11580592 (B.P.A.I. May. 26, 2011)

Ex Parte Scirica

Board of Patent Appeals and InterferencesMay 26, 2011

11580592 (B.P.A.I. May. 26, 2011)

UNITED STATES PATENT AND TRADEMARK OFFICE ____________ BEFORE THE BOARD OF PATENT APPEALS AND INTERFERENCES ____________ Ex parte PAUL A. SCIRICA ____________ Appeal 2009-009878 Application 11/580,592 Technology Center 3700 ____________ Before JENNIFER D. BAHR, STEVEN D.A. McCARTHY and MICHAEL C. ASTORINO, Administrative Patent Judges. ASTORINO, Administrative Patent Judge. DECISION ON APPEAL Appeal 2009-009878 Application 11/580,592 2 The Appellant appeals under 35 U.S.C. § 134 from the Examiner’s 1 decision finally rejecting claims 1-11. More specifically, the Examiner 2 rejects: 3 claims 1-11 under 35 U.S.C. § 102(b) as being anticipated by 4 Milliman (US 6,079,606, issued Jun. 27, 2000); 5 claims 1 and 3-11 under § 102(b) as being anticipated by Alli 6 (US 6,109,500, issued Aug. 29, 2000); and 7 claims 1-7 and 9-11 under § 102(b) as being anticipated by 8 Green (US 5,040,715, issued Aug. 20, 1991). 9 We have jurisdiction over the appeal under 35 U.S.C. § 6(b). 10 We REVERSE. 11 Claim 1 is the sole independent claim and is directed to a surgical 12 device including a single use loading unit (SULU) 16 that is inserted into 13 opening 14a' of elongated body 14. The elongated body 14 has chamfered 14 distal ends 14d' that provide a funnel-like insertion opening 14e' into 15 channels 14b'. The SULU 16 has lugs 254; and when SULU 16 is inserted 16 into elongated body 14 the chamfered distal ends 14d' redirect lugs 254 into 17 a proper or aligned orientation. (See Spec. p. 40, and figs. 1 and 40A-40D). 18 1. A surgical device comprising: 19 a body portion having a proximal end and a distal 20 end, the body portion defining a longitudinal bore, 21 the distal end of the body portion including 22 internal walls defining at least one channel; 23 a disposable loading unit having a proximal body 24 portion and a distal tool assembly, the proximal 25 body portion including an insertion tip 26 dimensioned to be received within the distal end of 27 the body portion, the insertion tip having at least 28 one lug formed thereon, each of the at least one lug 29 Appeal 2009-009878 Application 11/580,592 3 being dimensioned to be slidably received within 1 one of the at least one channel, wherein the distal 2 ends of the internal walls defining the at least one 3 channel are angled with respect to a longitudinal 4 axis of the body portion to effect rotation of the 5 disposable loading unit in relation to the body 6 portion and guide the one or more lugs into the at 7 least one channel to properly align the disposable 8 loading unit with the body portion. 9 (Italics added). 10 11 Rejections Under § 102(b) as Being Anticipated by Milliman or Alli 12 Milliman discloses a surgical stapler including a disposable loading 13 unit 16 having a tip 193 with nubs 254 that form a bayonet type coupling 14 with distal end elongated body 14. (Milliman, col. 12, ll. 18-25). Similarly 15 Alli discloses a surgical stapler including a disposable loading unit 30 16 having a coupling stem 128 for insertion into a J-shaped coupling slot 130 of 17 an elongated body 14, i.e. a bayonet type coupling. (Alli, col. 7, ll. 43-45 18 and col. 7, l. 63 - col. 8, l. 2). 19 The Examiner finds “Milliman uses a bayonet type coupling (col. 13 20 line 43) for attaching the disposable loading unit.” (Ans. 3). The Examiner 21 also finds “the bayonet type channels are located at the distal end of the 22 internal walls.” (Id.). The Examiner reasons that when Milliman’s: 23 lugs reach the end of that channel portion, the 24 disposable loading unit 16 is rotated such that the 25 lugs ride in the portion of the channel 26 perpendicular to the longitudinal axis of the body 27 shaft. Therefore, the channel in Milliman is 28 considered to be angled with respect to the 29 longitudinal axis of the body shaft. It effects 30 rotation of the disposable loading unit 16 because 31 in order for the disposable loading unit to be 32 Appeal 2009-009878 Application 11/580,592 4 properly aligned, it must be rotated relative to the 1 body. 2 (Ans. 5-6). The Examiner provides nearly identical analysis for Alli’s lug 3 128 being inserted into the bayonet type coupling, which includes an L-4 shaped coupling on the elongated body 14. (See Ans. 6). 5 The Appellant correctly contends the rotation of Milliman’s and Alli’s 6 lugs is not attributed to the distal ends of the internal walls defining the 7 channels. (See Reply Br. 5-6). The Appellant points out that the lugs of 8 both Milliman and Alli are rotated at the proximal end of their channels. 9 (See Reply Br. 5). We do not sustain the Examiner’s final decision rejecting 10 claims 1-11 under § 102(b) as being anticipated by Milliman; or claims 1 11 and 3-11 under § 102(b) as being anticipated by Alli. 12 13 Rejections Under § 102(b) as Being Anticipated by Green 14 Green discloses a surgical stapler having an endoscopic portion 300 15 that is detachable from a frame and handle portion 301 of the instrument. 16 (Green, col. 10, ll. 56-60, and figs. 17 and 24). Green’s endoscopic portion 17 300 includes a collet 402 having a plurality of collet fingers 410. (Green, 18 col. 10, ll. 64-67, col. 11, ll. 21-24, and fig. 18). Collet fingers 410 are 19 inserted within tube 494, which is part of frame and handle portion 301. 20 Collet fingers 410 are passed through inwardly inclined rim 538 and 21 ultimately reside at collet finger recess 540. (See Green, col. 14, ll. 57-66 22 and fig. 29). 23 The Examiner finds Green’s lugs (collet fingers) 410 “are slidably 24 received in the channels that are angled such that the lugs are guided into the 25 channels for proper alignment.” (Ans. 5). The Examiner also finds Green’s 26 “endoscopic portion [300] is capable of being rotated during insertion of the 27 Appeal 2009-009878 Application 11/580,592 5 lugs into the channels in order to facilitate insertion.” (Ans. 6). The 1 Examiner then concludes Green’s “channels are deemed to effect rotation of 2 the endoscopic portion.” (Ans. 7). However, the Appellant correctly 3 contends that the distal ends of the internal walls defining the channels of 4 Green do not effect rotation of the disposable loading unit. (See Reply Br. 5 7). The Appellant does point out that Green’s endoscopic portion 300 “can 6 be manually rotated by the user.” (Reply Br. 7). Put simply, it is not 7 Green’s structure that causes the rotation, but the user that causes the 8 rotation independent of the insertion of collet fingers 410 within tube 494. 9 We do not sustain the Examiner’s final decision rejecting claims 1-7 10 and 9-11 under § 102(b) as being anticipated by Green. 11 12 DECISION 13 We REVERSE the Examiner’s decision rejecting claims 1-11. 14 15 REVERSED 16 17 18 Klh 19