that, inter alia, compare medical treatment outcomes for various treatments, and provide statistically significant data resulting from the analysis to those looking to manage and develop new therapies. Because IMP AC describes developing new treatments based on an analysis of treatment results, it would have been obvious to one of ordinary skill to update a treatment of wounds with dressings, as disclosed by Cellura, based on treatment results, as disclosed 4 Appeal2013-005896 Application 12/436,071 by HvIP AC. The first argued claim limitation has thus been shown in the cited combination of prior art references. Turning to the second argued claim limitation, the Appellants have also argued that Reineke fails to disclose "the wound dressing specification including at least the shape or a size of the layer in the wound dressing" based on "parameters comprising dimensions of the wound". Cellura however discloses an image of the wound dressing, which would include the shape as well as the size (dimension) of the wound (paras. 15 and 19). The Appellants' arguments toward the lack of a "wound customization algorithm" being shown or obvious within the combination are also not deemed persuasive. Cellura also at para. 20 discloses that the computer may use entered information to determine the type of wound, which would require a wound customization algorithm of some kind to be used, or readily obvious in the cited combination. For these above reasons, the rejection of claim 1 is sustained. The Appellants have provided the same arguments for claims 3-5, 9-11, 13, 14, 17-20, and 24-29, and the rejection of these claims is sustained for the same reasons given above. The Appellants have argued that the rejection of claim 2 is improper because of the failure to disclose "determining an access level of the medical practitioner based on the user information" (Appeal Br. 17; Reply Br. 3). Raduchel at para. 33 discloses determining the level of access based on the status of a medical provider in the cited combination. The other references cited in the rejection to disclose the application of wound dressings to wounds do disclose this. As the argued elements of claim limitation 2 have been shown in the prior art, this rejection is sustained. The Appellants have 5 Appeal2013-005896 Application 12/436,071 provided the same arguments for claims 12 and 21, and the rejection of these claims is sustained for the same reasons given above. The Appellants have argued that the rejection of claim 6 is improper because of the failure to disclose "an exudate level of the wound, and a time interval for replacing the wound dressing" (App. Br. 18; Reply Br. 3, 4). In contrast, the Examiner has cited to Reineke at column 2, lines 55---67, column 3, lines 13-27, and column 6, lines 52---65, and Cellura at paragraph 19 as disclosing this (Final Act. 12). A review of these cited portions of Reineke and Cellura fails to disclose the "time interval for replacing the wound dressing" and the rejection of claim 6, as well as claim 15 which contains a similar limitation, is therefore not sustained. The Appellants have argued that the rejection of claim 7 is improper (Appeal Br. 19, 20). Claim 7 requires the parameters including wound dressings of the hydrating, absorptive, or protective type; and the configuration of the wound dressing and protective layer based on this type. The Examiner has cited to this claim limitation as being shown by Reineke at column 2, lines 55---67, column 3, lines 13-27, and column 6, lines 52-65 (Final Act. 12-13), but this is not specifically shown and no prima facie case has been established. Accordingly, the rejection of claim 7 is not sustained. The Appellants have argued that the rejection of claim 8 is improper because of the failure to disclose "a wound progression module representing progress of the wound ... and a dressing progression module representing changes in the properties of the wound dressing with progress of time" (App. Br. 20, 21; Reply Br. 4). In contrast, the Examiner has cited to Patel at para. 28 as disclosing this limitation (Final Act. 13, 14; Ans, 3, 4). Patel at para. 28 fails to disclose the argued claim limitation, and the rejection of claim 8 6 Appeal2013-005896 Application 12/436,071 is therefore not sustained. Claim 16 contains a similar limitation and the rejection of this claim is not sustained for these same reasons as well. The Appellants have provided no arguments for the provisional rejection of claims 1, 3, 11, and 20 on the ground of nonstatutory obviousness-type double patenting as being unpatentable over claims 14, 18- 19, 23, 25-26 and 35-36 of copending Application No.12/110,228. As no arguments have been presented, this rejection is sustained. CONCLUSIONS OF LAW We conclude that Appellants have not shown that the Examiner erred in rejecting claims 1, 3-5, 9-11, 13, 14, 17-20, and 24--29 under 35 U.S.C. § 103(a) as listed in the Rejections section above. We conclude that Appellants have shown that the Examiner erred in rejecting claims 6-8, 15, and 16 under 35 U.S.C. § 103(a) as listed in the Rejections section above. We conclude that Appellants have not shown that the Examiner erred in the provisional rejection of claims 1, 3, 11, and 20 on the ground of nonstatutory obviousness-type double patenting as listed in the Rejections section above. DECISION The Examiner's rejections of claims 1, 3-5, 9-11, 13, 14, 17-20, and 24--29 are sustained. The Examiner's rejections of claims 6-8, 15, and 16 are reversed. 7 Appeal2013-005896 Application 12/436,071 AFFIRMED-IN-PART 8 Copy with citationCopy as parenthetical citation