Ex Parte Barikosky et al

Patent Trial and Appeal Board

Sep 25, 2018

13315087 (P.T.A.B. Sep. 25, 2018)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR
13/315,087 12/08/2011 Michel Barikosky
86000 7590 09/27/2018
Fox Rothschild LLP / G. Nelson
997 Lennox Drive
Building 3
Lawrenceville, NJ 08648
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
ATTORNEY DOCKET NO. CONFIRMATION NO.
6300-105 (157740.00101) 4943
EXAMINER
TEMPLETON, CHRISTOPHER L
ART UNIT PAPER NUMBER
3731
NOTIFICATION DATE DELIVERY MODE
09/27/2018 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):
ipdocket@foxrothschild.com
svieau@foxrothschild.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte MICHEL BARIKOSKY and CHRISTIAN GIRARDIERE
Appeal2017-005728
Application 13/315,087 1
Technology Center 3700
Before DONALD E. ADAMS, ULRIKE W. JENKS, and DAVID COTTA,
Administrative Patent Judges.
COTTA, Administrative Patent Judge.
DECISION ON APPEAL
This is an appeal under 35 U.S.C. § 134 involving claims to a
reinforcing medical device for a sutured tissue area. The Examiner rejected
the claims on appeal under 35 U.S.C. § l 12(b) as indefinite and under 35
U.S.C. § 102(b) as anticipated.
We affirm.
1 According to Appellants, the real party in interest is Les Laboratoires
Brothier. App. Br. 3.
Appeal2017-005728
Application 13/315,087
STATEMENT OF THE CASE
Claims 14, 15, 20, 21, and 23-28 are on appeal. Claim 28, the only
independent claim on appeal, is illustrative and reads as follows:
28. A reinforcing medical device for a sutured tissue area,
the sutured tissue area including a straight stapling line and a
stapling circle, the reinforcing medical device comprising:
a substantially ring-shaped portion configured to cover
and reinforce the sutured tissue area along the stapling circle,
the substantially ring-shaped portion comprising a peripheral
edge and defining a central aperture,
the peripheral edge of the substantially ring-shaped
portion comprising a pair of v-shaped notches and a single pair
of recovering and reinforcing side wings,
the pair of v-shaped notches being configured to be
situated perpendicularly to the stapling circle,
the pair of v-shaped notches comprising a first notch and
a second notch,
the first notch extending from the peripheral edge toward
the central aperture,
the second notch being opposed to the first notch and
extending from the peripheral edge toward the central aperture,
the single pair of recovering and reinforcing side wings
being configured to integrally cover and reinforce portions of
the straight stapling line extending beyond the stapling circle,
the single pair of recovering and reinforcing side wings
comprising a first side wing, and a second side wing,
the first side wing being disposed along the peripheral
edge of the substantially ring-shaped portion of the device,
the second side wing being opposed to the first side wing
along the peripheral edge of the substantially ring-shaped
portion of the device.
App. Br. 20-22.
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Appeal2017-005728
Application 13/315,087
The claims stand rejected as follows.
Claims 14, 15, 20, 21, and 23-28 were rejected under 35 U.S.C.
§ 112(b) as indefinite for failing to particularly point out and distinctly claim
the subject matter which the inventor regards as the invention.
Claims 20, 21, and 28 were rejected under 35 U.S.C. § I02(b) as
anticipated by Richards. 2
INDEFINITENESS
Appellants do not address the Examiner's indefiniteness rejection.
We, therefore, summarily affirm the indefiniteness rejection. See MANUAL
OF PATENT EXAMINING PROCEDURE§ 1205.02 (9th Ed., Rev. 08.2017, Jan.
2018) ("If a ground of rejection stated by the examiner is not addressed in
the appellant's brief, appellant has waived any challenge to that ground of
rejection and the Board may summarily sustain it, unless the examiner
subsequently withdrew the rejection in the examiner's answer").
2 Richards, U.S. Patent Publication No. 2005/0280214 Al, published Dec.
22, 2005 ("Richards").
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Appeal2017-005728
Application 13/315,087
ANTICIPATION
Richards disclose an elastomer coated screen gasket Richards ~f 1.
The Examiner finds that Richards discloses all of the elements of claim 28
and provides the below annotated figure identifying how various elements of
claim 28 correspond to Richards' disclosure.
The above figure is an annotated version of Figure 2 of Richards provided
by the Examiner. Ans. 4; Final Act. 5. 3
We agree with the Examiner that Richards anticipates claim 20. We
address Appellants' arguments below.
Claim 28 requires that the "peripheral edge of the substantially ring-
shaped portion comprises a pair ofv-shaped notches." Appellants argue that
"[t]he 'v-shaped notch' of the [Examiner's annotated] figure is not a notch."
App. Br. 14. Appellants contend that a notch is "an angular or v-shaped cut,
indentation, or slit in an object." Id. Appellants state that "[t]he notch of the
figure is not a notch in the screen at all, but merely a portion of the wire
screen itself." Id. We are not persuaded
3 Office Action mailed November 25, 2015 ("Final Act.").
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Appeal2017-005728
Application 13/315,087
Richards discloses a wire screen or mesh that has been cut into a ring
shape. The periphery of the screen can be seen in the exploded figure
below.
•uuuuuuuuuuuuuuuuuuuuuuu L .. 1 near./] a ck-in g 1 r1dentab OllS
:-~\rC)' sl1aped ir1der1tatic:r1
The above figure is an annotated and exploded portion of Figure 2 of
Richards. As can be seen, the wires at the periphery of the screen have been
cut so as to form a variety of shapes at the edge of the screen. In the
peripheral region near labeled element 16, the peripheral edge of the screen
is linear and lacks indentations. Slightly below labeled element 16, the
peripheral edge includes wires that form a plurality of "U" shaped
indentations. And at the bottom of the figure, the peripheral edge includes
wires that form "V" shaped indentations.
Our reviewing court has explained that, during examination, the PTO
must interpret terms in a claim using "the broadest reasonable meaning of
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Appeal2017-005728
Application 13/315,087
the words in their ordinary usage as they would be understood by one of
ordinary skill in the art, taking into account whatever enlightenment by way
of definitions or otherwise that may be afforded by the written description
contained in the applicant's specification." In re Morris, 127 F.3d 1048,
1054 (Fed. Cir. 1997).
As explained further in In re Zietz, 893 F.2d 319, 321-22 (Fed. Cir.
1989), the reason for this rule of interpretation is that "during patent
prosecution when claims can be amended, ambiguities should be recognized,
scope and breadth of language explored, and clarification imposed." Here,
even under the claim construction proffered by Appellants - "an angular or
v-shaped cut, indentation, or slit in an object" (App. Br. 14)-the recitation
of "v-shaped notches" in claim 28 does not distinguish the claimed device
over Richards' structure because the periphery of Richards' screen includes
v-shaped "indentations" or "cuts."
Appellants argue that "there cannot be notches at the peripheral
edges" of Richards' screen because "[t]he screen ... [is] completely
embedded by elastomeric material." App. Br. 15. We are not persuaded
because the Examiner relied only on the structure depicted in Figure 2 of
Richards, which is not embedded in elastomeric material, to find that
Richards anticipates claim 28. See, Final Act. 3--4. Moreover, claim 28
includes the transitional phrase "comprising" indicating that the claim is
open to additional elements, including elastomeric material.
Appellants argue that "[ t ]he embedded wire screen gasket of Richards
would not perform in the manner of the reinforcing device of the invention[
because t ]he wire is made of high tensile strength materials, and would not
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Appeal2017-005728
Application 13/315,087
yield." App. Br. 15. We are not persuaded because this argument has no
basis in the language of the claims.
Appellants argue that Richards "does not disclose wings as claimed in
claim 28." App. Br. 16. We are not persuaded. As seen in the annotated
drawing provided by the Examiner, Richards' screen structure includes a
"substantially ring shaped portion." Additional screen structure projects
laterally outward from this ring shaped portion. This additional screen
structure is integral with the ring shaped portion. Appellants do not offer,
and the Specification does not suggest, a construction of the term "wing"
that would distinguish the claimed "side wings" from the screen structures
that project outwardly from the Richards' ring shaped portion- i.e., the
wings. In short, we see no basis for distinguishing the structure that the
Examiner identified as the wings in Richards from the claimed wings.
Appellants argue that "[t]he side portions of Richards[' wings] include
large apertures 22 and 26 which would not serve to cover a stapling line."
App. Br. 16. We are not persuaded because, as the Examiner explained,
"[t]he apertures are not the only part of the wings[,] .... [t]he other parts of
the wings are capable of covering ... [the] stapling line." Ans. 4--5.
Accordingly, we affirm the Examiner's rejection of claim 28.
Because they were not argued separately, claims 20 and 21 fall with claim
28.
SUMMARY
For the reasons set forth herein, and in the Examiner's Answer and Final
Office Action, we affirm the Examiner's rejection of claims 14, 15, 20, 21,
and 23-28 under 35 U.S.C. § 112(b) as indefinite and the Examiner's
rejection of claims 20, 21, and 28 under 35 U.S.C. § 102(b) as anticipated.
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Application 13/315,087
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).
AFFIRMED
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