11121027 (B.P.A.I. Feb. 22, 2011)

Ex Parte Griffen et al

Board of Patent Appeals and InterferencesFeb 22, 2011

11121027 (B.P.A.I. Feb. 22, 2011)

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. 11/121,027 05/03/2005 Stephen Griffen S63.2-10538-US02 1829 490 7590 02/22/2011 VIDAS, ARRETT & STEINKRAUS, P.A. SUITE 400, 6640 SHADY OAK ROAD EDEN PRAIRIE, MN 55344 EXAMINER HOUSTON, ELIZABETH ART UNIT PAPER NUMBER 3731 MAIL DATE DELIVERY MODE 02/22/2011 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 BOARD OF PATENT APPEALS AND INTERFERENCES ____________ Ex parte STEPHEN GRIFFIN and BRENT C. GERBERDING ____________ Appeal 2009-009719 Application 11/121,027 Technology Center 3700 ____________ Before: JENNIFER D. BAHR, LINDA E. HORNER, and JOHN C. KERINS, Administrative Patent Judges. HORNER, Administrative Patent Judge. DECISION ON APPEAL1 1 The two-month time period for filing an appeal or commencing a civil action, as recited in 37 C.F.R. § 1.304, or for filing a request for rehearing, as recited in 37 C.F.R. § 41.52, begins to run from the “MAIL DATE” (paper delivery mode) or the “NOTIFICATION DATE” (electronic delivery mode) shown on the PTOL-90A cover letter attached to this decision. Appeal 2009-009719 Application 11/121,027 2 STATEMENT OF THE CASE Stephen Griffin and Brent C. Gerberding (Appellants) seek our review under 35 U.S.C. § 134 of the Examiner’s decision rejecting claims 25-39, which are all of the pending claims. We have jurisdiction under 35 U.S.C. § 6(b). We REVERSE. THE INVENTION Appellants’ claimed invention relates to implantable devices for non- invasive treatment of vascular defects, such as an aneurysm. Spec. 1:8-9. Claim 25 is representative of the subject matter on appeal. 25. A method for treating a brain aneurysm, comprising: providing a sacrificial anode stent delivery system having a stent and a vaso-occlusive device, the stent being coated with at least one therapeutic agent, and the stent comprising having at least one sacrificial anode portion wherein the at least one sacrificial anode portion is affixed to the stent; providing the vaso-occlusive device with at least one portion with a corrosion potential different from that of the sacrificial anode portion of the stent; providing a power source that is in electrical communication with the sacrificial anode portion; inserting the stent within a body lumen; advancing the stent delivery system to the brain aneurysm; deploying the stent within the body lumen; placing the vaso-occlusive coil within the brain aneurysm; applying a voltage potential from the power source through an electrical pathway to the sacrificial anode portion; corroding the sacrificial anode portion. Appeal 2009-009719 Application 11/121,027 3 THE REJECTION Appellants seek review of the Examiner’s rejection of claims 25-39 under 35 U.S.C. § 103(a) as unpatentable over Wallace (US 6,007,573, issued December 28, 1999) and Frantzen (US 5,873,907, issued February 23, 1999). ISSUE Does Frantzen disclose providing a system having a portion that is “sacrificial” as called for in independent claims 25 and 36? ANALYSIS The Examiner interpreted independent claims 25 and 36 to call for a sacrificial anode portion that corrodes “so that other material does not corrode.” Ans. 6. Based on this claim construction, the Examiner found that Frantzen discloses a stent having at least one anode portion (reduced thickness portion 36a of exposed areas 36 of binding straps 30) that is “sacrificial” in that reduced thickness portion 36a corrodes “so that the entire band does not corrode.” Ans. 3-4, 6. Appellants argue that Frantzen’s anode portion is not “sacrificial,” because Frantzen directs corrosion to the binding straps rather than redirecting corrosion away from the stent. App. Br. 12. Appellants’ argument is premised on the interpretation that claims 25 and 36 call for a sacrificial portion that corrodes so that other portions of the stent do not corrode. We agree with Appellants’ claim construction. Independent claim 25 is directed to a method for treating a brain aneurysm that includes the step of providing a stent having at least one Appeal 2009-009719 Application 11/121,027 4 sacrificial anode portion. Similarly, independent method claim 36 calls for “selecting from either the stent or medical device a sacrificial portion of a different corrosion potential from that of the remainder of the stent or medical device.” Appellants’ Specification describes that sacrificial anode portion 120 “is a portion of the stent with a higher corrosion potential than the remainder of the stent,” and describes that sacrificial anode portion 120 prevents undesirable corrosion of stent 100 by redirecting electrolytic corrosion to a desired location for the stent 100. Spec. 7:17-19; 8:24-26; figs. 1-4. We interpret claims 25 and 36 to call for a portion that is “sacrificial” in that it corrodes so that other portions of the stent do not corrode. We also agree with Appellants that Frantzen directs corrosion to the binding straps rather than redirecting corrosion away from the stent. Frantzen discloses a stent delivery system comprised of a stent 10 held in its constrained delivery diameter by binding straps 10. Frantzen, col. 2, ll. 65-67; col. 3, ll. 33-36. Electrically coupled to binding straps 30 are electrode lead wires 32a and 32b, of opposite polarity, having insulation 33 along their length except at windows 34a and 34b. Frantzen, col. 3, ll. 51- 59; fig. 3B. Window 34a of electrode lead wire 32a makes direct electrical contact with binding straps 30 at exposed area 36, and window 34b is disposed adjacent to, but not in direct electrical contact with, exposed area 36 of binding straps 30. Frantzen, col. 3, ll. 55-61; fig. 3B. Bubbles 37, filled with electrolyte 38, enclose exposed area 36, as well as windows 34a and 34b. Frantzen, col. 3, l. 67-col. 4, l. 3; fig. 3B. “When current is supplied to electrode lead wires 32, metallic ions move from the anode Appeal 2009-009719 Application 11/121,027 5 (reduced thickness portion 36a of exposed area 36) to the cathode (window 34b of electrode lead wire 32b), thereby causing erosion of the anode in exposed area 36.” Frantzen, col. 4, ll. 45-49; fig. 3B. Thus, Frantzen’s exposed area 36 is an anode that is corroded by the application of electrical current. Frantzen does not refer to exposed area 36 as a “sacrificial” anode, nor does Frantzen explicitly disclose that exposed area 36 prevents the corrosion of any portion of the stent. Frantzen, passim. More specifically, binding strap 30, to include exposed portion 36, cannot serve as a sacrificial portion of stent 10 because binding strap 30 is not in electrical communication with stent 10 (exposed area 36 is enclosed in bubble 37, and the remainder of binding strap 30 is covered with electrical insulation 35). Frantzen, col. 3, ll. 62-64; col. 3, l. 67-col. 4, l. 3; fig. 3B. Therefore, Frantzen does not disclose a portion that is sacrificial in that it corrodes so that other portions of the stent do not corrode as called for in claims 25 and 36. As such, the rejection of independent claims 25 and 36, and their respective dependent claims 26-35 and 37-39, is in error. CONCLUSION Frantzen does not disclose providing a system having an anode portion that is “sacrificial” as called for in independent claims 25 and 36. DECISION The decision of the Examiner to reject claims 25-39 is REVERSED. REVERSED Appeal 2009-009719 Application 11/121,027 6 nlk VIDAS, ARRETT & STEINKRAUS, P.A. SUITE 400 6640 SHADY OAK ROAD EDEN PRAIRIE MN 55344