Ex Parte Gerber

Patent Trial and Appeal Board

Sep 29, 2016

11591443 (P.T.A.B. Sep. 29, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
111591,443 10/31/2006
71996 7590 10/03/2016
SHUMAKER & SIEFFERT, P.A
1625 RADIO DRIVE, SUITE 100
WOODBURY, MN 55125
FIRST NAMED INVENTOR
Martin T. Gerber
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.
1023-584US01 7068
EXAMINER
D ABREU, MICHAEL JOSEPH
ART UNIT PAPER NUMBER
3762
NOTIFICATION DATE DELIVERY MODE
10/03/2016 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):
pairdocketing@ssiplaw.com
medtronic _neuro _ docketing@cardinal-ip .com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Exparte MARTIN T. GERBER
Appeal2014-005824
Application 11/591,443
Technology Center 3700
Before ERIC B. GRIMES, ULRIKE W. JENKS, and
ROBERT A. POLLOCK, Administrative Patent Judges.
PER CURIAM
DECISION ON APPEAL
This is a decision on appeal 1 under 35 U.S.C. § 134(a) from the
Examiner's rejection of claims 1-11, 23-31, and 33--43. We have
jurisdiction under 35 U.S.C. § 6(b).
We affirm-in-part.
STATEMENT OF THE CASE
The Specification discloses that "[n]eurostimulation systems may be used
to deliver electrical stimulation therapy to patients" (Spec. i-f 2). In many
applications, "it is desirable for a stimulation lead to resist migration following
1 Appellant identifies the real party in interest as Medtronic, Incorporated
(App. Br. 3).
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Application 11/591,443
implantation" (id. if 6). The Specification discloses an elongated member for
therapy delivery to a "target therapy delivery site in a patient . . . . The elongated
member includes at least one adhesive element disposed along a longitudinal
outer surface of the elongated member ... [and the] adhesive element adheres to
adjacent tissue to substantially fix a position of the elongated member" (id. if 7).
Claim 1 is representative of the claims on appeal and reads as follows:
1. An apparatus comprising:
an elongated member having a proximal end and a distal end and
defining a longitudinal outer surface;
one or more electrodes disposed on the elongated member; and
an adhesive element disposed on and pre-bonded to the
longitudinal outer surface of the elongated member, wherein the
adhesive element is configured to secure the elongated member to
tissue within a patient, and wherein the adhesive element is disposed on
the outer surface of the elongated member at a location distal to all of
the one or more electrodes of the elongated member.
The claims stand rejected as follows:
U.S.C. § 102(b) in view ofKrishnan;2
II. Claims 8, 10, 34, 35, 37, 38, 40, and 41under35 U.S.C. § 103(a) in
vie\v of Krishnan; and
111. Claims 5, 6, and 29 under 35 U.S.C. § 103(a) in view of Krishnan and
Parry. 3
I. Anticipation by Krishnan
The Examiner has rejected claims 1--4, 7, 9, 11, 23-28, 30, 31, 33, 36, 39,
42, and 43 under 35 U.S.C. § 102(b) as anticipated by Krishnan (Ans. 2-3).
2 Mohan Krishnan et al., US 2003/0105506 Al (published June 5, 2003).
3 Andrew J. Parry et al., US 2003/0074041 Al (published Apr. 17, 2003).
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The issue presented is: Does a preponderance of the evidence of record
support the Examiner's finding that Krishnan discloses an apparatus comprising an
elongated member, with one or more electrodes, and "an adhesive element," as
required by claim 1 (emphasis added)?
Findings of Fact (FF)
FPL The Specification states that "[t]he elongated member includes at least one
adhesive element disposed along a longitudinal outer surface of the
elongated member. The at least one adhesive element adheres to adjacent
tissue to substantially fix a position of the elongated member" (Spec. i-f 7).
FF2. The Specification states that
one or more adhesive elements, e.g., a fixation element,
[are] disposed on the longitudinal outer surface of the
lead. The adhesive elements may be activated by
moisture. . . [U]pon implantation of the lead . . . a
clinician may withdraw a sheath to expose the adhesive
elements, thereby exposing the adhesive elements to
moisture ... [and] activat[ing] the adhesive properties ...
. Once ... activated, the adhesive elements bond to the
adjacent tissue and secure the lead within the patient.
(Spec. ,-r 41 ).
FF3. Krishnan discloses "a system and method of stabilizing an implantable
lead. . . . The sleeve arrangement further includes one or more adhesion
sites ... [which] promote tissue in-growth or attachment between the
adhesion sites and cardiac tissue contacting the adhesion sites to enhance
stabilization of the implantable lead" (Krishnan i-f 6).
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FF4. Figure 2 of Krishnan, reproduced below, shows a lead:
l./
.... {4: .. /
Figure 2 shows "an exaggerated depiction of a lead system that includes
several adhesion sites incorporated into the lead structure" (Krishnan i-f 27).
Lead 40 "incorporates one or more electrodes, including a coil electrode 53.
The lead 40 may also incorporate tip and ring electrodes 49 and 47"
(Krishnan i-f 57). The "outer surface 41 of the lead is preferably provided
with a first coating or sleeve that prevents or inhibits cardiac tissue in-
growth, such as ePTFE" (Krishnan i-f 58). "This first coating or sleeve is
strategically interrupted with one or more interspersed segments of a second
coating, sleeve or mechanical feature that promotes tissue in-growth or
attachment, such as at one or more adhesion sites 44" (Krishnan i-f 58).
FF5. Krishnan discloses that a "lead 40 includes at least one, and typically
several, electrodes ... [which] may be sensing, pacing, or defibrillation
electrodes. . . . The lead 40 also includes locations at which cardiac tissue
in-growth is prevented or inhibited, and further includes locations at which
cardiac tissue in-growth or attachment is promoted" (Krishnan i-f 50).
FF6. Krishnan discloses that the
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lead system may also be configured for drug delivery
applications. The lead 40 may be used to pump or
otherwise transport a drug ... to a distal section of the lead
40, typically via an open lumen or other conduit .... The
electrode 49 and/or 47 may alternatively be representative
of a drug delivery arrangement that dispenses a drug from
the lead 40 to the cardiac structure, vessel or feature of
interest.
(Krishnan i-f 59).
FF7. Krishnan discloses that the "size, shape, material, and surface properties of
the adhesion sites 44 are judiciously selected to provide the desired degree
of lead/electrode fixation" (Krishnan i-f 61 ).
FF8. Figures 4 and 5 of Krishnan are shown below:
Figures 4 and 5 illustrate a lead that incorporates "one or more adhesion sites
in the form of gaps provided in a polymer covering of the lead/electrode"
and "one or more adhesion sites in the form of partial gaps provided in a
polymer covering of the lead/electrode," respectively (Krishnan i-fi-129-30
(emphasis added)).
Analysis
Claim 1
The Examiner finds that Krishnan discloses an apparatus comprising an
elongated member having proximal and distal ends and a longitudinal outer
surface, wherein "one electrode [is] disposed on the elongated member (e.g. Fig. 2,
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#47)[] and an adhesive element [is] disposed on and pre-bonded to the longitudinal
outer surface ... (e.g. Fig. 2, #44)" (Ans. 2; FF4). The Examiner finds that
Krishnan's "adhesive element is configured to secure the elongated member to
tissue within a patient and is disposed on the outer surface of the elongated
member distal to the electrode" (Ans. 2; FF3). According to the Examiner, the
term adhesive element, recited in claim 1, is reasonably interpreted in light of the
Specification to include "promoting tissue attachment" by various means (Ans. 2;
FF2; see Spec. i-f 40).
Appellant argues that the Examiner erred in finding that Krishnan discloses
an elongated member with "an adhesive element disposed on and pre-bonded to
the longitudinal outer surface," as recited in claim 1 (App. Br. 6). Appellant
acknowledges that Krishnan discloses a lead system having adhesion sites for
promoting tissue in-growth (App. Br. 6-7), however, Appellant contends that
Krishnan's adhesion sites 44 "may not reasonably be characterized as an adhesive
element disposed on and pre-bonded to the longitudinal outer surface of an
elongated member" (id. at 7). Appellant argues that the Examiner has
misinterpreted paragraph 40 of the Specification because this paragraph "does not
describe that an adhesive element encompasses a 'balloon element"' (id. at 8), in
other words, adhesive does not include "non-adhesive features" (see id. at 7).
\Ve begin our analysis with claim interpretation. Claim interpretation is at
the heart of patent examination because a claim cannot be compared to the prior art
before its scope is properly ascertained. CJ.' In re Abbott Diabetes Care Inc., 696
F.3d 1142, 1146 (Fed. Cir. 2012)). "[D]uring examination proceedings, claims are
given their broadest reasonable interpretation consistent with the specification." In
re Hyatt, 211F.3d1367, 1372 (Fed. Cir. 2000). The claim element at issue is the
term adhesf-ve element, as recited in claim 1. The question presented: does an
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adhesive element in light of the Specification reasonably encompass an adhesion
site that promotes tissue in-grmvth, as disclosed in Krishnan? Here, the
Specification makes clear that the claim term adhesf-ve elen1ent is used
interchangeably with the termJlxation elernent, wherein the Specification discloses
that the lead may include "one or more adhesive elements, e.g., a fixation
element, disposed on the longitudinal outer surface of the lead" (see FF 1 and
FF2). The Specification also discloses that embodiments include a "solidifying
substance, such as a hardenable material to form fixation structures or an
adhesive, which provides one or more fixation elements" (see Spec. i-f 39). Thus,
the Specification makes clear that an adhesive element is not limited to elements
comprising a glue-type material, but broadly includes different types of fixation
mechanisms. Accordingly, we agree with the Examiner that the broadest
reasonable interpretation of the term adhesive elernent, in light of the Specification,
encompasses an adhesion site that promotes tissue in-grovvth to fix the lead in
position, as disclosed in Krishnan (see FF3----FF8).
Appellant also argues that Krishnan does not disclose that an adhesion site
"is disposed on an outer surface of an elongated member at a location distal to
all of the one or more electrodes" (App. Br. 9).
We are not persuaded by Appellant's arguments, and agree with the
Examiner's findings as set out in the Final Action4 and Examiner's Answer.
Krishnan's lead provides an elongated member comprising a coil electrode 53,
wherein the lead 40 may also comprise tip electrode 49 and ring electrode 47
(FF4). Krishnan provides adhesion sites 44 disposed along the lead 40, with one of
the adhesion sites 44 being distal to coil electrode 53 and ring electrode 47, but
4 Office Action mailed July 11, 2013.
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proximal to tip electrode 49 (FF4). However, Krishnan discloses that elements 49
and 47, rather than being electrodes, may alternatively be a drug delivery
arrangement (FF6; see also Ans. 3 (Krishnan's "most distal adhesive element #44
in Fig. 2[ is] distal to the electrode #47," furthermore, "Krishnan specifies that
element #49 is not necessarily an electrode[], and can be a drug delivery
arrangement")). Thus, in the embodiment where elements 49 and 4 7 are drug
delivery elements, the adhesion site 44 that is located between elements 4 7 and 49
would be distal to all of the one or more electrodes, meeting the claim requirement
of "distal to all of the one or more electrodes" as set out in claim 1.
Accordingly, we affirm the rejection of claim 1under35 U.S.C. § 102(b).
Claims 2, 4, 9, 33, and 42 have not been argued separately and, therefore, fall with
claim 1. See 37 C.F.R. § 41.37(c)(l)(iv).
Claims 23 and 25
Appellant argues that the Examiner's rejection of claims 23 and 25 as being
anticipated by Krishnan was in error for the same reasons discussed above for
claim 1 (App. Br. 11-12). Appellant's arguments are not persuasive for the
reasons discussed above for claim 1, and we affirm the rejection of claims 23 and
25 under 35 U.S.C. § 102(b). Claims 36 and 43 fall with claim 23. Claims 26, 28,
31, and 39 fall with claim 25.
Claims 3, 24, and 27
Appellant also argues the rejection of claims 3, 24, and 27 (App. Br. 12-14).
Claim 3 is representative and reads as follows (emphasis added):
3. The apparatus of claim 1, further comprising a sheath
configured to enclose at least a portion of the elongated member and
cover the adhesive element.
The Examiner finds that Krishnan discloses that "and a sleeve may be
employed to enclose at least a portion of the elongated member and the adhesive
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element" (Final Act. 3). With reference to Krishnan's Figure 5, the Examiner finds
that the "sleeve effectively covers the elongated member and at least a portion of
the adhesion site (#51) to ensure that tissue ingrowth occurs at a particular
position/location" (Ans. 4--5; see FF8).
Appellant argues that Krishnan does not disclose a sleeve that encloses an
adhesive element, but "discloses a 'covering 41 that incorporates one or more
adhesion sites 44b'" (App. Br. 12). Appellant argues that Krishnan discloses "that
'the adhesion sites 44b comprise gill2§ 48 in the covering 41 "'(App. Br. 12-13).
Appellant argues that the Examiner "failed to establish that Krishnan discloses a
sheath configured to enclose at least a portion of an elongated member and cover
an adhesive element" (App. Br. 13).
We agree with Appellant that the Examiner has not adequately explained
how Krishnan's lead "enclose[s] at least a portion of the elongated member and
cover[s] the adhesive element," as recited in claim 3. Krishnan discloses that the
adhesive sites may be disposed on or are integral to a lead (FF4 and FF8).
Specifically, Krishnan's Figure 5 shows adhesive sites that are integral to the lead
and formed by gaps in the covering for the lead, wherein bridges of covering
material may extend across the gaps to stabilize the lead in the regions of the gaps
(FF8). However, Figure 5 and the accompanying description do not disclose a
sheath that covers the adhesive sites. Thus, we reverse the anticipation rejection of
claim 3.
Similar to claim 3, claims 24 and 27 also require a sheath that covers the
adhesive element, and we reverse the rejection of these claims for the same reasons
discussed for claim 3.
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Claims 7 and 30
Appellant also argues the rejection of claims 7 and 30 (App. Br. 14--15).
Claim 7 is representative and reads as follows (emphasis added):
7. The apparatus of claim 1, wherein the adhesive element is
activated by moisture.
The Examiner finds that Krishnan discloses
a sheath enclosing the elongated member . . . in order to avoid the
adhesive fixation element from being activated by moisture during
implantation (e.g. where the examiner is of the position that the
adhesive is activated based on the hydrophobicity of the polymer
material).
(Final Act. 3; see Ans. 5---6).
Appellant argues that the Examiner has not cited any passage of Krishnan
that discloses that the "adhesion sites ... are activated by moisture" (App. Br. 14).
Appellant argues that Krishnan discloses that the adhesion sites comprise a
polymer that promotes tissue in-growth or attachment, wherein this polymer may
differ from a polymer that inhibits tissue in=gro\'lv1h or attachment "in terms of
hydrophobicity" (App. Br. 14). Appellant argues that this disclosure does not
establish that Krishnan's "adhesive element activated by moisture" (App. Br. 14).
We agree with Appellant that the Examiner has not adequately explained
how Krishnan discloses an adhesive element that is activated by moisture.
Although Krishnan discloses adhesion elements that are made of hydrophilic
polymers (see Krishnan i-f 66) the polymers would possess this property whether or
not they are exposed to moisture. Thus, we agree with Appellant that one of skill
in the art would not understand the hydrophilic adhesion sites of Krishnan to be
adhesive elements that are activated by water. Thus, we reverse the anticipation
rejection of claim 7.
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Similar to claim 7, claim 30 also requires that the adhesive element is
activated by moisture, and we reverse the rejection of claim 30 for the same
reasons discussed for claim 7.
Claim 11
Appellant also argues the rejection of claim 11 (App. Br. 15-16). Claim 11
reads as follows (emphasis added):
11. The apparatus of claim 1, wherein the adhesive element
comprises a material that comprises one of 2-octyl cyanoacrylate or
fibrin glue.
The Examiner finds that Krishnan discusses "the use of adhesive material
which promotes cellular adhesion via fibrotic encapsulation which requires
fibrin glue, as fibrin glue is what causes fibrotic encapsulation" (Ans. 6).
Appellant argues that the Examiner has not pointed to where Krishnan
discloses the use of "2-octyl cyanoacrylate or fibrin glue" as required by claim 11
(App. Br. 16).
\Ve agree with Appellant that the Examiner has not adequately explained
how Krishnan discloses an adhesive element that comprises either "2-octyl
cyanoacrylate or fibrin glue," as recited by claim 11. The Specification discloses
that fibrin glue is formed by mixing two components, fibrinogen and thrombin
(Spec. i-f 74 ("two fluids, e.g., fibrinogen and thrombin in the case of fibrin glue")).
Krishnan discloses that "adhesion sites ... have been modified to promote cellular
adhesion, such as by incorporation of a chemical, material or mechanical feature
that promotes mild fibrotic encapsulation" (Krishnan i-f 65). The Examiner,
however, has not directed us to any teaching that fibrotic encapsulation is
necessarily due to a mixture of fibrinogen and thrombin, a.k.a. fibrin glue, or 2-
octyl cyanoacrylate, as recited in claim 11. Moreover, to the extent fibrous
encapsulation may, in fact, entail a fibrinogen/thrombin reaction, Krishnan does
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not teach the incorporation of these components into a medical device. Nor has the
Examiner explained why it would have been obvious to construct an apparatus
comprising these proteins (or 2-octyl cyanoacrylate) "disposed on and pre-bonded
to the longitudinal outer surface" of such a device as required by the instant claim.
For the above reasons, we reverse the anticipation rejection of claim 11.
II. Obviousness over Krishnan
The Examiner has rejected claims 8, 10, 34, 35, 37, 38, 40, and 41 under 35
U.S.C. § 103(a) as obvious in view of Krishnan (Final Act. 4, Ans. 2). Claims 8
and 10 read as follows (emphasis added):
8. The apparatus of claim 1, wherein the one or more electrodes
comprises an array of electrodes, and wherein the adhesive element
is disposed on the longitudinal outer surface of the elongated member
at a location distal to the array of electrodes.
10. The apparatus of claim 1, wherein the one or more
electrodes comprises an array of electrodes, the apparatus further
comprising a second adhesive element disposed between two
electrodes of the array of electrodes.
The issue presented is: Does a preponderance of the evidence support the
Examiner's conclusion that Krishnan would have made the use of multiple
electrodes and adhesive elements obvious?
Analysis
The Examiner finds that Krishnan discloses "the claimed invention except
for employing a plurality of adhesive rings and electrodes and rearranging them in
various configurations" (Final Act. 4). The Examiner finds that this is "simply
duplication and rearrangements of parts, recognized as an obvious design choice
based on the patient and number of stimulation sites" (id.). The Examiner further
concludes that "it would have been obvious to one having ordinary skill in the art
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... to vary the positioning of a plurality of electrodes and adhesive rings, since it
has been held that rearranging parts of an invention involves only routine skill in
the art" (id.).
Appellant argues that Krishnan does not "disclose adhesive rings.
Accordingly, the modification to the lead disclosed by Krishnan fails to amount to
a 'rearranging parts of an invention,' and the basis for the Examiner's rejection is
in error" (App. Br. 17).
Appellant's argument is not persuasive. Krishnan teaches that adhesion sites
may be located between electrodes (FF 4 ), and discloses, as discussed above (claim
1 ), that an adhesion site may be located distal to the electrodes. In addition,
Krishnan teaches that there may be multiple adhesion sites in a lead (FF 4, see
element 44). Furthermore, the Specification does not define an "array of
electrodes," and thus, the term is simply interpreted to mean more than one
electrode. Krishnan discloses an elongated member that comprises more than one
electrode, e.g., electrode 53, 47, and 49 (FF4). In view of this disclosure in
Krishnan, we agree with the Examiner that the arrangements of electrodes and
adhesion sites recited in claims 8 and 10 would have been obvious to one of
ordinary skill in the art.
Claims 34, 35, 37, 38, 40, and 41
Appellant argues that Krishnan does not "disclose adhesive rings.
Accordingly, the modification to the lead disclosed by Krishnan fails to amount to
a 'mere duplication of the essential working parts of a device,' and the basis for the
Examiner's rejection is in error" (App. Br. 18-19 (internal citation omitted)).
Appellant's arguments are not persuasive. Krishnan discloses that the
adhesion sites may be in the form of rings, i.e., gaps in the covering, and also
discloses that the size and shape of the adhesion sites can be optimized (FF7 and
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FF8). Krishnan also discloses alternating arrangement of adhesion sites and
electrodes (FF4). We agree with the Examiner that based on the teachings of
Krishnan, the subject matter of claims 34, 35, 37, 38, 40, and 41 would have been
obvious. Thus, we affirm the rejection of claims 34, 35, 37, 38, 40, and 41 under
35 U.S.C. § 103(a).
III. Obviousness over Krishnan and Parry
The Examiner has rejected claims 5, 6, and 29 under 35 U.S.C. § 103(a) as
obvious in view of Krishnan and Parry (Final Act. 5, Ans. 2).
Claims 5, 6, and 29 read as follows (emphasis added):
5. The apparatus of claim 4 [which requires a conduit disposed
within the elongated member], wherein the conduit is configured to
deliver an energy that one of activates or deactivates the adhesive
element.
6. The apparatus of claim 5, wherein the energy comprises at
least one of ultraviolet light, radio frequency energy or conductive
energy.
29. The apparatus of claim 28 [which requires a conduit disposed
within the elongated member], wherein the conduit is configured to
deliver an energy to activate or deactivate the adhesive element.
The issue presented is: Does the evidence of record support the Examiner's
conclusion that the combination of Krishnan and Parry would have made obvious
the use of adhesive elements that can be activated or deactivated?
Findings of Fact
FF9. Parry discloses "[m]edical electrical leads adapted to be implanted within
the body, and ... having at least one distal electrode affixed at a site of a
body organ ... employing a light-activated adhesive fixation, and methods
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and systems for accessing the site, applying the distal electrode to the site,
and activating the light-activated adhesive" (Parry, Abstract).
FFlO. Parry discloses that an "elongated introduction tool is selectively operable to
grasp and release the electrode head and to conduct light ... to the electrode
plate .... The light-activated adhesive comprises one of a light-activated
acrylic or cyanoacrylate adhesive that is activated by ultraviolet light"
(Parry, Abstract).
Analysis
The Examiner finds that Krishnan discloses "the use of a lumen in drug
delivery ... [but] there is no specific energy disclosed used to activate/deactivate
the adhesive" (Final Act. 5). The Examiner finds that "Parry uses the light-
activated adhesive in order to more precisely control the positioning of the lead to
the target site. This is well known in the art and Parry was provided to show the
purpose of using light activated adhesive" (Ans. 7).
Appellant argues that one of "ordinary skill in the art would not have
modified a lumen disclosed by Krishnan, which ... is used to transport a drug, to
include a light-activated adhesive, as proposed by the Examiner" (App. Br. 20
(internal citation omitted)). Appellant argues that it is not clear "what purpose a
light-activated adhesive in the lumen of the Krishnan lead would have served"
(id.). Appellant argues that the Examiner has impermissibly used Appellant's
invention "as a roadmap to find references that allegedly disclose the features of
claim 5" (id.). Appellant argues that, therefore, the combination of Krishnan and
Parry would not have made obvious the apparatus of claim 5, 6, or 29 (id. at 20-
21).
We are not persuaded. We agree with the Examiner that the combination of
Krishnan and Parry would have made obvious the use of an adhesive element that
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can be activated or deactivated. While we are fully aware that hindsight bias often
plagues determinations of obviousness, Graham v. John Deere Co., 383 U.S. 1, 36
(1966), we are also mindful that the Supreme Court has clearly stated that the
"combination of familiar elements according to known methods is likely to be
obvious when it does no more than yield predictable results." KSR Int 'l Co. v.
Teleflex Inc, 550 U.S. 398, 416 (2007). Here, Parry discloses that the use of
energy to activate adhesive elements on implanted electrodes is known in the art
(FF9 and FF 10). Parry discloses that an introduction tool, rather than the lead, is
used to deliver the activating energy (FF 10). Krishnan discloses that the fixation
of leads is important and discloses that the conduits within the leads can be used to
deliver agents to the target sites (FF6). Thus, modification of Krishnan leads to
further include adhesion sites that can be activated with energy and to additionally
include a conduit for energy delivery would have been obvious based on the
combination of prior art elements with predictable results.
survnvIARY
We affirm the rejection of claims 1, 2, 4, 9, 23, 25, 26, 28, 31, 33, 36, 39, 42,
and 43 under 35 U.S.C. § 102(b) by Krishnan.
We reverse the rejection of claims 3, 7, 11, 24, 27, and 30 under 35 U.S.C.
§ 102(b) by Krishnan.
We affirm the rejection of claims 8, 10, 34, 35, 37, 38, 40, and 41 under
35 U.S.C. § 103(a) over Krishnan.
We affirm the rejection of claims 5, 6, and 29 under 35 U.S.C. § 103(a)
Krishnan and Parry.
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TIME PERIOD FOR RESPONSE
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-IN-PART
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