Ex Parte Schaeffer

Patent Trial and Appeal Board

Feb 28, 2014

10984040 (P.T.A.B. Feb. 28, 2014)

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.
10/984,040 11/08/2004 Darin G. Schaeffer 12730/23 (PA-5447-RF3) 3016
48003 7590 02/28/2014
BGL/Cook - Chicago
PO BOX 10395
CHICAGO, IL 60610
EXAMINER
MATTHEWS, WILLIAM H
ART UNIT PAPER NUMBER
3774
MAIL DATE DELIVERY MODE
02/28/2014 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 DARIN G. SCHAEFFER
__________

Appeal 2012-004003
Application 10/984,040
Technology Center 3700
__________

Before DONALD E. ADAMS, ERICA A. FRANKLIN, and
SUSAN L. C. MITCHELL, Administrative Patent Judges.

FRANKLIN, Administrative Patent Judge.

DECISION ON APPEAL
Appeal 2012-004003
Application 10/984,040

2
This is an appeal1 under 35 U.S.C. § 134(a) involving claims to
endoluminal vascular repair systems. The Patent Examiner rejected the
claims as obvious. We have jurisdiction under 35 U.S.C. § 6(b). We affirm-
in-part.

STATEMENT OF THE CASE
Claims 1, 5, 7, 10, 13, 14, 19, 21, 23, and 25-29 are on appeal.2
Independent claims 1and 25 are representative and read as follows:
1. An endoluminal vascular repair system
comprising:
an aorta stent graft having a fenestration and a first
reinforcement around the fenestration, wherein the fenestration
is aligned with a branch vessel when deployed;
a branch vessel stent graft having a flaring portion at a
proximal end of the branch vessel stent graft, and a tubular
portion, wherein the flared portion retains the proximal end
within the aorta stent graft, and the tubular portion extends
through the fenestration and into the branch vessel when
deployed, and wherein the flaring portion comprises a second
reinforcement around its circumference adapted to engage the
reinforcement around the fenestration,
wherein the first reinforcement comprises a first ring
attached to the aorta stent graft around the fenestration, the

1 Appellant identifies the Real Party in Interest as Cook Incorporated. (App.
Br. 1.)
2 Appellant also (a) requests that claims 6, 8, 9, 11, 12, 15-17, and 24, which
were withdrawn by the Examiner, be considered as pending in the
application (App. Br. 3), and (b) asserts that “[t]he Examiner failed to
establish a proper objection to the drawings, and these objections should be
withdrawn.” (Id. at 9, 13.) These issues are petitionable matters, subject to
review by petition to the Director of the U.S. Patent and Trademark Office,
rather than by appeal to this Board. See MPEP § 706.01, § 1002.02(c),
§ 1201.
Appeal 2012-004003
Application 10/984,040

3
second reinforcement comprises a second ring attached to the
proximal end of the branch vessel stent graft, and wherein the
diameter of the second ring is equal to or greater than the
diameter of the first ring, and
wherein at least one of the first and second rings
comprises a resilient material to allow compaction until
deployment.

25. An endoluminal vascular repair system
comprising:
an aorta stent graft having a fenestration and a first
reinforcement around the fenestration, wherein the fenestration
is aligned with a branch vessel when deployed;
a branch vessel stent graft having a flaring portion at a
proximal end of the branch vessel stent graft, and a tubular
portion, wherein the flared portion retains the proximal end
within the aorta stent graft, and the tubular portion extends
through the fenestration and into the branch vessel when
deployed, and wherein the flaring portion comprises a second
reinforcement around its circumference adapted to engage the
reinforcement around the fenestration,
wherein the first reinforcement comprises a first ring
attached to the aorta stent graft around the fenestration, the
second reinforcement comprises a second ring attached to the
proximal end of the branch vessel stent graft,
wherein a first portion of graft material associated with
the aorta stent-graft is in sealing contact with a second
portion of graft material associated with the branch vessel
stent graft when the branch vessel stent graft is deployed.

(Emphasis added.)

The Examiner rejected claims 1, 5, 7, 10, 13, 14, 19, 21, 23 and 25-29
under 35 U.S.C. § 103(a) as unpatentable over Wisselink3 and Rudakov.4

3 US Patent No. 5,984,955 issued to Willem Wisselink, Nov. 16, 1999.
Appeal 2012-004003
Application 10/984,040

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OBVIOUSNESS
The Examiner findings are set forth in the Answer. (Ans. 5-8.)
Regarding independent claims 1 and 23, Appellant contends that
“Wisselink fails to teach or suggest at least the limitation ‘the diameter of
the second ring [attached to the proximal end of the branch vessel stent
graft] is equal to or greater than the diameter of the first ring [attached to the
aorta stent graft around the fenestration].’” (App. Br. 15.) According to
Appellant, Wisselink’s Figure 1B shows the opposite configuration because
ring members 46 and 48 of branch graft 16 are both smaller than the first
ring member 40 of the primary graft 12. (Id. at 16.) Further, Appellant
asserts that one of ordinary skill in the art at the time of the invention would
not have modified Wisselink’s ring member 46 to be larger than ring
member 40 “because it would not facilitate sealing of the components” and
could “complicate the snap-fit connection” in Wisselink’s system. (Id.)
After considering the evidence and arguments, we agree with
Appellant that the Examiner has not established that it would have been
obvious to a person of ordinary skill in the art at the time the invention was
made to have modified Wisselink’s ring 46 located on the branch vessel
graft to be a greater size than ring 40 located on the aortic stent graft. The
Examiner reasoned that such modification would have been obvious because
“it is well known that a larger ring, once in place, would provide a more
secure attachment to the aortic stent because the larger ring would require a
greater force to be pulled through a smaller ring than a ring of equal or lesser

4 US Patent No. 6,451,050 B1 issued to Leon V. Rudakov et al., Sept. 17,
2002.
Appeal 2012-004003
Application 10/984,040

5
size.” (Ans. 5-6.) The Examiner, however, has not established that such
reasoning is applicable to Wisselink’s system. Nor do we find that
Wisselink’s teachings support application of this reasoning here. Figure 1B
of Wisselink is reproduced below:

Figure 1B illustrates “a partial longitudinal sectional view of an endoluminal
grafting system of the present invention, showing a preferred means for
connecting the proximal end of the branch graft to the primary graft.”
(Wisselink col. 6, ll. 20-24.) Wisselink teaches:
The distance between the outer surface OS of the second ring
member 46 and the inner surface IS of the third ring member 48
is substantially the same as the distance between the inner
surface IS of the first ring member 40 and the distal end DE of
the frustoconical member 42. In this manner, as the branch
graft 12 is advanced, distal end first, out of the branch graft
opening 14 it will reach a point of maximum advancement
whereat the inner surface IS of the first ring member 40 will
abut against the outer surface OS of the second ring member
46, and the distal end DE of the frustoconical member 42 will
abut against the inner surface IS of the third ring member 48.
This will create a substantially fluid-tight seal between the
proximal end of the branch graft 16 and the body of the primary
graft 12. Additionally, this may form a snap-fit connection
which will prevent the branch graft 14 from slipping or
undergoing inadvertent retraction back into the lumen of the
primary graft 12.

Appeal 2012-004003
Application 10/984,040

6
(Id. at col. 9, ll. 24-41) (emphasis added). Wisselink, therefore, teaches that
it is the structure, i.e., shape, of the graft components, as well as their spatial
relationships that ensures the correct placement of the deployed branch graft
with respect to the primary graft. This disclosure in Wisselink does not
suggest that the branch graft would be more securely positioned when
deployed if the diameter of the branch graft ring was greater than the
diameter of the primary graft ring. Rather, as Appellant has asserted,
Wisselink’s description of its system suggests that altering the relative size
of the ring members would disrupt the fluid-tight seal between the proximal
end of the branch graft and the body of the primary graft.
Accordingly, we reverse the Examiner’s rejection of independent
claims 1 and 23, and their respective dependent claims, all of which require
that “the diameter of the second ring is equal to or greater than the diameter
of the first ring . . . .” (See App. Br. 21 and 24, Claims App’x.)
Regarding independent claim 25, Appellant asserts that “Wisselink’s
branch vessel prosthesis does not comprise graft material associated with the
aorta stent-graft that is in sealing contact with graft material associated with
the branch vessel stent graft when the branch vessel stent graft is deployed.”
(Id. at 18.) According to Appellant, Wisselink’s ring members are “rigid or
semirigid” and, therefore, not “graft material.” (Id.) Appellant asserts that
the Examiner’s interpretation of “graft material” as including any of the
materials forming the graft is “overly broad and not consistent with
Appellant’s specification,” which states that “graft material may include a
film, a coating, a sheet of biocompatible fabrics, non-woven materials or
porous materials.” (Reply Br. 7; Spec. [0065].)
Appeal 2012-004003
Application 10/984,040

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Appellant’s argument has been carefully considered, but is not found
to be convincing. In particular, Appellant has not persuasively established
that the Specification excludes rigid or semi-rigid materials used to form a
portion of the graft from being considered “graft material.” Rather, the
portion of the Specification referenced by Appellant only sets forth items
which the “graft material may include . . . .” (See Spec. [0065]) (emphasis
added). Thus, we do not find that Appellant has provided persuasive
evidence that the Examiner’s broad interpretation of the term “graft
material” is unreasonable or inconsistent with the Specification. See In re
Am. Acad. of Sci. Tech. Ctr., 367 F.3d 1359, 1364 (Fed. Cir. 2004).
Accordingly, we affirm the rejection of claim 25. Appellant does not
assert additional arguments for claims 26-29. Therefore, these dependent
claims fall with independent claim 25.

SUMMARY
We reverse the rejection of claims 1, 5, 7, 10, 13, 14, 19, 21 and 23,
and we affirm the rejection of claims 25-29.
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a).

AFFIRMED-IN-PART

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