Ex Parte Lechot

Board of Patent Appeals and Interferences

Jun 21, 2011

10431450 (B.P.A.I. Jun. 21, 2011)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________________

BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
____________________

Ex parte ANDRE LECHOT
____________________

Appeal 2011-008026
Application 10/431,450
Patent 6,238,398 B1
Technology Center 3700
____________________

Before: JENNIFER D. BAHR, KEN B. BARRETT, and
PHILLIP J. KAUFFMAN, Administrative Patent Judges.

KAUFFMAN, Administrative Patent Judge.

DECISION ON APPEAL

Appeal 2011-008026
Application 10/431,450
2
STATEMENT OF CASE
Andre Lechot (Appellant) appeals under 35 U.S.C. § 134 from a
rejection of reissue
1
claims 1, 3-5, 7-10, 12, 15, 20, and 21, which are all of
the claims pending on appeal. We have jurisdiction under 35 U.S.C. § 6(b).
We affirm.

THE INVENTION
Appellant’s claimed invention is a “surgical reamer consisting of a rod
driven in rotation, equipped with a cutting head having, toward the rear,
auxiliary cutting teeth permitting easy withdrawal of the reamer.” Spec. col.
1, ll. 4-7. Independent claim 1, reproduced below, is representative of the
claimed subject matter:
1. A surgical reamer comprising:
a) a rod comprising a proximal end and a distal end; and
b) a cutting head connected to the distal end of the rod and
comprising a cylindrical central portion extending along an axis
of rotation to a rear end and a spaced apart front end, wherein
the cutting head presents thereon a plurality of cutting flutes, at
least one of which comprises a front cutting tooth having a front
cutting edge at the front end and a rear cutting tooth having a
rear cutting edge at the rear end, the rear and front ends of the
cutting flutes being frustoconically shaped and wherein the at
least one front cutting edge of the front cutting tooth is oriented
to cut in one of a leftward direction and a rightward direction
and wherein the at least one rear cutting edge of the rear cutting
tooth is formed from a same one of the plurality of cutting
flutes as a corresponding of the front cutting tooth and is
oriented to at least one of the leftward direction and the

1
This application, filed May 8, 2003, is a reissue application of U.S. Patent
6,238,398 B1, issued May 29, 2001, on Application No. 09/332,461, filed
June 14, 1999.
Appeal 2011-008026
Application 10/431,450
3
rightward direction opposite that of the front cutting edge of the
front cutting tooth.

REJECTION
Appellant seeks review of the Examiner’s rejection of claims 1, 3-5,
7-10, 12, 15, 20, and 21 under 35 U.S.C. § 102(b) as being anticipated by
Rupp (U.S. 5,720,749; issued February 24, 1998). Ans. 3.

ISSUE
Does Rupp disclose a rear cutting edge as called for in independent
claim 1?

ANALYSIS
Appellant argues claims 1, 3-5, 7-10, 12, 15, 20, and 21 as a group.
2

App. Br. 11-14; Reply Br. 2-3. We select claim 1 as the representative
claim, and claims 3-5, 7-10, 12, 15, 20, and 21 stand or fall with claim 1.
See 37 C.F.R. § 41.37(c)(1)(vii).
Independent claim 1 calls for a cutting head that extends along an axis
of rotation, where the rear cutting edge of the rear cutting tooth at the rear
end of the at least one of the plurality of cutting flutes of the cutting head is
oriented to cut in at least one of the leftward direction and the rightward
direction opposite that of the front cutting edge of the front cutting tooth at
the front end of that cutting flute. In other words, claim 1 calls for at least
one of the plurality of cutting flutes of the cutting head to include a rear

2
Appellant addresses independent claims 5 and 10; however, Appellant
makes no distinction between the limitation at issue in claim 1 and that of
claims 5 and 10. Consequently, we address all of Appellant’s arguments via
analysis of claim 1.
Appeal 2011-008026
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cutting edge that cuts in the opposite rotational direction that the front
cutting edge of that flute cuts. Claim 1 does not further define or quantify
the cutting ability of the rear cutting edge; thus we look to the Specification.
Appellant’s Specification describes that it was known to use reamers
(a rod driven in rotation and a cutting head) to prepare canals in bones for
receiving implants, and that such cutting work at the distal end of the cutting
head forms bone chips mixed with a spongy mass at the proximal end of the
cutting head that tends to cause packing as the surgeon removes the reamer.
Spec. col. 1, ll. 9-20. In order to overcome this shortcoming in the art,
Appellant’s claimed device is equipped with a cutting head having auxiliary
teeth toward the rear (proximal end) that cut the bone chips during removal
of the reamer so that the bone chips and spongy mass are able to pass along
the flutes of the cutting head (towards the distal end of the cutting head)
without causing packing. Spec. col. 1, ll. 5-8, 31-41.
In light of Appellant’s Specification, the degree of cutting by the rear
cutting edge of the cutting head must be sufficient so that the bone chips and
spongy mass produced by the front cutting edge are passed along the flutes
of the cutting head without packing so that the reamer may be easily
removed. A person of ordinary skill in the art would interpret claim 1 to call
for at least one of the plurality of flutes of the cutting head to include a rear
cutting edge capable of cutting in the opposite direction of cutting of the
front cutting edge so that the bone chips and spongy mass produced by the
front cutting edge are passed along the flutes of the cutting head without
packing, permitting easy removal of the reamer.
The Examiner found that Rupp discloses a cutting head (cutting head
120) that rotates in both the clockwise and counterclockwise direction and at
least one of the plurality of flutes (flutes 126) includes a rear cutting edge
Appeal 2011-008026
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(the area from cutting blade 125 to the left side of cutting head 120 in Figure
11) that is on the opposite rotational side to the front cutting edge. Ans. 3-5.
Rupp discloses an integral reaming apparatus 110 to enlarge the
medullary canals of bone having a flexible drive shaft 111, which transmits
energy to a cutting head 120 in forward and reverse directions. Rupp, col. 1,
ll. 12-13; col. 2, ll. 1-4; col. 6, ll. 29-32; fig. 11. Cutting head 120 is
comprised of a head body 121 having a plurality of equiangular spaced-apart
cutting blades 125, which extend from the distal to the proximal end of
cutting head 120. Rupp, col. 6, ll. 42-51; fig. 11. Based on this, we agree
with the Examiner that Rupp discloses a cutting head having a rear cutting
edge (the proximal portion of cutting blades 125).
The claimed reamer and Rupp’s reamer each have a cutting head
3

capable of rotation in both directions
4
attached to the distal end of a rod
5

used to cut bones
6
. Both cutting heads have cutting blades that are angled
with respect to the axis of rotation of the rod
7
and are separated by flutes
8
.
Given this, it appears that Rupp’s reamer, like the claimed reamer, is capable
of cutting in the opposite direction of cutting of the front cutting edge so that
the bone chips and spongy mass produced by the front cutting edge are

3
Cutting head 1 (Spec. col. 2, l. 13; fig. 1). Cutting head 120 (Rupp, col. 6,
l. 32; fig. 11).
4
Spec. col. 2, ll. 25-28. Rupp, col. 2, ll. 1-4.
5
Rod 2 (Spec. col. 2, l. 14; fig. 1.). Shaft 111 (Rupp, col. 6, ll. 30-31; fig.
11).
6
Spec. col. 1, ll. 9-10. Rupp, col. 1, ll. 11-12.
7
Helicodial flutes 7 with teeth 8, 10 and adjacent teeth 9 form cutting blades
(Spec. col. 2, ll. 17-18, 25-28; figs. 1, 2). Cutting blades 125 (Rupp, col. 6,
ll. 47-48; fig. 11)
8
Grooves formed between helicodial flutes 7 (Spec. col. 2, ll. 17-18; figs. 1,
2). Flutes 126 (Rupp, col. 6, ll. 47-51; figs. 11, 18).
Appeal 2011-008026
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passed along the flutes of the cutting head without packing, permitting easy
removal of the reamer as called for in independent claim 1.
As such, the Examiner’s finding that Rupp’s cutting head 120
includes at least one flute having a rear cutting edge capable of cutting in a
direction of rotation opposite that of the front cutting edge as called for in
independent claim 1 is reasonable. Accordingly, the burden has shifted to
Appellant to show that this is not the case. See In re Schreiber, 128 F.3d
1474, 1478 (Fed. Cir. 1997).
Appellant admits that Rupp’s cutting head rotates in both directions.
See App. Br. 13-14; Reply Br. 2; see also Rupp, col. 2, ll. 1-4. Despite this
admission, Appellant makes several assertions in support of the argument
that the capability to rotate in both directions does not necessarily mean
Rupp’s rear cutting edge cuts as called for in independent claim 1. App. Br.
11-14; Reply Br. 2-3.
First, Appellant asserts that if Rupp’s cutting blades 125 could cut in
either direction, Rupp would have described them as “biangular” rather than
“equiangular.” App. Br. 13. We are unpersuaded by this assertion. Rupp’s
cutting head 120 includes a plurality of “equiangularly” spaced-apart cutting
blades 125. Rupp, col. 6, ll. 42-48; figs. 11, 17-19. In this context, the term
“equiangularly” describes cutting blades 125 as similarly angled, and does
not describe the ability or inability of the blade to cut. Further, the term
“biangularly” also describes the angle of the cutting blades, and does not
refer to the cutting ability of the cutting blade.
Second, Appellant asserts that, in end elevation view (Figure 18),
Rupp’s flute 126 is recessed on one side of each cutting blade 125 and not
on the opposing side of cutting blade 125, indicating that “Rupp did not
intend his prior art reamer to cut in a reverse direction.” Reply Br. 2.
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Rupp’s intent is not the relevant issue. Rather, the relevant issue is whether
Rupp’s reamer is capable of such use, and this assertion does not shed any
light on that issue. Further, as explained supra, Appellant’s cutting head,
like Rupp’s, has cutting blades that are angled with respect to the axis of
rotation of the rod
9
and are separated by flutes
10
. Accordingly, an end
elevation view of Appellant’s cutting head would show flutes (helicodial
flutes 7), that, like Rupp’s (flutes 126), would appear to be recessed on one
side of each cutting blade and not on the opposing side. Thus, we fail to see
how this characteristic supports Appellant’s assertion.
Third, Appellant asserts that Rupp describes the proximal end of
cutting blades 125 as “open to the outer surface 123 of the shank 122,”
without mentioning whether this end of cutting blades 125 is capable of
cutting, and if this end (the rear cutting edge of cutting blade 125) were
capable of such cutting, Rupp would have mentioned it. Reply Br. 3
(quoting Rupp, col. 6, ll. 50-51). Appellant’s attempt to read meaning into
such silence in Rupp is unconvincing given our analysis regarding the
structure and capability of Rupp’s cutting blade, supra.
Further, none of Appellant’s assertions are supported by objective
evidence, as Appellant failed to set forth any affidavits or declarations in
support of that assertion. App. Br. passim; Reply Br. passim. Consequently,
Appellant’s arguments and conclusory statements, which are unsupported by
factual evidence, are entitled to little probative value. See In re Pearson,
494 F.2d 1399, 1405 (CCPA 1974) (Appellants’ arguments do not take the

9
Helicodial flutes 7 with teeth 8, 10 and adjacent teeth 9 form cutting blades
(Spec. col. 2, ll. 17-18, 25-28; figs. 1, 2). Cutting blades 125 (Rupp, col. 6,
ll. 47-48; fig. 11)
10
Grooves formed between helicodial flutes 7 (Spec. col. 2, ll. 17-18; figs. 1,
2). Flutes 126 (Rupp, col. 6, ll. 47-51; figs. 11, 18).
Appeal 2011-008026
Application 10/431,450
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place of evidence); see also In re Geisler, 116 F.3d 1465, 1470 (Fed. Cir.
1997); In re De Blauwe, 736 F.2d 699, 705 (Fed. Cir. 1984).
Appellant has failed to carry the burden of proving Rupp’s reamer is
not capable of cutting as called for in independent claim 1. As such, we
sustain the rejection of claim 1, and claims 3-5, 7-10, 12, 15, 20, and 21 fall
with claim 1.

CONCLUSION OF LAW
Rupp discloses a rear cutting edge as called for in independent claim
1.

DECISION
We affirm the Examiner’s decision to reject 1, 3-5, 7-10, 12, 15, 20,
and 21.

No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a). See 37 C.F.R.
§ 1.136(a)(1)(iv).

AFFIRMED

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