Covidien LP

Patent Trials and Appeals Board

Mar 3, 2021

2020004336 (P.T.A.B. Mar. 3, 2021)

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.
15/582,788 05/01/2017 Justin Williams H-
US-03836.USC8(203-9524C
8994
50855 7590 03/03/2021
Covidien LP
60 Middletown Avenue
Mailstop 54, Legal Dept.
North Haven, CT 06473
EXAMINER
PATHAK, PRAACHI M.
ART UNIT PAPER NUMBER
3731
NOTIFICATION DATE DELIVERY MODE
03/03/2021 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 JUSTIN WILLIAMS
Appeal 2020-004336
Application 15/582,788
Technology Center 3700
Before CHARLES N. GREENHUT, MICHAEL L. HOELTER, and
JEREMY M. PLENZLER, Administrative Patent Judges.
GREENHUT, 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 2–17. See Final Act. 1. We have
jurisdiction under 35 U.S.C. § 6(b).
We REVERSE.

1 We use the term “Appellant” to refer to “applicant” as defined in 37 C.F.R.
§ 1.42. Appellant identifies the real party in interest as Covidien LP. Appeal
Br. 1.
Appeal 2020-004336
Application 15/582,788

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CLAIMED SUBJECT MATTER
The claims are directed to an anvil assembly with sliding sleeve.
Claim 2, reproduced below, is illustrative of the claimed subject matter:
2. An anvil assembly comprising:
an anvil center rod assembly defining a longitudinal axis;
a head assembly pivotally secured to the anvil center rod
assembly and movable relative to the anvil center rod assembly
from a first tilted position, through an operative position, to a
second tilted position; and
a sleeve member disposed about the anvil center rod
assembly, the sleeve member being movable from a distal
position to a proximal position as the head assembly moves
from the first tilted position, through the operative position, to
the second tilted position.
REFERENCES
The prior art relied upon by the Examiner is:
Name Reference Date
Milliman '426 US 8,109,426 B2 Feb. 7, 2012
Aranyi US 2004/0195289 A1 Oct. 7, 2004
Milliman '170 US 2009/0230170 A1 Sept. 17, 2009
Scheib US 2014/0144969 A1 May 29, 2014

REJECTIONS
The Examiner withdrew the rejection of claims 2–11, 16, and 17
under 35 U.S.C. § 112(b) as being indefinite. Final Act. 2; Ans. 11.
Claims 2, 4–6, 8, 12, 13, 16, and 17 are rejected under 35 U.S.C.
§ 102(a)(1) as being anticipated by Aranyi. Final Act. 3.
Claim 3 is rejected under 35 U.S.C. § 103 as being unpatentable over
Aranyi and Milliman '426. Final Act. 8.
Appeal 2020-004336
Application 15/582,788

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Claim 7 is rejected under 35 U.S.C. § 103 as being unpatentable over
Aranyi. Final Act. 9.
Claims 9–11 are rejected under 35 U.S.C. § 103 as being unpatentable
over Aranyi and Milliman '170. Final Act. 10.
Claims 14 and 15 are rejected under 35 U.S.C. § 103 as being
unpatentable over Aranyi and Scheib. Final Act. 11.
OPINION
The two points of contention in this appeal involve the terms
“through” and “as” appearing in each of the independent claims before us (2,
12, and 17) and italicized above. Appeal Br. 5; Reply Br. 2. We need only
reach the first to decide this appeal.
According to Appellant, moving “through” the recited operative
position involves, for example, moving from a first tilted position
(Application Figures 8, 9) to an operative position (Application Figures 13,
14) and thereafter to a second tilted position “beyond the operative position
(Application Figures 15, 16) or, in other words, not in a direction back
toward the first tilted position. Appeal Br. 5–6. The Examiner, on the other
hand, reasons (see Final Act. 4) that something, in this case the claimed
anvil’s head assembly, can move “through” an operative position by moving
from a first tilted position (Aranyi Fig. 6) to an operative position (Aranyi
Fig. 7) and thereafter retreating back in the direction whence it came, toward
the first tilted position, to a second tilted position (Aranyi Fig. 5).
There being agreement that “through” is not expressly defined in
Appellant’s Specification, the examiner reasonably relied on a dictionary
Appeal 2020-004336
Application 15/582,788

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definition to ascertain the common meaning of the term.2 Final Act. 13
(citing Merriam-Webster3). However, the dictionary definition of that the
term is used to indicate “movement into at one side or point and out at
another and especially the opposite side of,” which strongly favors
Appellant’s position over the Examiner’s position. The examples of
common phrases using through provided along with that definition also
favor Appellant’s position because none of those examples refer to
movement to a point and then back along that same course rather than
continuing onward: through a door, through a forest, etc. The Examiner cites
neither a general example nor an art-specific example where “through” is
used in the manner proposed by the Examiner. Claim construction is a legal
conclusion that, like all legal conclusions, must be based on facts, and facts
must be established with a preponderance of the evidence.4 The weight of
evidence here strongly favors the position taken by Appellant. Accordingly,
we do not sustain the Examiner’s rejections on the record presently before
us.

CONCLUSION
The Examiner’s rejections are REVERSED.

2 See, e.g., See In re Trans Texas Holdings Corp., 498 F.3d 1290, 1299 (Fed.
Cir. 2007)
3 See “Through.” Merriam-Webster.com Dictionary, Merriam-Webster,
https://www.merriam-webster.com/dictionary/through. Last accessed Feb.
19, 2021.
4 In re Caveney, 761 F.2d 671, 674 (Fed.Cir.1985); In re Zurko, 258 F.3d
1379, 1386 (Fed. Cir. 2001).
Appeal 2020-004336
Application 15/582,788

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DECISION SUMMARY
Claim(s)
Rejected
35 U.S.C. § Reference(s)/Basis Affirmed Reversed
2, 4–6, 8,
12, 13, 16,
17
102(a)(1) Aranyi 2, 4–6, 8,
12, 13, 16,
17
3 103 Aranyi, Milliman
'426
3
7 103 Aranyi 7
9–11 103 Aranyi, Milliman
'170
9–11
14, 15 103 Aranyi, Scheib 14, 15
Overall
Outcome
2–17

REVERSED