Ex Parte Hulliger

Patent Trial and Appeal Board

Jun 15, 2017

13426079 (P.T.A.B. Jun. 15, 2017)

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.
10139/25502 6186
EXAMINER
COLEY, ZADE JAMES
ART UNIT PAPER NUMBER
3775
MAIL DATE DELIVERY MODE
13/426,079 03/21/2012
76960 7590
Fay Kaplun & Marcin, LLP
150 Broadway, suite 702
New York, NY 10038
06/15/2017
Urs Hulliger
06/15/2017 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 URS HULLIGER1
Appeal 2016-001775
Application 13/426,079
Technology Center 3700
Before JOHN G. NEW, RYAN H. FLAX, and DAVID COTTA,
Administrative Patent Judges.
FLAX, Administrative Patent Judge.
DECISION ON APPEAL
This is a decision on appeal under 35 U.S.C. § 134(a) involving
claims directed to a bone fixation device. Claims 1—7 are on appeal as
rejected under 35 U.S.C. § 102(b).2 We have jurisdiction under 35 U.S.C.
§ 6(b).
We affirm.
1 Appellants identify the Real Party in Interest as DePuy Synthes Products,
Inc., a subsidiary of Johnson & Johnson, Inc. App. Br. 2.
2 Claims 8—17 are indicated as being withdrawn from consideration. App.
Br. 9-12.
Appeal 2016-001775
Application 13/426,079
STATEMENT OF THE CASE
Claims 1 and 6 are the independent claims; claim 1 is representative
and is reproduced below:
1. A bone fixation device, comprising a bone implant integrally
formed with an aiming guide, the aiming guide being spaced
apart from the bone implant by a first connecting bar extending
therebetween.
App. Br. 8 (Claims App’x).
The following rejection is on appeal:
Claims 1—7 stand rejected under 35 U.S.C. § 102(b) as anticipated by
Leyden.3 Final Action 2.
FINDINGS OF FACT
FF1. Leyden discloses a bone fixation device with a bone
plate/implant integrally formed with an aiming guide, which is spaced
apart therefrom by a pair of connecting bars at, inter alia, Figures 8
and 16, which are reproduced below:
3 U.S. Pat. App. Pub. No. US 2009/0088805 A1 (Apr. 2, 2009) (“Leyden”).
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Appeal 2016-001775
Application 13/426,079
Leyden’s Fig. 8 shows a cross-section view, and Fig. 16 shows a
perspective view, of an assembly for implanting a bone plate (6) on a
femur (F). Leyden H 22, 30, 57—65, Figs. 5, 8, 16; see also Final
Action 2—5, and Ans. 2—\ (discussing Leyden). The bone plate (6)
has openings (7) through which securing bone screws can be inserted
via a drill assembly (70). Secured to the bone plate (6) via a plate
holder (40) is a guide (60), with openings (62) corresponding to those
of the bone plate so that the drill assembly (70) can be advanced
through the guide’s openings to present a working end at the bone
plate’s opening for insertion of the securing bone screws. Id.
FF2. The Specification states, “[t]he exemplary aiming guide
according to the invention is connected to the bone plate via one or
more connecting bars, which may, for example, be integrally
manufactured with the bone plate and aiming guide.” Spec. 1 6; see
also Ans. 3 (discussing Spec’s, description of “integrally formed”).
FF3. The Specification states “[t]he aiming guide 100 may, for
example, be manufactured of the same material as the bone implant
200 as a single element, and may be separated from the bone implant
200 by a plurality of connecting bars 114.” Spec. 19; see also Ans. 3
(discussing Spec’s, description of “integrally formed”).
FF4. The Specification states, “[t]he connecting bars 114 may
also be formed of the same material as the bone implant 200 and
aiming guide 100 or of any other biocompatible suitably rigid material
as would be understood by those skilled in the art.” Spec. 110; see
also Ans. 3 (discussing Spec’s, description of “integrally formed”).
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Appeal 2016-001775
Application 13/426,079
FF5. The Specification states, “the aiming guide 100 and the
bone implant 200 may be milled from a single piece of material and
separated from one another after the aiming guide 100 has been used
to insert bone fixation elements through the bone implant 200 into the
bone 10.” Spec. 110; see also Ans. 3 (discussing Spec’s, description
of “integrally formed”).
FF6. The Specification states, “[i]n an exemplary
manufacturing method, the aiming guide 100 and bone implant 200
are manufactured and subsequently packaged as a single piece.”
Spec. 112; see also Ans. 3 (discussing Spec’s, description of
“integrally formed”).
DISCUSSION
We adopt the Examiner’s findings of fact, reasoning on scope and
content of the claims and prior art, and conclusions set out in the Final
Action and Answer. Only those arguments made by Appellant in the Briefs
have been considered in this Decision. Arguments not presented in the
Briefs are waived. See 37 C.F.R. § 41.37(c)(l)(iv) (2015).
We find the Examiner has established that claim 1 is anticipated by
Leyden. The Examiner provides a detailed and well-reasoned explanation as
to how Leyden discloses the claimed subject matter. Final Action 2-4.
Appellant has not produced evidence showing, or persuasively argued, that
the Examiner’s determination is incorrect. We address Appellant’s
arguments below.
Appellant contends the claim language “integrally formed,” recited by
claim 1, means “a single structure — a single piece ... a complete unit, a
whole,” which Appellant argues would exclude an apparatus as disclosed by
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Appeal 2016-001775
Application 13/426,079
Leyden because that apparatus includes separate pieces secured into a single
unit. App. Br. 3—6; Reply Br. 2—6. Appellant’s argument is not persuasive.
Even if we accept Appellant’s contentions as correct, Appellant’s
proposed interpretation of “integrally formed” does not exclude the
apparatus disclosed by Leyden.4 FF1. Leyden’s bone plate, aiming guide,
and the intervening connector are secured together as a single structure,
single piece, a complete unit, and a whole. Id. Moreover, Appellant has not
specially defined the term “integrally formed” in the Specification or
otherwise limited the claimed apparatus to require that it be single piece of
material. See FF2—6; see also Reply Br. 4 (arguing such a special meaning).
Because, as the Examiner found, Leyden discloses each element of
claim 1, we affirm the rejection over Leyden. Because Appellant argues
only with regard to claim 1, all claims fall with claim 1.
SUMMARY
The rejection of the claims as anticipated by Leyden is affirmed.
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
4 See Merriam-Webster Dictionary’s definition for “integral[ly]”: “formed
as a unit with another part” and its definition of “form[ed]”: “to give a
particular shape to.” Merriam-Webster, integral, available at
https://www.merriam-webster.com/dictionary/integrally; and id., form,
https://www.merriam-webster.com/dictionary/form (each visited June 12,
2017). These definitions, which we understand to represent the plain
meaning of the terms, correspond, generally, to Appellant’s argued, and the
Examiner’s broadest reasonable, interpretation. App. Br. 4; Ans. 2.
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