Corium International, Inc.

Patent Trials and Appeals BoardAug 4, 2020

14935192 - (D) (P.T.A.B. Aug. 4, 2020)

UNITED STATES PATENT AND TRADEMARK OFFICE 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 APPLICATION NO. FILING DATE FIRST NAMED INVENTOR ATTORNEY DOCKET NO. CONFIRMATION NO. 14/935,192 11/06/2015 Adrian L. Faasse 091500-0618/8138.US00 7079 108547 7590 08/04/2020 McDermott Will & Emery LLP 500 North Capitol Street NW Washington, DC 20001 EXAMINER ACKUN, JACOB K ART UNIT PAPER NUMBER 3736 NOTIFICATION DATE DELIVERY MODE 08/04/2020 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): mweipdocket@mwe.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte ADRIAN L. FAASSE and PARMINDER SINGH Appeal 2020-000147 Application 14/935,192 Technology Center 3700 Before BRETT C. MARTIN, JILL D. HILL, and LISA M. GUIJT, Administrative Patent Judges. MARTIN, Administrative Patent Judge. DECISION ON APPEAL STATEMENT OF THE CASE Pursuant to 35 U.S.C. § 134(a), Appellant1 appeals from the Examiner’s decision to reject claims 1–17 and 24. See Final Act. 1. We have jurisdiction under 35 U.S.C. § 6(b). We AFFIRM. 1 We use the word Appellant to refer to “applicant” as defined in 37 C.F.R. § 1.42. Appellant identifies the real party in interest as Corium International, Inc. App. Br. 1. Appeal 2020-000147 Application 14/935,192 2 CLAIMED SUBJECT MATTER The claims are directed to a medical device packaging. Claim 1, reproduced below, is illustrative of the claimed subject matter: 1. A package for a medical device or delivery system, comprising: a first member, wherein the first member is substantially planar; a second member comprising at least one cavity for receiving a medical device or delivery system, wherein the first and second members are opposable such that the first member covers at least the cavity of the second member; a peripheral seal member positioned between the first member and the second member for sealing the first member to the second member at a periphery of either or both of the first member or the second member; at least one opening formed in at least one of the first or second members; a microbial-resistant barrier covering the at least one opening; and a sealable member positioned between the first member and the second member and that adheres the first and second members together at a position between the at least one opening and the cavity such that when the first and second members are adhered by the sealable member the cavity is no longer in communication with the at least one opening. REFERENCE The prior art relied upon by the Examiner is: Name Reference Date Ivanov US 5,868,244 Feb. 9, 1999 REJECTION Claims 1–17 and 24 are rejected under 35 U.S.C. 102(a)(2) as anticipated by Ivanov. Final Act. 7. Appeal 2020-000147 Application 14/935,192 3 OPINION The majority of Appellant’s brief is directed to the Examiner’s drawing objections. The Examiner is correct that drawing objections are not appealable. Ans. 6. Accordingly, we do not address this issue. As to the rejection at issue, Appellant asserts that Ivanov teaches away from the invention because “it is an objective of Ivanov to provide a multiple cavity foil package having an interior gas permeable microbial barrier vent and channels in communication with the interior vent and the cavities.” App. Br. 11. Appellant further argues that “[e]mploying a sealable member in Ivanov would defeat the objective of the invention described in Ivanov to have the cavities in communication with the openings.” Id. The Examiner is correct, however, that Appellant “is misinterpreting the teaching in the reference by focusing on a single phrase or sentence in the noted Ivanov Summary.” Ans. 7. As the Examiner points out, “a sealable member (seal 340) is formed (exactly as recited in the last paragraph of claim 1) to keep the package content sterile.” Ans. 12. We agree with the Examiner that, in Ivanov, “there is initially gaseous communication in order to introduce sterilizing gas through the opening and into the cavity in order to sterilize the content of the cavity 370.” Ans. 14. The Examiner is also correct, in contradiction to Appellant’s arguments, that seal 340 “is subsequently formed and positioned as recited at the end of claim 1 to purposely prevent the sterilized cavity and content therein from communicating with the opening and thus the exterior of the package.” Id. Although Appellant is correct that one purpose of Ivanov is initially to allow gaseous communication, Appellant ignores the additional teachings of Ivanov that disclose subsequently cutting off the communication via seal 340. In fact, Appellant does not address the existence of seal 340 at all. Appeal 2020-000147 Application 14/935,192 4 Thus, the Examiner’s rejection is fully consistent with the teachings found in Ivanov. Accordingly, we sustain the Examiner’s rejection. CONCLUSION The Examiner’s rejection is AFFIRMED. More specifically, DECISION SUMMARY Claims Rejected 35 U.S.C. § Reference(s)/Basis Affirmed Reversed 1–17, 24 102(a)(2) Ivanov 1–17, 24 TIME PERIOD FOR RESPONSE No time period for taking any subsequent action in connection with this appeal may be extended under 37 C.F.R. § 1.136(a). See 37 C.F.R. § 1.136(a)(1)(iv). AFFIRMED