Ex Parte Mead

Board of Patent Appeals and Interferences

Apr 30, 2012

11014669 (B.P.A.I. Apr. 30, 2012)

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.

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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.

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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.)
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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
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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
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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-
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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

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