Appeal No. 1997-1520
Application No. 08/365,464
ionically bonded block elastomeric copolymer of a polyquaternary polyurethane and a
polyanionic polymer such as heparin. Stephenson exemplifies the use of Methylene
Blue at column 12, line 13. Although Stephenson utilizes Methylene Blue for the disclosed
purpose of coloring the substrate, and not for imparting antimicrobial or antiviral activity
upon the substrate, the examiner has correctly pointed out that the discovery of a new
property or use of a previously known material cannot impart patentability to claims to the
known material. In re Schoenwald 964 F.2d 1122, 1124,
22 USPQ2d 1671, 1673 (Fed. Cir. 1992), In re Spada 911 F2d. 705, 708, 15 USPQ2d
1655, 1657 (Fed. Cir. 1990). Also, contrary to appellants' argument, based on the
disclosure of Ito and, apparently, appellants' acknowledgement of the state of the art at
page 2 of the present specification, Methylene Blue was know in the art to have
antibacterial characteristics.
Appellants submit at page 14 of the brief that "Stephenson does not disclose an
anionic or cationic dye bound to the suture (i.e., the substrate) by a binder in the sense
that term is used in the instant claims." (emphasis in original.) However, Stephenson
expressly discloses that "[t]he attachment of the antimicrobial or dye group to the heparin
elastomer is represented in the formula with a dotted line because the
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