Ex Parte Scirica et al

Patent Trial and Appeal Board

Jan 30, 2017

13207653 (P.T.A.B. Jan. 30, 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.
13/207,653 08/11/2011 Paul Scirica H-US-02886 (203-7871) 6426
50855 7590
Covidien LP
555 Long Wharf Drive
Mail Stop 8N-1, Legal Department
New Haven, CT 06511
EXAMINER
JALLOW, EYAMINDAE CHOSSAN
ART UNIT PAPER NUMBER
3721
NOTIFICATION DATE DELIVERY MODE
02/01/2017 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):
mail @ cdfslaw. com
SurgicalUS@covidien.com
medtronic_mitg-si_docketing@cardinal-ip.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte PAUL SCIRICA and DAVID RACENET
Appeal 2015-003854
Application 13/207,6531
Technology Center 3700
Before MICHAEL C. ASTORINO, JAMES A. WORTH, and
BRADLEY B. BAYAT, Administrative Patent Judges.
ASTORINO, Administrative Patent Judge.
DECISION ON APPEAL
The Appellants appeal under 35 U.S.C. § 134 from the Examiner’s
decision finally rejecting claims 1—4, 6—9, 11, 14—24, and 26—29. We have
jurisdiction over the appeal under 35 U.S.C. § 6(b).
We REVERSE.
1 According to the Appellants, “[t]he real party in interest... is Covidien
LP.” Br. 1.
Appeal 2015-003854
Application 13/207,653
STATEMENT OF THE CASE
Claimed Subject Matter
Claim 1, the sole independent claim, is representative of the subject
matter on appeal and is reproduced below.
1. A surgical stapler, comprising:
a handle assembly including a stationary handle, an
approximation mechanism, and a firing trigger for firing a
plurality of surgical fasteners; and
an end effector supported on a distal end of the handle
assembly, the end effector including:
a circular anvil assembly, including:
an anvil center rod having a proximal end
configured for selective connection to the
approximation mechanism and a distal end, the
center rod defining a central longitudinal axis; and
an anvil head secured to the distal end of the
anvil center rod, the anvil head including:
an anvil plate defining a tissue contact
surface; and
at least two annular rows of a plurality
of staple forming pockets formed in the tissue
contact surface of the anvil plate, wherein
each of the plurality of staple forming
pockets has a curved length, the length of
each staple forming pocket of a relatively
inner annular row of staple forming pockets
of the anvil assembly being relatively shorter
than the length of each staple forming pocket
of a relatively outer annular row of staple
forming pockets of the anvil assembly; and
a circular staple cartridge assembly defining at least
two rows of a plurality of staple retaining slots
corresponding to a number of staple forming pockets of
the anvil assembly, the staple cartridge assembly including
a plurality of surgical staples supported therein in a spaced
relation to each other.
2
Appeal 2015-003854
Application 13/207,653
Rejection
Claims 1—4, 6—9, 11, 14—24, and 26—29 are rejected under 35 U.S.C.
§ 103(a) as unpatentable over Vresh et al. (US 7,080,769 B2, iss. July 25,
2006) (hereinafter “Vresh”) and Viola (WO 03/094747 Al, pub. Nov. 20,
2003).
ANALYSIS
The Appellants contend that the Examiner’s rejection “fail[s] to
establish that Vresh in view of Viola discloses, teaches, or suggests ‘each of
the plurality of staple forming pockets has a curved length, ’ as recited in
claim 1.” Br. 6.
The Examiner finds that Vresh’s conventional staple engaging
grooves 126, on anvil segments 122, 124, correspond with “at least two
annular rows of a plurality of staple forming pockets formed in the tissue
contact surface of the anvil plate,” as recited in claim 1. See Final Act. 3.
Also, the Examiner finds that grooves 126 “ha[ve] a curved length (see
diagram 1 below).” Id. The Examiner’s reference to “diagram 1” appears to
be a copy of a portion of Vresh’s Figure 3a, which illustrates some of
grooves 126 on anvil segments 122, 124. Id. at 14. This portion of the
figure is significantly augmented in size. Id. The Examiner annotated the
figure by drawing a “secant line” along the length of one of grooves 126. Id.
The Examiner’s position is that:
The secant line drawn on Vresh’s staple engaging groove is there
to illustrate that said staple engaging groove is not linear. The
space between the secant line and staple engaging groove deems
the staple engaging groove curved.
Ans. 2.
3
Appeal 2015-003854
Application 13/207,653
Although a space between the secant line and groove 126 is apparent
in the Examiner’s annotated figure (see Final Act. 14), we cannot discount
the fact that the space appears to be the result of the significantly augmented
size of the figure. In an unaltered format of Figure 3a, a similarly positioned
line on groove 126 does not result in a space between the line and groove
126. Rather, the line appears to overlap the outline of groove 126.
Accordingly, we find on this set of facts that Examiner’s use of a secant line
— after significantly augmenting Figure 3 a — is inadequate evidence to
support the Examiner’s finding that grooves 126 have a curved length.
Further, we note that the Appellants persuasively contend that “the
alleged curved appearance of staple engaging grooves 126 in FIG. 3a of
Vresh is merely the result of staple engaging grooves 126 being illustrated in
the annular-shaped anvil 120, thus giving staple engaging grooves 126 an
illusory appearance of curvature, if any.” Br. 4.
Additionally, we note that the Examiner does not appear to support
the finding that grooves 126 have a curved length with the description in
Vresh’s Specification, and the Examiner’s rejection does not rely on Viola to
teach that “each of the plurality of staple forming pockets has a curved
length,” as recited in independent claim 1.
Thus, we do not sustain the Examiner’s rejection of independent claim
1, and its dependent claims 2—4, 6—9, 11, 14—24, and 26—29, as unpatentable
over Vresh and Viola.
4
Appeal 2015-003854
Application 13/207,653
DECISION
We REVERSE the Examiner’s decision rejecting claims 1—4, 6—9, 11,
14—24, and 26—29.
REVERSED
5