Ex Parte Gianotti

Board of Patent Appeals and Interferences

May 23, 2007

10674729 (B.P.A.I. May. 23, 2007)

The opinion in support of the decision being entered today was not written
for publication and is not binding precedent of the Board.

UNITED STATES PATENT AND TRADEMARK OFFICE
__________

BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
__________

Ex parte MARC GIANOTTI
__________

Appeal 2007-1197
Application 10/674,729
Technology Center 3700
__________

Decided: May 23, 2007
__________

Before, DEMETRA J. MILLS, LORA M. GREEN and
RICHARD M. LEBOVITZ, Administrative Patent Judges.

MILLS, Administrative Patent Judge.

DECISION ON APPEAL
This is an appeal under 35 U.S.C. § 134. The Examiner has rejected
claims 31, 32, 40, 41, and 43-46 for anticipation. According to the Examiner,
claims 66-68 and 76 contain allowable subject matter. (Br. 2.) Claim 42 is
objected to as being dependent upon a rejected base claim. (Answer 2, Br.
2.) We have jurisdiction under 35 U.S.C. § 6(b). We affirm the anticipation
rejections of the claims.

Appeal 2007-1197
Application 10/674,729

Claim 31 is representative.
31. A stent insertable into the body passageway, including:

a flexible self expanding braided tubular wall comprising at least one
first wire helically wound at a substantially constant first pitch and at least
one second wire helically wound at a substantially constant second pitch
different from the first pitch whereby the first and second wires cooperate to
form multiple crossing points of the at least one first wire and the at least
one second wire;

wherein at selected crossing points, each of the first wire and the
second wire is shaped to form an elevation extended away from the braided
tubular wall in a selected direction radially of the braided tubular wall; and

wherein said elevations are arranged in at least one elevation pattern
on the braided tubular wall, and the at least one elevation pattern has a third
pitch different from the first pitch and different from the second pitch.

Cited References
Evans US 5,709,713 Jan. 20, 1998
Chuter US 5,725,547 Mar. 10, 1998

Grounds of Rejection
1. Claims 31, 32, 40, 41, and 43-46 stand rejected under 35 U.S.C.
§ 102(e) for anticipation over Evans.
2. Claims 31, 32, 40, 41, and 43-46 stand rejected under 35 U.S.C.
§ 102(e) for anticipation over Chuter.

2
Appeal 2007-1197
Application 10/674,729

DISCUSSION

1. Anticipation by Evans
Claims 31, 32, 40, 41, and 43-46 stand rejected under 35 U.S.C.
§ 102(e) for anticipation over Evans.
The Examiner contends that Evans teaches a stent, as claimed.
(Answer 3.) In particular
Evans et al teaches a self-expanding braided tubular mesh
comprising first 14 and second 16 wires helically wound at a
first and second pitch, respectively; wherein selected crossing
points [of] each of the first and second wires are shaped to form
an elevation, wherein the elevations 54 are arranged in a pattern
having a third pitch different than the first pitch and different
from the second pitch. (Answer 3.)

The Appellant contends that "Evans does not anticipate . . . because
the flat ribbon of Evans is not wire." (Br. 5.)
We do not read the disclosure of Evans as narrowly as Appellant.
Evans describes a stent made of "helically woven elements." (Col. 3, ll. 59-
67.) The helically woven elements are "typically composed of metals. (Col.
3, l. 67; col. 6, ll 49-51.) “The helically woven elements will usually be flat
ribbons." (Col. 3, ll. 59-67.) Evans further states that the helically woven
elements form the tubular body of the prosthesis. (Col. 6, ll. 3-37.)
According to Evans, the tubular body, which is comprised of the woven
elements, may be composed of one or more materials. "[I]t may be desirable
to fabricate the tubular body both from organic polymers . . . and from
metallic elements. . . Alternatively or additionally, the interwoven elements
can . . . be composed of two or more materials, particularly when the flat
ribbons are composed of multiple individual filaments." (Col. 6, ll. 49-67.)
3
Appeal 2007-1197
Application 10/674,729

Thus, Evans discloses stents formed from helically woven elements
which may be metallic. One of ordinary skill in the art reading Evans would
have understood that the helically woven elements described therein need
not always be in flat ribbon form. See also the relationship between claims
3 and 5 of Evans, where claim 5 states that “at least some of the helically
woven elements [of claim 3] are flat ribbons, evidencing that the "helically
woven elements" may be other than flat ribbon. (Col. 9, ll. 1-35.)
Furthermore, the term "wire" is defined as "1. A usually pliable
metallic strand or rod made in many lengths and diameters, sometimes clad
and often electrically insulated, used chiefly for structural support or to
conduct electricity. 2. Something resembling a wire, as in slenderness or
stiffness." The Free Online Dictionary by Farlex.1 This is also consistent
with the Examiner's definition of "wire" set forth in the Answer, page 4.2
Thus, the term "wire" as used in pending claim 31, is interpreted to

1 http://www.thefreedictionary.com
2 Furthermore, a web search of the term "flat wire" also produced multiple
search hits, further supporting that one of ordinary skill in the art would
understand that the term "wire" includes "flat wire". E.g.,
http://www.metals-unltd.com/ describing, "COPPER, BRASS, BRONZE,
ALUMINUM STAINLESS STEEL, NICKEL ALLOY, TITANIUM, HIGH
TEMPERATURE ALLOYS, AIRCRAFT ALLOYS, ALLOY STEEL,
PHOSPHOR BRONZE, BERYLLIUM COPPER, LEAD, TUNGSTEN
Including Flat Wire, Round Wire, Brass Strip, Copper Strip, Phosphor
Bronze strip, Beryllium copper strip, Brass Coil, Copper Coil, Brass Wire,
Beryllium Copper Tubing, Copper Flat Wire, Phospher Bronze Wire,
Brass Flat Wire, Silicon Bronze Wire." Emphasis added.

4
Appeal 2007-1197
Application 10/674,729

encompass metallic strands of many lengths and diameters, and would
encompass the flat ribbon of Evans.
Appellant would have us interpret the term "wire" in view of the
Specification, paragraphs 28 and 29, as having a cross-sectional diameter
within the range of 0.01 to 0.5 mms, and as show in Fig 2. (Br. 6.)
Nothing in the Specification compels us to interpret the term "wire" so
narrowly. Moreover, during ex parte prosecution, claims are to be given
their broadest reasonable interpretation consistent with the description of the
invention in the specification. In re Zletz, 893 F.2d 319, 321, 13 USPQ2d
1320, 1322 (Fed. Cir. 1989).
In view of the above, we conclude that the term "wire" in claim 31
encompasses flat ribbon disclosed in Evans, and thus Evans anticipates the
pending claims.

2. Anticipation by Chuter
Claims 31, 32, 40, 41, and 43-46 stand rejected under 35 U.S.C.
§ 102(e) for anticipation over Chuter.
The Examiner contends that
Chuter teaches a stent insertable into the body
passageway, including:

a flexible self-expanding braided tubular wall comprising
at least one first wire 10 helically wound at a first pitch and at
least one second wire 10 helically wound at a second pitch
different from the first pitch whereby the first and second wires
cooperate to form multiple crossing points of the at least one
first wire and the at least one second wire;

5
Appeal 2007-1197
Application 10/674,729

wherein at selected crossing points, each of the first wire
and the second wire is shaped to form an elevation 24 extended
away from the braided tubular wall in a selected direction
radially of the braided tubular wall; and

wherein said elevations are arranged in at least one
elevation pattern on the braided tubular wall, and the at least
one elevation pattern has a third pitch different from the first
pitch and different from the second pitch.

(Answer 3.)

Again, the relevance of Chuter is dependent on the interpretation of
claim 31. The Examiner finds that the Appellant's Specification does not
define the term "substantially" with respect to the first and second pitch of
the wire in claim 31. (Answer 5.)
The Examiner contends
Appellant has not claimed that the pitch is "constant" but
only has to be "substantially constant". Further, with reference
to the claims, it is not stated that the windings are of a
substantially constant pitch [ ] over the entire . . . length of the
stent. With that is [sic] mind, one can reasonably state that with
reference to the device of Churter [sic], the wires in a
longitudinally oriented section 26 are of a substantially constant
pitch in that section.
Finally, referring to figure 1 of Chuter, looking at the
entire length, the stent is comprised of sections 26 and 24.
Windings 10 in sections 26 have a substantially constant pitch;
sections 26 further make up a larger percentage or a
"substantial" portion of the stent's length and, therefore, the
winding[s] are "substantially constant" over the entire length of
the stent.

(Answer 5.)
6
Appeal 2007-1197
Application 10/674,729

Appellant contends that Chuter does not teach a substantially
constant first pitch and a substantially constant second pitch because
the pitch of Chuter is not "constant over the entire length of the stent."
(Br. 9-10).
We agree with the Examiner that claim 31 does not require a
substantially constant pitch "over the entire length of the stent."
Furthermore, Appellant's Specification, Figures 1, 3, 6, and 7 depict
elevations over only a portion of the stent which have a different pitch from
the non-elevated portions of the stent. Therefore, according to Appellant's
own Specification, the different pitches present in the stent are not "over the
entire length of the stent."
Appellant would have us read the term "substantially" in the instant
application as a "term of approximation." (Br. 9.) We do not find
Appellant’s interpretation of the term "substantially", inconsistent with the
Examiner's interpretation of claim 31. In sum, we find that claim 31 does
not require "a constant pitch over the entire length of the stent" and thus we
find the stent of Chuter, particularly the stent having limbs of Fig. 1 (col. 3,
ll. 40-45), meets the limitations of claim 31. The rejection of the claims for
anticipation over Chuter is affirmed.

7
Appeal 2007-1197
Application 10/674,729

SUMMARY
The anticipation rejections of the claims over Evans and Chuter are
affirmed.
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

lbg

HOFFMAN & BARON, LLP
6900 JERICHO TURNPIKE
SYOSSET NY 11791

8