Ex Parte Khoury

Patent Trial and Appeal Board

Feb 14, 2014

11425872 (P.T.A.B. Feb. 14, 2014)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________

Ex parte MICHAEL D. KHOURY
____________

Appeal 2012-005662
Application1 11/425,872
Technology Center 3700
____________

Before TONI R. SCHEINER, JEFFREY N. FREDMAN, and
ULRIKE W. JENKS, Administrative Patent Judges.

JENKS, Administrative Patent Judge

DECISION ON APPEAL
This is an appeal under 35 U.S.C. § 134 involving claims directed to a
vascular endograft. The Examiner has rejected the claims as obvious. We
have jurisdiction under 35 U.S.C. § 6(b). We reverse.

1 Appellant identifies Khoury Medical Devices as the Real Party in Interest
(App. Br. 2).
Appeal 2012-005662
Application 11/425,872

2
STATEMENT OF THE CASE
The Specification provides that “the use of a sleeve that extends from
the tunnel into the overlying vascular branch, [ensures that] a predefined
percentage of the fluid flow through the main body of an inventive endograft
is shunted into the vascular branch.” (Spec. 5.) “The tunnel 24 is formed of
a material that will not become obstructed or collapse under prolonged
exposure to physiologic fluid transport. . . . [For example] materials such as
those sold under the trade names Dacron®, Gortex®, Teflon® and implant
grade silicones” can be used to construct the endograft (Spec. 6).
Claims 1-12 and 14-20 are on appeal, and can be found in the Claims
Appendix of the Appeal Brief. Claim 1 is illustrative of the claims on
appeal, and reads as follows (emphasis added):
1. An endograft for a vessel having a vascular branch extending
from the vessel, said endograft comprising:
a main body having a wall defining an internal surface
and an exterior surface and adapted to be placed within the
vessel, the wall defining a single lumen at a proximal end and
two distal ends, and a main body aperture extending from the
interior surface to the exterior surface above the two distal ends;
at least one expandable stent secured to said main body;
at least one expandable stent secured to each of the two
distal ends; and
an open tunnel independent of an expandable stent
associated with a circumference of said tunnel, said tunnel
having a length extending between a mouth and a terminus and
sealed to the interior surface of said main body about the main
body aperture, said tunnel secured along the length of said
tunnel to the internal surface at at least one point to provide
fluid communication between the interior surface and the
exterior surface through the main body aperture and with the
vascular branch in proximity to the main body aperture.
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Appeal 2012-005662
Application 11/425,872

4
Internal graft channel 260 and partition 280 may be
formed in a variety of functionally equivalent ways . . . . The
internal graft sleeve may be secured along one or more
longitudinal seams 285, and/or at one or more discrete contact
points. The open inner end 270 of the internal sleeve may
preferably be secured to the inner surface of graft sleeve 200
while remaining open, thereby facilitating subsequent insertion
of secondary stent graft 300 thereinto. . . . The outer open end
of the internal graft sleeve may be secured around its perimeter
to side opening 250 of graft sleeve 200 to form a substantially
fluid-tight seal.
(Quinn, col. 9, ll. 43-65; Ans. 7.)
FF2. Quinn provides that “[a]n internal stent segment 290 may be
provided near the inner open end 270 of internal graft channel 260, to keep
internal graft channel 260 open and to facilitate later deployment of a
secondary stent graft.” (Quinn, col. 5, ll. 16-20 (emphasis added).)
FF3. The Examiner finds that Chuter is “not clear with respect to an
open tunnel independent of an expandable stent associated with a
circumference of said tunnel.” (Ans. 6.)

Analysis
The Examiner has rejected all the claims on appeal as obvious based
on Chuter and Quinn, in varying combinations. The Examiner concedes that
Chuter does not disclose an open tunnel independent of an expandable stent
(FF3). The Examiner finds that “Quinn discloses an open tunnel (260)
independent of an expandable stent (290) associated with a circumference of
the tunnel. The open tunnel having a length extending between a mouth
(270) and a terminus (250).” (Ans. 7.) The Examiner concludes that it
would have been prima facie obvious “to modify the open tunnel of the
Appeal 2012-005662
Application 11/425,872

5
Chuter reference with the inner open tunnel of the Quinn reference having a
length sealed and secured to the interior surface of the main body in the
main body aperture in order to form a substantially fluid-tight seal”
(Ans. 7).
Appellant contends that “that both references Quinn and Chuter only
teach a tunnel with a circumferential stent” (App. Br. 9; Reply Br. 3),
therefore, the combination will not teach this limitation.
We agree with Appellant’s position that the evidence does not support
the Examiner’s finding that Quinn disclosed the limitation of an open tunnel
independent of a stent. Specifically, Quinn describes element 290, as
depicted in the exemplary intravascular graft (FF1), to be a stent that holds
open the tunnel 260 and helps facilitate fluid flow and the deployment of a
secondary stent (FF2). We agree with Appellant’s position that “Chuter
teaches the [sic] that a tunnel can be supported or braced. ‘Supported’ or
‘braced’ as used in Chuter are submitted to clearly reflect the use of a stent.”
(App. Br. 10; see also Chuter, col. 7, ll. 3-39 and col. 10, ll. 25-36.) On this
point, the Examiner concedes that Chuter does not disclose a tunnel
independent of an associated stent (FF3). We find no teachings in the
references and the Examiner has not pointed to any teaching that shows the
use of a tunnel without a stent. In addition, the Examiner has advanced no
reasonable alternative rationale explaining why an ordinary artisan would
have produced a tunnel without the use of an expandable stent based on the
combination of Chuter and Quinn.
“In proceedings before the Patent and Trademark Office, the
Examiner bears the burden of establishing a prima facie case of obviousness
based upon the prior art.” In re Fritch, 972 F.2d 1260, 1265 (Fed. Cir.
Appeal 2012-005662
Application 11/425,872

6
1992). Based on the evidence presented, the Examiner failed to establish an
evidentiary basis on this record to support a conclusion that the combination
of Chuter and Quinn disclose “an open tunnel independent of an expandable
stent” that extends between the mouth and the main body aperture.
We conclude that the preponderance of the evidence of record does
not support the Examiner’s conclusion that the combination of Chuter and
Quinn discloses the endograft of claim 1. We thus reverse the rejections
under 35 U.S.C. § 103(a) that rely on the teachings of Chuter and Quinn.

SUMMARY
We reverse the rejection of claims 1-12 and 14-20 under 35 U.S.C.
§ 103(a) as being unpatentable over Chuter and Quinn.

REVERSED

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