Span-America Medical Systems, Inc.Download PDFPatent Trials and Appeals BoardJul 10, 20202020000166 (P.T.A.B. Jul. 10, 2020) Copy Citation 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. 15/257,234 09/06/2016 Wanda C. McKnight SAM-312CON2DV1 5931 22827 7590 07/10/2020 DORITY & MANNING, P.A. POST OFFICE BOX 1449 GREENVILLE, SC 29602-1449 EXAMINER SAFAVI, MICHAEL ART UNIT PAPER NUMBER 3631 NOTIFICATION DATE DELIVERY MODE 07/10/2020 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): USDOCKETING@DORITY-MANNING.COM PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE ____________ BEFORE THE PATENT TRIAL AND APPEAL BOARD ____________ Ex parte WANDA C. MCKNIGHT, RICHARD W. RABURN, RUSSELL J. WESTON, and JOSEPH A. BENEDICT ____________ Appeal 2020-000166 Application 15/257,234 Technology Center 3600 ____________ Before JENNIFER D. BAHR, MICHELLE R. OSINSKI, and SEAN P. O’HANLON, Administrative Patent Judges. OSINSKI, Administrative Patent Judge. DECISION ON APPEAL STATEMENT OF THE CASE Appellant1 appeals under 35 U.S.C. § 134(a) from the Examiner’s decision rejecting claims 25–28 and 30–32.2 We have jurisdiction over the appeal under 35 U.S.C. § 6(b). We REVERSE. 1 We use the term “Appellant” to refer to “applicant” as defined in 37 C.F.R. § 1.42. Appellant identifies the real party in interest as Span-America Medical Systems, Inc., a subsidiary of Savaria Corporation. Appeal Br. 1. 2 Claims 1–24 and 29 are cancelled. Appeal Br. 15–16 (Claims App.). Appeal 2020-000166 Application 15/257,234 2 THE CLAIMED SUBJECT MATTER Claim 25, the sole independent claim, is reproduced below and is representative of the claimed subject matter on appeal. 25. A method for the treatment and prevention of decubitus ulcers for a patient due to interface of such patient with an associated support surface, comprising: placing adjacent a patient a first layer of vapor-permeable material; providing a second layer of non-crushable, three- dimensional material, adjacent and beneath said first layer of vapor-permeable material; and forcing air flow through said second layer of non- crushable, three-dimensional material, so that moisture vapor and heat travels away from a patient’s body through said first layer of vapor-permeable material and into said second layer of non-crushable, three-dimensional material, to be carried away from the patient by said forced air flow, so as to reduce moisture and heat near a patient’s skin without directly exhausting air across the patient’s skin. EVIDENCE The Examiner relied on the following evidence in rejecting the claims on appeal: Wilkerson US 5,882,349 Mar. 16, 1999 Maier US 6,223,369 B1 May 1, 2001 Appeal 2020-000166 Application 15/257,234 3 THE REJECTIONS3 I. Claims 25–28, 31, and 32 stand rejected under 35 U.S.C. § 102(b) as anticipated by Wilkerson.4 Final Act. 3–4. II. Claim 30 stands rejected under 35 U.S.C. § 103(a) as unpatentable over Wilkerson and Maier. Id. at 4–5. OPINION Rejection I – Claims 25–28, 31, and 32 as anticipated by Wilkerson In rejecting independent claim 25, the Examiner finds that Wilkerson discloses a method for treating and preventing decubitus ulcers that includes, in relevant part, providing a second layer of non-crushable, three- dimensional material 110, adjacent and beneath said first layer of material, and forcing air flow (via air control system 140) through said second layer, so that moisture vapor and heat travels away from a patient’s body through said first layer and into said second layer, to be carried away from the patient by said air flow, so as to reduce moisture and heat near a patient’s skin without directly exhausting air across the patient’s skin. Final Act. 3 (citing Wilkerson, col. 3, ll. 37–59). 3 The Examiner withdrew a rejection of claim 30 under 35 U.S.C. § 112, second paragraph, as being indefinite. See Ans. 3; Final Act. 2. 4 The Examiner states that the claims stand “rejected under pre-AIA 35 U.S.C. [§] 102(a)(1) as being anticipated by Wilkerson.” Final Act. 3. Because “[t]he present application is being examined under the pre-AIA first to inventor provisions,” the relevant statute is pre-AIA 35 U.S.C. § 102 as set forth on page 2 of the Final Action. Id. at 2 (emphasis added). Wilkerson’s publication date of Mar. 16, 1999 is more than one year prior to the earliest effective filing date of Appellant’s invention, which is July 18, 2000. Thus, Wilkerson qualifies as prior art under pre-AIA 35 U.S.C. § 102(b). Appeal 2020-000166 Application 15/257,234 4 Appellant argues that the Examiner errs because “[no] air flow in the context of the presently claimed subject matter takes place through alleged second layer 110 of Wilkerson. Instead, moisture in essence wicks (‘capillary action’) through layer 110 into side channels 120 and 122.” Appeal Br. 10 (emphasis omitted). Appellant asserts that “the only ‘forced air flow’ . . . is undeniably only in the lateral channels 120 and 122.” Id. (citing Wilkerson, Fig. 5) (emphasis omitted). Appellant contends that Wilkerson’s “air flow is clearly not through either layer 110 or the marginal portions of layer 110 which might be considered as forming loops 120 and 122.” Id. (emphasis omitted). We agree with Appellant that the Examiner’s finding as to the disclosure of Wilkerson is deficient. Wilkerson discloses that “[s]andwiched between facing surfaces of outer and inner layers 102 and 104 is a layer 110 of moisture-wicking fabric.” Wilkerson, col. 3, ll. 36–37 (boldface omitted). Wilkerson discloses that [s]uch a fabric is multi-layered with an upper layer of a highly- wicking, non-absorbent material, such as polyester, a middle layer of cotton-polyester material, and a lower layer of cotton material. The side edges of fabric layer 110 are rolled and sealed to form parallel, generally circular channels 120 and 122 extending along the side edges of the fabric. Id. at col. 3, ll. 39–45 (boldface omitted). The Examiner takes the position that “the second layer of Wilkerson . . . does allow airflow therethrough and does allow airflow through said second layer by virtue of air flow through each of 120 and 122.” Ans. 6. However, Appellant persuasively asserts that the air flow in Wilkerson is “only in the lateral channels 120 and 122, running parallel to the placement of a patient, and are not through any asserted second layer.” Appeal Br. 10 (emphasis omitted). In other words, Appeal 2020-000166 Application 15/257,234 5 Wilkerson’s disclosure that air flows through channels 120 and 122, which are formed by rolling and sealing the edges of layer 110, is indicative of airflow along the Examiner-identified second layer 110, not through it as required by claim 25. Wilkerson does not disclose that air entering one set of ends of channels 120, 122 and exiting the other set of ends of the channels (Wilkerson, col. 3, ll. 48–50) flows through layer 110 itself. For the foregoing reasons, Appellant apprises us of error in the Examiner’s determination that Wilkerson anticipates claim 25. Accordingly, we do not sustain the rejection of claim 25, and claims 26–28, 31, and 32 depending therefrom, under 35 U.S.C. § 102(b) as anticipated by Wilkerson. Rejection II – Claim 30 as unpatentable over Wilkerson and Maier The Examiner’s rejection of claim 30, which depends from claim 25, relies on the same finding as to the disclosure of Wilkerson that we find deficient for the reasons discussed above in connection with Rejection I. See Final Act. 4–5. The Examiner relies on Maier for teaching additional features, but does not articulate any findings or reasoning that would cure the aforementioned deficiency in the disclosure of Wilkerson. Accordingly, for the same reasons discussed above, we do not sustain the rejection of claim 30 under 35 U.S.C. § 103(a) as unpatentable over Wilkerson and Maier. Appeal 2020-000166 Application 15/257,234 6 CONCLUSION In summary: Claims Rejected 35 U.S.C. § Reference(s)/Basis Affirmed Reversed 25–28, 31, 32 102(b) Wilkerson 25–28, 31, 32 30 103(a) Wilkerson, Maier 30 Overall Outcome 25–28, 30– 32 REVERSED Copy with citationCopy as parenthetical citation