Ex Parte Racenet

Patent Trial and Appeal Board

Sep 29, 2017

13346954 (P.T.A.B. Sep. 29, 2017)

United States Patent and Trademark Office
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.
13/346,954 01/10/2012 David C. Racenet H-US-02720 (203-7904) 7755
50855 7590
Covidien LP
60 Middletown Avenue
Mailstop 54, Legal Dept.
North Haven, CT 06473
EXAMINER
LOPEZ, MICHELLE
ART UNIT PAPER NUMBER
3721
NOTIFICATION DATE DELIVERY MODE
10/03/2017 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):
SurgicalUS@covidien.com
medtronic_mitg-si_docketing@cardinal-ip.com
mail @ cdfslaw. com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte DAVID C. RACENET
Appeal 2016-004200
Application 13/346,9541
Technology Center 3700
Before JILL D. HILL, NATHAN A. ENGELS, and GORDON D. KINDER,
Administrative Patent Judges.
ENGELS, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Appellant appeals under 35 U.S.C. § 134(a) from a final rejection of
claims 1—10. Claims 11—18 are withdrawn. We have jurisdiction under 35
U.S.C. § 6(b).
We affirm.
1 Appellant identifies Covidien LP as the real party in interest. Br. 3.
Appeal 2016-004200
Application 13/346,954
ILLUSTRATIVE CLAIM
Claim 1, reproduced below, is illustrative of the claimed subject
matter:
1. A surgical device comprising:
an end effector configured to clamp, staple or cut tissue;
a motor configured to drive the end effector; and
a control system configured to:
receive information about a tissue type;
receive information to determine at least one tissue
property;
select a tissue management mode based on the at
least one tissue property and the tissue type; and
control the motor based on the selected tissue
management mode.
THE REJECTIONS
Claims 1—8 stand rejected under 35 U.S.C. § 102(b) as being
anticipated by Hooven (US 5,667,517; Sept. 16, 1997).
Claim 9 stands rejected under 35 U.S.C. § 103(a) as being
unpatentable in view of Hooven and Whitman et al. (US 2010/0270355 Al;
Published ct. 28, 2010).
Claim 10 stands rejection under 35 U.S.C. § 103(a) as being
unpatentable in view of Hooven and facts asserted by the Examiner’s
Official Notice.
ANALYSIS
The Examiner finds Hooven anticipates claim 1 with its disclosures of
a system for controlling a surgical instrument that includes a sensing
mechanism configured to sense physical properties of tissue, such as tissue
thickness, blood oxygen content, tissue density, etc. Final Act. 2—3 (citing
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Appeal 2016-004200
Application 13/346,954
4:3—20, 5:35—53, 7:46—8:17), 5 (citing 7:46—8:18); Ans. 6—7. Appellant
contends Hooven fails to disclose selecting a “tissue management mode,” as
required by claim 1. Br. 8.
Quoting the Specification, Appellant contends tissue management
modes “include a constant torque profile, a modulated torque profile, a
maximum torque profile and a manual override mode.” Br. 8 (quoting Spec.
130). According to Appellant, “Hooven merely discloses controlling
operation of [a surgical] device, e.g., controlling power delivered to the
instrument, opening and closing the anvil member, and/or firing of the
staples based on sensed physical parameters,” not a tissue management
mode or selecting a tissue management mode. Br. 8.
We disagree with Appellant and agree with the Examiner. As cited by
the Examiner (see Final Act 2—3, 5), Hooven states “the amount of torque
required . . . can be sensed and the thickness of tissue between the anvil and
the staple portion determined. It is a simple matter for a controller to
manipulate this information and inform the surgeon.” Hooven 5:35—53.
Further, “[f]or a constant voltage drive, the force required to close the
instrument may be measured by monitoring motor current. The power
delivered to the instrument may be controlled by varying motor voltage
and/or current to achieve a constant motor speed with varying load.”
Hooven 5:48—53. Appellants’ Specification describes the claimed “tissue
management mode” similarly.
In fact, in addition to describing tissue management modes as
including different torque profiles as cited by Appellant (see Br. 8), the
Specification further describes the torque profiles, stating, for example,
“[t]he control system applies a constant signal to the motor in the constant
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Appeal 2016-004200
Application 13/346,954
torque profile or a periodic signal to the motor in the modulated torque
profile.” Spec. 110. Further, the Specification states “[i]n the manual
override mode, the user manually controls the motor.” Spec. 110. Even
accepting Appellant’s characterization of Hooven (see Br. 8 (quoted above)),
we disagree with Appellant’s argument that claim 1 is not anticipated by
Hooven. Reading claim 1 in light of the Specification, we agree with agree
with the Examiner that Hooven discloses the claimed “tissue management
mode” and control system configured to select a tissue management mode,
as claimed.
Accordingly, having considered the Examiner’s rejection in light of
each of Appellant’s arguments and the evidence of record, we agree with the
Examiner that Hooven anticipates claim 1. We sustain the Examiner’s
rejection of claim 1, as well as the rejections of claims 2—10, for which
Appellant relies on the arguments advanced for claim 1. See Br. 6, 8—10.
DECISION
For the above reasons, we affirm the Examiner’s rejection of claims
1-10.
No time period for taking any subsequent action in connection with
this appeal maybe extended. 37 C.F.R. § 1.136(a)(l)(iv).
AFFIRMED
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