Ex parte MILNER

Board of Patent Appeals and Interferences

Jul 2, 1998

08049613 (B.P.A.I. Jul. 2, 1998)

Application for patent filed April 16, 1993. According to the appellant, the1
application is a continuation of Application 07/659,395, filed February 21, 1991,
abandoned, which is a national stage application under 35 U.S.C. § 371 of
PCT/GB89/00978, filed August 23, 1989.
1
THIS OPINION WAS NOT WRITTEN FOR PUBLICATION
The opinion in support of the decision being entered today (1) was not written for
publication in a law journal and (2) is not binding precedent of the Board.
Paper No. 34
UNITED STATES PATENT AND TRADEMARK OFFICE
__________
BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
__________
Ex parte RICHARD MILNER
__________
Appeal No. 95-3875
Application 08/049,6131
___________
ON BRIEF
___________
Before WEIFFENBACH, PAK and OWENS, Administrative Patent Judges.
OWENS, Administrative Patent Judge.
DECISION ON APPEAL
This is an appeal from the examiner’s final rejection of claims 1, 2, 4-7, 18 and
20-22, which are all of the claims remaining in the application.
Appeal No. 95-3875
Application 08/049,613
2
THE INVENTION
Appellant claims a method for making an antimicrobial glove wherein, after a
natural rubber latex has been formed into a glove but before the latex is cured, the
latex is dipped into a solution of an antimicrobial agent such that an effective amount of
the antimicrobial agent is incorporated throughout the latex. Claim 1 is illustrative and
reads as follows:
1. A method for the manufacture of an antimicrobial rubber article formed from
a natural rubber latex which method comprises incorporating an effective amount of an
antimicrobial agent, throughout the natural rubber latex after the article has been
shaped or formed but before the article has been cured by dipping a glove shape of
uncured natural rubber latex into a solution of an antimicrobial agent.
THE REFERENCES
Stephenson 3,987,797 Oct. 26, 1976
Mochizuki et al. (Mochizuki) 4,675,347 Jun. 23, 1987
Stockum 4,853,978 Aug. 8, 1989
THE REJECTION
Claims 1, 2, 4-7, 18 and 20-22 stand rejected under 35 U.S.C. § 103 as being
unpatentable over Stockum in view of Stephenson and Mochizuki.
OPINION
We have carefully considered all of the arguments advanced by appellant and
the examiner and agree with appellant that the aforementioned rejection is not well
founded. Accordingly, this rejection will be reversed.
Stockum discloses a method for making an antimicrobial rubber medical glove
Appeal No. 95-3875
Application 08/049,613
Optionally, the antimicrobial layer can be applied to both the inside and outside2
surfaces of the glove (col. 2, lines 3-6).
Alternatively, the antimicrobial agent can be included in a cornstarch powder3
layer, but such a powder layer is applied after the glove has been cured (col. 2, lines
56-59; col. 2, line 62 - col. 3, line 2).
3
wherein after the glove has been formed from a natural rubber latex, but before the
latex is cured, an antimicrobial layer is applied to the inner surface of the glove (col. 1,
lines 44-51; col. 5, lines 27-34). The antimicrobial layer is a low coefficient of friction2
elastomeric layer which includes an antimicrobial agent (col. 4, lines 7-27; col. 5, lines
27-34). Stockum states that the antimicrobial agent is expensive and that because the3
inner layer is a minor portion of the glove, the glove is more economical than it would
be if the antimicrobial agent were incorporated in the entire glove (col. 1, line 66 - col.
2, line 2).
Stephenson discloses coating any of a variety of surgical aids with an ionically
bonded block elastomeric copolymer of a polyquaternary polyurethane and a
polyanionic polymer such as heparin (col. 1, lines 45-51; col. 2, lines 11-13). A surgical
aid so coated is receptive to treatment with an anionic or cationic antimicrobial
compound, and the antimicrobial compound can be applied by immersing the surgical
aid in an aqueous solution of the compound and then either drying the surgical aid or
using it without the drying step (col. 1, lines 51-52; col. 6, lines 27-31). The
antimicrobial compound is retained by the elastomeric heparin polymer and is slowly
Appeal No. 95-3875
Application 08/049,613
4
released (col. 5, lines 15-18; col. 6, lines 47-50).
The portion of Mochizuki relied upon by the examiner (answer, page 4) teaches
that mixing cationic antimicrobial agents with conventional natural rubber latices
causes the natural rubber latices to either gel instantaneously or have an unduly short
pot life (col. 2, lines 44-51). Mochizuki discloses that antimicrobial latex compositions
having sufficiently long pot life to be molded into products including medical devices
are produced by incorporating a cationic antimicrobial agent into a cationic natural or
synthetic rubber latex (col. 3, lines 20-42).
The examiner argues that substitution of Stephenson’s aqueous antimicrobial
solution for Stockum’s polymeric solution would have been obvious to one of ordinary
skill in the art who was not concerned with expense and who desired an even
distribution of antimicrobial agent throughout a surgical glove (answer, pages 3-4).
This argument is not persuasive because the examiner has not pointed out where
Stephenson discloses that his aqueous solution distributes throughout the surgical aid.
Stephenson states that his antimicrobial composition is retained by the elastomeric
heparin polymer layer on the surface of the surgical aid (col. 6, lines 27-28 and 47-50),
which indicates that the antimicrobial composition does not disperse throughout the
surgical aid.
The examiner argues that permeation of antimicrobials is a direct result of
dipping an uncured glove into an aqueous antimicrobial solution (answer, page 5).
Appeal No. 95-3875
Application 08/049,613
5
This argument is not well taken because in the reference relied upon by the examiner
for a teaching of contacting an article with an aqueous solution, i.e., Stephenson, the
aqueous antimicrobial solution contacts a polymer layer on the surface of the article
and is incorporated into that layer (col. 6, lines 28-29 and 48-50). We do not find in the
references relied upon by the examiner a fair suggestion to dip an article which does
not have such a polymer layer into an aqueous antimicrobial solution.
The examiner argues that Stockum desires to eliminate permeation by using a
polymeric coating so that the antimicrobials are not incorporated throughout the entire
glove (answer, pages 6-7). The examiner, however, does not point to any recognition
by either Stockum or Stephenson that an aqueous antimicrobial solution would
permeate through an uncured natural rubber latex article. The disclosure by Stockum
regarding incorporating antimicrobials throughout the entire glove does not mention
how the antimicrobials are incorporated. The examiner has provided no evidence that
one of ordinary skill in the art would have considered an effective method for such
incorporation to be permeation after the glove is formed but before it is cured. The
antimicrobials could merely be mixed with the rubber latex before the glove is formed.
For the above reasons, we conclude that the examiner has not carried his
burden of establishing a prima facie case of obviousness of appellant’s claimed
invention.
DECISION
Appeal No. 95-3875
Application 08/049,613
6
The rejection of claims 1, 2, 4-7, 18 and 20-22 under 35 U.S.C. § 103 as being
unpatentable over Stockum in view of Stephenson and Mochizuki is reversed.
REVERSED

CAMERON WEIFFENBACH )
Administrative Patent Judge )
)
)
) BOARD OF PATENT
CHUNG K. PAK )
Administrative Patent Judge ) APPEALS AND
)
) INTERFERENCES
)
TERRY J. OWENS )
Administrative Patent Judge )
Appeal No. 95-3875
Application 08/049,613
7
Simon B. Anolick, Esq.
Gardner, Carton & Douglas
321 North Clark Street
Suite 3400
Chicago, IL 60610