10963053 (B.P.A.I. Jun. 11, 2009)

Ex Parte Gvozdic

Board of Patent Appeals and InterferencesJun 11, 2009

10963053 (B.P.A.I. Jun. 11, 2009)

UNITED STATES PATENT AND TRADEMARK OFFICE ____________ BEFORE THE BOARD OF PATENT APPEALS AND INTERFERENCES ____________ Ex parte NEDELJKO VLADIMIRA GVOZDIC ____________ Appeal 2009-001939 Application 10/963,053 Technology Center 1700 ____________ Decided:1 June 11, 2009 ____________ Before BRADLEY R. GARRIS, PETER F. KRATZ, and MICHAEL P. COLAIANNI, Administrative Patent Judges. GARRIS, Administrative Patent Judge. DECISION ON APPEAL Appellant appeals under 35 U.S.C. § 134 from the Examiner’s decision rejecting claim 1. We have jurisdiction under 35 U.S.C. § 6. 1 The two-month time period for filing an appeal or commencing a civil action, as recited in 37 C.F.R. § 1.304, begins to run from the Decided Date shown on this page of the decision. The time period does not run from the Mail Date (paper delivery) or Notification Date (electronic delivery). Appeal 2009-001939 Application 10/963,053 We AFFIRM for the reasons expressed in the Answer and below. Statement of the Case Appellant claims a reinforced polyvinyl alcohol structure comprising a physically cross linked polyvinyl alcohol based matrix derived from a bulk physically crosslinkable polyvinyl alcohol hydrogel and an untreated reinforcing material for the matrix. Claim 1 reads as follows: 1. A reinforced polyvinyl alcohol structure, said structure having (A) a physically cross linked polyvinyl alcohol based matrix derived from a bulk physically crosslinkable polyvinyl alcohol hydrogel and (B) a reinforcing material capable of reinforcing said matrix wherein the reinforcing material is not treated to modify the reinforcing material prior to use in the reinforced polyvinyl alcohol structure. The prior art set forth below is relied upon by the Examiner as evidence of obviousness: Anderson 3,998,215 Dec. 21, 1976 The Admitted Prior Art (APA) described in the Specification (p. 5, second full para.). The Examiner rejects claim 1 under 35 U.S.C. § 103(a) as being unpatentable over Anderson in view of the APA. The Examiner finds Anderson discloses all aspects of claim 1 except for the claim requirement that the polyvinyl alcohol matrix is a physically crosslinked matrix derived from a bulk hydrogel (Ans. 3). The Examiner also finds Appellant has admitted that it was known in the prior art to use physically crosslinked bulk polyvinyl alcohol hydrogels in reinforced structures (Ans. para. bridging 3-4). Based on these findings, the Examiner 2 Appeal 2009-001939 Application 10/963,053 concludes that it would have been obvious to make Anderson’s reinforced structure (i.e., gel pads) from a physically crosslinked polyvinyl alcohol hydrogel in view of the APA (id.). Issue Has Appellant shown error in the Examiner’s above-noted findings and thereby shown error in the Examiner’s ultimate conclusion of obviousness? Findings of Fact Consistent with the Examiner’s findings, Anderson discloses a fiber reinforced gel pad structure made from polyvinyl alcohol hydrogel (col. 2, ll. 42-47; col. 3, ll. 11-17). The procedures for making gel pad structures in Anderson’s examples do not include any treatment for modifying the reinforcing fiber material prior to use in the gel pad structure (cols. 5-6, exs. I-III). The second full paragraph on page 5 of Appellant’s Specification describes prior art “related to reinforced, laminated, composite, and impregnated structures of physically cross linked, bulk . . . polyvinyl alcohol hydrogels” (Spec. 5, ll. 13-15). Principles of Law On appeal to the Board, an applicant can overcome a rejection under 35 U.S.C. § 103(a) by showing insufficient evidence of prima facie obviousness or by rebutting the prima facie case with evidence of secondary indicia of nonobviousness. In re Kahn, 441 F.3d 977, 985-86 (Fed. Cir. 2006). 3 Appeal 2009-001939 Application 10/963,053 Analysis In this appeal, Appellant attempts to overcome the Examiner’s § 103 rejection by showing insufficient evidence of prima facie obviousness. Specifically, Appellant argues that the Examiner’s findings regarding the APA and Anderson are erroneous. Concerning the APA, “Appellant denies that an admission was made in the [S]pecification as the Examiner alleges” (Br. 12). According to Appellant, “[t]he paragraph in question [i.e., the second full paragraph on Specification page 5] pertains to covalent cross linking because physically cross linking of the polymers did not exist prior to this invention” (id.). For a number of reasons, Appellant has not shown error in the finding by the Examiner concerning the APA. First, the literal wording of the Specification paragraph under consideration contradicts Appellant’s assertion that it “pertains to covalent crosslinking because physically cross linking of the polymers did not exist prior to this invention” (id.). In particular, the paragraph discloses: “the prior art[, which was] found [by applicant,] that is related to reinforced, laminated, composite, and impregnated structures of physically cross linked, bulk and cellular polyvinyl alcohol hydrogels[,] teach the use of polyvinyl alcohol fibrils to reinforce bulk polyvinyl alcohol hydrogels” (Spec. 5, ll. 13- 16). By its literal terms (i.e., “the prior art . . . is related to reinforced . . . structures of physically cross linked, bulk . . . polyvinyl alcohol hydrogels” (id.)), this Specification language pertains to physically crosslinking, not covalent crosslinking as urged by Appellant. Second, other portions of Appellant’s Specification support the Examiner’s interpretation of the paragraph in question as an admission by 4 Appeal 2009-001939 Application 10/963,053 Appellant that physically cross linked bulk polyvinyl alcohol hydrogels were known in the prior art. For example, this interpretation is supported by the Specification disclosure: “A review of the prior art has disclosed only two patents which cover the method of preparation and the composition of matter for reinforcement of physically cross linked bulk polyvinyl alcohol hydrogels with short polyvinyl alcohol fibers” (Spec. 4, ll. 10-12, emphasis added). Appellant also argues that the Examiner erred in finding that, consistent with the appealed claim, Anderson’s fiber reinforcing material is not treated prior to use in the reinforced polyvinyl alcohol structure. According to Appellant, “Anderson teaches that the fibrils have to be soaked in a solvent for a certain time to soften them” (Br. 12). Appellant has offered no support whatsoever for this argument. On the other hand, the Examiner expressly finds that Anderson does not teach fiber pretreatment (Ans. para. bridging 3-4, last sentence) and supports this finding by reference to the disclosure in Examples I-III of Anderson (id. at para. bridging 4-5, last three sentences). Significantly, Appellant does not challenge in the record of this appeal the Examiner’s position that Anderson’s Examples support the finding under consideration. For these reasons, Appellant’s argument reveals no error in this finding. Conclusions of Law Appellant has not shown error in the Examiner’s above-noted findings and therefore also has not shown error in the Examiner’s ultimate conclusion of obviousness. For this reason, we sustain the Examiner’s § 103 rejection of the appealed claim as being unpatentable over Anderson in view of the APA. 5 Appeal 2009-001939 Application 10/963,053 Order The decision of the Examiner is affirmed. No time period for taking any subsequent action in connection with this appeal may be extended under 37 C.F.R. § 1.136(a) (2008). AFFIRMED ssl MCKELLAR IP LAW, PLLC 784 SOUTH POSEYVILLE ROAD MIDLAND, MI 48640 6