Covidien LPDownload PDFPatent Trials and Appeals BoardMay 21, 202015074045 - (D) (P.T.A.B. May. 21, 2020) Copy Citation 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. 15/074,045 03/18/2016 Christopher Penna 355889.USU1 (203-10562) 4076 50855 7590 05/21/2020 Covidien LP 60 Middletown Avenue Mailstop 54, Legal Dept. North Haven, CT 06473 EXAMINER WITTENSCHLAEGER, THOMAS M ART UNIT PAPER NUMBER 3731 NOTIFICATION DATE DELIVERY MODE 05/21/2020 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): docket@carterdeluca.com rs.patents.two@medtronic.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte CHRISTOPHER PENNA and MICHAEL BETTUCHI Appeal 2019-006275 Application 15/074,045 Technology Center 3700 Before PHILIP J. HOFFMANN, BRADLEY B. BAYAT, and TARA L. HUTCHINGS, Administrative Patent Judges. HOFFMANN, 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 1–20. We have jurisdiction under 35 U.S.C. § 6(b). We REVERSE. According to Appellant, the invention “relates to surgical stapling devices including replaceable loading units. More particularly, the present disclosure relates to an interlock assembly for operably securing the 1 We use the word “Appellant” to refer to “applicant” as defined in 37 C.F.R. § 1.42. Appellant identifies the real parties in interest as Covidien LP. Appeal Br. 1. Appeal 2019-006275 Application 15/074,045 2 replaceable loading units to an actuation assembly of the surgical stapling device and/or surgical adapter assembly.” Spec. ¶ 2. Below, we reproduce independent claim 1 as illustrative of the appealed claims. 1. A loading unit including an interlock assembly for attaching the loading unit to a surgical stapling instrument, the loading unit comprising: a shell member including a proximal end and a distal end, the shell member including a cylindrical portion formed on the proximal end of the shell member, the cylindrical portion defining an outer circumference, the distal end of the shell member configured for supporting a staple cartridge defining a plurality of staple retaining slots arranged in a pair of concentric rows, the cylindrical portion defining an opening formed therein; and a collar member pivotally secured to the cylindrical portion, the collar member including a locking shelf selectively receivable within the opening of the cylindrical portion of the shell member, wherein: the locking shelf is spaced from the opening of the cylindrical portion when the collar member is in an open position; and the locking shelf is received through the opening in the cylindrical portion and the collar member is disposed within the outer circumference of the cylindrical portion when the collar member is in a closed position. REJECTIONS AND PRIOR ART The Examiner rejects the claims as follows: I. Claims 1–11 and 14–20 under 35 U.S.C. § 103 as unpatentable over Nalagatla2 and Nie3; and 2 Nalagatla et al., US 2012/0292371 A1, published Nov. 22, 2012. 3 Nie et al., US 2015/0108728 A1, published Apr. 23, 2015. Appeal 2019-006275 Application 15/074,045 3 II. Claims 12 and 13 under 35 U.S.C. § 103 as unpatentable over Nalagatla, Nie, and Garrison.4 ANALYSIS Rejection I—Obviousness rejection of claims 1–11 and 14–20 Based on our review of the record, including the Examiner’s Final Office Action and Answer, and Appellant’s Appeal Brief and Reply Brief, the Examiner does not support adequately that it would have been obvious to combine Nalagatla and Nie to disclose all of the recitation of claims 1–11 and 14–20. Thus, we do not sustain the Examiner’s obviousness rejection of these claims. Specifically, we agree with Appellant’s argument that the Examiner’s rejection is in error because Nie is not analogous art to the claimed invention. See, e.g., Appeal Br. 3–7. As Appellant and the Examiner set forth, a reference is analogous art to the claimed invention if: (1) the reference is from the same field of endeavor as the claimed invention (even if it addresses a different problem); or (2) the reference is reasonably pertinent to the particular problem faced by the inventor (even if it is not in the same field of endeavor as the claimed invention). See In re Bigio, 381 F.3d 1320, 1325 (Fed. Cir. 2004). Nie is directed to a locking device locking inner and outer tubes of a lawnmower handle. Nie ¶¶ 6–7. Appellant’s claim 1 is directed to a loading unit including an interlock assembly for attaching the loading unit to a surgical stapling instrument. Appeal Br., Claims App. We agree with Appellant’s argument that Nie is not from the same field of endeavor as 4 Garrison et al., US 2013/0138129 A1, published May 30, 2013. Appeal 2019-006275 Application 15/074,045 4 Appellant’s claimed invention. Appeal Br. 5–6. We note that Examiner does not determine that Nie is from the same field of endeavor as Appellant’s claimed invention. See generally Final Office Action; see also Answer 3–4. Nonetheless, the [E]xaminer takes the position that . . . Nie is analogous prior art because it is reasonably pertinent to the particular problem with which [A]ppellant was concerned. As acknowledged by [A]ppellant, the particular problem with which [A]ppellant was concerned was to secure a staple cartridge to a shaft assembly. Structurally, this takes the form of securing the shaft of the staple cartridge to the shaft of a shaft assembly or, in broader terms, securing a first shaft to a second shaft. Although Nie may be in the field of lawnmower handles, Nie teaches a mechanism for securing a first shaft to a second shaft. Since [A]ppellant was concerned with securing a first shaft to a second shaft[,] and Nie teaches a mechanism for securing a first shaft to a second shaft, Nie is reasonably pertinent to the particular problem with which appellant was concerned. Answer 3–4. We disagree with the Examiner that Nie is reasonably pertinent to the particular problem faced by Appellant. More specifically, we determine that the Examiner’s characterization of the problem with which Appellant was concerned as how to “secur[e] a first shaft to a second shaft” is improperly broad. Based on our review of Appellant’s Specification, Appellant appears to have been concerned with the particular problem caused by including components of an interlock assembly, which is used to connect i) a removable and replaceable loading unit such as one housing staples for a surgical procedure to ii) a reusable actuation unit that is sterilized between procedures, on the actuation unit—i.e., the need to sterilize the interlock assembly components. Spec. ¶¶ 3–5. With respect to Nie, this reference appears to have been concerned with knowing, after Appeal 2019-006275 Application 15/074,045 5 moving one tube of a lawnmower handle relative to another tube to thereby adjust a length of the handle, whether the locking device securing the tubes relative to one another is or is not locked properly. Nie ¶¶ 6–8. Thus, we agree with Appellant that Nie is not analogous art, and accordingly, the Examiner may not rely on Nie in the obviousness rejection. Rejection II—Obviousness rejection of claims 12 and 13 Claims 12 and 13 depend from independent claim 1. We do not sustain the Examiner’s obviousness rejection of claim 1. The Examiner does not rely on Garrison to disclose anything that would remedy the above- discussed deficiency in independent claim 1’s rejection. Thus, we also do not sustain the Examiner’s obviousness rejection of these dependent claims. CONCLUSION We REVERSE the Examiner’s obviousness rejections of claims 1–20. In summary: REVERSED Claims Rejected 35 U.S.C. § Reference(s)/Basis Affirmed Reversed 1–11, 14–20 103 Nalagatla, Nie 1–11, 14–20 12, 13 103 Nalagatla, Nie, Garrison 12, 13 Overall Outcome 1–20 Copy with citationCopy as parenthetical citation