Ex Parte Bowman

Board of Patent Appeals and Interferences

Jan 18, 2011

10976111 (B.P.A.I. Jan. 18, 2011)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
____________

Ex parte STEVEN M. BOWMAN
____________

Appeal 2009-011720
Application 10/976,111
Technology Center 3700
____________

Before LINDA E. HORNER, JOHN C. KERINS, and
STEFAN STAICOVICI, Administrative Patent Judges.

HORNER, Administrative Patent Judge.

DECISION ON APPEAL1

1 The two-month time period for filing an appeal or commencing a civil
action, as recited in 37 C.F.R. § 1.304, or for filing a request for rehearing,
as recited in 37 C.F.R. § 41.52, begins to run from the “MAIL DATE”
(paper delivery mode) or the “NOTIFICATION DATE” (electronic delivery
mode) shown on the PTOL-90A cover letter attached to this decision.
Appeal 2009-011720
Application 10/976,111

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STATEMENT OF THE CASE
Steven M. Bowman (Appellant) seeks our review under 35 U.S.C.
§ 134 of the Examiner’s decision rejecting claims 1-6 under 35 U.S.C.
§ 102(b) as being anticipated by Noiles (US 4,060,089; issued November 29,
1977). We have jurisdiction under 35 U.S.C. § 6(b). We REVERSE.
THE INVENTION
Appellant’s claimed invention relates to surgical fastening devices.
Spec. 1, l. 7. Claim 1, reproduced below, is representative of the subject
matter on appeal.
1. A graft fixation device comprising:
a first implantation member, said implantation member
having a longitudinal axis, a proximal end, a distal end, an outer
surface, and a longitudinal passage therethrough;
a second implantation member, said implantation
member having a longitudinal axis, a proximal end, a distal end,
an outer surface, and a longitudinal passage therethrough;
a proximal annular face on the proximal ends of the first
and second implantation members surrounding the longitudinal
passage; and,
a connecting member connecting the first and second
implantation members, the connecting member having a central
section, a first end extending from the first implantation
member annular face at a location to one side of the
longitudinal passage and a second end extending from the
second implantation member annular face at a location to one
side of the longitudinal passage.
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Application 10/976,111

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ISSUE
The issue presented by this appeal is whether the pusher member 30
of Noiles corresponds to a connecting member connecting a first and a
second implantation member, as called for in claim 1.
ANALYSIS
Claim 1 calls for “a connecting member connecting the first and
second implantation members.” Appellant’s Specification describes that
“[t]he implantation members are connected to each other by a rod
member . . .” and that “[t]he rod member maintains the implantation
members at a relatively fixed distance from each other.” Spec. 4, ll. 6-7 and
15-17. With reference to Figures 1 and 2, Appellant’s Specification
describes that “[t]he device 10 is seen to have graft retention member 50
connecting the implantation members 20. Retention member 50 is seen to
be a rod-like member having first end 52, second end 54 and central section
55.” Spec. 8, ll. 18-21; figs. 1 and 2. “The ends 52 and 54 of connecting
member 50 may be permanently affixed to the implantation members 20, or
may be removably attached thereto in a conventional manner.” Spec. 9,
ll. 8-10. We construe the “connecting member” of claim 1 in view of
Appellant’s Specification to call for this member to connect or affix the
implantation members to one another.
The pusher member 30 of Noiles does not connect or affix the prongs
17 of fastener strip 16 to one another. Noiles discloses a surgical fastener
assembly including a pusher member 30 in the shape of an elongated bar 26
with a plurality of longitudinally spaced pins 27. Noiles, col. 3, ll. 20-28;
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Application 10/976,111

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fig. 1. The bar 26 is arranged to engage the upper surface 16a of a fastener
strip 16, and the pins 27 are arranged to be inserted into corresponding
axially extending central passages 28 of prongs 17 of fastener strip 16.
Noiles, col. 3, ll. 23-25 and ll. 29-38. Noiles describes that “[i]n carrying
out a joining procedure, the fastener strip 16 is positioned on the pusher
member 30 with the pins 27 extending within the passages 28 so as to
maintain the prongs 17 in a rigid condition during the joining procedure”
and then upon completing the joining procedure, “the pusher member 30 [is]
removed leaving the strips 13, 16 in the applied position with the tissues 11,
12 secured as shown best in FIG. 5.” Noiles, col. 3, ll. 39-43; id. at col. 4,
ll. 8-14; fig. 5. As such, the pusher member 30 and elongated bar 26 are
used to simply push against fastener strip 16, and the pins 27 pass through
and provide rigidity to the prongs 17. The pusher member 30, however,
does not connect first and second implantation members (i.e., prongs 17) as
called for in claim 1.
As such, we cannot sustain the rejection of independent claim 1, or its
dependent claims 2-6, as being anticipated by Noiles.
CONCLUSION
The pusher member 30 of Noiles does not correspond to a connecting
member connecting a first and a second implantation member, as called for
in claim 1.
DECISION
The decision of the Examiner to reject claims 1-6 is REVERSED.

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Application 10/976,111

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REVERSED

nlk

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