Ex Parte MeadDownload PDFBoard of Patent Appeals and InterferencesApr 30, 201211014669 (B.P.A.I. Apr. 30, 2012) Copy Citation UNITED STATES PATENT AND TRADEMARKOFFICE 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. 11/014,669 12/16/2004 Jason A. Mead 12730-73 1456 48003 7590 05/01/2012 BRINKS HOFER GILSON & LIONE/CHICAGO/COOK PO BOX 10395 CHICAGO, IL 60610 EXAMINER SONNETT, KATHLEEN C ART UNIT PAPER NUMBER 3731 MAIL DATE DELIVERY MODE 05/01/2012 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 BOARD OF PATENT APPEALS AND INTERFERENCES __________ Ex parte JASON A. MEAD __________ Appeal 2011-001160 Application 11/014,669 Technology Center 3700 __________ Before LORA M. GREEN, JEFFREY N. FREDMAN, and JACQUELINE WRIGHT BONILLA, Administrative Patent Judges. BONILLA, Administrative Patent Judge. DECISION ON APPEAL This is an appeal under 35 U.S.C. § 134 involving claims directed to a modular endoluminal prosthesis. The Examiner has rejected the claims as obvious. We have jurisdiction under 35 U.S.C. § 6(b). We reverse. Appeal 2011-001160 Application 11/014,669 2 STATEMENT OF THE CASE The claims are directed to modular endoluminal prosthesis that comprises primary and secondary modules, where the second module comprises a first stent graft attached to a second stent graft by a longitudinally flexible bridge. Claims 34-39, 42, 43, and 45 are on appeal. Claim 34 is the only independent claim, and is representative (emphasis added): 34. A modular endoluminal prosthesis comprising: a primary prosthetic module comprising a graft and at least a first proximal opening and first and second distal openings defining a bifurcation; and a secondary prosthetic module comprising a first stent graft having a first graft and at least one stent, a second stent graft having a second graft and at least one stent, and a flexible bridge having a first end attached to the first stent graft and a second end attached to the second stent graft; where at least a portion of the first stent graft is disposed within and extends through the first distal opening of the primary prosthetic module and at least a portion of the second stent graft is disposed within and extends through the second distal opening of the primary prosthetic module; and where the bridge is longitudinally flexible and expands within the primary prosthetic module from a first configuration to a second configuration, where the distance along the bridge between the first and second stent grafts is greater in the second configuration than in the first configuration so that the combined length of the first stent graft, second stent graft, and bridge, is greater in the second configuration than in the first configuration, and where the bridge spans the bifurcation. Appeal 2011-001160 Application 11/014,669 3 The claims stand rejected under 35 U.S.C. § 103(a) as obvious over Cox et al. (U.S. Pat. No. 5,824,040, issued Oct. 20, 1998) in view of Brandt et al., (U.S. Pat. No. 6,673,107 B1, issued Jan. 6, 2004) and Frantzen (U.S. Pat. No. 6,022,359, issued Feb. 8, 2000). I. Issue Has the Examiner established a prima facie case that a skilled artisan reading Cox in view of Brandt and Frantzen would have been motivated to use a longitudinally flexible bridge to attach a first stent graft to a second stent graft, rather than a merely laterally flexible bridge as disclosed in Brandt? Findings of Fact 1. Figures 2A-2E in the instant Specification disclose different configurations of a flexible bridge connecting two stent grafts. (Spec., Figures 2A-2E; see also Figures 10 and 11 (where “332” corresponds to a flexible bridge).) The flexible bridge “may have a more flexible shape, such as a zig-zag (58) or sinusoidal (59) shape,” as shown in Figures 2D and 2E of the Specification. (Id. at 8-9, [0035].) 2. In Figure 8F, Cox discloses a primary prosthetic module comprising a graft. The device shown in this figure also includes a first stent graft that is disposed within and extends through a distal opening of the primary prosthetic module, as well as a second stent graft that is disposed within and extends through a second distal opening of the primary prosthetic module. (Cox, Figure 8F; see also col. 15, ll. 27-30.) Appeal 2011-001160 Application 11/014,669 4 3. Brandt describes “one or more bending elements 24”, i.e., a flexible bridge, which attaches a first stent graft to a second stent graft. (Brandt, col. 9, ll. 4; col. 7, ll. 49-65; Figures 7A, 7B.) 4. Brandt teaches that “[e]ach of the bending elements are flexible such that the first 20 and second 22 distal branches are capable of pivoting about the bending elements 24 at the carina junction 26, as shown in FIG. 7B.” (Id. at col. 7, ll. 56-61.) 5. Brandt states that: the carina junction, including the bending elements, facilitate proper placement of the Y-shaped stent at the carina of a body lumen. During delivery of the Y-shaped stent in a body lumen, the carina junction comes into apposition with the carina of the body lumen such that the Y-shaped stent can no longer be advanced distally. This facilitates precise placement of the Y-shaped stent. Some prior art devices were not physically connected at the carina junction of the stent, and this made it difficult for the physician to determine when the device came into apposition with the carina of the body lumen. (Id. at col. 9, ll. 7-17.) 6. While Brandt describes a bending element (bridge) that is flexible in the sense that it allows two grafts stents to pivot “about the bending elements,” Brandt does not disclose a bending element that expands longitudinally. (Id. at col. 7, ll. 57-61; Figures 7A and 7B.) 7. Frantzen describes a flexible stent that comprises separate segments (180) that are joined together by flexible links (170). (Frantzen, col. 4, ll. 11-21.) Specifically, Frantzen states that “separate segments 180 of the stent 110 are joined together by flexible links 170 which have greater flexibility Appeal 2011-001160 Application 11/014,669 5 than linear tie bars 160 joining circumferential elements 120 forming each segment 180.” (Id. at col. 4, ll. 14-18; see also Figure 11.) Principles of Law An examiner bears the initial burden, on review of the prior art or on any other ground, of presenting a prima facie case of unpatentability. In re Oetiker, 977 F.2d 1443, 1445 (1992). If the examiner fails to establish a prima facie case of unpatentability in the first instance, however, the rejection is improper and must be reversed. Id.; In re Rijckaert, 9 F.3d 1531, 1532 (Fed. Cir. 1993). Analysis The Examiner notes that “Cox fails to disclose a flexible bridge having its ends attached to the two stent grafts so that the first and second stent grafts form a secondary prosthesis module.” (Ans. 3.) The Examiner determines, however, that it “would have been obvious to one skilled in the art to modify the device of Cox to connect the two stent grafts with a flexible bridge as taught by Brandt.” (Id. at 4.) The Examiner acknowledges that the flexible bridge (i.e., bending element 24) of Brandt “does not have longitudinal flexibility that allows the bridge to lengthen and is not a sinusoidal or zigzag shape.” (Id.). The Examiner states, however, that Frantzen teaches zigzag shaped connectors and therefore “it would have been well within the purview of one skilled in the art to modify the bridge to have a zigzag shape in order to increase flexibility” as taught in Frantzen. (Id. at 4, 6.) In this regard, the Examiner further states that “additional flexibility would have been desirable so that Appeal 2011-001160 Application 11/014,669 6 the two stent grafts can be placed as close together as possible,” and because additional flexibility would have “allowed the device to treat a bifurcation wherein the angle formed between the two branching vessels is very small.” (Id. at 6.) Such statements, however, do not establish that a skilled artisan had an apparent reason to modify the bending element (bridge) disclosed in Brandt so that it had a zigzag shape or was otherwise longitudinally flexible, as seen in the flexible links (170) described in Frantzen. First, the flexible links in Frantzen are part of an expandable stent, not an expandable bridge connecting two stents. (FF 7.) Second, the Examiner points to no reason to make or use a bridge between two stent grafts that is longitudinally flexible. The “desirable” features the Examiner describes, i.e., the ability to place two stent grafts as close together as possible and likewise allow treatment of two branching vessel having a very small angle between them (Ans. 6-7), exist with regard to bending elements exactly as disclosed in Brandt, i.e., a bridge having lateral flexibility in the absence of any longitudinal flexibility. Consequently, we agree with Appellant that the Examiner only establishes why one would have been motivated to improve lateral flexibility, i.e., bending, of a bridge attaching two stent grafts. (Reply Br. 4.) As also noted by Appellant (App. Br. 16-17), Brandt teaches that the bending elements 24 (bridge) “facilitate proper placement.” (FF 5.) Specifically, as disclosed in Brandt, during delivery the bending elements at the carina junction help make sure that “that the Y-shaped stent can no longer be advanced distally,” which “facilitates precise placement of the Y- Appeal 2011-001160 Application 11/014,669 7 shaped stent.” (Id.) Such disclosures in Brandt fail to provide any motivation to use a bridge that is modified to expand longitudinally. Conclusion of Law We conclude that the Examiner has not established a prima facie case that a skilled artisan reading Cox in view of Brandt and Frantzen would have been motivated to use a longitudinally flexible bridge to attach a first stent graft to a second stent graft. Thus, the Examiner fails to establish a prima facie case of obviousness of independent claim 34, which recites a bridge that is “longitudinally flexible and expands.” Because claims 35-39, 42, 43, and 45 depend on claim 34, and likewise require this element, the Examiner fails to establish a prima facie case of obviousness regarding these claims as well. SUMMARY We reverse the rejection of claims 34-39, 42, 43, and 45 under 35 U.S.C. § 103(a) as obvious over Cox in view of Brandt and Frantzen. REVERSED dm Copy with citationCopy as parenthetical citation