Ex Parte Phan et al

Patent Trial and Appeal Board

Feb 22, 2017

13364265 (P.T.A.B. Feb. 22, 2017)

United States Patent and Trademark Office
UNITED STATES DEPARTMENT OF COMMERCE
United States Patent and Trademark Office
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APPLICATION NO. FILING DATE FIRST NAMED INVENTOR ATTORNEY DOCKET NO. CONFIRMATION NO.
13/364,265 02/01/2012 Hoang Phan 12088-711.300 9454
121974 7590 02/24/2017
K AC VINSKY DAISAK BLUNI PLLC
America's Cup Building
50 Doaks Lane
Marblehead, MA 01945
EXAMINER
LOPEZ, LESLIE ANN
ART UNIT PAPER NUMBER
3774
NOTIFICATION DATE DELIVERY MODE
02/24/2017 ELECTRONIC
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.
Notice of the Office communication was sent electronically on above-indicated "Notification Date" to the
following e-mail address(es):
bbonneville @ kdbfirm .com
docketing @ kdbfrrm. com
ndeane @ kdbfirm.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte HOANG PHAN, JOHN LUNSFORD, and
KENNETH F. BINMOELLER
Appeal 2015-0059151
Application 13/3 64,2652
Technology Center 3700
Before ANTON W. FETTING, KENNETH G. SCHOPFER, and
ROBERT J. SILVERMAN, Administrative Patent Judges.
SCHOPFER, Administrative Patent Judge.
DECISION ON APPEAL
This is an appeal under 35U.S.C. § 134 from the rejection of claims
11, 15—17, 36-41, 44-47. We have jurisdiction under 35 U.S.C. § 6(b).
We REVERSE.
1 Our decision references the Appeal Brief (“Appeal Br.,” filed Dec. 30,
2014) and Reply Brief (“Reply Br.,” filed May 21, 2015), and the
Examiner’s Answer (“Ans.,” mailed Apr. 9, 2015) and Final Office Action
(“Final Act.,” mailed July 2, 2014).
2 According to Appellants, the real party in interest is Xlumena, Inc. Appeal
Br. 2.
Appeal 2015-005915
Application 13/364,265
BACKGROUND
According to Appellants, “[t]he present invention relates generally to
medical devices and methods. More particularly, the present invention
relates to inter-luminal stents and anchors as well as catheters and methods
for their deployment.” Spec. 12.
CLAIMS
Claims 11, 15—17, 36-41, 44-47 are on appeal. Claim 11 is
illustrative of the appealed claims and recites:
11. A method for delivering a stent from a first body lumen
through adjacent walls to a second body lumen, said method
comprising:
positioning an endoscope in the first body lumen adjacent
to a target site on a luminal wall;
advancing a catheter assembly in a working channel of
the endoscope to locate a distal region of the catheter assembly
at the target site;
advancing a portion of the catheter assembly through a
hole in the apposed walls at the target site, the catheter
assembly including a stent deployment sub-assembly;
expanding a distal flange on the stent in the second body
lumen by retracting a sheath;
stopping the retraction of the sheath at a pre-determined
distance that is less than a length of the stent;
drawing proximally on the stent deployment sub-
assembly to pull the distal flange against the wall of the second
body lumen to maintain the walls in apposition; and
after drawing proximally, expanding a proximal flange
on the stent in the first body lumen to complete delivery by
further retracting the sheath.
Appeal Br. 18.
2
Appeal 2015-005915
Application 13/364,265
REJECTIONS
1. The Examiner rejects claims 11, 15, 16, 36, 38, and 44-47 under
35 U.S.C. § 103(a) as unpatentable over Stinson3 in view of
Tomba.4
2. The Examiner rejects claims 37 and 39 under 35 U.S.C. § 103(a)
as unpatentable over Stinson in view of Tomba and Maahs.5
3. The Examiner rejects claims 17, 40, and 41 under 35 U.S.C.
§ 103(a) as unpatentable over Stinson in view of Tomba and Van
Dam.6
DISCUSSION
For the reasons discussed below, we are persuaded by Appellants’
argument that the Examiner erred in rejecting claim 11 over Stinson in view
of Tomba. Claim 11, the only independent claim on appeal, requires, inter
alia, “drawing proximally on the stent deployment sub-assembly to pull the
distal flange against the wall of the second body lumen to maintain the walls
in apposition.” Appeal Br. 18. The Examiner relies on Stinson as disclosing
this limitation. In particular, the rejection states that “when [Stinson’s]
sheath is retracted and the distal end becomes free, the distal flange is
against the second body lumen’s wall at least at the location of the hole;
after deployment the flange rests against the wall.” Final Act. 6 (citing
Stinson Fig. 6f, 149).
3 Stinson et al., US 2002/0161341 Al, pub. Oct. 31, 2002.
4 Tomba et al., US 5,531,699, iss. July 2, 1996.
5 Maahs et al., US 2006/0217762 Al, pub. Sept. 28, 2006.
6 Van Dam et al., US 2009/0143713 Al, pub. June 4, 2009
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Appeal 2015-005915
Application 13/364,265
Further, in response to Appellants’ arguments, the Examiner states:
The stent sub-assembly is considered the catheter (85) plus the
stent (11). As seen in Figure 6(e), the distal end of the stent is
released from the end of the catheter as described in [0049].
However, the end is well beyond the tissue wall as seen in
Figure 6(e). In Figure 6(f) the distal flange of the stent brought
to the wall. Therefore, both the stent and the catheter must have
been pulled proximally (to the right as shown) in order for the
stent to be placed in this location. Further, the stent is “against”
at last the portion of the wall at the hole in this deployed state
and this position is attained during the movement discussed
supra. Therefore, Stinson does teach this claim limitation.
Ans. 3.
We are persuaded by Appellants’ argument that Stinson does not
disclose drawing proximally on the stent deployment sub-assembly to pull
the distal flange against the wall of the second body lumen. Appeal Br. 5.
Although withdrawal of the stent deployment mechanism in Stinson results
in a portion of the stent being placed against the second body lumen, Stinson
does not disclose that the stent is pulled against the wall by the deployment
mechanism. Rather, as the Examiner acknowledges, Stinson only discloses
that the outer catheter 85 is withdrawn to allow the stent to self-expand.
Stinson 149.
We see no express or implicit disclosure, contrary to the Examiner’s
finding, that the deployment assembly is used to pull the stent against the
wall of the second body lumen. Rather, it appears that the self-expanding
nature of the stent would result in some portion of the stent against the wall,
as shown in Fig. 6f, without any pulling on the stent by the deployment
assembly. See also, Reply Br. 5—6. Thus, we find that the Examiner
mischaracterizes Stinson’s disclosure and the Examiner does not show that
any of the other art of record corrects this deficiency.
4
Appeal 2015-005915
Application 13/364,265
Accordingly, we do not sustain the rejection of independent claim 11
or the rejection of any of the dependent claims on appeal.
CONCLUSION
For the reasons discussed above, we reverse the rejections of claims
11, 15—17, 36-41, and 44^47.
REVERSED
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