Denis Reibel et al.

Patent Trials and Appeals Board

Aug 29, 2019

12678219 - (D) (P.T.A.B. Aug. 29, 2019)

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.
12/678,219 07/02/2010 Denis Reibel 810908 6448
95402 7590 08/29/2019
LEYDIG, VOIT AND MAYER
TWO PRUDENTIAL PLAZA, SUITE 4900
180 NORTH STETSON AVENUE
CHICAGO, IL 60601
EXAMINER
WORRELL, KEVIN
ART UNIT PAPER NUMBER
1789
NOTIFICATION DATE DELIVERY MODE
08/29/2019 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):
chgpatent@leydig.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte DENIS REIBEL, CLAUDIO WALTER, and
BERND ALTMUELLER
Appeal 2019-000049
Application 12/678,219
Technology Center 1700
BEFORE LINDA M. GAUDETTE, DONNA M. PRAISS, and
LILAN REN, Administrative Patent Judges.
GAUDETTE, Administrative Patent Judge.
DECISION ON APPEAL1
The Appellants2 appeal under 35 U.S.C. § 134(a) from the Examiner’s
decision twice rejecting claims 21, 23–25, 28–30, 32–34, 36–47, 50, 52, 53,
and 55.3
We REVERSE.

1 This Decision includes citations to the following documents: Specification
filed July 2, 2010, as amended (“Spec.”); Non-Final Office Action dated
November 2, 2017 (“Non-Final Act.”); Appeal Brief filed March 26, 2018
(“Appeal Br.”); Examiner’s Answer dated July 27, 2018 (“Ans.”); and Reply
Brief filed September 27, 2018 (“Reply Br.”).
2 We use the word “Appellants” to refer to the “Applicants” as defined in 37
C.F.R. § 1.42(a). The Appellants identify the real party in interest as Carl
Freudenberg KG. Appeal Br. 1.
3 We have jurisdiction under 35 U.S.C. § 6(b).
Appeal 2019-000049
Application 12/678,219
2
CLAIMED SUBJECT MATTER
“The invention relates to a nonwoven fabric comprising fibers of a
fiber raw material which comprises gelatin, the fibers having been provided
with an antimicrobial effective substance and/or an antibiotic.” Spec. 1,
Field of the Invention. Claim 52, reproduced below, is illustrative of the
claimed subject matter:
52. A nonwoven fabric, comprising:
fibers substantially comprising gelatin, a gelatin
derivative, or a mixture of two or more of these; and
an antimicrobially effective substance, an antibiotic, or a
mixture of two or more of any of these,
wherein the fibers have a diameter up to 500 μm, and
wherein the fibers are rotationally spun, and some of the
fibers are twisted or interlaced so as to bond to one another
without further bonding measures, and wherein the fabric has an
air permeability of at least 0.5 L/min·cm2.
Appeal Br. 15 (Claims Appendix).
REFERENCES
The Examiner relies on the following prior art as evidence of
unpatentability:
Kauschke
DiTizio
Hansen
Karabey
US 2003/0161995 A1
US 2006/0068013 A1
US 2006/0115805 A1
US 2007/0248640 A1
Aug. 28, 2003
Mar. 30, 2006
June 1, 2006
Oct. 25, 2007

REJECTIONS
The Examiner rejected the claims under 35 U.S.C. § 103(a) as
follows:
Appeal 2019-000049
Application 12/678,219
3
1. claims 21, 23–25, 28–30, 44, 46, 47, 50, 52, 53, and 55 over
Karabey in view of Kauschke;
2. claim 43 over Karabey in view of Kauschke and Hansen; and
3. claim 45 over Karabey in view of Kauschke and DiTizio.
OPINION
The Examiner found that Karabey discloses a non-woven fabric as
claimed with the exception of an explicit teaching that the fabric has “an air
permeability of at least 0.5 L/min·cm2” as required by each of independent
claims 21, 46, and 52. Final Act. 3–4. The Examiner found Kauschke
discloses a barrier sheet having an air permeability in the range of 0.305–
30.5 L/min·cm2. Id. at 4–5. The Examiner determined one of ordinary skill
in the art would have modified Karabey’s fabric to have an air permeability
in the claimed range based on Kauschke’s teaching that such level of air
permeability “can provide a high level of comfort prior to a liquid insult and
an increased liquid transmission resistance upon and after the liquid insult,
for use in health care products such as feminine hygiene products or wound
dressings.” Id. at 5.
The Appellants contend the Examiner’s reason for combining
Karabey’s and Kauschke’s teachings is not supported by the evidence of
record. See Appeal Br. 5. The Appellants explain that Karabey is concerned
with implants for occluding blood or other fluids within an internal, fluid-
filled body cavity such as a blood vessel, whereas Kauschke is concerned
with barrier sheets meant to cover and protect external body parts from
liquid insults, i.e., splashes of liquid in an otherwise non-liquid environment.
Reply Br. 3; see Appeal Br. 4. The Appellants contend the Examiner has not
identified evidence to support a finding that the level of air permeability
Appeal 2019-000049
Application 12/678,219
4
used for Kauschke’s barrier sheets would improve the occlusion, or any
other function, of Karabey’s implants because “there is generally no air
inside a blood vessel.” Appeal Br. 5. The Appellants further argue the
Examiner has not identified evidence that the air permeability of an implant
would be expected to improve a patient’s comfort level or that there is a
recognized relationship between increased air permeability and increased
liquid transmission resistance. Id. at 6.
Having reviewed the Karabey and Kauschke disclosures, we agree
with the Appellants that the Examiner’s reason for combining these
references is not supported by the evidence of record. Accordingly, for the
reasons argued by the Appellants in the Appeal and Reply Briefs, we do not
sustain the rejections of independent claims 21, 46, and 52, or their
respective dependent claims 23–25, 28–30, 32–34, 36–45, 47, 50, 53, and
55.
REVERSED