Ex Parte Bourne et al

Board of Patent Appeals and Interferences

Sep 29, 2010

10434526 (B.P.A.I. Sep. 29, 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.
10/434,526 05/08/2003 George Bourne 010177-0124-999 6895
27774 7590 09/30/2010
MAYER & WILLIAMS PC
251 NORTH AVENUE WEST
2ND FLOOR
WESTFIELD, NJ 07090
EXAMINER
BOUCHELLE, LAURA A
ART UNIT PAPER NUMBER
3763
MAIL DATE DELIVERY MODE
09/30/2010 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 GEORGE BOURNE and ROBERT RIOUX
____________________

Appeal 2009-000949
Application 10/434,526
Technology Center 3700
____________________

Before JOHN C. KERINS, STEVEN D.A. McCARTHY and
KEN B. BARRETT, Administrative Patent Judges.

McCARTHY, 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 on the PTOL-90A cover letter attached to this decision.
Appeal 2009-000949
Application 10/434,526

2
STATEMENT OF THE CASE
The Appellants appeal under 35 U.S.C. § 134 from the Examiner’s
decision finally rejecting claims 1, 5, 6, 9, 10, 13 and 14 under 35 U.S.C.
§ 103(a) as being as being unpatentable over Abramson (US 5,620,424,
issued Apr. 15, 1997) and Eplett (US 5,505,695, issued Apr. 9, 1996); and
finally rejecting claims 11 and 12 under § 103(a) as being unpatentable over
Abramson, Eplett and Gray (US 6,700,032 B1, issued Mar. 2, 2004). We
have jurisdiction under 35 U.S.C. § 6(b).
The Appellants state in their Appeal Brief that “[t]he appeal as to
claims 1-5, 7 and 8 is hereby withdrawn.” (App. Br. 2). Therefore, we
DISMISS the appeal as to claims 1-5, 7 and 8. The rejections of claims 6
and 9-14 remain for review.
We do not sustain the rejections of claims 9, 10, 13 and 14 under
§ 103(a) as being as being unpatentable over Abramson and Eplett. Neither
do we sustain the rejections of claims 11 and 12 under § 103(a) as being
unpatentable over Abramson, Eplett and Gray.
Claim 9 is the sole independent claim remaining on appeal:
9. A method of preventing microbial
infection resulting from the insertion into the body
of a patient of a medical device, comprising the
steps of:
(1) obtaining a cuff comprising a polymeric
material charged with an antimicrobial agent,
wherein the cuff is substantially free of an
adhesive for adhering the cuff to the patient’s
body; and
(2) removably attaching said cuff to the
medical device immediately prior to or
immediately after insertion of the medical device
Appeal 2009-000949
Application 10/434,526

3
in the body, wherein the cuff is attached in a
manner such that the cuff is located outside the
body and in the proximity of the point of entry of
the medical device into the body, and remains
outside of the body and in proximity to the point of
insertion into the body at all times after insertion
into the body.
Abramson discloses a catheter accessory device 10 for preventing
catheter related infection. The device 10 includes a substantially disk-
shaped body 20 having a centrally disposed aperture 22, defined by a
catheter sleeve 24, for accommodating a catheter disposed therethrough.
(Abramson, col. 3, ll. 48-54). Abramson discloses two embodiments of the
body 20. In the first embodiment, the body 20 includes a top surface 30, a
bottom surface 32, and an outer sidewall 34. Surfaces 30 and 32, sidewall
34 and sleeve 24 cooperate to form an enclosed space or reservoir 38 for
containing a supply of antiseptic or antibiotic therein. (Abramson, col. 4,
ll. 3-7). The bottom surface 32 includes a plurality of apertures 40 for
dispensing the antiseptic or antibiotic from the reservoir 38 to provide a
source of medication at the point of catheter insertion into the body.
(Abramson, col. 4, ll. 11-15). In the second embodiment, the body 20
includes a bottom surface. An antiseptic impregnated patch 50 is fixed to
the bottom surface 32 for providing a source of medication to the
catheterization site. (Abramson, col. 4, ll. 41-45).
Abramson’s device 10 is slidably attached to a catheter. After
attachment, the device 10 is positioned adjacent the catheterization site in
contact with the tissue surrounding the site. Antiseptic or antibiotic solution
is dispersed on the tissue surrounding the catheterization site by way of the
apertures 40 or the impregnated pad 50. (Abramson, col. 5, ll. 29-39).
Appeal 2009-000949
Application 10/434,526

4
Eplett discloses a cylindrical antiseptic cuff 4 constructed of
biocompatible sponge or foam material disposed circumferentially about the
catheter shaft 1. The cuff 4 may be charged with an antimicrobial substance.
When the catheter shaft 1 is inserted into the body, the cuff 4 forms a sterile
occlusive interface between the catheter shaft 1 and the surrounding tissues.
(Eplett, col. 3, ll. 14-38). Eplett does not appear to teach the cuff remaining
outside of the body and in proximity to the point of insertion after the
catheter shaft 1 is inserted into the body.
The Examiner concludes that it would have been obvious “to modify
the antiseptic solution of Abramson to be charged in a polymeric foam as
taught by Eplett so that the cuff forms a snug fit with the catheter.” (Ans. 4).
As the Appellants point out (see App. Br. 7), the substitution of a polymeric
foam for the reservoir of Abramson’s device would not have resulted in a
snug fit between the device and the catheter due to the intervention of the
catheter sleeve 24 between the catheter and the reservoir 38.
The Examiner additionally concludes that it would have been obvious
“to replace the reservoir holding the antimicrobial agent in Abramson with a
material impregnated with antimicrobial agent as taught by Eplett because
both are well known methods for delivering a therapeutic agent to the body.”
(Ans. 5). Abramson teaches a device 10 positioned adjacent a
catheterization site which dispenses antiseptic or antibiotic solution on the
tissue surrounding the catheterization site. (Abramson, col. 5, ll. 35-39).
Eplett teaches a cuff 4 which forms a sterile occlusive interface between the
catheter shaft 1 and the surrounding tissues after insertion into the body.
(Eplett, col. 3, ll. 14-38 and fig. 1). In view of the differences in structure
and function between the two, the Examiner’s finding that “both are well
Appeal 2009-000949
Application 10/434,526

5
known methods for delivering a therapeutic agent to the body” is too general
to adequately support the Examiner’s conclusion that the substitution of one
for a portion of the other would have been obvious. We do not sustain the
rejection of claim 9, or of its dependent claims 10, 13 and 14 under § 103(a)
as being unpatentable over Abramson and Eplett.
The Examiner finds that:
Gray discloses a method of wound care
management including providing a bandage or
dressing comprising a polymeric material with one
or more therapeutically active compounds such as
[an] antimicrobial agent incorporated in the
polymeric matrix. (Col. 2, lines 2-5). Gray further
discloses that suitable polymeric materials include
but are not limited to a group including
polyurethane and latex (Col. 3, lines 20-27).
These materials allow a therapeutically effective
amount of the compound to be contained within
dressing (Col. 3, lines 8-12).
(Ans. 4-5). The Examiner provides no persuasive reasoning explaining how
Gray might remedy the deficiencies in the combined teachings of Abramson
and Eplett discussed in connection with the rejection of claim 9. We do not
sustain the rejection of claims 11 and 12 under § 103(a) as being
unpatentable over Abramson, Eplett and Gray.
Claim 6 depends from claim 1 and recites a cuff in which the
polymeric material comprises a slit therein to facilitate attachment of the
cuff to the medical device and in which the cuff further comprises a spreader
having tabs, wherein the spreader is attached to the polymeric material.
Abramson discloses that the catheter sleeve 24 includes a pair of extending
tabs 26 for grasping the device 10. Abramson teaches using the tabs 26 for
sliding the body 20 along a catheter inserted through the catheter sleeve 24
Appeal 2009-000949
Application 10/434,526

6
as well as for suturing the body 20 in place against the catheterization site.
(Abramson, col. 3, l. 64 – col. 4, l. 2).
Although the Examiner finds that the tabs 26 correspond to the tabs
recited in claim 6, the Examiner does not persuasively explain how the
catheter sleeve 24 and the tabs 26 together form a spreader. The tabs 26 are
positioned opposite each other on the catheter sleeve 24 and extend radially
outwardly. Since the Examiner cites to nothing in Abramson which
describes the catheter sleeve 24 and the tabs 26 as a spreader, Abramson’s
disclosure does not support the finding that these elements together are a
spreader as recited in claim 6. Since the Examiner fails to persuasively
explain how Abramson’s teachings regarding these elements would have
provided one of ordinary skill in the art reason to modify Abramson to
include a spreader, we do not sustain the rejection of claim 6 under § 103(a)
as being unpatentable over Abramson and Eplett.

DECISION
We DISMISS the appeal as to claims 1-5, 7 and 8.
We REVERSE the Examiner’s decision rejecting claims 6 and 9-14.
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) (2007).

REVERSED
Klh

MAYER & WILLIAMS PC
251 NORTH AVENUE WEST
2ND FLOOR
WESTFIELD, NJ 07090