Ex Parte Beardsley et al

Patent Trials and Appeals Board

Jul 30, 2013

11544479 - (D) (P.T.A.B. Jul. 30, 2013)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________

Ex parte JOHN W. BEARDSLEY and STANISLAW MARCZYK

___________

Appeal 2011-007962
Application 11/544,479
Technology Center 3700
____________

Before SCOTT R. BOALICK, KEVIN F. TURNER, and ERIC B. CHEN,
Administrative Patent Judges.

CHEN, Administrative Patent Judge.

DECISION ON APPEAL

Appeal 2011-007962
Application 11/544,479

2
This is an appeal under 35 U.S.C. § 134(a) from the final rejection of
claims 1-20, all the claims pending in the application. We have jurisdiction
under 35 U.S.C. § 6(b). We affirm.

STATEMENT OF THE CASE
Appellants’ invention relates to a surgical instrument that includes a
handle portion, a body portion, an articulating tool assembly, and a locking
assembly, such that the handle portion includes a movable handle. The body
portion extends distally from the handle portion and defines a first
longitudinal axis. The locking assembly includes a member that is advanced
distally with respect to the body portion. The member engages the
articulating tool assembly upon manipulation of the movable handle to move
an anvil and a cartridge assembly.
Claim 1 is exemplary, with disputed limitations in italics:
1. A surgical instrument, comprising:
a handle portion including a movable handle and a
stationary handle;
a body portion extending distally from the handle portion
and defining a first longitudinal axis;
an articulating tool assembly defining a second
longitudinal axis, the articulating tool assembly being disposed
at a distal end of the body portion and being movable from a
first position in which the second longitudinal axis is
substantially aligned with the first longitudinal axis to at least a
second position in which the second longitudinal axis is
disposed at an angle to the first longitudinal axis;
the articulating tool assembly including an anvil and a
cartridge assembly, the anvil and cartridge assembly being
pivotably movable into an approximated position with one
another by manipulation of the movable handle, the anvil and
Appeal 2011-007962
Application 11/544,479

3
the cartridge assembly being parallel to the second longitudinal
axis in the approximated position;
a locking assembly including a member advanceable
distally with respect to the body portion, wherein the member is
disposed in mechanical cooperation with the movable handle,
whereby actuation of the movable handle towards the
stationary handle causes the member to advance distally and
also causes the anvil and cartridge to move into approximation
with one another; and
wherein the movable handle moves the member from a
non-engaged position wherein the member does not contact the
articulating tool assembly to an engaged position wherein the
member contacts the articulating tool assembly.

Claims 1-20 stand rejected under 35 U.S.C. § 103(a) as being obvious
over Schulze (U.S. Patent No. 5,826,776; Oct. 27, 1998) and Hamblin (U.S.
Patent No. 5,794,834; Aug. 18, 1998).

ANALYSIS
We are unpersuaded by Appellants’ arguments (App. Br. 17-23; see
also Reply Br. 6-8) that the combination of Schulze and Hamblin would not
have rendered obvious independent claim 1, which includes the limitation
“whereby actuation of the movable handle towards the stationary handle
causes the member to advance distally and also causes the anvil and
cartridge to move into approximation with one another.”
The Examiner found that the locking blade of Schulze corresponds to
the claimed “member advanceable distally” (Ans. 3; Schulze, figs. 29A-B)
and that the rotation of the stapling head assembly of Schulze corresponds to
the limitation “the anvil and cartridge to move into approximation with one
another” (Ans. 4; Schulze, figs. 1, 29). The Examiner acknowledged that
Appeal 2011-007962
Application 11/544,479

4
Schulze does not disclose the limitation “wherein the member is disposed in
mechanical cooperation with the movable handle, whereby actuation of the
movable handle towards the stationary handle causes the member to advance
distally” (Ans. 4) and thus, relied upon Hamblin for teaching locking the
rotation of a staple head by closing a trigger towards a handle (Ans. 4;
Hamblin, col. 12 lines 4-22). The Examiner concluded that “it would have
been obvious . . . to form Schulze’s articulation assembly such that
movement of the movable handle towards the stationary handle causes
locking of the articulation assembly (which in Schulze is when member 612
is advanced distally) . . . .” (Ans. 4.) We agree with the Examiner.
Schulze relates to a “surgical instrument which may be articulating
. . . including an articulation lock” (col. 1, ll. 10-12), for example, an
endoscopic surgical stapling and suturing instrument (col. 1, ll. 25-26).
Figure 1 of Schulze illustrates an embodiment of a stapler 100, which
contains a handle portion 110 having a clamping trigger 112, a shaft
portion 130, an anvil portion 140, and a cartridge assembly 150. (Col. 7,
ll. 43-46, 48-50.) Figures 29 and 29A-B of Schulze illustrates a device for
locking a head 602 of an articulating surgical instrument (col. 21, ll. 1-2)
with respect to a shaft (col. 17, ll. 59-62), for example, locking the anvil
portion 140 and cartridge assembly 150 with respect to the shaft portion 130
(see col. 17, ll. 49-58; fig. 1). Thus, Schulze teaches the limitation “the anvil
and cartridge to move into approximation with one another.” Schulze
explains that a “locking blade 612 may be manually disengaged prior to
articulation, for example, by simply sliding the bar 612 out of engagement
with the detent 614.” (Col. 21, ll. 17-20.) Thus, Schulze teaches the
limitation “member advanceable distally.”
App
App

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(unre
unlo
stapl
ll. 12
that
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col.
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prev
eal 2011-0
lication 11
Figures
ferenced)
ferenced)
cked posit

Hamblin
ing head a
-14.) Figu
includes a
assembly
4, l. 1) hav
andle sec
ement of t
ents rotatio
07962
/544,479
29A-B of
in a locke
in an artic
ion, respec
relates to
ssembly m
re 1 of H
distal stap
70 to a pr
ing a pivo
tions 90 an
he closure
n of the s
Schulze, re
d unarticu
ulated pos
tively:
a “surgica
ounted on
amblin illu
ling head
oximal act
tally moun
d 92 (col.
trigger 84
tapling hea
5
produced
lated posit
ition with
l stapling
a rotatabl
strates a s
assembly 6
uator hand
ted closur
4, ll. 64-6
towards th
d assembl
below, illu
ion and th
the lockin
instrumen
e support
urgical sta
0, connec
le assemb
e trigger 8
5). Hamb
e handle
y 60. (Co
strate the
e head
g blade 61

t with an a
shaft.” (C
pling instr
ted by a su
ly 80, (col
4 (col. 4, l
lin explain
sections 90
l. 12, ll. 4-
head
2 in an
rticulated
ol. 1,
ument 50
pport
. 3, l. 64 to
l. 46-47)
s that
and 92,
16.) Thus

,
App
App

Ham
mech
incor
stapl
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pred
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claim
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mech
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Schu
trigg
obvi
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lication 11
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Figure 1
The com
porating t
ing head a
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ictable res
7). This c
ing blade 6
ed “wher
le causes t
anical coo
bly 60. T
lze to inco
er 84 and
ous.
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/544,479
es the limi
peration w
of Hambl
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ulating an
ults. See K
ombinatio
12 of Sch
eby actuat
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hus, we a
rporate m
the staplin
tation “wh
ith the m
in is repro
f Schulze
technique
ith the kn
vil portion
SR Int’l C
n would fu
ulze when
ion of the
r to advan
etween th
gree with
echanical
g head ass
6
erein the m
ovable han
duced belo
and Hamb
of Hambli
own surgic
and cartri
o. v. Telef
rther resu
pulling th
movable h
ce distally
e closure t
the Exami
cooperatio
embly 60
ember is
dle.”
w:
lin is noth
n for cont
al instrum
dge assem
lex Inc., 5
lt in the m
e closure t
andle tow
”), becaus
rigger 84
ner (Ans. 4
n between
of Hambli
disposed i
ing more t
rolling rot
ent of Sch
bly, to yie
50 U.S. 39
ovement o
rigger 112
ards the sta
e Hamblin
and the sta
) that mo
the closur
n would h
n
han
ation of th
ulze,
ld
8, 416
f the
(i.e., the
tionary
teaches
pling head
difying
e
ave been
e

Appeal 2011-007962
Application 11/544,479

7
Appellants argue that “the Examiner has previously acknowledged
that actuation of Hamblin’s movable handle towards the stationary handle
does not cause the member 12 to advance distally, as Appellants claim.”
(App. Br. 19.) However, the Examiner cited Hamblin (Ans. 4, 8-9) for the
general teaching of controlling the rotation of the staple head assembly 60
using a closure trigger 84, rather than the movements of a clutch gear 4 and
a cylindrical bushing 12 during the articulation of the staple head
assembly 60.
Appellants also argue that “[t]he function of Schulze’s instrument
would be destroyed if it were modified to include the Hamblin articulation
assembly” because “the proximal movement of the articulation assembly
upon actuation of the movable handle would cause Schulze’s pivotable jaw
members to proximally translate with respect to the tissue between the jaw
members, which would have very undesirable results.” (App. Br. 20; see
also Reply Br. 6-7.) Similarly, Appellants argue that “[c]ombining the
disclosures of Schulze and Hamblin would result in an instrument that would
not function” because “the articulation assembly moves proximally to lock
the articulation lever, the separate locking blade 612 will be unable to move
distally for engaging the tool assembly.” (App. Br. 21-22; see also Reply
Br. 7.) Again, the Examiner cited Hamblin (Ans. 4, 9-10) for the general
teaching of controlling the rotation of the staple head assembly 60 using a
closure trigger 84, rather than the bodily incorporation of features from
Hamblin into the surgical instrument of Schulze.
Thus, we agree with the Examiner that the combination of Schulze
and Hamblin would have rendered obvious independent claim 1, which
includes the limitation “whereby actuation of the movable handle towards
Appeal 2011-007962
Application 11/544,479

8
the stationary handle causes the member to advance distally and also causes
the anvil and cartridge to move into approximation with one another.”
Accordingly, we sustain the rejection of independent claim 1 under 35
U.S.C. § 103(a). Claims 2-11 depend from claim 1, and Appellants have not
presented any substantive arguments with respect to these claims.
Therefore, we sustain the rejection of claims 2-11 under 35 U.S.C. § 103(a),
for the same reasons discussed with respect to independent claim 1.
Independent claim 12 recites limitations similar to those discussed
with respect to independent claim 1, and Appellants have not presented any
substantive arguments with respect to this claim. We sustain the rejection of
claim 12, as well as dependent claims 13-20, for the same reasons discussed
with respect to claim 1.

DECISION
The Examiner’s decision rejecting claims 1-20 is affirmed.
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a)(1)(iv).

AFFIRMED

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