Jan Smith et al.

Patent Trials and Appeals Board

Sep 18, 2020

12592710 - (D) (P.T.A.B. Sep. 18, 2020)

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.
12/592,710 12/01/2009 Jan G. Smith 9737-26/2334.00 5546
20792 7590 09/18/2020
MYERS BIGEL, P.A.
PO BOX 37428
RALEIGH, NC 27627
EXAMINER
LEE, WENG WAH
ART UNIT PAPER NUMBER
3783
NOTIFICATION DATE DELIVERY MODE
09/18/2020 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):
myersbigel_pair@firsttofile.com
uspto@myersbigel.com
PTOL-90A (Rev. 04/07)

UNITED STATES PATENT AND TRADEMARK OFFICE
__________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
__________

Ex parte JAN G. SMITH and PETER ROBERTSSON
__________

Appeal 2020-001147
Application 12/592,710
Technology Center 3700
__________

Before CHARLES N. GREENHUT, MICHAEL L. HOELTER, and
ANNETTE R. REIMERS, Administrative Patent Judges.

PER CURIAM

DECISION ON APPEAL
Pursuant to 35 U.S.C. § 134(a), Appellant1 appeals from the
Examiner’s decision to reject claims 1, 2, 6–19, and 21–23. Claims 3–5, 20,
24, and 25 have been canceled. See Final Act. 1–2. We have jurisdiction
under 35 U.S.C. § 6(b).
We REVERSE.

1 We use the word “Appellant” to refer to “applicant” as defined in 37
C.F.R. § 1.42. Appellant identifies the real party in interest as Abigo
Medical AB. Appeal Br. 2.
Appeal 2020-001147
Application 12/592,710

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STATEMENT OF THE CASE
The claims are directed to a method of treating a wound. Claim 1,
reproduced below, is illustrative of the claimed subject matter:
1. A method of treating a wound, comprising:
a) providing a wound dressing consisting of a hydrophobic
fabric that is treated to bind microorganisms through
hydrophobic interaction, wherein the hydrophobic fabric is a
cellulose acetate gauze treated with a compound containing
hydrophobic groups selected from the group consisting of dialkyl
carbamoyl chloride, dioctadecyl carbamoyl chloride and alkyl
ketene dimers, and wherein the wound dressing does not contain
an antimicrobial substance;
b) placing the hydrophobic fabric so that it faces the
wound; and
c) applying negative pressure therapy to the wound
dressing, thereby treating the wound.

REFERENCES
The prior art relied upon by the Examiner:
Name Reference Date
Björnberg US 4,617,326 Oct. 14, 1986
Smith US 7,648,488 B2 Jan. 19, 2010
Han CN 87101823 B2 Oct. 5, 1988

REJECTION
Claims 1, 2, 6–19, and 21–23 are rejected under 35 U.S.C. § 103(a) as
unpatentable over Smith, Han, and Björnberg. Final Act. 3.

2 The Examiner refers to this reference as “Han” and provides an English
language translation therefor, which we shall refer to hereinafter.
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OPINION
The Examiner finds that Smith discloses a method of treating a
wound, the method comprising the steps of providing a wound dressing,
placing the wound dressing so that it faces the wound, and applying negative
pressure therapy to the wound dressing. Final Act. 3 (citing Smith 8:18–28;
5:17–19). The Examiner acknowledges that Smith does not disclose that the
wound dressing consists of a fabric, wherein the fabric is a cellulose acetate
gauze that does not contain an antimicrobial substance; however, the
Examiner relies on Han for this missing limitation. Id. at 3–4 (citing Han p.
1, first para.; p. 2, third and sixth paras.; claims 1, 2). The Examiner
concludes that it would have been obvious to a skilled artisan to modify the
wound dressing of Smith to consist of a cellulose acetate gauze without an
antimicrobial substance to “prevent wound adhesion.” Id. at 4.
The Examiner also acknowledges that Smith in view of Han does not
disclose a wound dressing consisting of a hydrophobic fabric that is treated
to bind microorganisms through hydrophobic interaction, wherein the
hydrophobic fabric is treated with “a compound containing hydrophobic
groups . . . consisting of dialkyl carbamoyl chloride, dioctadecyl carbamoyl
chloride and alkyl ketene dimers.” Final Act. 3–4. However, the Examiner
relies on Björnberg for this missing limitation. Id. at 5 (citing Björnberg
1:26–30, 2:12–19). The Examiner concludes that it would have been obvious
to a skilled artisan to modify the wound dressing of Smith and Han by
treating the wound dressing with a compound containing a hydrophobic
group (i.e., “dioctadecyl carbamoyl chloride”) as taught by Björnberg, “to
provide a more extensive removal of bacterial and other microorganisms
from a wound site.” Id. at 5.
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Application 12/592,710

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Appellant argues that “Björnberg never teaches or suggests modifying
cellulose acetate gauze, or even cellulose fluff, to be hydrophobic.” Appeal
Br. 4; see also Reply Br. 3. Appellant also points out that Björnberg, rather,
uses a cellulose fluff that is a hydrophilic. Appeal Br. 5 (citing Björnberg
2:39–45); see also Reply Br. 3.
Regarding the latter assertion, the Examiner responds that “[t]he
Examiner has not relied upon the bodily incorporation of the cellulose fluff
of Björnberg to be made hydrophobic, but rather applying Björnberg’s
teaching of the process of rendering a fabric hydrophobic through chemical
treatment to the cellulose acetate wound dressing of Han.” Ans. 4. The
Examiner, however, is silent as to whether the treatment of Han’s cellulose
acetate with this hydrophobic compound would react the same as
Björnberg’s treatment of cotton fabric with this compound. See Björnberg
2:12–19.
Appellant has the better position here. Björnberg discloses that cotton
fabric “may be treated chemically” with a recited compound to “obtain a
hydrophobic material.” Björnberg 2:12–19. However, Björnberg’s bacterial
absorbing composition includes both a hydrophobic cotton component and a
hydrophilic cellulose component. Appeal Br. 4, 5 (Björnberg “requires a
hydrophilic component in [its] composition, such as cellulose fluff.”); see
also Reply Br. 3 (“Björnberg requires a hydrophilic component in [its]
composition along with a hydrophobic component and makes no teaching or
suggestion to modify cellulose acetate to be hydrophobic.”). The cited
portions of Björnberg never teach or suggest treating the hydrophilic
cellulose material to become hydrophobic. Björnberg 2:39–45; see also id. at
Abstr.; id. at 8:28–32 (“A composition according to claim 1 wherein the
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hydrophilic material comprises soft paper, cotton, cellulose fluff, . . . .”
(emphases added)); id. at 8:33–36 (“A composition according to claim 1
wherein the first component comprises cotton fabric, which has been
rendered hydrophobic by chemical treatment with a dialkylcarbamoyl
chloride.” (emphases added)); id. at 8:37–40 (“A composition according to
claim 1 wherein the first component comprises cotton gauze which has been
rendered hydrophobic by chemical treatment with dioctadecyl carbamoyl
chloride.” (emphases added)).
As noted above, the Examiner does not direct us to any passage in
Björnberg that discloses chemically treating a cellulose acetate or similar
material through a hydrophobic interaction. The Examiner does not provide
persuasive evidence or technical reasoning to explain why a skilled artisan
would have a reasonable expectation that Björnberg’s process of converting
a hydrophilic material to become hydrophobic would be successful when
applied to the cellulose acetate wound dressing of Smith and Han. See
MPEP § 2143.02.
In view of the foregoing reasons, we agree with Appellant that, on the
record presently before us, the Examiner has not carried the burden of
establishing unpatentability with respect to claims 1, 2, 6–19, and 21–23
based on Smith, Han, and Björnberg.

CONCLUSION
The Examiner’s rejection is reversed.

Appeal 2020-001147
Application 12/592,710

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DECISION SUMMARY
Claims
Rejected
35 U.S.C. § Reference(s)/Basis Affirmed Reversed
1, 2, 6–19,
21–23
103(a) Smith, Han, Björnberg 1, 2, 6–19,
21–23

REVERSED