Ex Parte HartleyDownload PDFPatent Trial and Appeal BoardOct 23, 201411231621 (P.T.A.B. Oct. 23, 2014) Copy Citation UNITED STATES PATENT AND TRADEMARKOFFICE 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. 11/231,621 09/21/2005 David Ernest Hartley 12730/665 7438 48003 7590 10/23/2014 BGL/Cook - Chicago PO BOX 10395 CHICAGO, IL 60610 EXAMINER GANESAN, SUBA ART UNIT PAPER NUMBER 3774 MAIL DATE DELIVERY MODE 10/23/2014 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 DAVID ERNEST HARTLEY ____________ Appeal 2012-006274 Application 11/231,6211 Technology Center 3700 ____________ Before ERIC B. GRIMES, JEFFREY N. FREDMAN, and ELIZABETH A. LaVIER, Administrative Patent Judges. LaVIER, Administrative Patent Judge. DECISION ON APPEAL The Examiner finally rejected claims 6, 7, and 11. Appellant seeks reversal of the Examiner’s rejection, pursuant to 35 U.S.C. § 134(a). We have jurisdiction under 35 U.S.C. § 6(b). For the reasons set forth below, we REVERSE. BACKGROUND When damage to blood vessels includes damage to a side branch vessel, a side branch stent graft can be used to restore blood flow. (Spec. 1, ll. 10–15.) The Specification aims to provide such a branched, or side arm, 1 According to Appellant, the Real Parties in Interest are William A. Cook Australia Pty. Ltd. and Cook Incorporated. (Appeal Br. 3.) Appeal 2012-006274 Application 11/231,621 2 stent graft that “does not compromise blood flow in the main lumen of the stent graft and allows blood flow into the side arm.” (Id. at 2, ll. 7–9.) Claim 11 is representative: 11. A side arm stent graft comprising a main tube of a biocompatible graft material and a side arm tube comprising a biocompatible graft material extending from the main tube and being fastened thereto by a plurality of stitches and being in fluid communication therewith, the side arm tube comprising an inner end, the side arm stent graft being characterized by a substantially elliptical elongate aperture in the main tube, the inner end of the side arm tube terminating at an acute angle thereby defining an angled inner end on the side arm tube, the circumference of the substantially elliptical elongate aperture being equal to the circumference of the angled inner end on the side arm tube, the periphery of the inner end on the side arm tube being fastened by the stitches to the periphery of the aperture, the stitches extending between the circumference of the angled inner end on the side arm tube and the circumference of the substantially elliptical elongate aperture comprising the fastening of the inner end of the side arm tube to the substantially elliptical elongate aperture, the fastening comprising a proximal end and a distal end of a joined region, whereby the combined circumference of the joined region of the main tube and side arm tube increases along the length of the fastening from the proximal end of the joined region to the distal end of the joined region, further comprising a plurality of self expanding stents along the main tube, a self expanding stent of the plurality self expanding stents being at the joined region and extending completely around both the main body and the side arm tube at the joined region, the self expanding stent at the joined region being on the outside of the main tube and the side arm tube and wherein the self expanding stent at the joined region comprises a plurality of struts and proximal and distal bends between adjacent struts, a proximal bend of the plurality of proximal bends being at the proximal end of the joined region and adjacent struts extending down the outside of either side of the side arm tube at the joined region. Appeal 2012-006274 Application 11/231,621 3 (Appeal Br. 23–24 (Claims App.) (emphasis added).) REJECTION On appeal, the Examiner maintains the rejection of claims 6, 7, and 11 under 35 U.S.C. § 103(a) as unpatentable over Khosravi2 in view of Callol3 and Rhodes,4 with supporting evidence from Ehrenfeld,5 Butters,6 Wilson,7 Edoga,8 Dereume,9 and Hojeibane.10 (Ans. 5.) DISCUSSION Appellant argues, inter alia, that the references fail to disclose “a self expanding stent . . . extending completely around both the main body and the side arm tube at the joined region” as recited in claim 11. (Appeal Br. 13.) Specifically, Appellant disputes the Examiner’s reliance on Callol for this limitation, asserting Callol is limited to balloon-expandable stents. (Id. at 13–14.) We agree. The Examiner relies on Callol describing a stent at a joined region extending completely around both a main body and a side arm tube. (Ans. 5–6 (citing Callol Fig. 40).) As for self-expansion, the Examiner cites to Callol’s recitation of nitinol (Callol, col. 19, ll. 13–19), an alloy with “known self-expanding properties” (Ans. 8), but acknowledges it is 2 US Patent Application Pub. No. US 2002/0193864 A1, published Dec. 19, 2002. 3 US Patent No. US 6,749,628 B1, issued June 15, 2004. 4 US Patent No. 5,122,154, issued June 16, 1992. 5 US Patent No. 5,156,619, issued Oct. 20, 1992. 6 US Patent No. 6,019,788, issued Feb. 1, 2000. 7 US Patent No. 6,165,195, issued Dec. 26, 2000. 8 US Patent No. 5,591,228, issued Jan. 7, 1997. 9 US Patent No. 5,639,278, issued June 17, 1997. 10 US Patent No. 6,017,363, issued Jan. 25, 2000. Appeal 2012-006274 Application 11/231,621 4 “unclear” whether the nitinol in Callol “is used in a self-expanding capacity” (id. at 6). However, the Examiner finds that self-expanding stents nonetheless were known in the art, and further that it would have been obvious to use self-expansion for easier implantation and/or device removal or repositioning. (Id. (citing Edoga, Dereume, and Hojeibane).) As Appellant points out, Callol consistently describes deploying the stent by inflating a balloon catheter within the target vessel. (Appeal Br. 13.) Indeed, the “trap door” stenting described to create the bifurcation in Callol relies on extending a balloon through a central opening of the central portion of the stent in the main vessel. (See Callol, col. 17, ll. 1–5; col. 18, ll. 4–16.) The bare mention of nitinol as a material for making the stent is insufficient to suggest a different method of stent deployment, especially given that balloon inflation is so central to Callol’s approach. Absent some suggestion in Callol of a self-expanding stent or evidence in the record showing interchangeability between balloon-expanding and self-expanding stents, the additional references cited by the Examiner to show that self- expanding stents were known in the art as a general matter is insufficient to establish a teaching or suggestion of a self-expanding stent extending completely around both the main body and the side arm tube. Accordingly, we conclude the Examiner has not established a prima facie case of obviousness with respect to claim 11, or of claims 6 and 7, which depend from claim 11. CONCLUSION The Examiner’s rejection of claims 6, 7, and 11 is reversed. REVERSED Appeal 2012-006274 Application 11/231,621 5 bar Copy with citationCopy as parenthetical citation