Ex Parte Kantor et al

Board of Patent Appeals and Interferences

Jun 23, 2011

10827819 (B.P.A.I. Jun. 23, 2011)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
____________

Ex parte JOHN D. KANTOR and RYAN A. JONES
____________

Appeal 2010-003495
Application 10/827,819
Technology Center 3700
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Before KEN B. BARRETT, CHARLES N. GREENHUT, and
JAMES P. CALVE, Administrative Patent Judges.

CALVE, Administrative Patent Judge.

DECISION ON APPEAL

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STATEMENT OF THE CASE
John D. Kantor and Ryan A. Jones (Appellants) appeal under 35
U.S.C. § 134 from the Examiner’s decision rejecting claims 1, 3-10, and 21.
Claims 11-20 have been withdrawn. We have jurisdiction over this appeal
under 35 U.S.C. § 6.

THE INVENTION
Appellants’ invention relates to catheter deployment of drug-coated
stents. More particularly, it relates to a stent deployment system that
prevents expansion of a catheter balloon into regions of a body vessel
beyond the ends of the stent. Spec. 1, ll. 15-18.
Claim 1 is representative of the claimed invention:
1. A system for treating a vascular condition,
comprising:
a catheter; and
a stent deployment assembly coupled to the
catheter, the stent deployment assembly
comprising a balloon, a first inelastic collar
positioned radially about and attached at an
inflatable portion of a proximal end of the balloon,
wherein the inflatable portion of the proximal end
of the balloon beneath of and interior to the first
inelastic collar is free of the catheter, and a second
inelastic collar positioned radially about and
attached at an inflatable portion of a distal end of
the balloon, wherein the inflatable portion of the
distal end of the balloon beneath of and interior to
the second inelastic collar is free of the catheter;
wherein the collars limit expansion of the balloon
at the proximal end of the balloon and the
inflatable distal end of the balloon when the
balloon is inflated.

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THE REJECTIONS
The Examiner relies upon the following as evidence of
unpatentability:
Bromander US 5,224,933 Jul. 6, 1993
Sheiban US 5,226,889 Jul. 13, 1993
Sahatjian US 5,304,121 Apr. 19, 1994

The following rejections are before us for review:
I. The Examiner rejected claims 1, 3, and 21 under 35 U.S.C. § 102(b)
as anticipated by Bromander.
II. The Examiner rejected claims 4-9 under 35 U.S.C. § 103(a) as
unpatentable over Bromander in view of Shieban.
III. The Examiner rejected claim 10 under 35 U.S.C. § 103(a) as
unpatentable over Bromander in view of Sheiban and further in view
of Sahatjian.

SUMMARY OF DECISION
We affirm the Examiner’s rejections of claims 1, 3-10 and 21.

ANALYSIS
Rejection I - Claims 1, 3, and 21
Appellants appeal the Examiner’s rejection of claims 1, 3 and 21
under 35 U.S.C. § 102(b) as being anticipated by Bromander. App. Br. 9.
Appellants argue claims 1, 3, and 21 as a group and present additional
arguments for claim 21. We select claim 1 as representative of the group
and also address Appellants’ separate arguments for claim 21.
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“A claim is anticipated only if each and every element as set forth in
the claim is found, either expressly or inherently described, in a single prior
art reference.” Verdegaal Bros., Inc. v. Union Oil Co. of Cal., 814 F.2d 628,
631 (Fed. Cir. 1987). To establish anticipation, every element and limitation
of the claimed invention must be found in a single prior art reference,
arranged as in the claim. Karsten Mfg. Corp. v. Cleveland Golf Co., 242
F.3d 1376, 1383 (Fed. Cir. 2001).
Claim 1 – “free of the catheter”
Appellants argue that claim 1 recites collars that are “free of the
catheter” and Bromander’s collars are not free of the catheter because they
mount the balloon to the catheter with an airtight seal. App. Br. 11; Reply
Br. 5-6. The Examiner argues that claim 1 does not recite this feature and
only requires the balloon ends to be free of the catheter. Ans. 4. Appellants
assert that their collars are attached about inflatable portions of the balloon
so they are free of the catheter. Reply Br. 5. The Examiner argues that the
Specification discloses collars that are attached to the catheter and therefore
are not “free of the catheter,” as Appellants contend. Ans. 4-5. We agree
with the Examiner and adopt his findings and conclusions as our own.
It is a bedrock principle of patent law that the claims define the
invention. Phillips v. AWH Corp., 415 F.3d 1303, 1312 (Fed. Cir. 2005) (en
banc). During examination, claims are given their broadest reasonable
interpretation consistent with the specification and claim language should be
read in light of the specification as it would be interpreted by one of ordinary
skill in the art. In re Am. Acad. of Sci. Tech. Ctr., 367 F.3d 1359, 1364 (Fed.
Cir. 2004). We look to the specification to see if it provides a definition for
claim terms, but otherwise apply a broad interpretation. In re ICON Health
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& Fitness, Inc., 496 F.3d 1374, 1379 (Fed. Cir. 2007). The ordinary
meaning of claim terms may be established by dictionary definitions. CCS
Fitness, Inc. v. Brunswick Corp., 288 F.3d 1359, 1366 (Fed. Cir. 2002).
Claim 1 recites, in pertinent part, a system for treating a vascular
condition comprising, inter alia, a stent deployment system that includes:
a first inelastic collar positioned radially about and
attached at an inflatable portion of the proximal end of
the balloon, wherein the inflatable portion of the
proximal end of the balloon beneath of and interior to the
first inelastic collar is free of the catheter, . . .

a second inelastic collar positioned radially about and
attached at an inflatable portion of a distal end of the
balloon, wherein the inflatable portion of the distal end
of the balloon beneath of and interior to the second
inelastic collar is free of the catheter . . . .

App. Br., Claims Appendix (emphasis added).
We agree with the Examiner that Claim 1 recites that the inflatable
portions of the proximal and distal ends of the balloon are “free of the
catheter.” We conclude that claim 1 does not recite collars that are free of
the catheter so Appellants’ arguments in that regard are not commensurate
with the scope of claim 1. The patentability of claim 1 cannot be predicated
on this unclaimed feature. See In re Schreiber, 128 F.3d 1473, 1479 (Fed.
Cir. 1997); In re Self, 671 F.2d 1344, 1348 (CCPA 1982).
Claim 1 - “inflatable portion” of balloon
Appellants argue that Bromander’s collars attach the balloon ends to
the catheter and form an airtight seal so the parts of the balloon they attach
to the catheter are not “inflatable portions” of the balloon. App. Br. 11;
Reply Br. 5-6. Appellants assert that their collars do not provide an airtight
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seal but instead are placed about inflatable portions of the balloon. Reply
Br. 5. The Examiner contends that the Specification discloses collars that
are fixed to the catheter and therefore are not “free of the catheter.” Ans. 4-
5. The Examiner further asserts that Bromander’s collars are attached to the
balloon and catheter in the same manner as Appellants disclose that their
collars are attached to the balloon and catheter. Ans. 5. Resolution of this
issue turns largely on construction of the terms “inflatable portion” and
“attached.”
The Specification does not assign or suggest a particular definition for
“inflatable portion” or “attached” or otherwise indicate that the terms are
used in a manner other than their ordinary and customary meaning.
The ordinary meaning of “inflatable” is “capable of being inflated.”
See MERRIAM WEBSTER’S COLLEGIATE® DICTIONARY 640 (11th ed. 2005).
The ordinary meaning of “inflate” is “to swell or distend with air or gas.”
See id. at 640. An ordinary meaning of “portion” is “an often limited part of
a whole.” See id. at 967. An ordinary meaning of “attach” is “to make fast
(as by tying or gluing).” See id. at 79. Therefore, the ordinary meaning of
“attached” at an “inflatable portion” of a balloon is made fast a part of the
balloon that is capable of being swelled or distended.
This ordinary meaning is consistent with the Specification, which
discloses that the balloon is inflated by injecting liquid into the interior of
the balloon to expand the balloon. Spec. 7, ll. 1-3. The collars are fixedly
attached to the catheter at proximal and distal ends of the balloon to hold the
balloon firmly in place against the catheter and limit expansion of the
balloon at those ends when the balloon is inflated. Spec. 5, ll. 27-31; Spec.
6, ll. 1-10; Spec. 8, ll. 8-11; figs. 1, 3. The collars function as a “girdle” to
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prevent expansion of the balloon in regions where there is no stent. Spec. 6,
ll. 7-8. The collars can be attached to the catheter by any suitable technique
such as crimping, coining, or gluing. Spec. 13, ll. 4-6 and 28-30. The
collars can attach the balloon to the catheter without the use of heat bonds,
glue, or epoxy. Spec. 12, ll. 28-30. This disclosure indicates that the collars
provide an airtight seal.
Giving “attached” at an “inflatable portion” of the balloon its broadest
reasonable construction consistent with the Specification, we agree with the
Examiner that Bromander’s collars are attached at inflatable portions of the
balloon in the same manner as Appellants’ collars. The parts of the balloon
secured to the catheter by collars in Bromander are capable of inflating and
would inflate if the collars were not positioned over these parts of the
balloon, because these inflatable portions of the balloon are not permanently
affixed to the catheter by a heat bond, glue, or epoxy. The collars limit the
expansion of these inflatable portions of the balloon.
Claim 21 - a first and second “balloon attachment”
Appellants argue that Bromander does not disclose collars attached at
an inflatable portion of the balloon that overlaps or is adjacent to a balloon
attachment as recited in claim 21. Appellants again argue that Bromander’s
collars mount the balloon to the catheter so they are not attached at inflatable
portions of the balloon. App. Br. 11-12. The Examiner relies on his
argument that Bromander’s collars attach inflatable portions of the balloon
to the catheter just as the Specification discloses that Appellants’ collars
attach inflatable portions of the balloon to the catheter. Ans. 5.
The Specification does not assign or suggest a particular definition for
“balloon attachment” or otherwise indicate that this term is used in a manner
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other than its ordinary and customary meaning. The ordinary meaning of
“attachment” is “the physical connection by which one thing is attached to
another.” See MERRIAM WEBSTER’S COLLEGIATE® DICTIONARY 79 (11th ed.
2005). An ordinary meaning of “balloon” is “an inflatable bag (as or rubber
or plastic).” See id. at 94. Thus, a “balloon attachment” is a physical
connection of an inflatable bag to another thing.
This meaning is consistent with the Specification, which discloses that
the balloon can be attached to the catheter with a heat bond. Spec. 12, ll. 26-
28. The first collar is fixedly attached to the catheter at a proximal end of
the balloon, partially overlapping or adjacent to the heat bond. Spec. 13, ll.
2-3. However, the balloon also can be attached to the catheter by collars
without the use of heat bonds, glue, or epoxy. See Spec. 12, ll. 28-30.
We agree with the Examiner and find that Bromander’s collars attach
inflatable portions of the balloon to the catheter in the same way Appellants’
collars fixedly attach inflatable ends of the balloon to the catheter via
crimping, coining or other suitable technique without the use of a heat bond,
glue, or epoxy. See Spec. 12, ll. 28-30; Spec. 13, ll. 4-6 and 28-30; Spec. 6,
ll. 1-2; Spec. 8, ll. 8-11; fig. 3. When Appellants’ collars attach the balloon
to the catheter without a heat bond, glue, or epoxy, they overlap the balloon
attachment that they form in the same manner as Bromander’s collars.
We therefore conclude the Examiner did not err in rejecting claims 1,
3, and 21 under 35 U.S.C. § 102(b) as anticipated by Bromander.
Rejection II - Claims 4-9
Appellants appeal the Examiner’s rejection of claims 4-9, which
depend from claim 1, under 35 U.S.C. § 103(a) as being unpatentable over
Bromander in view of Sheiban. Appellants argue claims 4-9 as a group and
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assert they are patentable over the combination of Bromander and Sheiban
because Bromander does not anticipate independent claim 1 and Sheiban
does not cure this defect. App. Br. 12. As discussed above, Appellants have
not shown that the Examiner erred in rejecting claim 1 as being anticipated
by Bromander. Therefore, there are no defects in that regard for Sheiban to
correct. Accordingly, we affirm the Examiner’s rejection of claims 4-9.
Rejection III - Claim 10
Appellants also appeal the Examiner’s rejection of claim 10, which
depends from claim 1, under 35 U.S.C. § 103(a) as being unpatentable over
Bromander in view of Sheiban and Sahatjian. Appellants argue that claim
10 is patentable because Bromander and Sheiban do not teach or suggest a
stent deployment assembly, as recited in claim 1, and Sahatjian does not
cure this defect. App. Br. 13. As discussed above, Appellants have not
shown that the Examiner erred in rejecting claim 1 as being anticipated by
Bromander. Therefore, there are no defects in that regard for Sahatjian to
correct. Accordingly, we affirm the Examiner’s rejection of claim 10.

SUMMARY
The decision of the Examiner is affirmed as to claims 1, 3-10, and 21.
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a)(1)(iv).

AFFIRMED

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