Ex Parte Bindas

Board of Patent Appeals and Interferences

Sep 7, 2010

11074280 (B.P.A.I. Sep. 7, 2010)

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.
11/074,280 03/04/2005 Jan J. Bindas 05-5881 9033
7590 09/08/2010
William M. Hobby, III
157 E. New England Avenue, #375
Winter Park, FL 32789
EXAMINER
LEWIS, KIM M
ART UNIT PAPER NUMBER
3772
MAIL DATE DELIVERY MODE
09/08/2010 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 BOARD OF PATENT APPEALS
AND INTERFERENCES
____________

Ex parte JAN J. BINDAS
____________

Appeal 2009-012042
Application 11/074,280
Technology Center 3700
____________

Before WILLIAM F. PATE III, STEVEN D.A. McCARTHY, and
MICHAEL W. O’NEILL, Administrative Patent Judges.

O’NEILL, Administrative Patent Judge.

DECISION ON APPEAL1

1 The two-month time period for filing an appeal or commencing a civil
action, as recited in 37 C.F.R. § 1.304, or for filing a request for rehearing,
as recited in 37 C.F.R. § 41.52, begins to run from the “MAIL DATE”
(paper delivery mode) or the “NOTIFICATION DATE” (electronic delivery
mode) shown in the PTOL-90A cover letter attached to this decision.

Appeal 2009-012042
Application 11/074,280

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STATEMENT OF THE CASE
Jan J. Bindas (Appellant) appeals under 35 U.S.C. § 134 from the
Examiner’s decision finally rejecting claims 1-3 and 5-9. Appellant
cancelled claim 4. We have jurisdiction under 35 U.S.C. § 6(b).
The Invention
The claims on appeal relate to a protective covering process.
Claim 1, reproduced below, with emphasis added, is representative of
the subject matter on appeal.
1. A process for applying a protective covering for a cast
or wound to a patient comprising the steps of:
selecting an elongated, waterproof, flexible, transparent
polymer bag having an opening in at least one end thereof;
cutting said selected polymer bag to a predetermined
length;
sliding said selected bag over a patient’s appendage to
cover a cast or wound;
selecting a roll of elongated high cling plastic stretch
film having a thickness between 50 and 200 gauge and a width
of between 2 and 5 inches; and
wrapping said elongated high cling stretch film around
at least one end of said open end of polymer bag adjacent said
patient's appendage a plurality of times while stretching said
elongated high cling stretch film to form a waterproof seal
between said bag and the patient's appendage;
whereby a waterproof cover is provided for a patient's
wound or cast.

The Rejection
The following Examiner’s rejection is before us for review:
Claims 1-3 and 5-9 are rejected under 35 U.S.C. § 103(a) as obvious
over Orange (U.S. Patent No. 5,817,038, issued Oct. 6, 1998) in view of
Brown (U.S. Patent No. 5,761,746, issued Jun. 9, 1998).
Appeal 2009-012042
Application 11/074,280

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SUMMARY OF DECISION
We REVERSE.

OPINION
Issue
The determinative issue in this appeal is:
Did the Examiner err in concluding that it would have been obvious to
modify the resulting process from the combination of Orange and Brown to
include the step of selecting a roll of elongated high cling plastic stretch film
having particular ranges of thicknesses and widths, and the step of wrapping
the film around at least one end of the bag adjacent to the patient’s arm a
plurality of times while stretching the film to form a waterproof seal?
Analysis
Neither Appellant nor the Examiner disputes that the combination of
Orange and Brown fails to disclose the claimed process steps of: selecting a
roll of elongated high cling plastic stretch film having a thickness between
50 and 200 gauge and a width of between 2 and 5 inches (hereinafter the
“selecting a roll step”); and wrapping the elongated high cling stretch film
around at least one end of the open end of the polymer bag adjacent said
patient’s appendage a plurality of times while stretching said elongated high
cling stretch film to form a waterproof seal between said bag and the
patient’s appendage (hereinafter the “wrapping step”). App. Br. 8-9 and
Ans. 4.
However, the Examiner alleges, and Appellant disputes, that it
would have been obvious to one of ordinary skill in the art at the time
the invention was made to modify the resulting process from the
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Application 11/074,280

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combination of Orange in view of Brown to include a selecting a roll
step and a wrapping step. Ans. 5-6 and App. Br. 8-11. More
particularly, the Examiner posits that:
As to the high cling plastic stretch film, as
can be seen from Figs. 13-15, Orange et al.
disclose the use of elastic sealing bands (92, 93) to
seal bag (90). Brown discloses a waterproof
sleeve that has a Saran [W]rap type, high cling
film associated therewith to aid in sealing the
protector to the user. Thus, Brown provides a
teaching of the use of Saran Wrap with a
waterproof protector.
The [E]xaminer contends that it would have
been obvious to one having ordinary skill in the art
to substitute any sealing band or sealing means for
sealing bands (92, 93), as long as they provide a
water-tight seal. Thus, the substitution of high
cling plastic stretch film, such as that disclosed in
Brown or any other stretchable sealing bands for
the elastic sealing bands of Orange et al. would
have been obvious and within the level of ordinary
skill in the art in order to allow the sealing band to
cling to the user and the cast.
As to the step of selecting a roll of high
cling stretch plastic film, [Appellant] should note
that it too would have been within the level of
ordinary skill in the art to select high cling plastic
stretch film from a roll since that is the means by
which it is normally dispensed.

Ans. 5-6.

In addition, the Examiner argues that:
In response to Appellant’s arguments with
respect to wrapping the elongated high cling
stretch film around at least one open end a
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Application 11/074,280

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plurality of times while stretching and forming
waterproof seal, the Examiner contends that while
neither Orange et al. nor Brown explicitly teach
this claimed [step], however, as outlined in the
rejection, Brown discloses the use [of] a high cling
plastic stretch film (like Saran Wrap, a polyvinyl
chloride resin) on a waterproof sleeve, which
allows for clinging or adherence to the skin,
bandage, wrapping or a cast in order to aid in
sealing the protector to the user. The rejection
further details the obviousness of substituting the
elastic bands of Orange et al. with any sealing
band or sealing means as long as they provide a
water-tight seal. Thus, the substitution of a high
cling plastic stretch film, such as that disclosed in
Brown would have been obvious and within the
level of ordinary skill in the art in order to allow
the sealing band to cling to the user and/or cast.
Further, since it is well known in the use of cling
wrap, such as Saran Wrap, that it adheres or clings
to itself, it would have been further obvious that
during substitution of the cling wrap for the elastic
bands of Orange et al. to wrap the cling wrap
continuously around the appendage while
stretching in order to create a watertight seal to
seal the opening of the protector against
moisture/liquid.
Ans. 8-9.
Orange discloses a system for supporting and protecting
wounds, incisions, transdermal procedural cites, and associated
medical equipment from moisture and other contaminants. Abstract,
ll. 1-3. The system includes a transparent waterproof tube 90, two
water absorbent dams 50, 60, and two adjustable elastic sealing bands
92, 93. Col. 4, ll. 5-9. The system may or may not include a support
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sleeve 20. Figs. 1 and 15. The water absorbent dams 50, 60 and the
tube 90 are slid onto an appendage of the user with the tube 90
covering the water absorbent dams 50, 60 as well as a wound
dressing, bandage, cast or other site to be protected from moisture or
contamination. Col. 4, ll. 1-6. Then, the elastic sealing bands 92, 93
are slipped over the ends of the tube 90 adjacent to the water
absorbent dams 50, 60 and tightened to form waterproof seals with the
skin of the appendage. Figs. 1, 9, and 10. The edge 94 of the tube 90
is folded down over the elastic sealing bands 92, 93 so as to prevent
water from collecting around the seal. Col. 4, ll. 9-12.
Brown discloses a sleeve 10 for keeping appendages dry while
washing, bathing, showering, etc. Abstract, ll. 1-2. The sleeve 10
includes a lower section 12 and an upper section 16 joined at a seam
14. Col. 3, ll. 3-6. The lower section 12 is made of a waterproof
synthetic plastic material which is stretchable in both longitudinal and
latitudinal planes 100, 101. Col. 3, ll. 4-6. The upper section 16 is
made of a synthetic plastic material. Col. 3, ll. 9-10. The upper
section 16 exhibits a substantial adherence characteristic so that when
it is brought in contact with the body, or with a bandage, wrapping or
cast, it essentially clings to the body, bandage, wrapping or cast in a
similar manner as when a rubber glove is put on and clings to the hand
or forearm or like the clinging associated with Latex or Saran Wrap
material. Col. 3, ll. 10-16. The upper section 16 includes an elastic
band 18 at the top thereof. Col. 3, ll. 27-28. Therefore, the upper
section 16 conforms to the configuration of the appendage it goes
around and the elastic band 18 snugly fits around the appendage
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Application 11/074,280

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without cutting off circulation. Col. 3, ll. 29-33. Together the
stretchable material upper section 16 and elastic band 18 act to
prevent inflow of water into the lower section 12 during washing,
bathing, showering, etc. Col. 3, ll. 33-40.
We agree with Appellant that it would not have been obvious to
one of ordinary skill in the art at the time the invention was made to
include a selecting a roll step and a wrapping step in the resulting
process from the combination of Orange and Brown. The Examiner
has not provided any evidence that a selecting a roll step and a
wrapping step would have been obvious to one of ordinary skill in the
art beyond conclusory statements as quoted above. The Examiner’s
arguments that it would have been obvious to one of ordinary skill in
the art to include a selecting a roll step and wrapping step in the
resulting process from the combination of Orange and Brown are not
probative without any evidence.
Based on the foregoing, we will not sustain the Examiner’s
decision to reject claims 1-3 and 5-9 under 35 U.S.C. § 103(a) over
Orange in view of Brown.
CONCLUSION
The Examiner erred in concluding that it would have been obvious to
one of ordinary skill in the art to include the steps of selecting a roll of
elongated high cling plastic stretch film having particular ranges of
thicknesses and widths and wrapping the film around at least one end of the
bag adjacent to the patient’s arm a plurality of times while stretching the
film to form a waterproof seal in the resulting process from the combination
of Orange and Brown.
Appeal 2009-012042
Application 11/074,280

8
DECISION
The Examiner’s decision to reject claims 1-3 and 5-9 under 35 U.S.C.
§ 103(a) as obvious over Orange in view of Brown is reversed.

REVERSED

Klh

WILLIAM M. HOBBY, III
157 E. NEW ENGLAND AVENUE, #375
WINTER PARK, FL 32789