Ex Parte Kosa et alDownload PDFPatent Trial and Appeal BoardAug 1, 201814568216 (P.T.A.B. Aug. 1, 2018) Copy Citation UNITED STA TES p A TENT AND TRADEMARK OFFICE APPLICATION NO. FILING DATE 14/568,216 12/12/2014 50855 7590 Covidien LP 60 Middletown A venue Mailstop 54, Legal Dept. North Haven, CT 06473 08/03/2018 FIRST NAMED INVENTOR Timothy D. Kosa 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 ATTORNEY DOCKET NO. CONFIRMATION NO. H-US-00970CIPDIV(203-5553 6979 EXAMINER TYSON, MELANIE RUANO ART UNIT PAPER NUMBER 3731 NOTIFICATION DATE DELIVERY MODE 08/03/2018 ELECTRONIC 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. Notice of the Office communication was sent electronically on above-indicated "Notification Date" to the following e-mail address(es): rs. patents. two@medtronic.com mail@cdfslaw.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte TIMOTHY D. KOSA and NICHOLAS MAIORIN0 1 Appeal2017-007397 Application 14/568,216 Technology Center 3700 Before ERIC B. GRIMES, JOHN G. NEW, and CHRISTOPHER G. P AULRAJ, Administrative Patent Judges. NEW, Administrative Patent Judge. DECISION ON APPEAL 1 Appellants identify Covidien LP as the real party-in-interest. App. Br. 1. Appeal2017-007397 Application 14/568,216 SUMMARY Appellants file this appeal under 35 U.S.C. § I34(a) from the Examiner's Final Rejection of claims 10-20 as unpatentable under 35 U.S.C. § I03(a) over the combination of Yoon (US 5,643,295, July 1, 1997) ("Yoon") and Sung et al. (US 2008/0281357 Al, November 13, 2008) ("Sung"). We have jurisdiction under 35 U.S.C. § 6(b). We AFFIRM. NATURE OF THE CLAIMED INVENTION Appellants' invention is directed to anchoring devices, such as sutures, which include a loop having anchors disposed along a surface. Spec. ,r 2. REPRESENTATIVE CLAIM Claim 10 is representative of the claims on appeal and recites: 10. A medical device comprising: an elongate body having a proximal portion and a distal portion, the proximal portion of the elongate body terminating in a free end, the distal portion of the elongate body forming a loop, wherein the loop includes a first plurality of anchors disposed along a surface of the loop and at least one end effector supported on the loop. App. Br. 9. 2 Appeal2017-007397 Application 14/568,216 ISSUE AND ANALYSIS We adopt the Examiner's findings of fact, reasoning, and conclusion that the appealed claims are obvious over the cited prior art. We address the arguments raised by Appellants below. Issue Appellants argue the Examiner erred because the combined cited prior art references neither teach nor suggest a medical device including, inter alia, an elongate body forming a loop, "wherein the loop includes a first plurality of anchors disposed along a surface of the loop and at least one end effector supported on the loop." App. Br. 2. Analysis The Examiner finds Yoon teaches a medical device comprising an elongate body having a proximal portion and a distal portion, the proximal portion of the elongate body having a needle (10) terminating in a free end (14), and the distal portion of the elongate body forming a loop in which the loop includes at least one end effector supported on the loop (20). Final Act. 2-3 ( citing, e.g., Yoon Fig. 1 ). The Examiner finds the end effector is separate and secured to, or integral with, the loop, and is configured to engage tissue and limit movement through tissue. Id. at 3 (citing, e.g., Yoon Fig. 6). The Examiner finds that, although Yoon discloses the loop includes two branches, the reference fails to disclose the two branches of the loop include a plurality of anchors disposed along the surface. Id. The Examiner finds that Sung also discloses a medical device comprising an elongate body forming a loop including two branches. Final 3 Appeal2017-007397 Application 14/568,216 Act. 3 ( citing e.g., Sung Fig. 2). The Examiner finds further that Sung teaches providing the surface of the two branches of the loop with a plurality of anchors (barbs 128 and 128') to prevent slippage or movement of the device in a direction opposite to the movement of the needle. Id. ( citing Sung ,r 33). The Examiner concludes that it would have been obvious to a person of ordinary skill in the art to include a plurality of barbs on the surface of the two branches ofYoon's loop, as taught by Sung, to enhance securing the device in sutured tissue. Final Act. 3--4. Appellants argue that, contrary to the Examiner's findings and conclusion, there would have been no reason for a person of ordinary skill to modify the suturing apparatus of Yoon to include the barbs of the looped tissue-grasping device of Sung. App. Br. 4. Appellants point out that Sung teaches a method for "approximating and holding living tissue together for healing using [a] looped tissue-grasping device." Id. (quoting Sung ,r 78 and citing Fig. 1 ). According to Appellants, that it would not have been obvious to a person of ordinary skill to modify the suturing apparatus of Yoon to include the anchors of Sung, as the suturing apparatus of Yoon already utilizes a knotting element 20 to secure its suturing apparatus in tissue. App. Br. 6. Appellants assert that the addition of anchors to the suturing apparatus of Yoon would be duplicative of the knotting element and, further, that there is no indication that knotting element 20 of Yoon is insufficient for securing the apparatus in tissue. Id. Appellants argue further that, even if adding barbs to the suturing apparatus of Yoon would enhance the securing of the device within the tissue, modifying the suturing apparatus of Yoon to include barbs would 4 Appeal2017-007397 Application 14/568,216 prevent Yoon from operating in the manner intended. App. Br. 6. Appellants assert that Yoon teaches that: "the knotting element [20] can be positioned at the entry point or at any other location along the tissue being sutured." Id. (quoting Yoon col. 9, 11. 33-35; see Figs. 6, 8). Appellants contend that adding barbs to the suture of Yoon would prevent the knotting element from being positioned "at any other location along the tissue being sutured" as the barbs would inhibit the suture from being received through the tissue in a direction opposite the barbs. Id. Therefore, Appellants argue, modifying the suture of Yoon in the manner proposed in the Office Action would render the suturing apparatus of Yoon unsatisfactory for its intended purpose and/ or change the principle of operation of Yoon' s suturing apparatus. Id. at 7. We are not persuaded by Appellants' arguments. With respect to Appellants' argument that there would be no reason to combine the teachings of Yoon and Sung, because Yoon already teaches a method of securing the suture (i.e., knotting element 20), Sung teaches: The strand 18 includes a plurality of tissue-grasping elements 28, while the strand 20 includes a plurality of tissue-grasping elements 28'. The term "tissue-grasping elements" is defined herein to include protrusions, barbs and other projections, but is not restricted to such structures. The tissue-grasping elements 28, 28' are oriented on the elongated body 12 so as to permit movement of the looped suture 14 through the tissue in the same direction as the needle 26 being passed through the tissue, and to prevent slippage or movement of the looped suture 14 in a direction opposite to the movement of the needle 26. Sung ,r 33 ( emphases added); see also id. ,r 10 ("[T]he new device allows a surgeon to suture in an efficient manner to quickly approximate the tissue with appropriate tension and security and with minimal material."). 5 Appeal2017-007397 Application 14/568,216 Yoon teaches that: The knotting element [20] has a grasping site including a pair of opposed surfaces for grasping the second segments, the opposed surfaces being movable to non-releasably grasp the second segments to effect a knot after the needle has been passed through the loop and the suture material received between the opposed surfaces. Yoon cols. 4--5, 11. 63-1. In other words, the knotting element 20 of Yoon serves to secure the two edges of the wound together when the suture is closed, whereas the grasping elements of Sung serve to keep the tissue from slipping away from the direction of the needle and suture's passage as the suture is being sewn. We agree with the Examiner that a person of ordinary skill would be motivated to combine these features in order to better secure the tissue edges of the wound in close proximity to each other during the suturing process and after its closure. Nor are we persuaded by Appellants' argument that combining the teachings of the references would render Yoon unsuitable for its intended purpose. Figures 3-8 of Yoon are depicted below: FIG.7 FIG.8 6 Appeal2017-007397 Application 14/568,216 Figures 3-8 of Yoon depict various methods of securing sutures using knotting element 20. What is evident from Figures 3-8 of Yoon, and particularly from Figures 5-8, is that although, as Appellants argue, knotting element 20 can be placed at various sites depending upon the method of suturing employed, knotting element 20 is always at the distal point of the loop and used to secure the proximal end of the suture, i.e., the portion of the suture that has passed through the tissues behind the needle. We find that the addition of tissue-grasping elements, i.e., anchors, as taught by Sung in the passage quoted supra, would, contrary to Appellants' assertion, act to additionally prevent tissue slippage in the direction opposite to the direction of the suture's passage, and thereby assist in bringing the edges of the wound together. Consequently, we are not persuaded by Appellants' argument that combining the references would render Yoon unsuitable for its intended purpose, i.e., suturing the edges of a wound securely. We therefore affirm the Examiner's rejection of the claims. DECISION The Examiner's rejection of claims 10-20 as unpatentable under 35 U.S.C. § 103(a) is affirmed. No time period for taking any subsequent action in connection with this appeal may be extended under 37 C.F.R. § 1.136(a)(l )(iv). AFFIRMED 7 Copy with citationCopy as parenthetical citation