Ex Parte Ferrera et al

Patent Trials and Appeals Board

May 28, 2019

14611564 - (D) (P.T.A.B. May. 28, 2019)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
14/611,564 02/02/2015
137574 7590 05/30/2019
Medtronic
826 Coal Creek Circle
Louisville, CO 80027
FIRST NAMED INVENTOR
David Ferrera
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.
H-KN-02757US03 9812
EXAMINER
NGUYEN, TUAN VAN
ART UNIT PAPER NUMBER
3771
NOTIFICATION DATE DELIVERY MODE
05/30/2019 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):
rs. patents. two@medtronic.com
docketing@fortemip.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte DAVID FERRERA,
ANDREW CRAGG, and JOHN FULKERSON 1
Appeal2018-008205
Application 14/611,564
Technology Center 3700
Before MICHAEL L. HOELTER, ANNETTE R. REIMERS, and
LISA M. GUIJT, Administrative Patent Judges.
REIMERS, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Appellant appeals under 35 U.S.C. § 134(a) from the Examiner's
decision to reject claims 24--28 and 33-37. Claims 1-23 and 29-32 have
been canceled. We have jurisdiction under 35 U.S.C. § 6(b).
We REVERSE.
1 Covidien LP is indicated as the "Applicant." See Application Data Sheet p.
5--6, filed Feb. 2, 2015; see also Bib Data Sheet. In addition, Medtronic PLC
is indicated as the "real party in interest." See Appeal Brief 3 ("Appeal Br."),
filed May 7, 2018. Thus, we understand Medtronic PLC and Covidien LP to
represent "Appellant" in the subject application.
Appeal2018-008205
Application 14/611,564
CLAIMED SUBJECT MATTER
The claimed subject matter "relates to stroke treatment systems" and
particularly, "relates to improved devices for restoring blood flow and
embolus removal during acute ischemic stroke." Spec. ,r 2, Figs. 4---6, 8.
Claims 24 and 3 3 are independent.
Claim 24 is illustrative of the claimed subject matter and recites:
24. A method for removing an embolus from a blood vessel of
a subject's neurovasculature, comprising:
delivering a capturing device to the blood vessel;
engaging the embolus with the capturing device; and
moving the embolus down the intracranial tree into the
carotid siphon without moving the capturing device into a
catheter.
THE REJECTIONS
I. Claims 24, 25, 28, 33, 34, and 37 stand rejected under 35 U.S.C.
§ I02(b) as anticipated by Bose (US 2003/0212430 Al, published Nov. 13,
2003).
II. Claims 26 and 35 stand rejected under 35 U.S.C. § I03(a) as
unpatentable over Bose and Dorros (US 2003/0040705 Al, published Feb.
27, 2003).
III. Claims 27 and 36 stand rejected under 35 U.S.C. § I03(a) as
unpatentable over Bose and Rosenbluth (US 6,511,492 Bl, issued Jan. 28,
2003).
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Appeal2018-008205
Application 14/611,564
ANALYSIS
Rejection I -Anticipation by Bose
The Examiner finds that Bose discloses "'moving the embolus down
the intracranial tree into the carotid siphon without moving the capturing
device into a catheter,'" as recited in claim 24 and "'without recapturing the
capturing device into a catheter, retracting the capturing device together with
the captured portion of the clot into the carotid siphon,"' as recited in claim
33. Final Act. 4, 5 ( citing Bose ,r 78, Figs. 6-8). 2 In particular, the
Examiner finds that Bose discloses a method for removing an embolus from
a blood vessel of a subject's neurovasculature having all the limitations of
claims 24 and 33. Id. at 4---6 (citing Bose Figs. 4--8). Specifically, the
Examiner finds that Bose discloses "moving the device 10 with the embolus
60 down the intracranial tree into a larger artery without moving the
capturing device into a catheter" because Bose states that "device 10 is
withdrawn proximally back through the Internal Carotid Artery." Id. at 4
( citing Bose ,r 78). The Examiner explains that because "the Carotid Siphon
is located proximal of [the] Middle Cerebral Artery and at a distal portion of
the Internal Carotid Artery," Bose illustrates at Figures 7 and 8 that "the
embolus 60 and the device 10 are moved from Middle Cerebral Artery
(MCA) [through the carotid siphon, and] down to a larger artery." Id. at 4--5
( citing Bose ,r Figs. 7, 8). The Examiner further explains that Bose discloses
"'[t]o complete the procedure, the device 10, with the foreign body 60
captured, is withdrawn from the patient."' Id. In the Answer, the Examiner
2 Final Office Action ("Final Act."), dated Jan. 18, 2018.
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Appeal2018-008205
Application 14/611,564
reproduces an image3 of the four anatomical divisions of the internal carotid
artery. Ans. 4. 4 According to the Examiner, this image evidences that "the
Middle Cerebral Artery is located distal of the Carotid Siphon C3 and the
Carotid Siphon C3 is a portion of the Internal Carotid Artery." See Ans. 3-
4.
Thus, we understand the Examiner's rejection to be based on the
underlying premise that the middle cerebral artery is located distal to the
carotid siphon and that the carotid siphon is a portion of the internal carotid
artery. See id. However, the image of the four anatomical divisions of the
internal carotid artery reproduced in the Answer does not evidence that the
middle cerebral artery is located distal to the carotid siphon, but, rather, that
the middle cerebral artery is an artery that includes the carotid siphon. See
id. In other words, the image does not show where the internal carotid artery
starts and ends and where the middle cerebral artery starts and ends to
evidence that the middle cerebral artery is distal to the carotid siphon. See
id.
Further, as Bose is silent as to the carotid siphon, let alone the
location of the carotid siphon, Bose does not disclose that its device 10 is
moved into the carotid siphon without moving the device 10 into catheter
12. See Bose, passim, Figs. 6-8; see also Appeal Br. 5-11. In other words,
Bose's device 10 could be moved into catheter 12 and then catheter 12 could
3 It appears that this image is obtained at
https://sites.google.com/a/wisc.edu/neuroradiology/anatomy/under-
spin/vascular-anatomy as it is the same image reproduced by Appellant. See
Appeal Br. 9-10; id. n.19.
4 Examiner's Answer ("Ans."), dated June 11, 2018.
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Appeal2018-008205
Application 14/611,564
be moved into the carotid siphon. 5 In this case, we agree with Appellant that
"there is nothing in Bose that suggests Bose's cage 18 and embo lus 60 could
not be moved into Bose's catheter 12." Reply Br. 2. 6 In addition, the
Examiner does not establish that in the operation of Bose's catheter system,
Bose's device 10 necessarily moves down the intracranial tree into the
carotid siphon without moving into catheter 12. See Final Act. 4; see also
Ans. 3--4; Appeal Br. 5-11; MEHL/Biophile Int'! Corp. v. Milgraum, 192
F.3d 1362, 1365 (Fed. Cir. 1999) ("Inherency, however, may not be
established by probabilities or possibilities. The mere fact that a certain
thing may result from a given set of circumstances is not sufficient.").
As such, the Exarniner does not provide sufficient evidence or
technical reasoning to establish that Bose teaches "moving the embolus
down the intracranial tree into the carotid siphon without moving the
capturing device into a catheter," as recited in claim 24 and "without
recapturing the capturing device into a catheter, retracting the capturing
device together with the captured portion of the clot into the carotid siphon,"
as recited in claim 33.
For these reasons, we do not sustain the Examiner's rejection of
claims 24 and 33 and claims 25, 28, 34, and 37 depending therefrom, as
anticipated by Bose. 7
5 Bose discloses that device 10 includes cage 18. See Bose~ 25.
6 Reply Brief ("Reply Br."), filed August 13, 2018.
7 Any consideration of what a skilled artisan may deem obvious regarding
possible advantages of moving the embolus down the intracranial tree into the
carotid siphon rather than another portion of an artery without moving the
embolus into a catheter is immaterial to the anticipation rejection made here
and before us for review. As the Patent Trial and Appeal Board is a review
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Appeal2018-008205
Application 14/611,564
Rejections II and III- Obviousness over Bose and either
Dorros or Rosenbluth
Claims 26 and 27 depend indirectly from claim 24 and claims 35 and
36 depend indirectly from claim 33. Appeal Br. 13-14 (Claims App.). The
Examiner's rejections of claims 26 and 35 as unpatentable over Bose and
Dorros, and of claims 27 and 36 unpatentable over Bose and Rosenbluth, are
each based on the same unsupported findings in Bose discussed above with
respect to claims 24 and 33. See Final Act. 8-9. The Examiner does not
rely on Dorros or Rosenbluth in any manner that remedies the deficiencies
of Bose. Accordingly, for reasons similar to those discussed above for
claims 24 and 33, we do not sustain the Examiner's rejections of claims 26
and 35 as unpatentable over Bose and Dorros, and of claims 27 and 36 as
unpatentable over Bose and Rosenbluth.
DECISION
We REVERSE the decision of the Examiner to reject claims 24--28
and 33-37.
REVERSED
body, rather than a place of initial examination, we decline to make a
determination of what a skilled artisan may conclude. Instead, we leave it to
the Examiner to determine the appropriateness of any further course of action
based on such a conclusion should there be further prosecution of this
application.
6