Lichtenstein, Isaac

Patent Trials and Appeals Board

Dec 9, 2019

13152446 - (D) (P.T.A.B. Dec. 9, 2019)

APPLICATION NO. FILING DATE
13/152,446 06/03/2011
72822 7590
Weiss & Arons LLP
63 South Main Street
Spring Valley, NY 10977
12/09/2019
FIRST NAMED INVENTOR
Isaac Lichtenstein
UNITED STATES DEPARTMENT OF COMMERCE
United States Patent and Trademark Office
Address: COMMISSIONERFORPATENTS
P.O. Box 1450
Alexandria, Virginia 22313-1450
www.uspto.gov
ATTORNEY DOCKET NO.
146-002
CONFIRMATION NO.
6887
EXAMINER
ZIMBOUSKI, ARIANA
ART UNIT PAPER NUMBER
3781
MAIL DATE DELNERYMODE
12/09/2019 PAPER
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.
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte ISAAC LICHTENSTEIN
Appeal2018-002533
Application 13/152,446
Technology Center 3700
ERRATUM
The Decision on Appeal for the above-identified application mailed
December 9, 2019 contains an error. Footnote 1 on page 1 is removed and
replaced with the following.
The term "Appellant" is used herein to refer to "applicant" as
defined in 37 C.F.R. § 1.42. Appellant identifies the real
parties in interest as Wound Healing Technologies, LLC and
Weiss & Arons, LLP. Appeal Br. 2.
All other portions of the Decision on Appeal remain unchanged. Any
time periods established by the original Decision on Appeal mailed
December 9, 2019 also remain unchanged. Any confusion caused regarding
this matter is regretted. If there any questions pertaining to this Erratum,
please contact the Patent Trial and Appeal Board at 571-272-9797.
BAR
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte ISAAC LICHTENSTEIN
Appeal2018-002533
Application 13/152,446
Technology Center 3700
Before JOHN C. KERINS, BRUCE T. WIEDER, and
ROBERT J. SILVERMAN, Administrative Patent Judges.
KERINS, Administrative Patent Judge.
DECISION ON APPEAL
Pursuant to 35 U.S.C. § 134(a), Appellant appeals from the
Examiner's decision to reject claims 3 and 14--17. 1 We have jurisdiction
under 35 U.S.C. § 6(b ).
We AFFIRM-IN-PART.
THE CLAIMED SUBJECT MATTER
1 The term "Appellant" is used herein to refer to "applicant" as defined in 37
C.F .R. § 1.42. Appellant identifies the real party in interest as Wound
Healing Technologies, LLC. Appeal Br. 2.
Appeal2018-002533
Application 13/152,446
Appellant's invention relates to a wound dressing. Claim 3 is
illustrative, and is reproduced below:
3. A wound dressing comprising:
a vacuum/drainage tube comprising a terminus;
a fluid-absorbing/transferring layer for distributing negative
pressure from the vacuum/drainage tube, said fluid-
absorbing/transferring layer being in contact with the
vacuum/ drainage tube;
a vapor sealant sheet formed from a hydrocolloid material, the
vapor sealant sheet that overlies the fluid-absorbing/transferring
layer, said vapor sealant sheet comprising an adhesive located
over at least a central zone of a wound-facing surface of the vapor
sealant sheet, the adhesive for adhering the vapor sealant sheet to
the fluid-absorbing/transferring layer, said adhesive that
mechanically maintains the placement and orientation of the
fluid-absorbing transferring layer relative to the vapor sealant
sheet; and
a tube-exit-sealant component for mechanically maintaining the
vacuum/drainage tube's placement relative to the fluid-
absorbing/transferring layer.
THE REJECTIONS
The Examiner rejects:
(i) claim 16 under 35 U.S.C. § 112, first paragraph, as failing to
comply with the written description requirement set forth therein; and
(ii) claims 3 and 14--17 under 35 U.S.C. § I03(a) as being
unpatentable over Argenta (US 2010/0121229 Al, published May 13, 2010)
in view of Robinson (US 2010/0305526 Al, published Dec. 2, 2010).
2
Appeal2018-002533
Application 13/152,446
A rejection of claims 1-3, 6-12, and 14--17 under 35 U.S.C. § 112,
first paragraph, as failing to comply with the written description
requirement, pertaining to the recitation of a "central zone," has been
withdrawn by the Examiner. Ans. 2.
ANALYSIS
Claim 16--35 U.S. C. § 112, first paragraph
The Examiner finds that the recitation in claim 16 of a vapor sealant
sheet comprising a wound-facing tissue-adhering surface does not have
adequate written descriptive support in the application as filed. Non-Final
Act. 7. According to the Examiner, Appellant's disclosure is to the effect
that a drape layer interacts with the skin of the patient, and the claimed vapor
sealant sheet is placed on top of the drape layer, and does not interact with
the tissue/skin. Id.
Appellant does not present any argument contesting this ground of
rejection, as noted by the Examiner. Ans. 6. Appellant is thus regarded as
having waived the right to make any such argument.
Accordingly, the rejection of claim 16 as lacking written descriptive
support of the limitation identified, is summarily sustained.
Claims 3 and 14-17--35 U.S.C. § 103(a)--Argenta/Robinson
The Examiner cites to Argenta as disclosing a vapor sealant sheet 50
meeting all limitations of the vapor sealant sheet required in claim 3, with
the exception that the vapor sealant sheet is a hydrocolloid. Non-Final
Act. 8-9. The Examiner relies on the embodiment illustrated in Figure 9 in
connection with these findings. Id. at 8. The Examiner additionally notes
3
Appeal2018-002533
Application 13/152,446
that the embodiment in Figure 9 does not disclose the tube-exit sealant
component as recited in claim 3, but that an embodiment illustrated in
Figures 1-3 of Argenta discloses this claim feature, and concludes that it
would have been obvious to configure the Figure 9 embodiment to include
the tube-exit sealant component of Figures 1-3. Id. at 8-9. Appellant does
not contest this finding and conclusion.
Referring back to the limitation that the vapor sealant sheet be formed
from a hydrocolloid material, the Examiner observes that Argenta discloses,
in Figures 1-3 and at paragraph 40, the use of a sealing adhesive 41 disposed
at the periphery of the vapor sealant sheet. Non-Final Act. 9. The Examiner
finds that Robinson discloses a similar sealing adhesive used to connect a
drape to the skin of the patient, with the adhesive being a hydrocolloid
adhesive. Id. (citing Robinson ,r 33). The Examiner concludes that it would
have been obvious to place an adhesive on the periphery of the vapor sealant
sheet of Argenta, and to have this adhesive be a hydrocolloid, as taught by
Robinson, in that "hydrocolloids are well-known medical adhesives that
interact well with the skin and promote wound healing." Id. at 9.
Appellant argues that the hydrocolloid of Robinson is not a vapor
sealant sheet, but rather a separate attachment device that is used to bond a
sealing drape to a patient's skin. Appeal Br. 12; Reply Br. 3. Appellant
emphasizes that Robinson distinguishes between its sealing drape being
made of one of a group of disclosed materials, and its attachment device
made of one of a different group of disclosed materials, the latter group
including hydrocolloids. Reply Br. 3. Accordingly, Appellant maintains
that Robinson fails to disclose or suggest the claimed vapor sealant sheet
formed from a hydrocolloid material. Id. at 4.
4
Appeal2018-002533
Application 13/152,446
The Examiner counters that, "due to the positioning of the vapor
sealant sheet and adhesive, the hydrocolloid adhesive in Argenta and
Robinson is part of the vapor sealant sheet." Ans. 6 (emphasis added).
Neither the Examiner nor Appellant presents a rigorous claim
construction analysis, but it is apparent that they disagree as to what is
required by claim 3 requiring that the vapor sealant sheet be "formed from"
a hydrocolloid material. The Examiner's position is to the effect that a
vapor sealant sheet having a hydrocolloid adhesive disposed at the periphery
of the sheet meets the limitation, whereas Appellant appears to take the
position that the vapor sealant sheet itself be constructed of a hydrocolloid
material. Appellant's Specification does not use the term "formed from" in
describing the vapor sealant sheet, but rather describes that the vapor sealant
sheet "may be of ... a suitable hydrocolloid material." Spec. ,r 116.
Nonetheless, we are of the view that the plain and ordinary meaning of
"formed from" requires that the vapor sealant sheet itself be a hydrocolloid
material. As such, a vapor sealant sheet made of a different material and
having a hydrocolloid adhesive disposed along the periphery of the sheet,
which is the construction asserted by the Examiner to have been obvious, is
not sufficient to teach or suggest the claimed vapor sealant sheet formed
from a hydrocolloid material.
The rejection of claim 3, and of claims 14--17 depending therefrom, is
not sustained.
5
Appeal2018-002533
Application 13/152,446
DECISION
The rejection of claim 16 under 35 U.S.C. § 112, first paragraph, is
affirmed.
The rejection of claims 3 and 14--17 under 35 U.S.C. § 103(a) as
being unpatentable over Argenta and Robinson is reversed.
In summary:
3, 14--17
Overall
Outcome
112, first
para raph
103(a)
CONCLUSION
Ar enta, Robinson
16
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a)(l)(iv).
AFFIRMED-IN-PART
6
, 14--17
, 14, 15, 17