13216472 - (D) (P.T.A.B. Apr. 25, 2019)

Ex Parte Migliazza et al

Patent Trials and Appeals BoardApr 25, 2019

13216472 - (D) (P.T.A.B. Apr. 25, 2019)

UNITED STA TES p A TENT AND TRADEMARK OFFICE APPLICATION NO. FILING DATE 13/216,472 08/24/2011 30452 7590 04/26/2019 EDWARDS LIFESCIENCES CORPORATION LEGAL DEPARTMENT ONE EDWARDS WAY IRVINE, CA 92614 FIRST NAMED INVENTOR John F. Migliazza 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. ECV-6332 4188 EXAMINER SCHALL, MATTHEW WAYNE ART UNIT PAPER NUMBER 3774 MAIL DATE DELIVERY MODE 04/26/2019 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 PATENT TRIAL AND APPEAL BOARD Ex parte JOHN F. MIGLIAZZA, BOB CROCKETT, and TIM ABRAM Appeal2018-006224 Application 13/216,472 1 Technology Center 3700 Before STEFAN STAICOVICI, MICHAEL L. HOELTER, and JAMES P. CALVE, Administrative Patent Judges. ST AI CO VICI, Administrative Patent Judge. DECISION ON APPEAL STATEMENT OF THE CASE John F. Migliazza et al. ("Appellants") appeal under 35 U.S.C. Â§ 134( a) from the Examiner's decision in the Final Office Action ( dated May 31, 2017, hereinafter "Final Act.") rejecting claims 1-20. 2 We have jurisdiction over this appeal under 35 U.S.C. Â§ 6(b ). 1 Edwards Lifesciences Corporation is identified as the real party in interest in Appellants' Appeal Brief (filed Nov. 22, 2017, hereinafter "Appeal Br."). Appeal Br. 1. 2 Claim 21 is canceled. See Appeal Br. 11 (Claims App.). Appeal2018-006224 Application 13/216,472 We REVERSE. SUMMARY OF DECISION INVENTION Appellants' invention relates to an annuloplasty ring. Spec. para. 9. Claims 1, 9, and 16 are independent. Claim 1 is illustrative of the claimed invention and reads as follows: 1. An annuloplasty ring, comprising: a flexible core member having either a closed or open shape, the flexible core member comprising a multi-stranded braided cable formed of multiple metallic wire strands wound into multi-strand braids with the multi-strand braids being braided into the multi- stranded braided cable and having a first elastic modulus; a plurality of discrete tubular control points constricted onto the flexible core member at spaced apart locations, the control points creating localized regions of higher elastic modulus than the flexible core member, and defining the shape of the core member; and a suture-permeable interface closely surrounding the inner core member and control points adapted for attaching the annuloplasty ring to the annulus. REJECTION The Examiner rejects claims 1-20 under 35 U.S.C. Â§ I03(a) as being unpatentable over Gross et al. (US 2009/0259307 Al, pub. Oct. 15, 2009, hereinafter "Gross"), Howanec, Jr. et al. (US 6,183,512 Bl, iss. Feb. 6, 2001, hereinafter "Howanec"), and Cabiri (US 2010/0161047 Al, pub. June 24, 2010). 2 Appeal2018-006224 Application 13/216,472 ANALYSIS Independent claims 1 and 16 require, inter alia, a "core member" and "discrete tubular control points constricted onto the ... core member." Appeal Br. 8, 10 (Claims App.) (emphasis added). Independent claim 9 requires "a flexible multi-stranded braided cable forming a core ... [and] discrete control points located on the flexible multi-stranded braided cable." Id. at 9 ( emphasis added). The Examiner finds that Gross discloses an "annuloplasty ring comprising a multi-stranded braided flexible core (800) and a plurality of discrete, helical control points ... wrapped around the core (640, 740; figures 4-5)." Final Act. 2-3. Appellants argue that "there is no element 640" and "helical anchors 740 don't even form a part of the ring." Appeal Br. 4. According to Appellants, even if non-corrugated "segments through which the anchors 7 40 pass are stiffer so as to provide 'control points,' they are not provided in conjunction with the multi-stranded braided flexible core." Id. In response, the Examiner takes the position that "control points ( 460) are clearly shown wrapped around the core, which comprises (800)." Examiner's Answer 3 (dated Mar. 26, 2018, hereinafter "Ans."). Appellants respond that because suture 800 extends outside of channel 460 and helical anchor 7 40 never passes over suture 800, channel 460 and helical anchor 740 are not "constricted onto" or "located on" suture 800. See Reply Brief 4 (filed May 29, 2018, hereinafter "Reply Br.") (emphasis omitted). To explain better, Appellants provide an annotated Figure 1 G of Gross as shown below: 3 Appeal2018-006224 Application 13/216,472 f1G. Appellants' annotated Figure 1 G of Gross illustrates wires 480, 490 extending through a space between channel 460 and lateral wall 462. Id. at 4. During examination, "claims ... are to be given their broadest reasonable interpretation consistent with the specification, [ ] and ... claim language should be read in light of the specification as it would be interpreted by one of ordinary skill in the art." In re Bond, 910 F .2d 831, 833 (Fed. Cir. 1990) (alteration in original) (citing In re Sneed, 710 F.2d 1544, 1548 (Fed. Cir. 1983)). This means that the words of the claim must be given their plain meaning unless the plain meaning is inconsistent with the Specification. In re Zietz, 893 F.2d 319,321 (Fed. Cir. 1989). In this case, an ordinary and customary meaning of the term "onto" is "to a position on" 3 and an ordinary and customary meaning of the term "on" is "in contact with an outer surface."4 Such an interpretation is consistent with Appellants' Specification, which describes "control points 28-30 ... [as] 3 See https://www.merriam-webster.com/dictionary/onto (last visited April 22, 2019). 4 See https://www.merriam-webster.com/dictionary/on (last visited April 22, 2019). 4 Appeal2018-006224 Application 13/216,472 tubular sleeves or crimps squeezed onto the flexible cable 26." Spec. paras. 41 ( emphasis added), 50 ("control point 84, which ... is a crimped tube."). Hence, in light of Appellants' Specification and the ordinary and customary meaning of the terms "onto" and "on," we construe "constricted onto" and "located on" to require the claimed "control points" to be in "contact with an outer surface" of a "core member," as per claims 1 and 16, or a "flexible multi-stranded braided cable," as per claim 9. Further, we agree with Appellants that "there is no element 640" in Gross. Appeal Br. 4. With respect to elements 460, 740 of Gross, which the Examiner points to as the claimed "control point" (see Ans. 3), we note that Gross discloses a channel 460, formed in non-corrugated portions of segments 430, 440 of ring 408, through which anchoring structure 740 passes therethrough. See Gross, para. 323, Fig. 4C. Gross further discloses wires 480, 490 passing through segments 430, 440 and suture 800 replacing wires 480, 490. See id., para. 323, Fig. 5C. As such, Appellants are correct that because suture 800 of Gross assumes the position of wires 480, 490, which do not contact channel 460, suture 800 likewise does not contact channel 460. See Reply Br. 4, Appellants' annotated Figure lG of Gross, Section A-A. We further agree with Appellants that because helical anchor 7 40 merely passes through channel 460 as is anchored into a patient's tissue, helical anchor 740 likewise does not contact wires 480, 490 or suture 800. Id. Moreover, to the extent that the Examiner refers to the tubular portions formed by lateral wall 462 containing channel 460 and located between compressible subunits 450 as a "control point," i.e., non-corrugated portions of segments 430, 440, we note that this tubular portion also does not contact wires 480, 490 or suture 800. See id. Thus, because neither channel 460, 5 Appeal2018-006224 Application 13/216,472 non-corrugated portions of segments 430, 440, nor helical anchor 740 are in contact with an outer surface of suture 800, none of these elements of Gross are "constricted onto," as required by claims 1 and 16, or "located on," as required by claim 9, suture 800, which the Examiner finds to be the claimed "core." The Examiner's use of the Howanec and Cabiri disclosures does not remedy the deficiency of Gross discussed supra. See Final Act. 3. Accordingly, for the foregoing reasons, we do not sustain the rejection under 35 U.S.C. Â§ 103(a) of claims 1-20 as unpatentable over Gross, Howanec, and Cabiri. SUMMARY The Examiner's decision to reject claims 1-20 under 35 U.S.C. Â§ 103(a) as unpatentable over Gross, Howanec, and Cabiri is reversed. REVERSED 6