Ex Parte BrandeisDownload PDFPatent Trial and Appeal BoardMay 8, 201812920335 (P.T.A.B. May. 8, 2018) Copy Citation UNITED STA TES p A TENT AND TRADEMARK OFFICE APPLICATION NO. FILING DATE 12/920,335 08/31/2010 67801 7590 05/10/2018 MARTIN D. MOYNIHAN d/b/a PRTSI, INC. P.O. BOX 16446 ARLINGTON, VA 22215 FIRST NAMED INVENTOR Zeev Brandeis 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. 49510 2769 EXAMINER FARRAR, LAUREN PENG ART UNIT PAPER NUMBER 3763 NOTIFICATION DATE DELIVERY MODE 05/10/2018 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): usptomail@ipatent.co.il PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte ZEEV BRANDEIS Appeal2016-005062 Application 12/920,335 1 Technology Center 3700 Before MURRIEL E. CRAWFORD, BRUCE T. WIEDER, and MATTHEWS. MEYERS, Administrative Patent Judges. WIEDER, Administrative Patent Judge. DECISION ON APPEAL This is a decision on appeal under 35 U.S.C. § 134 from the Examiner's final rejection of claims 1-7, 10-15, 17, 19-23, 25-28, and 30- 33. We have jurisdiction under 35 U.S.C. § 6(b). We REVERSE. 1 According to Appellant, the real party in interest is V.V.T. Med Ltd. (Appeal Br. 2.) Appeal 2016-005062 Application 12/920,335 CLAIMED SUBJECT MATTER Appellant's invention "relates to method and device for vein treatment and, more particularly, but not exclusively, to a method and a device for vein ablation." (Spec. 1, 11. 9-11.) Claims 1, 10, and 3 3 are the independent claims on appeal. Claim 1 is illustrative. It recites (emphasis added): 1. A method for ablating a target vem m a patient, compnsmg: providing an intravascular irritation element having a woven mesh with a plurality of mechanical irritating objects, said woven mesh is made of one or more memory shape wires and set to expand by regaining a geometry having a diameter that is greater than a diameter of a venous lumen of a target vein, said geometry limits the penetration of said intravascular irritation element into the intima of said venous lumen; inserting said intravascular irritation element into said venous lumen using a catheter mechanism having an ejection channel having a plurality of outlets and an extraction channel; and irritating said target vein by moving said intravascular irritation element in contact with an inner surface thereof so that a collapse of said target vein being triggered,; [sic] during said irritating performing at least one of releasing a sclerosing agent through said plurality of outlets in proximity to said inner surface and withdrawing blood with said sclerosing agent through said extraction channel in the vein; wherein said woven mesh surrounds said plurality of outlets; wherein said woven mesh is a flexible mesh having said plurality of mechanical irritating objects affixed thereto and is sized and shaped to expand so as to bring said plurality of mechanical irritating objects to scratch venous walls of said target vein when said intravascular irritation element is moved along said target vein; 2 Appeal 2016-005062 Application 12/920,335 wherein said woven mesh is sized and shaped to expand so that during said moving said woven mesh continually bended against vem passage surface of said venous lumen which limits its expanding. REJECTIONS Claims 1-7, 10, and 33 are rejected under 35 U.S.C. § 103(a) as unpatentable over Tal (WO 2004/112569 A2, pub. Dec. 20, 2004) and Ouriel (US 6,755,813 B2, iss. June 29, 2004). Claims 10-15, 17, 19-22, 25-28, and 30-33 are rejected under 35 U.S.C. § 103(a) as unpatentable over Ouriel, Zadno-Azizi (US 6,022,336, iss. Feb. 8, 2000), and Tal. Claim 23 is rejected under 35 U.S.C. § 103(a) as unpatentable over Ouriel, Zadno-Azizi, Tal, and Evans (US 6,652,548 B2, iss. Nov. 25, 2003). ANALYSIS The Examiner finds that Tal discloses "wherein said mesh is a flexible mesh (delivered through a sheath and expands to contact vessel wall (p. 16, lines 1-5), p. 10, lines 25-31 memory shape wires) having a plurality of mechanical irritating objects affixed thereto (p. 14, last full paragraph)." (Final Action 2, 7.) The Examiner also finds that "Tal does not disclose an intravascular irritation element have a woven mesh." (Id. at 3.) However, the Examiner finds that "Ouriel teaches an intravascular irritation element (Fig. 13, element 420/430) having a woven mesh (col. 10, lines 1-6) with a plurality of mechanical irritating objects (col. 10, lines 7-8)." (Id.) In view of this, the Examiner determines that "it would be prima facie obvious for 3 Appeal 2016-005062 Application 12/920,335 one of ordinary skill in the art at the time of the invention to modify the irritation element of Tal to be a woven mesh." (Id.; see also id. at 7-8.) Appellant disagrees and argues that Tal teaches irritating "the vessel walls with the wires themselves" rather than with "a mesh having irritating objects affixed thereto." (Appeal Br. 18.) The Examiner answers that Tal "teach[es] that [the] sharp edges of the wires will disrupt the vessel" and that "Tal teaches using irritating objects affixed to the wires because the sharp edges are a part of the wires." (Answer 2, citing Tal 14.) "[T]he irritating elements are taught by Tal and not Ouriel. Ouriel is only used to teach a different configuration for the memory-shaping wires in a vein." (Id.) Appellant replies that "the term 'affixed' related to two different elements, where one element is attached to another element. Thus, the wires of Tal cannot be considered both as the mesh and as the irritating elements affixed to the same mesh." (Reply Br. 4.) We are persuaded of reversible error. The question is whether the term "a flexible mesh having said plurality of mechanical irritating objects affixed thereto" includes a mesh made from wires having sharp, i.e., irritating, edges. Tal discloses "a vascular ablation apparatus and method." (Tal 1.) In particular, Tal discloses, in Figures 8-10, a balloon catheter where "[i]t is further contemplated [that] the balloon catheter may be modified with a wire or wires over the balloon. The wire can have sharp edges that will disrupt the vessel." (Id. at 14.) In short, Tal discloses a wire with sharp edges rather than a wire with separate irritating objects attached to the wire. Appellant's Specification discloses that "the intravascular irritation 4 Appeal 2016-005062 Application 12/920,335 element is a wire and the mechanical irritating objects bristles, which are affixed thereon, in a variety of directions and combinations in relation to the intravascular irritation element longitudinal axis, for example as depicted in FIG. 6B." (Spec. 8, 11. 5-8.) Appellant's Specification also discloses that "the mechanical irritating objects 24 may be attached, engraved, etched and/or cut in a wire that is positioned in a helical manner on an expandable structure." (Id. at 15, 11. 11-14.) In other words, the Specification discloses different ways to provide the mechanical irritating objects, i.e., (a) forming the mechanical irritating element in the wire/mesh itself, and (b) affixing or attaching a mechanical irritating element to a wire/mesh. Claim 1 recites "irritating objects affixed" to the mesh, rather than formed in the mesh itself. Because Tal discloses a wire with sharp edges, i.e., the mechanical irritating objects are formed in the wire itself, we do not agree with the Examiner that "Tal teaches using irritating objects affixed to the wires because the sharp edges are a part of the wires." (Answer 2, citing Tal 14.) The Examiner makes no finding as to whether it would have been obvious, in view of Tal's disclosure of having the mechanical irritating element formed in the wire itself, to affix a mechanical irritating element to the mesh. In view of the above, we are persuaded that the Examiner erred in finding that Tal discloses "a flexible mesh ... having a plurality of mechanical irritating objects affixed thereto." (See Final Action 2, 7 .) The other cited prior art does not cure this deficiency. Independent claims 10 and 33 include similar language. Therefore, we are persuaded that the Examiner erred in rejecting independent claims 1, 10, and 33, and dependent claims 2-7, 11-15, 17, 19-23, 25-28, and 30-32 under§ 103(a). 5 Appeal 2016-005062 Application 12/920,335 DECISION TheExaminer'srejectionsofclaims 1-7, 10-15, 17, 19-23,25-28, and 30-33 under 35 U.S.C. § 103(a) are reversed. REVERSED 6 Copy with citationCopy as parenthetical citation