Ex Parte Vardi et al

Board of Patent Appeals and Interferences

Jun 2, 2009

10910598 (B.P.A.I. Jun. 2, 2009)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
____________

Ex parte GIL M. VARDI, CHARLES J. DAVIDSON, ERIC ELAM, and
STUART LIN
____________

Appeal 2009-000203
Application 10/910,598
Technology Center 3700
____________

Decided: 1 June 2, 2009
____________

Before JENNIFER D. BAHR, JOHN C. KERINS, and
STEFAN STAICOVICI Administrative Patent Judges.

STAICOVICI, Administrative Patent Judge.

DECISION ON APPEAL

1 The two-month time period for filing an appeal or commencing a civil
action, as recited in 37 C.F.R. § 1.304, begins to run from the decided date
shown on this page of the decision. The time period does not run from the
Mail Date (paper delivery) or Notification Date (electronic delivery).

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STATEMENT OF THE CASE
Gil M. Vardi et al. (Appellants) appeal under 35 U.S.C. § 134 from
the Examiner’s decision rejecting claims 11 and 14. Claims 1-10 and 15-21
have been canceled.2 We have jurisdiction over this appeal under 35 U.S.C.
§ 6 (2002).

THE INVENTION
The Appellants’ invention is drawn toward a stent 100 having
differential radial expansion characteristics. Specification 13, ll. 22-23. The
stent 100 includes a side hole 102, a first portion 110 on one side of the side
hole, and a second portion 120 on the other side of the side hole. The first
and second portions 110 and 120 are defined by a plurality of serpentine
rings 112 joined by spring structures 114. Specification 14, ll. 1-10 and fig.
10. Each of the portions 110 and 120 further includes an axial spine 130 and
132, which include W-shaped structures 134 and box elements 138,
respectively. Because the box elements 138 require a greater expansion
force to open than the W-shaped structures 134, the second portion 120 will
open after the first portion 110 has opened. Specification 14, ll. 10-15 and
fig. 10.
Claim 11 is representative of the claimed invention and reads as
follows:

2 Claims 12, 13, and 22-25 are objected to by the Examiner as being
dependent upon a rejected base claim and otherwise indicated as being
allowable if rewritten in independent form including all of the limitations of
the base claim and any intervening claim. Claims 12, 13, and 22-25 are not
part of this appeal.

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11. A stent for placement in a bifurcated body lumen, said
stent comprising:
a main tubular body comprised of serpentine rings of
joined struts and hinges, the body having a first end, a
second end, and a side opening between said ends,
wherein the struts and hinges of the serpentine rings of a
first portion of the main tubular body between the first
end and the side hole define a repeating geometric
pattern, the struts and hinges of the serpentine rings of a
second portion of the main tubular body between the side
hole and the second end define a repeating geometric
pattern, the repeating geometric pattern of the first
portion being different than the repeating geometric
pattern of the second portion.

THE REJECTIONS
The Examiner relies upon the following as evidence of
unpatentability:
Kleshinski US 5,755,778 May 26, 1998
Wilson US 6,165,195 Dec. 26, 2000

The following rejections are before us for review:
The Examiner rejected claim 11 and 14 under 35 U.S.C. § 102(b) as
anticipated by Wilson.
The Examiner rejected claim 11 and 14 under 35 U.S.C. § 102(b) as
anticipated by Kleshinski.

THE ISSUES
1. Have the Appellants demonstrated that the Examiner erred in
determining that Wilson teaches a stent having “serpentine
rings of struts and hinges” that form a first portion having a first
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geometric pattern different than a second portion having a
second geometric pattern?
2. Have the Appellants demonstrated that the Examiner erred in
determining that Kleshinski teaches a stent including a main
tubular body having a first end, a second end, and a side
opening between said ends, such that the region between the
first end and the side opening has a different repeating
geometric pattern than the region between the side opening and
the second end?

SUMMARY OF DECISION
We AFFIRM.

FINDINGS OF FACT
The following enumerated findings of facts (FF) are supported by at
least a preponderance of the evidence. Ethicon, Inc. v. Quigg, 849 F.2d
1422, 1427 (Fed. Cir. 1988) (explaining the general evidentiary standard for
proceedings before the Office).
1. Wilson teaches a stent 115 (main tubular body), for placement in a
bifurcated vessel (lumen), including an aperture (side hole) 116 which
delineates a high density cell portion 117 and a low density cell
portion 118. Wilson, col. 24, ll. 1-4 and figs. 34 and 35.
2. Wilson further teaches a stent including a plurality of cylindrical
elements (struts) having a serpentine pattern connected by connecting
members (hinges). Wilson, col. 13, ll. 20-22.
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3. An ordinary and customary meaning of the term “pattern” is “an
arrangement form; disposition of parts or elements; design.”
WEBSTER'S NEW WORLD DICTIONARY 1042 (David B. Guralnik ed.,
2nd Coll. Ed., Simon & Schuster, Inc. 1984).
4. Kleshinski discloses an anastomosis device 48 including a skeletal
frame 50 having a main leg 52 and a branch leg 58 which is connected
at end 60 (side opening) to the main leg 52. Kleshinski, col. 5, ll. 2-10
and figs. 5 and 6.
5. Kleshinski further discloses a second embodiment of a skeletal frame
76 having the cells 64 of the main leg 78 larger than the cells 64 of the
branch leg 80. Kleshinski, col. 6, ll. 35-43 and fig. 7.
6. An ordinary and customary meaning of the term “tube” is a “hollow
cylindrical structure.” MERRIAM WEBSTER’S COLLEGIATE
DICTIONARY 1270 (Tenth Ed. 1997).
7. An ordinary and customary meaning of the term “cylinder” is “the
surface traced by a straight line moving parallel to a fixed straight line
and intersecting a fixed planar closed curve.” MERRIAM WEBSTER’S
COLLEGIATE DICTIONARY 288 (Tenth Ed. 1997).

PRINCIPLES OF LAW
Claim Construction
When construing claim terminology in the United States Patent and
Trademark Office, claims are to be given their broadest reasonable
interpretation consistent with the specification, reading claim language in
light of the specification as it would be interpreted by one of ordinary skill in
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the art. In re Am. Acad. of Sci. Tech. Ctr., 367 F.3d 1359, 1364 (Fed. Cir.
2004).
Anticipation
"A claim is anticipated only if each and every element as set forth in
the claim is found, either expressly or inherently described, in a single prior
art reference." Verdegaal Bros. v. Union Oil Co. of California, 814 F.2d
628, 631 (1987).

OPINION
The anticipation rejection based upon Wilson
The Appellants argue the rejection under 35 U.S.C. §102(b) of claims
11 and 14 together as a group. Therefore, in accordance with 37 C.F.R.
41.37(c)(1)(vii)(2008), we have selected claim 11 as the representative claim
to decide the appeal, with claim 14 standing or falling with claim 11.
The Appellants first argue that Wilson does not teach a stent having
“serpentine rings of struts and hinges.” App. Br. 6. Specifically pointing to
Figure 34 of Wilson, the Appellants argue that the intersecting lines “[do]
not clearly show the structure recited in independent claim 11.” Id.
Emphasis in original. Second, the Appellants argue that although Wilson
teaches a stent having “different cell densities in different portions of the
stent,” Wilson does not teach that such a stent includes portions having
different repeating geometric patterns of joined struts and hinges. See App.
Br. 8.
As noted above, Wilson teaches a stent 115 (main tubular body), for
placement in a bifurcated vessel (lumen), including an aperture (side hole)
116 which delineates a high density cell portion 117 and a low density cell
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portion 118. FF 1. Wilson further teaches that the stent includes a plurality
of cylindrical elements (struts) having a serpentine pattern connected by
connecting members (hinges). FF 2. We find that a person of ordinary skill
in the art would readily appreciate that the “cylindrical elements” and the
“connecting members” of the stent of Wilson constitute “struts” and
“hinges,” respectively. Hence, in contrast to the Appellants’ position we
find that Wilson specifically teaches a stent having “serpentine rings of
struts and hinges,” as required by claim 11.
With respect to Appellants’ second point we agree with the Examiner
that the different cell densities in the stent of Wilson form different repeating
geometric patterns. Ans. 5. The Appellants’ Specification does not
expressly define the term “pattern” or otherwise indicate that this term is
used in a manner other than in its ordinary and customary meaning.
Accordingly, we construe this term in accordance with its ordinary and
customary meaning. An ordinary and customary meaning of the term
“pattern” is “an arrangement form; disposition of parts or elements; design.”
FF 3. A person of ordinary skill in the art, when viewing Figure 34 of
Wilson, would have readily appreciated that the cells of the top portion (high
density cell portion 117) have a different “disposition” or “arrangement”
than the cells of the bottom portion (low density cell portion 118). As such,
we find that the high density cell portion 117 of Wilson’s stent has a
different repeating geometric pattern than the low density cell region 118, as
required by claim 11.
In conclusion, we find that Wilson teaches a stent having “serpentine
rings of struts and hinges” that form portions having different repeating
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geometric patterns. Accordingly, the rejection of claim 11, and claim 14
standing or falling with claim 11, is sustained.

The anticipation rejection based upon Kleshinski
The Appellants argue the rejection under 35 U.S.C. §102(b) of claims
11 and 14 together as a group.
Claim 11 recites a “main tubular body…having a first end, a second
end, and a side opening between said ends.” According to the Examiner,
Kleshinski teaches a stent 76 including a main tubular body having a first
end towards 78, a second end towards 80, and a side opening (referenced as
60, see also FF 4) between the first end and the second end, such that the
region between the first end and the side opening has a different repeating
geometric pattern than the region between the side opening and the second
end. Ans 4. See also FF 5. Further, the Examiner takes the position that
because the stent 76 of Kleshinski is used to connect a branch of a bifurcated
body lumen and because the broadest reasonable interpretation of the term
“main” is “the most important,” the most important aspect of Kleshinksi’s
stent is the flow path established between the first end at 78 and the second
end at 80. As such, the Examiner concludes that the stent formed between
78 and 80 constitutes the claimed “main tubular body.” Ans. 5-6.
Although we appreciate the Examiner’s construction of the term
“main,” we note that claim 11 requires a “main tubular body.” Emphasis
added. The Appellants’ Specification does not expressly define the term
“tubular” or otherwise indicate that this term is used in a manner other than
its ordinary and customary meaning. Accordingly, we construe this term in
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accordance with its ordinary and customary meaning. An ordinary and
customary meaning of the term “tube” is “hollow cylindrical structure.” FF
6. Similarly, we find that an ordinary and customary meaning of the term
“cylinder” is “the surface traced by a straight line moving parallel to a fixed
straight line and intersecting a fixed planar closed curve.” FF7. A person of
ordinary skill in the art would have readily appreciated that the structure
considered by the Examiner as constituting a “main tubular body” in
Kleshinski, is not a “tubular body” because its surface is not generated by a
straight line moving parallel to a fixed straight line. In conclusion, we find
that a person of ordinary skill in the art would not have recognized that the
body of Kleshinski’s stent formed by a first end towards 78, a second end
towards 80, and a side opening 60, as suggested by the Examiner, constitutes
a “tubular body.” Lastly, even assuming that the main leg 78 constitutes the
claimed “main tubular body” having a first end, a second end, and a side
opening in-between the first and second end, we note that because the cells
64 are the same size along the entire length of the main leg 78, regions of
different repeating geometric patterns are not present in the main leg 78.
Inasmuch as we found that Kleshinski does not teach a stent including
a “main tubular body” having a first end, a second end, and a side opening
between said ends, such that the region between the first end and the side
opening has a different repeating geometric pattern than the region between
the side opening and the second end, Kleshinski does not teach all the
elements of claim 11. Accordingly, the rejection of claim 11, and claim 14
standing or falling with claim 11, as anticipated by Kleshinski cannot be
sustained.

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CONCLUSIONS
1. The Appellants have not demonstrated that the Examiner erred
in determining that Wilson teaches a stent having “serpentine
rings of struts and hinges” that form a first portion having a first
geometric pattern different than a second portion having a
second geometric pattern.
2. The Appellants have demonstrated that the Examiner erred in
determining that Kleshinski teaches a stent including a main
tubular body having a first end, a second end, and a side
opening between said ends, such that the region between the
first end and the side opening has a different repeating
geometric pattern than the region between the side opening and
the second end.

DECISION
The Examiner’s rejection of claims 11 and 14 under 35 U.S.C.
§ 102(b) as anticipated by Wilson is affirmed.
The Examiner’s rejection of claims 11 and 14 under 35 U.S.C.
§ 102(b) as anticipated by Kleshinski is reversed.
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a). See 37 C.F.R.
§ 1.136(a)(1)(iv) (2007).

AFFIRMED

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LV:

VIDAS, ARRETT & STEINKRAUS, P.A.
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