Jonathan Paul. Jaeb et al.

Patent Trials and Appeals Board

Feb 14, 2020

14157738 - (D) (P.T.A.B. Feb. 14, 2020)

UNITED STATES PA TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR
14/157,738 01/17/2014 Jonathan Paul Jaeb
60402 7590 02/14/2020
KINETIC CONCEPTS, INC.
c/o Harness Dickey & Pierce
5445 Corporate Drive
Suite 200
Troy, MI 48098
UNITED STATES DEPARTMENT OF COMMERCE
United States Patent and Trademark Office
Address: COMMISSIONERFORPATENTS
P.O. Box 1450
Alexandria, Virginia 22313-1450
www.uspto.gov
ATTORNEY DOCKET NO.
VAC.0748N2
CONFIRMATION NO.
7437
EXAMINER
TOWNSEND, GUY K
ART UNIT PAPER NUMBER
3781
NOTIFICATION DATE DELNERYMODE
02/14/2020 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):
dgodzisz@hdp.com
troymailroom@hdp.com
PTOL-90A (Rev. 04/07)
BAR
UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________

Ex parte JONATHAN PAUL JAEB et al.
____________

Appeal 2019-001557
Application 14/157,738
Technology Center 3700
____________

ERRATUM
The Decision on Appeal for the above-identified application mailed
February 14, 2020 contains an error. The summary chart on page 5 is
removed and replaced with the following:
Claims
Rejected
35 U.S.C.
§
Reference(s)/Basis Affirmed Reversed
20–23,
26–35
103 Boynton and Risk 20–23, 26–
35

24, 25,
36–41
103 Boynton, Risk,
Johnson
24, 25, 36–
41

Overall
Outcome
20–41

All other portions of the Decision on Appeal remain unchanged. Any
time periods established by the original Decision on Appeal mailed February
14, 2020 also remain unchanged. Any confusion caused regarding this
matter is regretted. If there any questions pertaining to this Erratum, please
contact the Patent Trial and Appeal Board at 571-272-9797.
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte JONATHON PAUL JAEB, LARRY TAB RANDOLPH,
RANDALL P. KELCH, XIAOLU ZHENG, DEVIN C. GINTHER,
TIANNING XU, JENNIFER N. NOVAK, and TERYL BLANE SANDERS
Appeal2019-001557
Application 14/157,738
Technology Center 3700
Before ANTON W. PETTING, BIBHU R. MOHANTY, and CYNTHIA L.
MURPHY, Administrative Patent Judges.
MOHANTY, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Pursuant to 35 U.S.C. § 134(a), Appellant1 appeals from the
Examiner's decision to reject claims 20-41. We have jurisdiction under
35 U.S.C. § 6(b ).
1 We use the word Appellant to refer to "applicant" as defined in 37 C.F.R.
§ l.42(a). Appellant identifies the real party in interest as KCI Licensing,
Inc. Appeal Br. 2.
Appeal2019-001557
Application 14/157,738
SUMMARY OF THE DECISION
We AFFIRM.
CLAIMED SUBJECT MATTER
The Appellants' claimed invention relates to a wound management
system (Spec., para. 2). Claim 20, reproduced below, is representative of the
subject matter on appeal.
20. A wound stasis and isolation apparatus comprising:
an open-cell, reticulated foam dressing having an average pore
size less than about 200 microns, the foam dressing being positionable
adjacent a wound;
a drape configured to cover the foam dressing and the wound;
and
a pump configured to be in fluid communication with the foam
dressing to draw wound exudate from the wound at a pressure less
than about 125 mmHg to maintain wound drainage and moisture
control at the wound but minimize tissue in-growth into the foam
dressing.
THE REJECTIONS
The following rejections are before us for review:
1. Claims 20-23 and 26-35 are rejected under 35 U.S.C. § 103(a)
as unpatentable over Boynton (US 2003/0040687 Al, published Feb. 27,
2003) and Risk (US 2002/0161317 Al, published Oct. 31, 2002).
2. Claims 24, 25 and 36-41 are rejected under 35 U.S.C. § 103(a)
as unpatentable over Boynton, Risk, and Johnson (US 2007/0014837 Al,
published Jan. 18, 2007).
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Appeal2019-001557
Application 14/157,738
FINDINGS OF FACT
We have determined that the findings of fact in the Analysis section
below are supported at least by a preponderance of the evidence2.
ANALYSIS
Rejections under 35 U.S.C. § 103(a)
The Appellant argues that the rejection of claim 20 is improper
because: Boynton teaches away the dressing have a pore size less than 200
microns; the prior art does not suggest a "wound stasis and isolation
apparatus"; and that the references do not provide motivation for the
modification of the disclosures (Appeal Br. 3-11, Reply Br. 2-8).
In contrast, the Examiner has determined that the rejection of record is
proper (Final Act. 2-14, Ans.2-23).
We agree with the Examiner. Boynton at paragraphs 28 and 31 has
disclosed a system for wound treatment in which a porous pad 11 is placed
over a wound 12 and a vacuum 14 is applied to promote fluid drainage and
wound healing. Risk at paragraph 66 discloses using specific wound
drainage pressures variable between 25-225 mmHg to optimize the wound
treatment. Here, in the cited combination of references one of ordinary skill
in the art would have readily inferred that the wound dressing pore size
could be varied based on the desired rate of airflow to expose to the wound
for proper healing.
2 See Ethicon, Inc. v. Quigg, 849 F.2d 1422, 1427 (Fed. Cir. 1988)
( explaining the general evidentiary standard for proceedings before the
Patent Office).
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Appeal2019-001557
Application 14/157,738
While the Appellant argues that the prior art does not disclose a "wound
stasis and isolation apparatus" the cited phrase is only in the preamble and
not a limitation to the claim. Regardless, the cited combination of references
meets the cited limitation of being a "wound stasis and isolation apparatus"
based on the applied airflow, wound, and healing rate. Here, the
modification of Boynton's wound tissue treatment system to include the
claimed pressure level disclosed by Risk and a foam dressing average pore
size of less than 200 microns would have been an obvious predictable
combination of familiar elements to obtain a wound treatment system with
those desired pore size and pressure levels for the airflow and healing rate.
The Appellant also argues that the cited reference fail to provide
motivation for the combination (Appeal Br. 5, 6). In KSR, the Supreme
Court rejected the Federal Circuit's rigid application of its teaching,
suggestion, and motivation test in favor of an expansive and flexible
approach. Id., 550 U.S. at 415. The Supreme Court noted that often, it will
be necessary "to look to interrelated teachings of multiple patents; the effects
of demands known to the design community or present in the marketplace;
and the background knowledge possessed by a person having ordinary skill
in the art, all in order to determine whether there was an apparent reason to
combine the known elements in the fashion claimed by the patent at issue."
Id., 550 U.S. at 418. The Supreme Court noted that the Court of Customs
and Patent Appeals "captured a helpful insight" when it first established the
teaching, suggestion, motivation test, but made clear that "the analysis need
not seek out precise teachings directed to the specific subject matter of the
challenged claim, for a court can take account of the inferences and creative
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Appeal2019-001557
Application 14/157,738
steps that a person of ordinary skill in the art would employ." Id., 550 U.S.
at 418. Here, one of ordinary skill in the art would clearly recognize that
varying the pore size of the dressing and pressure levels would result in
different airflow rates for the wound which could modified based on the
desired airflow rate for healing. For these above reasons the rejection of
claim 20 is sustained. The Appellant has provided the same argument for
the remaining claims drawn to similar subject matter and the rejection of
these claims is sustained as well.
CONCLUSIONS OF LAW
We conclude that Appellant has not shown that the Examiner erred in
rejecting the claims as listed in the Rejections section above.
DECISION SUMMARY
In summary:
20-23, 26- 103 Boynton and Risk 20-23, 26-
35 35
24,25,36- 103 Boynton, Risk, 24,25,36-
41 Johnson 41
Overall 20-41
Outcome
5
Appeal2019-001557
Application 14/157,738
TIME PERIOD FOR RESPONSE
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)(l )(iv).
AFFIRMED
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