Ex Parte Schmieding et alDownload PDFPatent Trial and Appeal BoardJan 28, 201512032566 (P.T.A.B. Jan. 28, 2015) Copy Citation 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. 12/032,566 02/15/2008 Reinhold Schmieding A8130.0534/P534 4636 24998 7590 01/29/2015 DICKSTEIN SHAPIRO LLP 1825 EYE STREET NW Washington, DC 20006-5403 EXAMINER IWAMAYE, ANDREW MICHAEL ART UNIT PAPER NUMBER 3774 MAIL DATE DELIVERY MODE 01/29/2015 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) 1 UNITED STATES PATENT AND TRADEMARK OFFICE __________ BEFORE THE PATENT TRIAL AND APPEAL BOARD __________ Ex parte REINHOLD SCHMIEDING and JACOB JOLLY __________ Appeal 2012-001831 Application 12/032,566 Technology Center 3700 __________ Before, DEMETRA J. MILLS, ULRIKE JENKS, and CHRISTOPHER G. PAULRAJ, Administrative Patent Judges. MILLS, Administrative Patent Judge. DECISION ON APPEAL This is an appeal under 35 U.S.C. § 134. The Examiner has rejected the claims for obviousness. We have jurisdiction under 35 U.S.C. § 6(b). STATEMENT OF CASE According to the Specification, the present invention relates to the field of surgery and, more particularly, to a method and apparatus for improved graft fixation in ACL reconstructive surgeries. (Spec. 1.) Appeal 2012-001831 Application 12/032,566 2 The following claim is representative. 1. A method of conducting arthroscopic surgery, comprising the steps of: forming a first plurality of bone sockets in a first bone by accessing an articular surface of the first bone and drilling the first bone, the first plurality of bone sockets extending from an articular joint and into the first bone; forming a second plurality of closed bone sockets in a second bone, the first bone articulating in a predetermined manner with the second bone, by accessing an articular surface of the second bone and drilling the second bone, the second plurality of bone sockets extending from the articular joint and into the second bone, wherein the formation of the second plurality of bone sockets is conducted by drilling the sockets in a retrograde manner such that all of the second plurality of bone sockets are formed from the inside of the articular joint; providing a plurality of grafts in the vicinity of the first and second bones; providing a suture loop/button construct having a button with at least one eyelet and a continuous suture loop attached to the eyelet; attaching at least one of the plurality of grafts to the suture loop/button construct; and first providing the graft attached to the suture loop/button construct intraarticularly and then positioning the graft within one of the first and second plurality of bone sockets. Appeal 2012-001831 Application 12/032,566 3 Cited References Graf US 5,645,588 July 8, 1997 Schmieding US 2004/0199166 A1 Oct. 7, 2004 Koyfman US 2005/0149118 A1 July 7, 2005 Knisely US 2005/0283160 A1 Dec. 22, 2005 Christian Lattermann et al., Anatomic Double-Bundle Anterior Cruciate Ligament Reconstruction, 20 Techniques in Orthopaedics 414 (2005). Grounds of Rejection 1. Claims 1–5, 7, 8,10–15, 17–21, 23, 25–28, 30, and 31 are rejected under 35 U.S.C. § 103(a) as being unpatentable over Schmieding in view of Graf and Lattermann. 2. Claims 6, 9, and 22 are rejected under 35 U.S.C. § 103(a) as being unpatentable over Schmieding in view of Graf, Lattermann, and Knisely. 3. Claims 16 and 29 are rejected under 35 U.S.C. § 103(a) as being unpatentable over Schmieding in view of Graf, Lattermann, and Koyfman. FINDINGS OF FACT The Examiner’s findings of fact are set forth in the Answer at pages 4–12. The following facts are highlighted. 1. Figure 11 of the Specification is reproduced below. Appeal 2012-001831 Application 12/032,566 4 Figure 11 of the Specification shows various steps of a method of anterior cruciate ligament (ACL) reconstruction employing an “all-inside double- bundle” technique. (Spec. 3.) Figure 11 shows two “tibial socket[s] or tunnel[s]” (id. at 6.) and two femoral sockets or tunnels (id.). Also shown are soft tissue grafts 60a and interference screw 30. (Id. at 7.) 2. Lattermann discloses that it has been demonstrated that biomechanically, anatomic double-bundle ACL reconstruction results in a better restoration of the rotational stability of the knee joint. We suggest that anatomic ACL double-bundle reconstruction may result in a better restoration of the in vivo kinematics of the knee joint and can improve the clinical outcomes in ACL surgery. Currently, our preferred surgical technique uses 2 separate tibial and femoral tunnels using 2 tibialis anterior or tibialis posterior tendon allografts. (Abstract) Appeal 2012-001831 Application 12/032,566 5 3. Lattermann discloses that, “single-bundle ACL reconstruction was able to restore the anteroposterior stability, but not the rotational stability, of the knee joint” and that double-bundle reconstruction is an alternative to single-bundle ACL reconstruction. (Lattermann, p. 414, col. 2.) 4. Discussion ISSUE The Examiner contends that it would have been obvious to one having ordinary skill in the art at the time of the invention to modify the method of Schmieding by attaching a suture loop/button (in lieu of just a suture) to the graft prior to introducing the graft to the sockets, as taught by Graf, in order to shorten and simplify the surgical procedure by employing an anchoring device that does not require the surgeon to tie sutures from the graft to the anchoring device within the body (see col. 1, II. 40-54 of Graf). (Ans. 6.) The Examiner further argues that it would have been obvious to one having ordinary skill in the art at the time of the invention to modify the method of Schmieding and Graf combination by employing the formation of a plurality of first sockets and a plurality of second closed sockets and subsequently positioning a plurality of grafts within the plurality of sockets, as taught by Lattermann, in order to restore the normal anatomy of the ACL by providing an ACL that has 2 major functional bundles, specifically the anteromedial and posterolateral bundle. (Ans. 7.) Appeal 2012-001831 Application 12/032,566 6 Appellants argue, among other things, that Schmieding and Graf disclose a “single tunnel” ACL reconstruction and not a double-bundle reconstruction. (App. Br. 6.) Appellants argue that Lattermann teaches the formation of a PL (posterolateral) femoral tunnel (not socket) and that Lattermann is silent about an “all-inside” double ligament construction as claimed. (Id. at 6–7.) Appellants argue that there is no motivation to combine the cited references because Schmieding and Graf disclose single- bundle ACL reconstruction using retrodrilled sockets and Lattermann discloses only double bundle ACL reconstruction in tunnels. (Id. at 11.) The issue is: Does the cited prior art support the Examiner’s finding that the claimed subject matter is obvious? PRINCIPLES OF LAW In making our determination, we apply the preponderance of the evidence standard. See, e.g., Ethicon, Inc. v. Quigg, 849 F.2d 1422, 1427 (Fed. Cir. 1988) (explaining the general evidentiary standard for proceedings before the Office). The Board “determines the scope of claims in patent applications not solely on the basis of the claim language, but upon giving claims their broadest reasonable construction ‘in light of the specification as it would be interpreted by one of ordinary skill in the art.’” Phillips v. AWH Corp., 415 F.3d 1303, 1316 (Fed. Cir. 2005) (quoting In re Am. Acad. of Sci. Tech. Ctr., 367 F.3d 1359, 1364 (Fed. Cir. 2004). “In rejecting claims under 35 U.S.C. § 103, the examiner bears the initial burden of presenting a prima facie case of obviousness. Only if that burden is met, does the burden of coming forward with evidence or argument shift to the applicant.” In re Rijckaert, 9 F.3d 1531, 1532 (Fed. Appeal 2012-001831 Application 12/032,566 7 Cir. 1993) (citations omitted). In order to determine whether a prima facie case of obviousness has been established, we consider the factors set forth in Graham v. John Deere Co., 383 U.S. 1, 17 (1966): (1) the scope and content of the prior art; (2) the differences between the prior art and the claims at issue; (3) the level of ordinary skill in the relevant art; and (4) objective evidence of nonobviousness, if present. “The combination of familiar elements according to known methods is likely to be obvious when it does no more than yield predictable results.” KSR Int’l Co. v. Teleflex Inc., 550 U.S. 398, 416 (2007). ANALYSIS We agree with the Examiner’s fact-finding, statement of the rejection, and responses to Appellants’ arguments as set forth in the Answer and adopt them as our own. We find that the Examiner has provided evidence in the Answer to support a prima facie case of obviousness. We provide the following additional comments to arguments set forth in the Appeal Brief. Appellants argue that Schmieding and Graf disclose a “single tunnel” ACL reconstruction and not a double-bundle reconstruction. (App. Br. 6.) Appellants argue that Lattermann teaches the formation of a PL femoral tunnel (not socket) and that Lattermann is silent about an “all-inside” double ligament construction as claimed. (Id. at 6–7; Reply Br. 3.) We are not persuaded that Appellants have established with evidence that there is a distinction between bone tunnels and sockets, as argued. This is particularly punctuated by the fact that the Specification appears to use the terms “tunnel” and “socket” interchangeably. (FF1.) Appeal 2012-001831 Application 12/032,566 8 We are not persuaded by Appellants contention that there is no motivation to combine the cited references because Schmieding and Graf disclose single-bundle ACL reconstruction using retrodrilled sockets and Lattermann discloses only double-bundle ACL reconstruction in tunnels. (App. Br. 11.) Lattermann discloses that double-bundle ACL surgery is an improvement upon single-bundle surgery. (FF2, 3.) We agree with the Examiner that both single-bundle and double-bundle ACL reconstruction surgery are in the same field of endeavor and, therefore, one of ordinary skill in the art would use surgical principles from the single-bundle surgery that are compatible with double-bundle ACL surgery. (Ans. 6.) Thus, we agree with the Examiner that “one of ordinary skill in the art would have been motivated to modify the single-bungle technique of Schmieding by employing a two pairs of bone sockets and a double bundle ligament graft, as taught by Lattermann.” (Ans. 14.) The remainder of Appellant’s arguments has been addressed sufficiently in the Answer. Appellants do not present specific separate arguments on the merits in the Brief for Rejections 2 and 3 in the grounds of rejection. Appellants do argue that Knisely fails to teach an “all-inside” double bundle ligament reconstruction. (App. Br. 11.) However, this feature is taught by Schmieding. (Ans. 5.) Other arguments not made are waived. In view of the above, the obviousness rejections are affirmed. CONCLUSION OF LAW The cited references support the Examiner’s obviousness rejections 1– 3, which are affirmed. Appeal 2012-001831 Application 12/032,566 9 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 bar Copy with citationCopy as parenthetical citation