Ex Parte Chuter

Patent Trial and Appeal Board

Jun 21, 2013

11825473 (P.T.A.B. Jun. 21, 2013)

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.
11/825,473 07/06/2007 Timothy A.M. Chuter 12730/00286-PA-5990-RFB 6477
48003 7590 06/21/2013
BRINKS HOFER GILSON & LIONE/CHICAGO/COOK
PO BOX 10395
CHICAGO, IL 60610
EXAMINER
SHIPMON, TIFFANY P
ART UNIT PAPER NUMBER
3738
MAIL DATE DELIVERY MODE
06/21/2013 PAPER
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.
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
__________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
__________

Ex parte TIMOTHY A. M. CHUTER1
__________

Appeal 2011-010919
Application 11/825,473
Technology Center 3700
__________

Before ERIC GRIMES, ERICA A. FRANKLIN, and SHERIDAN K.
SNEDDEN, Administrative Patent Judges.

GRIMES, Administrative Patent Judge.

DECISION ON APPEAL
This is an appeal under 35 U.S.C. § 134 involving claims to a stent
and an endoluminal prosthesis, which have been rejected for anticipation or
obviousness. We have jurisdiction under 35 U.S.C. § 6(b).
We reverse.

1 The Real Party in Interest is Cook Incorporated (Appeal Br. 1).
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Application 11/825,473

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STATEMENT OF THE CASE
An Oral Hearing for the present appeal was requested and scheduled
for June 18, 2013. On June 17, 2013, Counsel for Appellant submitted via
facsimile a Request To Reschedule Oral Hearing, on the basis that
Appellant’s corporate representative was unable, for personal reasons, to
attend the hearing. Irrespective of the merits of Appellant’s request, though,
a review of the record indicates that rescheduling the Oral Hearing is
unnecessary. See 37 C.F.R. § 41.47(f) (“Notwithstanding the submission of
a request for oral hearing complying with this rule, if the Board decides that
a hearing is not necessary, the Board will so notify Appellants”).
Accordingly, the oral hearing is canceled.
The Specification discloses “a stent for sealing an end of a prosthesis
used to treat aortic aneurysms” (Spec. 6, ¶ 19). “The end sealing stent has
an end portion . . . comprised of one or more filaments formed into at least
three intertwined curved loops” (id.). “The loops minimize the potential for
injury to vessel walls as well as damage to grafts by having no sharp apices”
(id.).
Claims 1-10 and 12-18 are on appeal. Claim 1 is representative and
reads as follows:
1. A stent for sealing an end of a prosthesis used to repair an aortic
aneurysm with acute angulation, the stent having a body section and an end
portion with a circumference and configured for exerting an outward radial
force, said end portion comprised of one or more filaments formed into at
least three intertwined curved end loops, where each curved end loop has a
curved section that extends at least halfway around the circumference of the
end portion.

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Application 11/825,473

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Claim 9, the only other independent claim, is directed to an
endoluminal prosthesis that includes (a) a descending component made of a
graft material coupled to an expandable stent and (b) an “end component”
that is the same as the stent of claim 1.
The claims stand rejected as follows:
• Claims 1-8 under 35 U.S.C. § 102(b) as anticipated by Hyodoh2
(Answer 3) and
• Claims 9, 10, and 12-18 under 35 U.S.C. § 103(a) as obvious based
on Khosravi3 and Hyodoh (Answer 6).
I.
The Examiner has rejected claims 1-8 as anticipated by Hyodoh
(Answer 3). The Examiner finds that Hyodoh discloses a stent that meets the
limitations of claim 1, including “at least three intertwined curved loops,
where each curved end loop has a curved section which extends at least
halfway around the circumference of the end portion (see Figs. 1A and 1C
below, additionally, Fig. 11, item 168, show the stent implanted)” (id. at 3-
4). The Examiner provided annotated versions of Hyodoh’s Figures 1A and
1C, which are reproduced below:

2 Hyodoh et al., US 2003/0040771, Feb. 27, 2003.
3 Khosravi et al., US 2002/0038142 A1, Mar. 28, 2002.
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Application 11/825,473

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The Examiner has annotated the figures to show the parts of the stent
that she interprets as the “end portion” and “curved end loops” recited in the
claims.
Appellant argues that the “breadth of the Examiner’s interpretation of
the claim term ‘end portion’ is not consistent with Appellant’s specification”
(Reply Br. 2). Appellant argues that the “specification defines the curved
end loops as the loops at the end of the stent, and not the last few loops in
the series or 1/3 of the entire stent” (id. at 3). Appellant argues that
“[h]ence, ‘end portion,’ as properly construed, means that portion of the
stent having the end loops--the last loops at the end, and not somewhere in
the body” and “without this erroneous construction, the Examiner’s
argument entirely falls apart” (id. at 4).
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We agree with Appellant that the rejection is based on an
unreasonably broad interpretation of the claim language. Claim 1 recites an
“end portion comprised of one or more filaments formed into at least three
intertwined curved end loops.” The Specification states that “[e]xamples of
how the curved loops form the end portion are shown in Figures 3A and 3B”
(Spec. 7, ¶ 22, emphasis added). The Specification’s Figure 4 is reproduced
below:

Figure 4 shows “[a]n embodiment with end loops formed at both ends
of a braided stent” (id. at 8, ¶ 24).
We agree with Appellant that the Specification makes clear that the
“curved end loops” recited in claim 1 are the last loops at the end of the
stent, which form the end portion of the stent. The loops at the end of the
stent in Hyodoh’s Figures 1A and 1C are the small loops 6. In Hyodoh’s
alternative embodiment (Figure 1B, not annotated by the Examiner), the
wires of the stent do not form a loop at the end but are simply curved to
change direction back toward the body of the stent. The Examiner has not
provided any basis for concluding that either the loops 6 or curved portions 8
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are intertwined or that they extend at least halfway around the circumference
of the end portion of Hyodoh’s stent.
Thus, the evidence does not support the Examiner’s finding that claim
1, properly interpreted, is anticipated by Hyodoh. We reverse the rejection
of claims 1-8 under 35 U.S.C. § 102(b).
II.
The Examiner has rejected claims 9, 10, and 12-18 as obvious based
on Khosravi and Hyodoh. The Examiner finds that Khosravi discloses an
endoluminal prosthesis that comprises the descending component of claim 9
and a stent, but not a stent having the recited features (Answer 6-7). The
Examiner finds that Hyodoh discloses the stent recited in claim 9, and
concludes that it would have been obvious to include Hyodoh’s stent in
Khosravi’s prosthesis (id. at 7).
The end component stent recited in claim 9 is the same as the stent of
claim 1. For the reasons discussed above, we conclude that the stent
disclosed by Hyodoh does not meet the limitations recited in the claims,
when the claim language is read in light of the Specification. Therefore,
even if it would have been obvious to include Hyodoh’s stent in Khosravi’s
prosthesis, the resulting device would not meet all of the limitations of claim
9. We therefore reverse the rejection of claims 9, 10, and 12-18 under 35
U.S.C. § 103(a).
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SUMMARY
We reverse both of the rejections on appeal.

REVERSED

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