Ex Parte Belcheva et al

Patent Trial and Appeal Board

Jul 27, 2017

13567518 (P.T.A.B. Jul. 27, 2017)

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.
13/567,518 08/06/2012 Nadya Belcheva H-US-03315 (203-8684) 6204
50855 7590
Covidien LP
60 Middletown Avenue
c/o Legal - Mailstop MS 54
North Haven, CT 06473
EXAMINER
AFTERGUT, JEFFRY H
ART UNIT PAPER NUMBER
1746
NOTIFICATION DATE DELIVERY MODE
07/31/2017 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):
SurgicalUS@covidien.com
medtronic_mitg-si_docketing@cardinal-ip.com
mail @ cdfslaw. com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte NADYA BELCHEVA, NORMAN AMINUDDIN,
and JESSICA GOULD
Appeal 2016-005017
Application 13/567,518
Technology Center 1700
Before JAMES C. HOUSEL, CHRISTOPHER C. KENNEDY, and
JULIA HEANEY, Administrative Patent Judges.
HEANEY, Administrative Patent Judge.
DECISION ON APPEAL1
Appellants2 request review pursuant to 35 U.S.C. § 134(a) of a
decision of the Examiner finally rejecting claims 1—9, 11—15, 17, and 18 of
Application 13/567,518. Final Act. 2-4. We have jurisdiction under
35 U.S.C. § 6(b). We affirm.
1 This Decision refers to the Specification filed Aug. 6, 2012 (“Spec.”),
Final Rejection dated June 24, 2015 (“Final Act.”), Advisory Action dated
Aug. 25, 2015 (“Adv. Act.”), Appeal Brief filed Oct. 26, 2015 (“App. Br.”),
Examiner’s Answer dated Feb. 17, 2016 (“Ans.”), and Reply Brief filed Apr.
7, 2016 (“Reply Br.”).
2 Appellants identify the real party in interest as Covidien LP. App. Br. 2.
Appeal 2016-005017
Application 13/567,518
BACKGROUND
The subject matter on appeal relates to a method of increasing the
strength of a looped suture. App. Br. 2; Spec. 126. The suture is formed
from portions of thread that are softened by immersion in super-critical
fluid, formed into a loop, and ultrasonically welded to create a formed
suture. App. Br. 2.
Claim 1, reproduced below from the Claims Appendix of the Appeal
Brief, is illustrative of the claims on appeal:
1. A method of forming a loop in a thread, the method
comprising:
providing a loop forming system including a base for
securely retaining a thread to be formed and a welding
assembly for forming a loop in the thread;
contacting at least a portion of the thread with a super­
critical fluid to form an immersed portion of the thread, wherein
the immersed portion of the thread includes softened first and
second sections of thread;
securing the immersed portion of the thread to the base
such that the softened first section of the immersed portion is
maintained adjacent to the softened second section of the
immersed portion;
approximating the welding assembly and the base
towards each other to press together the softened first and
second sections of the immersed portion of thread;
applying ultrasonic energy to the softened first and
second sections of thread to create a formed suture; and
moving the welding assembly and base away from each
other.
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Appeal 2016-005017
Application 13/567,518
REFERENCES
The Examiner relied upon the following prior art in rejecting the
claims on appeal:
Maiorino et al. (“Maiorino”) US 2010/0101707 A1
Hadba et al. (“Hadba”) US 2010/0204729 Al
Belcheva US 2012/0231165 Al
McClain (PCT ’909) WO 2008/042909 A2
THE REJECTION
Claims 1—9, 11—15, 17, and 18 are rejected under 35 U.S.C. § 103(a)
as unpatentable over the combination of Maiorino, Hadba, PCT ’909, and
Belcheva. Final Act. 2-A.
Apr. 29, 2010
Aug. 12,2010
Sept. 13, 2012
Apr. 10, 2008
DISCUSSION
Appellants argue independent claims 1,11, and 17 as a group,
focusing on common limitations, see App. Br. 4, and do not separately argue
the dependent claims. We choose claim 1 as representative; dependent
claims stand or fall with the claims from which they depend. 37 C.F.R.
§ 41.37(c)(l)(iv).
The Examiner finds that Maiorino teaches all of the steps of the
claimed method except exposure of the thread to super-critical fluid. Adv.
Act. 2. The Examiner further finds that Maiorino suggests that
bioabsorbable, barbed threads would be useful (Ans. 2—3, citing Maiorino
31, 42), and that Hadba and PCT ’909 also suggest a bioabsorbable,
barbed thread for suture material. Id. at 3. The Examiner further finds that
PCT ’909 teaches exposing the thread to super-critical fluid in order to
increase the strength of the suture. Id. at 4, citing PCT ’909 128. The
Examiner thus determines it would have been obvious to a person of
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Application 13/567,518
ordinary skill in the art to expose Maiorino’s thread to a super-critical fluid
in order to increase the strength of the suture as well as the life of the
biodegradable material as suggested by PCT ’909. Id.
The Examiner further finds that Belcheva suggests swelling and
softening of suture thread by exposure to super-critical fluid. Id., citing
Belcheva 144. The Examiner concludes that in view of the collective
teachings of all of the references, it would have been obvious to a person of
ordinary skill in the art when making a suture according to Maiorino’s
method to expose the thread to super-critical fluid, to soften the thread and
provide a better weld subsequent to the exposure. Ans. 6.
Appellants argue that none of the references, alone or in combination,
discloses or suggests the claimed method. App. Br. 4. Specifically,
Appellants argue that PCT ’909 fails to disclose applying ultrasonic energy
to the softened first and second sections of thread to create a formed suture
{id. at 5), and that Belcheva does not disclose further welding swollen
materials together by supplying ultrasonic energy, or suggest that applying
ultrasonic energy would result in a stronger bond between the materials {id.
at 6).
Having reviewed Appellants’ arguments and considered the evidence,
we find that a preponderance of the evidence supports the determination of
obviousness. Generally, Appellants’ arguments that attack the references
individually are not persuasive because the rejection is based on
combination of the references. In re Keller, 642 F.2d 413, 425 (CCPA
1981) (nonobviousness cannot be shown by attacking references
individually where the rejection is based on combination of the references).
Appellants do not dispute that Maiorino, Hadba, and PCT ’909 teach the
same type of bioabsorbable, barbed suture thread, or that PCT ’909 suggests
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Appeal 2016-005017
Application 13/567,518
exposing sections of the thread to supercritical fluid. Those findings,
combined with Belcheva’s teaching of exposure to supercritical fluid “to
initially swell the material to provide for a stronger bond during welding”
(Belcheva 144) lead to a reasonable expectation that the claimed method
would have worked to provide a stronger suture. Appellants have provided
no evidence otherwise. Additionally, Appellants’ argument that PCT ’909
teaches away from softening, by teaching that strength of the barb structure
is improved by treating the suture with the supercritical fluid, is not
persuasive. Reply Br. 2—3. Appellants provide no evidence to show that a
person of ordinary skill in the art would understand PCT ’909’s teaching as
suggesting that “a barbed thread with softened sections would not have
improved strength.” Id. at 3. Accordingly, Appellants fail to show
reversible error in the Examiner’s rejection.
SUMMARY
We affirm the rejections of claims 1—9, 11—15, 17, and 18.
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a).
AFFIRMED
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