Ex Parte KiemeneijDownload PDFPatent Trial and Appeal BoardFeb 26, 201311623641 (P.T.A.B. Feb. 26, 2013) Copy Citation 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. 11/623,641 01/16/2007 Ferdinand Kiemeneij 1001.1302106 5223 11050 7590 02/26/2013 SEAGER, TUFTE & WICKHEM, LLC 1221 Nicollet Avenue Suite 800 Minneapolis, MN 55403 EXAMINER MEHTA, BHISMA ART UNIT PAPER NUMBER 3767 MAIL DATE DELIVERY MODE 02/26/2013 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 FERDINAND KIEMENEIJ __________ Appeal 2011-006753 Application 11/623,641 Technology Center 3700 __________ Before TONI R. SCHEINER, DEMETRA J. MILLS, and SHERIDAN K. SNEDDEN, Administrative Patent Judges. SNEDDEN, Administrative Patent Judge. DECISION ON APPEAL This is an appeal under 35 U.S.C. § 134 involving claims to a preshaped catheter. The Examiner has rejected the claims as anticipated and obvious. We have jurisdiction under 35 U.S.C. § 6(b). We affirm. App App inven and c defin prox conn fitted “[T]h seco porti eal 2011-0 lication 11 A percutan ll. 14-15 Figure 1 tion” (id. omprises ing a prim imal arch ected to a with the e tertiary ndary curv on 10 coax 06753 /623,641 ST ppellant’s eous trans ). Figure is a side v at 7, ll. 19 a distal br ary curve 6 defining distal end usual hand curve 7 re e 5 will de ially enga ATEMEN invention radial app 1 of the Sp iew “of a -20). The idge shape 3, a top 4 a tertiary 8 of a stra ling conne sts on the flect the p ges the os 2 T OF TH “relates to roach to ca ecification portion of catheter s d portion defining a curve 7. T ight shaft ctor (not s aortic wall rimary cu tium of th E CASE preshaped theterizati is reprod the cathet hown in F 1 having a secondary he proxim 9 the prox hown)” (i ; upon pul rve 3 so th e artery” ( tubular c on” (Spec uced below er accordin igure 1 “i distal arch curve 5, al arch 6 i imal end o d. 7, l. 30 ling the ca at the first id. 9, ll. 16 atheters fo ification 1 . g to the s tubular 2 and a s f which is to 8, l. 3). theter, the straight -18). r , Appeal 2011-006753 Application 11/623,641 3 The Specification discloses that “the tertiary curve 7 and secondary curve 5 assure a correct directioning of primary curve 3 and first straight portion 10 in coaxial alignment with the artery” (id. 10, ll. 2-4). “To achieve engagement into the upward take-off 24' a push on the shaft 9 of the catheter will give an upward deflection of primary curve 3 and the corresponding upward directioning of first straight portion 10 to coaxially engage the artery” (id. 10, ll. 4-7). “Engagement into the downward take-off 24'' will require a pull on shaft 9 of the catheter so that the primary curve 3 will take a more downward deflection which will re-direct downwardly the first straight portion 10 to properly engage the ostium coaxially” (id. 10, ll. 7-9). Claims 1-20 are on appeal. Claim 1 is representative and reads as follows (emphasis added): 1. A preshaped catheter, comprising: a tubular, generally straight end segment; a plurality of generally straight segments proximal of the end segment; and a plurality of curved segments; and means for permitting the end segment to coaxially intubate a lumen of a left coronary artery having an ostium, whether the left coronary artery has a horizontal takeoff, an upward take-off, or a downward take-off, while a portion of the catheter rests on a portion of a wall of an aorta when the end segment is intubated in the lumen. 9. The catheter of claim 1, wherein the end segment is more flexible than the plurality of generally straight segments. Appeal 2011-006753 Application 11/623,641 4 The claims stand rejected as follows: I. Claims 1-8 and 10-20 are rejected under 35 U.S.C. § 102(b) as being anticipated by Danforth.1 II. Claim 9 is rejected under 35 U.S.C. § 103(a) as being unpatentable over Danforth in view of Durfee.2 The Examiner withdrew, on appeal, the rejection of claims 1-15 under 35 U.S.C. 112, second paragraph (Ans. 3). I. Issue The Examiner has rejected claims 1-8 and 10-20 under 35 U.S.C. § 102(b) as being anticipated by Danforth. The Examiner finds that the “means of the means-plus-function term is found in the combination of the geometry and modulated flexibility disclosed in the specification” and that Danforth discloses a structure capable of serving this function (Ans. 7-8). Specifically, the Examiner finds “Danforth discloses varying the flexibility of the catheter to allow for easier engagement with the coronary ostium and for stability within the coronary ostium” (Ans. 8). Appellant contends that “the disclosure of Danforth (Fig. 4) is limited to positioning a catheter near a downward take-off left coronary artery, rather than intubating the lumen of said left coronary artery, which nearby catheter badly misaligns (by about 20 degrees) with the downward take-off 1 Danforth, US 4,822,345, issued Apr. 18, 1989. 2 Durfee, US 5,203,776, issued Apr. 20, 1993. Appeal 2011-006753 Application 11/623,641 5 left coronary artery” (App. Br. 12). Appellants further contend that “[t]here appears to be no indication that a guiding catheter disclosed by Danforth is capable of coaxially intubating a lumen of a left coronary artery having other than a downward take-off angle” (App. Br.11). The issue presented is: Does the evidence of record support the Examiner’s findings that Danforth disclose a catheter having a “means for permitting the end segment to coaxially intubate a lumen of a left coronary artery having an ostium, whether the left coronary artery has a horizontal take-off, an upward take- off, or a downward take-off, while a portion of the catheter rests on a portion of a wall of an aorta when the end segment is intubated in the lumen” as required by claim 1? Findings of Fact The following findings of fact (“FF”) are supported by a preponderance of the evidence of record. FF1. Figure 1 of Danforth is reproduced below. App App steno and d eal 2011-0 lication 11 Figure 4 sis in a co ilation ba FF2. D [T]th introduc virtue of guiding manipul ascendin 20 with advance catheter 06753 /623,641 is a cross- ronary art lloon (Dan anforth dis e perform tion of a g a guidew catheter ated up g aorta 12 in the co ment of 28 within sectional v ery togeth forth col. closes as f ance of an uiding cat ire (not sh 20 at its the desce to place ronary os the angiop the disease 6 iew of the er with a c 3, ll. 41-44 ollows: angiopla heter with own) and distal e nding ao the end 32 tium thus lasty gui d vessel. heart and onvention ). sty initial in a periph the presh nd 32, th rta 14 a of the gu permitti dewire 25 aorta sho al guiding ly require eral artery aped natu e cathete nd down iding cat ng subseq and ba wing a catheter s the . By re of r is the heter uent lloon App App (Id. c one e 52-5 varia enga infle a mo eal 2011-0 lication 11 ol. 4, ll. 3 FF3. Fi Figure 4 mbodime 3). FF4. D ble flexib gement w xibility of re stable m 06753 /623,641 1-40.) (Em gure 4 of D is a cross- nt of the c anforth dis ility in its m ithin the co my cathet anner tha phasis ad anforth i sectional v atheter of closes tha ost flexib ronary os er enables n conventi 7 ded.) s reproduc iew of the the present t “[t]he us le conditi tium. Onc it to rema onal cathe ed below. heart and invention e of my gu on at the o e engaged in engaged ters.” (Id. aorta illu (Danforth iding cath utset perm , the relati within th col. 5, ll. 3 strating col. 3, ll. eter with its easier ve e ostium in 1-34). Appeal 2011-006753 Application 11/623,641 8 Principles of Law Anticipation requires that every element and limitation of the claimed invention must be found in a single prior art reference, arranged as in the claim. Brown v. 3M, 265 F.3d 1349, 1351 (Fed. Cir. 2001). Analysis We find that the evidence of record supports the Examiner’s finding that Danforth discloses that the end portion of the guiding catheter is placed within the coronary ostium (FF1 and FF3; Ans. 4). We also find that the evidence of record supports the Examiner’s finding that Danforth discloses a catheter having a “plurality of generally straight segments and the plurality of curved segments [that] are considered to be capable of permitting the end segment to coaxially intubate a lumen of a right coronary artery as claimed” (FF1- FF4; Ans. 4). Appellant presents no evidence to specifically rebut the Examiner’s findings that the end- segment of the Danforth catheter is capable of coaxial intubation once within the ostium of the coronary artery. For example, Appellant has not provided any objective evidence, such as expert testimony, to explain how the end segment, once intubated, could engage the coronary artery in a manner that would not be consider “coaxially”. Furthermore, we are not persuaded by Appellant arguments that “Danforth (Fig. 4) is limited to positioning a catheter near a downward take- off left coronary artery” (App. Br. 12). Appellant contends that in “the illustrated deployments found in Danforth (Figs. 1, 2, and 4), both the prior art and stiffenable left Judkins catheters interact only with left coronary arteries which appear to have the same downward takeoff angle of about 10 Appeal 2011-006753 Application 11/623,641 9 degrees below the horizontal or about 120 degrees from the adjacent wall of the aorta” (App. Br. 11). However, this argument is insufficient because it is not supported by evidence, but rather mere argument, that, for example, left Judkins catheters are incapable of being manipulated in the manner now claimed (see, id.). Appellant’s arguments supporting such positions, however, cannot take the place of evidence, In re Pearson, 494 F.2d 1399, 1405 (CCPA 1974), and are entitled to little, if any, weight. See, e.g., In re Payne, 606 F.2d 303, 315 (CCPA 1979); In re Lindner, 457 F.2d 506, 508 (CCPA 1972). We thus find this argument insufficient to overcome the Examiner’s findings that the Danforth catheter possesses the same or substantially the same geometry and flexibility of the claimed catheter that renders the catheter capable of the same or substantially the same function – that is, intubation in a horizontal take-off, an upward take-off, or a downward take-off (see e.g., App. Br. 7-8).3 Conclusion of Law The preponderance of evidence on this record supports the Examiner’s findings that Danforth renders claim 1 obvious. Claims 2-8 and 10-20 fall with claim 1. 37 C.F.R. § 41.37(c)(1)(vii). 3 Here we note that the flexible curved segments of the Danforth catheter are stiffened only after the catheter is fully engaged (FF4) and thus, we do not find that the stiffening function would not interfere with the intubation function. Appeal 2011-006753 Application 11/623,641 10 II. Regarding the rejection of dependent claim 9 as obvious over Danforth and Durfee, Appellant argues that this claim is patentable without providing additional argument or evidence (App. Br. 12). Thus, for the same reasons discussed in the section above, Appellant arguments do not persuade us that the Examiner has erred in concluding that claim 1 is obvious over Danforth and Durfee. SUMMARY We affirm all rejections on appeal. AFFIRMED lp Copy with citationCopy as parenthetical citation