Ex Parte Kugler et al

Patent Trial and Appeal Board

Aug 22, 2017

13470854 (P.T.A.B. Aug. 22, 2017)

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.
13/470,854 05/14/2012 Chad John Kugler 1001.3060102 1274
11050 7590 08/24/2017
SEAGER, TUFTE & WICKHEM, LLP
100 South 5th Street
Suite 600
Minneapolis, MN 55402
EXAMINER
VU, QUYNH-NHU HOANG
ART UNIT PAPER NUMBER
3763
NOTIFICATION DATE DELIVERY MODE
08/24/2017 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):
BSC.USPTO@stwiplaw.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte CHAD JOHN KUGLER,
MATTHEW JONATHAN OLSON, ROSS ARLEN OLSON,
DAVID B. ROBINSON, and PETER ALAN JACOBS
Appeal 2016-001922
Application 13/470,854
Technology Center 3700
Before LYNNE H. BROWNE, ANNETTE R. REIMERS, and
BRENT M. DOUGAL, Administrative Patent Judges.
BROWNE, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Chad John Kugler et al. (Appellants) appeal under 35 U.S.C. § 134
from the rejection of claims 134—153. We have jurisdiction under 35 U.S.C.
§ 6(b).
We reverse.
Appeal 2016-001922
Application 13/470,854
CLAIMED SUBJECT MATTER
The claims are directed to an apparatus for crossing occlusions in
blood vessels. Spec. 12. Claim 134, reproduced below, is illustrative of the
claimed subject matter:
134. An apparatus for vascular treatment, comprising:
a reentry device; and
an intravascular device including:
a shaft having a proximal portion and a distal portion, the
distal portion defining a longitudinal axis; and
a lumen in the shaft configured to receive the reentry
device;
wherein the distal portion of the shaft includes:
a first aperture configured to allow the reentry
device to at least partially exit the lumen in a first direction
angled away from the longitudinal axis; and
a second aperture configured to allow the reentry
device to at least partially exit the lumen in a second direction
angled away from the longitudinal axis, wherein the first and
second directions are on opposite sides of the shaft;
wherein the lumen is a guidewire lumen extending
through a distal tip of the shaft along the longitudinal axis.
REFERENCES
The prior art relied upon by the Examiner in rejecting the claims on
appeal is:
Faxon US 5,464,395 Nov. 7, 1995
Kramer US 6,273,899 B1 Aug. 14, 2001
Palasis US 6,319,230 B1 Nov. 20, 2001
Milo US 6,511,458 B2 Jan. 28, 2003
REJECTIONS
I. Claims 134, 138—140, 143, and 145—148 stand rejected under
35 U.S.C. § 103(a) as unpatentable over Milo and Palasis.
II. Claims 135—137, 144, and 151 stand rejected under 35 U.S.C.
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Appeal 2016-001922
Application 13/470,854
§ 103(a) as unpatentable Milo, Palasis, and Kramer.
III. Claims 141, 142, 149, 150, 152, and 153 stand rejected under
35 U.S.C. § 103(a) as unpatentable over Milo, Palasis, and
further in view of Faxon.
DISCUSSION
Rejection I
The Examiner finds that Milo and Palasis disclose or suggest all of the
limitations of independent claims 134 and 143. Final Act. 2—3. In
particular, the Examiner finds that Palasis discloses “a first aperture 34
configured to allow [a] reentry device to at least partially exit the lumen in a
first direction angle away from the longitudinal axis” of the shaft of a rentry
device and “a second aperture 34 (opposite sides of the first aperture 34)
configured to allow the reentry device 26 to at least partially exit the lumen
in a second direction angled away from the longitudinal axis.” Id. at 3.
Noting that Palasis’ secondary penetrating members 26 are not reentry
devices, Appellants argue that the proposed modification would not “result
in an apparatus in which each of the resulting apertures of modified Milo is
configured to allow the reentry device to at least partially exit a first aperture
and subsequently for that same reentry device to at least partially exit a
second aperture in a second direction.” Appeal Br. 10.
Palasis describes elongate shaft 14 as follows:
The distal portion 18 of the elongate shaft 14 includes a primary
penetrating member 24 coaxially disposed in an elongate outer sheath 28.
The primary penetrating member 24 contains a plurality of secondary
penetrating members 26 disposed adjacent the distal end thereof. The
secondary penetrating members 26 are retractable within the primary
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Appeal 2016-001922
Application 13/470,854
penetrating member 24, but are shown in the extended position for purposes
of illustration. Palasis 4:43—50.
This configuration is illustrated in Fig. IB reproduced below:
IS \
FIG. IB
Fig. IB is an enlarged detailed view of the distal end of the catheter.
One skilled in the art reading this description in Palasis and
considering Figure IB would understand that to the extent that Palasis
discloses a “reentry device,” Palasis’ penetrating member 24, not its
secondary penetrating members 26, corresponds to that device. Palasis
further states that “[t]he secondary penetrating members 26 extend through
apertures 34 defined through the wall of the primary penetrating member 24.
The apertures 34 each have an axis that is at an angle with the longitudinal
axis of the primary penetrating member 24.” Palasis 4:59—63. Thus, one
skilled in the art would understand that Palasis’ apertures are configured to
allow the secondary penetrating members 26, not the primary penetrating
member 24, to exit the lumen. Thus, Appellants are correct that even if Milo
were modified in view of these teachings, the resulting device would not
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Appeal 2016-001922
Application 13/470,854
have first and second apertures configured to allow Milo’s reentry device to
at least partially exit the lumen, as required by claims 134 and 143.
For this reason, we do not sustain the Examiner’s decision rejecting
claims 134 and 143, and their respective dependent claims 138—140 and
145-148.
Rejections II and III
The Examiner’s rejections of claims 135—137, 144, and 151
(Rejection II) and claims 141, 142, 149, 150, 152, and 153 (Rejection III)
rely upon the same proposed combination of Milo and Palasis as Rejection I.
This proposed combination would not result in the claimed device for the
reasons discussed supra. Accordingly, we do not sustain the Examiner’s
decisions rejecting claims 135—137, 141, 142, 144, and 149—153.
DECISION
The Examiner’s rejections of claims 134—154 are REVERSED.
REVERSED
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