Ex Parte Kveen et al

Patent Trial and Appeal Board

Apr 15, 2016

12005881 (P.T.A.B. Apr. 15, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
12/005,881 12/28/2007
11050 7590 04/19/2016
SEAGER, TUFTE & WICKHEM, LLP
100 South 5th Street
Suite 600
Minneapolis, MN 55402
FIRST NAMED INVENTOR
Graig L. Kveen
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.
2001.1539101 5338
EXAMINER
WOZNICKI, JACQUELINE
ART UNIT PAPER NUMBER
3774
NOTIFICATION DATE DELIVERY MODE
04/19/2016 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 GRAIG L. KVEEN, MARK L. JENSON,
JOSEPH M. THIELEN, WILLIAM J. DRASLER, and
TRACEE E.J. EIDENSCHINK
Appeal2013-007780
Application 12/005,881
Technology Center 3700
Before JAMES P. CALVE, LEE L. STEPINA, and
RICHARD H. MARSCHALL, Administrative Patent Judges.
STEPINA, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Graig L. Kveen et al. (Appellants) seek our review under 35 U.S.C.
§ 134 of the Examiner's decision rejecting claims 1, 2, 5, 7, 8, and 26-35.
We have jurisdiction over the appeal under 35 U.S.C. § 6(b).
We REVERSE.
THE CLAIMED SUBJECT MATTER
The claimed invention is directed to a device for treating diseased
cardiac valves. Spec. 32 (Abstract). Claim 1 is the sole independent claim
on appeal and is reproduced below.
Appeal2013-007780
Application 12/005,881
1. A percutaneous prosthetic heart valve, the heart valve
having a first end, and a second end, the heart valve
compnsmg:
an expandable valve frame including first valve frame
members, the valve frame having a first valve frame end and a
second valve frame end, the second valve frame end being the
second end of the heart valve;
a first valve leaflet, the first valve leaflet comprising a
first leaflet end and a free leaflet end, the first leaflet end
coupled to the second end of the valve frame so that the first
valve leaflet extends from the second end of the heart valve
towards the first end of the heart valve;
and
an expandable stent anchoring frame, the expandable
stent anchoring frame having a first stent frame end and a
second stent frame end, the first stent frame end being the first
end of the heart valve, the expandable stent anchoring frame
including stent frame members defining a first stent frame
portion and a second stent frame portion having greater
flexibility than the first stent frame portion.
Appeal Br. 31.
REFERENCES RELIED ON BY THE EXAMINER
Roubin
Schreck
Hojeibane
Seguin
us 6,106,548
US 6,454, 799 B 1
US 2004/0019374 Al
US 2004/0210304 Al
Aug. 22, 2000
Sept. 24, 2002
Jan.29,2004
Oct. 21, 2004
THE REJECTIONS ON APPEAL
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Appeal2013-007780
Application 12/005,881
(l) Claims 1, 2, 5, 7, 8, 26, and 28-34 are rejected under 35 U.S.C.
§ 103(a) as unpatentable over Schreck and Seguin. 1
(II) Claim 27 is rejected under 35 U.S.C. § 103(a) as unpatentable
over Schreck, Seguin, and Roubin.
(III) Claim 35 is rejected under 35 U.S.C. § 103(a) as unpatentable
over Schreck, Seguin, and Hojeibane.
ANALYSIS
Rejection(!)
The Examiner finds that Schreck discloses most of the features recited
in claim 1, "but is silent with respect to the second stent frame portion
having greater flexibility than the first stent frame portion." Non-Final Act.
2-3. The Examiner relies on Seguin to teach this feature and reasons that it
would have been obvious to modify Schreck to include this feature "in order
to create a more flexible end of the valve, allowing it to more closely
conform to a more curvy vessel or location of implantation so as to prevent
leakage on the end of the valve." Non-Final Act. 3--4. Regarding the first
valve leaflet comprising a first leaflet end and a free leaflet end required by
claim 1, the Examiner refers to leaflet 108 (Figure 6) of Schreck for this
feature. See Non-Final Act. 2-3.
1 Page 2 of the Non-Final Action dated May 24, 2012, includes a heading
listing claims 1, 2, 5, 7-9, and 28-34 as rejected as unpatentable over
Schreck and Seguin, and pages 5---6 of the Non-Final Action discuss what is
listed as "claim 9." However, the discussion on pages 5---6 of the Non-Final
Action makes clear that this portion of the Non-Final Action addresses the
features of dependent claim 26 rather than withdrawn independent claim 9.
See also Ans. 3, 7 and Appellants' Claims Appendix (omitting withdrawn
claim 9 and listing claim 26).
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Appeal2013-007780
Application 12/005,881
Appellants contend that leaflet 108 is not coupled to the valve frame
in the way required by claim 1. See Appeal Br. 8-11. Specifically,
Appellants contend that edge 126 is the "free" end of leaflet 108, and edge
124 is a coupled end. See Appeal Br. 9-11; see also Schreck, Figs. 6, 7.
Thus, according to Appellants, Schreck does not teach a leaflet with an end
coupled to a second valve frame end, wherein the second valve frame end is
also the second end of the heart valve. Appeal Br. 11 (referring to outflow
end 122 of valve 100 as the second end of the valve). In other words, it is
Appellants' position that leaflet 108 has a free end in the position claim 1
requires a coupled end. See Appeal Br. 9-11.
In response, the Examiner provides an annotated portion of Figure 6
of Schreck (which we reproduce below), and the Examiner states that this
figure supports a finding that leaflet 108 is coupled to the second end of the
valve frame of Schreck at commissure 112. Ans. 11.
130
116
coupling of second end of feaf~et and second valve fram.e ,end
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Appeal2013-007780
Application 12/005,881
The Examiner's annotated portion of Figure 6 from Schreck depicts
one end of leaflet 108 with an added ellipse identifying commissure 112 of
wireform 106 passing around an edge of leaflet 108.
In reply, Appellants state, "[i]f the Examiner considers the coapting
edge of the Schreck leaflet to be 'a first leaflet end' as recited in claim 1,
then the Schreck leaflet does not teach or suggest a 'free leaflet end' as
recited in claim 1." Reply Br. 3.
We agree with Appellants on this issue. If, as the Examiner states, the
top part of leaflet 108 in Schreck is coupled to the valve frame of Schreck,
and the opposite end of leaflet 108 is attached to other structure in Schreck
such as cusp connectors 170 as shown in Figure 7 (see also col. 10, 11. 55-
57), then Schreck does not include a free end as required by independent
claim 1. Accordingly, we do not sustain the Examiner's rejection of claim 1
and claims 2, 5, 7-9, and 28-34 depending therefrom as unpatentable over
Schreck and Seguin.
Rejections (11-111)
The Examiner's use of Roubin and Hojeibane does not remedy the
deficiency in Rejection (I), and we therefore do not sustain the Examiner's
rejection of claim 27 as unpatentable over Schreck, Seguin, and Roubin or
the Examiner's rejection of claim 35 as unpatentable over Schreck, Seguin,
and Hojeibane.
DECISION
We reverse the Examiner's decision to reject claims 1, 2, 5, 7, 8, and
26-35.
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Appeal2013-007780
Application 12/005,881
REVERSED
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