Ex Parte Kantor et alDownload PDFBoard of Patent Appeals and InterferencesJun 23, 201110827819 (B.P.A.I. Jun. 23, 2011) Copy Citation 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 ____________ Before KEN B. BARRETT, CHARLES N. GREENHUT, and JAMES P. CALVE, Administrative Patent Judges. CALVE, Administrative Patent Judge. DECISION ON APPEAL Appeal 2010-003495 Application 10/827,819 2 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 Claims 11-20 have been withdrawn.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. Appeal 2010-003495 Application 10/827,819 3 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. Appeal 2010-003495 Application 10/827,819 4 “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 Appeal 2010-003495 Application 10/827,819 5 & 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 Appeal 2010-003495 Application 10/827,819 6 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 Appeal 2010-003495 Application 10/827,819 7 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 Appeal 2010-003495 Application 10/827,819 8 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 Appeal 2010-003495 Application 10/827,819 9 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 mls Copy with citationCopy as parenthetical citation