Ex Parte Ortiz et al

Board of Patent Appeals and Interferences

Sep 28, 2011

11163243 (B.P.A.I. Sep. 28, 2011)

UNITED STATES PATENT AND TRADEMARK OFFICE
________________

BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
________________

Ex parte MARK S. ORTIZ and MICHAEL STOKES
________________

Appeal 2010-010490
Application 11/163,243
Technology Center 3700
________________

Before JOHN C. KERINS, STEVEN D.A. McCARTHY and
KEN B. BARRETT, Administrative Patent Judges.

McCARTHY, Administrative Patent Judge.

DECISION ON APPEAL
The Appellants’ claims being twice rejected, the Appellants appeal 1
under 35 U.S.C. § 134 from the Examiner’s decision rejecting claims 1-5, 7-2
15, 17-20 and 25-31. The Examiner rejects claims 9-20, 27, 28 and 31 under 3
35 U.S.C. § 112, second paragraph as being indefinite; claims 1-5, 7-15, 17 4
and 25-31 under 35 U.S.C. § 102(b) as being anticipated by Plyley 5
(US 5,630,539, issued May 20, 1997); and claims 18-20 under 35 U.S.C. 6
§ 103(a) as being unpatentable over Plyley and “Admitted Prior Art” (see 7
Appeal No. 2010-010490
Application No. 11/163,243

2
Ans. 5-6). Claims 21-24 are cancelled. We have jurisdiction under 35 1
U.S.C. § 6(b). We REVERSE. 2
Claims 1 and 9 are independent. Claim 9 recites: 3
9. A surgical stapler, comprising: 4
A cartridge arm adapted to hold a plurality of staples; 5
an anvil having proximal and distal ends, the proximal 6
end being coupled to the cartridge arm at a pivot point, the anvil 7
being in a torqued configuration when a plurality of staples are 8
driven from the cartridge arm and deformed against the anvil, 9
and being in a non-torqued configuration when no staples are 10
driven against the anvil; and 11
a support coupled to the anvil and movable between a 12
proximal portion and a distal portion, the support adapted to 13
contact the anvil at a location distal to the pivot point to reduce 14
deflection of the anvil in the torqued configuration relative to 15
the non-torqued configuration, the support in the distal position 16
(i) contacting at least a portion of the anvil at a location 17
closer to the distal end of the anvil relative to when the 18
support is in the proximal position; and 19
(ii) urging the anvil and cartridge arm toward a closed 20
position. 21
At the outset, the Examiner concludes that the term “torqued 22
configuration” as recited in claim 9 is indefinite. (Ans. 3). The terms 23
“torqued configuration” and “non-torqued configuration” are adequately 24
defined in claim 9 itself: “the anvil being in a torqued configuration when a 25
plurality of staples are driven from the cartridge arm and deformed against 26
the anvil, and being in a non-torqued configuration when no staples are 27
driven against the anvil.” These definitions are consistent with the 28
Appellants’ understanding of the terms (see App. Br. 17) as well as with the 29
disclosure of the Specification (see Spec., para. 0004). We thus do not 30
Appeal No. 2010-010490
Application No. 11/163,243

3
sustain the rejection of claims 9-20, 27, 28 and 31 under § 112, second 1
paragraph, as being indefinite. 2
Plyley discloses a laparoscopic stapler with an overload sensor that 3
interrupts the operation of the cartridge and anvil or prevents the placement 4
of a staple if more than a predetermined amount of tissue is approximated 5
between the jaws. (Plyley, col. 1, ll. 42-46). Plyley’s stapler includes a pair 6
of jaws 2, 4. (Plyley, col. 2, ll. 61-63). The Appellants assert that the jaw 2 7
is the anvil. (See App. Br. 5). The Examiner does not appear to dispute the 8
assertion. (See, e.g., Ans. 8-9). 9
Plyley’s stapler also includes a linkage 26. The linkage 26 includes a 10
pair of links 30, 32 pivotally connected by a center toggle pin 36. The 11
linkage 26 also includes a “member” 28. The distal end of the link 30 is 12
pivotally connected to the member 28. (Plyley, col. 3, ll. 10-16). The 13
member 28 does not appear to be further described. Plyley states that the 14
linkage 26 is “operable to close the jaws 2 and 4.” (Plyley, col. 3, ll. 10-11). 15
Claim 1 recites “a support coupled to the end effector.” The 16
Examiner finds that Plyley’s linkage 26, including the member 28 and the 17
links 30, 32, corresponds to the “support” recited in claim 1. (Ans. 4). 18
Claim 1 further recites “the support having a distal end movable between a 19
proximal-most position . . . and a distal-most position.” In the distal-most 20
position, “the distal end of the support engages at least a mid-portion of the 21
end effector to prevent deflection of the anvil when at least one staple is 22
driven from the cartridge arm and deformed against the anvil.” Plyley does 23
not describe any engagement between the linkage 26 and the jaw or anvil 2. 24
The member 28 appears in Figure 1 to be the distal-most element of 25
the linkage 26. The text of Plyley does not describe any engagement 26
Appeal No. 2010-010490
Application No. 11/163,243

4
between the member 28 and the anvil 2. The member 28 is not labeled in 1
Figure 4 or Figure 5 of Plyley, the only drawing figures depicting the anvil 2
2. The Examiner has not identified any element depicted in Figure 4 or 3
Figure 5 as being the member 28. We do not find by a preponderance of the 4
evidence that the member 28, the distal-most element of the linkage 26, has 5
been shown to be capable of engaging at least a mid-point of the end effector 6
to prevent deflection of the anvil when at least one staple is driven from the 7
cartridge and deformed against the anvil. We therefore do not sustain the 8
rejection of claims 1-5, 7, 8, 25, 26, 29 and 30 under 35 U.S.C. § 102(b) as 9
being anticipated by Plyley. Furthermore, we do not find that it has been 10
shown by a preponderance of the evidence that Plyley’s linkage 26 in a 11
distal position contacts at least a portion of the anvil 2 as recited in limitation 12
(i) of claim 9. (See App. Br. 14). Accordingly, we do not sustain the 13
rejection of claims 9-15, 17, 27, 28 and 31 under § 102(b) as being 14
anticipated by Plyley. 15
The Examiner’s “Admitted Prior Art” would not remedy the 16
deficiencies in the teachings of Plyley. We therefore do not sustain the 17
rejection of claims 18-20 under § 103(a) as unpatentable over Plyley and the 18
Examiner findings. 19
20
DECISION 21
We REVERSE the Examiner’s decision rejecting claims 1-5, 7-15, 22
17-20 and 25-31. 23
24
REVERSED 25
nlk 26