Lichtenstein, Isaac

Patent Trials and Appeals BoardDec 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. Â§ 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. Â§ 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. Â§ 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. Â§ 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. Â§ 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. Â§ 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. Â§ 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. Â§ 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. Â§ 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. Â§ 112, first paragraph, is affirmed. The rejection of claims 3 and 14--17 under 35 U.S.C. Â§ 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. Â§ 1.136(a)(l)(iv). AFFIRMED-IN-PART 6 , 14--17 , 14, 15, 17