Ex Parte Hodgkinson

Patent Trial and Appeal Board

Feb 8, 2019

13955631 (P.T.A.B. Feb. 8, 2019)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
13/955,631 07/31/2013
50855 7590
Covidien LP
60 Middletown A venue
Mailstop 54, Legal Dept.
North Haven, CT 06473
02/12/2019
FIRST NAMED INVENTOR
Gerald Hodgkinson
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
ATTORNEY DOCKET NO. CONFIRMATION NO.
H-US-03780 (203-9363) 4479
EXAMINER
TOLIN, MICHAEL A
ART UNIT PAPER NUMBER
1745
NOTIFICATION DATE DELIVERY MODE
02/12/2019 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):
rs. patents. two@medtronic.com
docket@carterdeluca.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte GERALD HODGKINSON
Appeal2017-010418
Application 13/955,631
Technology Center 1700
Before MICHAEL P. COLAIANNI, GEORGIANNA W. BRADEN, and
JENNIFER R. GUPTA, Administrative Patent Judges.
COLAIANNI, Administrative Patent Judge.
DECISION ON APPEAL
Appeal2017-010418
Application 13/955,631
Appellant1 appeals under 35 U.S.C. § 134 the final rejection of
claims 1-6, 9, and 11-15. Claims 10 and 16-19 are withdrawn. We have
jurisdiction over the appeal pursuant to 35 U.S.C. § 6(b).
We AFFIRM.
The invention is directed to a method of making a surgical buttress
having a hydrophilic surface treatment for improved wettability and cellular
attachment. ( claim 1; Spec. ,r 2).
Claim 1 is illustrative:
1. A method comprising:
generating a plurality of fibers comprising a biodegradable
polymer selected from the group consisting of lactide homopolymer,
glycolide homopolymer, polydioxanone homopolymer, glycolide
trimethylene carbonate copolymer, glycolide lactide copolymer,
glycolide dioxanone trimethylene carbonate copolymer, and glycolide
caprolactone trimethylene carbonate lactide copolymer;
collecting the plurality of fibers so that they adhere to one
another and form a non-woven material;
plasma treating at least a portion of an outer surface of the non-
woven material with an ionizable gas species or combination of
ionizable gas species configured to functionalize the outer surface of
the non-woven material;
cutting the non-woven material into a desired shape for a
surgical buttress; atttaching the surgical buttress to tissue; and
producing collagen on the surgical buttress.
Appellant appeals the following rejections:
1. Claims 1-3, 9, 12, and 15 are rejected under 35 U.S.C. § 103(a) as
unpatentable over Bauman (US 7,547,312 B2, issued June 16, 2009)
in view of Hayes (US 6,165,217 issued Dec. 26, 2000), Sheu
1 According to the Appeal Brief, the real party in interest is listed as
"Covidien LP" (App. Br. 1 ).
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Application 13/955,631
(US 5,700,559, issued Dec. 23, 1997), and Wohlert
(US 2006/0147488 Al, published July 6, 2006).
2. Claim 14 is rejected under 35 U.S.C. § I03(a) as unpatentable over
Bauman in view of Hayes, Sheu, Wohlert and Stopek
(US 2008/0140115 Al, published June 12, 2008).
3. Claims 1---6, 9, 11, 12, and 14 are rejected under 35 U.S.C. § I03(a) as
unpatentable over McKean (insert cite) in view of Jordan (US
7,700,500 B2, issued Apr. 20, 2010), Butin (US 3,849,241, issued
Nov. 19, 1974), Sheu, Wohlert, and Bauman.
4. Claim 13 is rejected under 35 U.S.C. § I03(a) as unpatentable over
McKean in view of Jordan, Butin, Sheu and Wohlert, optionally
Bauman, and further in view of Reichmann (US 2004/0166758 Al,
published Aug. 26, 2004).
5. Claim 15 is rejected under 35 U.S.C. § I03(a) as unpatentable over
McKean in view of Jordan, Butin, Sheu, Wohlert, optionally Bauman,
and further in view of Stopek.
With regard to all rejections, Appellant's arguments focus on the subject
matter of independent claim 1 only (App. Br. 3-11). Accordingly, any claim
not argued separately will stand or fall with our analysis of claim 1 under
rejections (1) and (3).
FINDINGS OF FACT & ANALYSIS
REJECTIONS (1) AND (2)
The Examiner finds that Bauman teaches forming a nonwoven
hydrophilic surgical buttress, but does teach generating a plurality of fibers
and collecting the plurality of fibers so that they adhere to one another and
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Application 13/955,631
form a nonwoven material, plasma treating at least a portion of the outer
surface of the non woven material with an ionizable gas species, or
producing collagen on the surgical buttress (Final Act. 2-3). The Examiner
finds that Bauman teaches using Hayes' process to form a non woven web of
material (Final Act. 3). The Examiner concludes that it would have been
obvious to use Hayes' process of gathering and adhering fibers to form a
nonwoven material with Bauman's process since Bauman prefers Hayes'
process for manufacturing the nonwoven web (Final Act. 3).
The Examiner finds that Bauman teaches treating the web to render it
hydrophilic but does not limit the process to any particular method making
the material hydrophilic (Final Act. 3). The Examiner finds that Sheu
teaches using a plasma or corona discharge to functionalize the surface of
the nonwoven material and render the nonwoven material hydrophilic (Final
Act. 3--4). The Examiner concludes that it would have been obvious to use
Sheu's plasma treatment of the nonwoven material with Bauman's process
to render the surface of the nonwoven material hydrophilic as sought by
Bauman (Final Act. 3).
The Examiner relies on Wohlert to teach that it is known that collagen
naturally forms around wounds and foreign material placed in a body (Final
Act. 5).
Appellant argues that none of the applied prior art teaches a plasma
treatment that functionalizes the outer surface of an article (App. Br. 4).
Appellant contends that Sheu plasma treats an ionic polymer layer and then
applies a polyelectrolyte coating thereto to form its hydrophilic surface
coating (App. Br. 4). Appellant argues that Sheu's plasma treatment allows
for ionic bonding between the ionic polymer and the polyelectrolyte coating
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applied thereto (App. Br. 4). Appellant contends that in light of Sheu's
teachings a person of ordinary skill in the art would have used plasma to
treat a surface and then applied a hydrophilic coating to the treated surface
(App. Br. 5). Appellant argues that the Examiner misconstrues Sheu and a
person of ordinary skill would understand that Sheu requires a coating and
would not simply use Sheu to plasma treat a surface (Reply Br. 2).
The Examiner correctly finds that claim 1 uses the open-ended
transitional language "comprising" and does not exclude Sheu's coating on
the plasma treated polymer (Ans. 15). The Examiner's claim construction is
reasonable in view of Appellant's disclosure that the invention may include
a coating on the functionalized surface (Spec. ,r 47).
Sheu teaches plasma treating the polymeric surface to produce a
variety of ionic polymer groups on the polymer layer (Sheu col. 6, 11. 28-30,
3 9-41 ). Sheu discloses that a disordered polyelectrolyte coating is ionically
bonded to at least one face of the ionic polymeric membrane to form a
hydrophilic surface ( col. 3, 11. 66-67, col. 4, 1. 1 ). Thus, Sheu teaches that a
hydrophilic surface may be obtained by using plasma to ionize the surface
and then coating the surface with polyelectrolyte that bonds to the ionically
formed surface. Furthermore, a preponderance of the evidence favors the
Examiner's conclusion that claimed subject matter would have been obvious
in view of Bauman, Hayes, Wohlert and Sheu. Appellant's arguments do
not persuade us that the Examiner reversibly erred.
On this record, we affirm the Examiner's§ 103(a) rejections (1) and
(2) above.
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REJECTIONS (3) to (5)
The Examiner's findings and conclusions are located on pages 6-11
of the Final Action. The Examiner finds that McKean teaches the subject
matter of claim 1, except for, in relevant part, plasma treating at least a
portion of the outer surface of the non woven material with an ionizable gas
species (Final Act. 6-7). The Examiner finds that Jordan teaches treating
the outer surface of the material non woven web to render it hydrophilic for
applications such as sutures and tissue scaffolds where the material is used
in a body (Final Act. 8). The Examiner finds Sheu teaches using a plasma
treatment to render a polymer hydrophilic (Final Act. 9). The Examiner
finds that Sheu teaches treating a nonwoven material with a plasma
treatment to render it hydrophilic (Final Act. 9). The Examiner finds that
Sheu and McKean treat similar polymeric materials such that it would have
been obvious to use Sheu's plasma treatment in McKean's method in order
to provide a suitable hydrophilic treatment or a durable hydrophilic
treatment in accord with the teachings of Sheu as the hydrophilic treatment
suggested by Jordan and Bauman (Final Act. 9).
Appellant argues Jordan does not disclose that the corona glow
discharge treatments functionalize the surface of the non-woven material
(App. Br. 8). Appellant contends Jordan teaches away from using plasma
treatments because Jordan teaches that the hydrophilicity imparted by
plasma and corona glow treatments degenerates over time (App. Br. 8).
Appellant argues that the Examiner has not provided a reasoned explanation
for combining these references (App. Br. 9).
Contrary to Appellant's arguments, the preponderance of the evidence
favors the Examiner's determination that one of ordinary skill in the art
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would have combined the plasma treatments of Sheu and Jordan with
McKean in order to impart hydrophilicity to the nonwoven material in
McKean. The Examiner has provided a reasoned analysis of why one of
ordinary skill in the art would have combined the teachings of McKean,
Jordan, Butin, Sheu, Wohlert and Bauman (Final Act. 6-11). As noted
above with regard to rejection (1 ), the claims do not exclude the additional
hydrophilic coating that is applied after the plasma treatment in Sheu.
Jordan's teaching that wettability of plasma treated polymers degrades after
treatment does not teach away from the using plasma but rather merely
indicates the durability of the hydrophilic surface may not be that good.
Claim 1, however, does not recite any level of durability to the hydrophilic
treatment as found by the Examiner (Ans. 17).
Moreover, we note that Jordan teaches forming a hydrophilic surface
by corona glow discharge or plasma field to form a hydrophilic surface
(col. 3, 1149--52; col. 11, 11. 59--61). Jordan teaches that a coating may be
applied to the treated surface (col. 3, 11. 52-56; col. 11, 11. 36-61). Jordan
teaches that the plasma/corona glow discharge treatments impart a durable
hydrophilic surface ( col. 12, 11. 61---66). Again, claim 1 does not exclude the
additional coating on the nonwoven material. Jordan does not teach away
from using a plasma treatment to impart hydrophilicity to a polymeric
material. Rather, Jordan teaches that the corona glow discharge or plasma
field treatment alters the surfaces of the substrate by raising the surface
energy of the surface (col. 11, 11. 59--67, col. 12, 11. 1-8). The Specification
equates functionalization with chemically modifying the non-woven material
(Spec. ,r,r 5, 14, 84). Jordan, like Sheu, teaches that the plasma and corona
glow discharge treatments alter the surface properties of the material treated.
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In other words, Sheu and Jordan teach using a plasma or corona glow
discharge to modify chemically or functionalize the polymeric material.
On this record, we affirm the Examiner's rejections (3) to (5).
DECISION
The Examiner's decision 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)(l)(iv). See
37 C.F.R. § 41.50(±).
ORDER
AFFIRMED
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