Ex Parte Viola et al

Patent Trial and Appeal Board

Aug 21, 2014

12427796 (P.T.A.B. Aug. 21, 2014)

UNITED STATES PATENT AND TRADEMARK OFFICE
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BEFORE THE PATENT TRIAL AND APPEAL BOARD
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Ex parte FRANK VIOLA and MICHAEL ZEMLOK
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Appeal 2012-006109
Application 12/427,7961
Technology Center 3700
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Before JOSEPH A. FISCHETTI, BIBHU R. MOHANTY, and
MICHAEL C. ASTORINO, Administrative Patent Judges.

ASTORINO, Administrative Patent Judge.

DECISION ON APPEAL

STATEMENT OF THE CASE
The Appellants appeal under 35 U.S.C. § 134 from the Examiner’s
decision rejecting claims 1–10, 12–15, and 17–30. We have jurisdiction
over the appeal under 35 U.S.C. § 6(b).
We AFFIRM-IN-PART.
Claimed Subject Matter
Claims 1, 17, and 26 are the independent claims on appeal. Claim 1,
reproduced below, is illustrative of the subject matter on appeal.

1 According to the Appellants, the real party in interest is “Tyco Healthcare
group LP (d/b/a “Covidien”). Appeal Br. 1.
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1. A surgical fastener applying apparatus, comprising:
an anvil member having a tissue contacting surface;
a cartridge member extending along a longitudinal axis
and being movably coupled to the anvil member, the cartridge
member including a plurality of surgical fasteners and a
plurality of pushers operatively associated with the plurality of
surgical fasteners, each pusher including a base portion and a
plurality of pusher plates extending from the base portion such
that adjacent pusher plates define an acute angle therebetween;
and
a sled operably engagable with the plurality of pushers,
wherein engagement of the sled with the pushers urges the
surgical fasteners toward the anvil member such that a first row
of surgical fasteners applies a first compressive force to tissue
disposed between the anvil member and the cartridge member,
and a second row of surgical fasteners applies a second,
different compressive force to tissue disposed between the anvil
member and the cartridge member.

Rejections
Claims 1–8, 10, 12, 13, 15, and 17–21 are rejected under 35 U.S.C.
§ 102(b) as anticipated by Viola (WO 03/094747, pub. Nov. 20, 2003).
Claims 9 and 14 are rejected under 35 U.S.C. § 103(a) as unpatentable
over Viola and Hess (US 7,604,151 B2, iss. Oct. 20, 2009).
Claims 22–30 are rejected under 35 U.S.C. § 103(a) as unpatentable
over Viola and Olson (US 2007/0075115 A1, pub. Apr. 5, 2007).

ANALYSIS
Anticipation by Viola
Claims 1–8, 10, 12, 13, and 15
The Appellants contend Viola fails to disclose “a plurality of pusher
plates extending from the base portion such that adjacent pusher plates
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define an acute angle therebetween.” See Appeal Br. 5, 7–8. The
Appellants’ contention is persuasive.
The Examiner explains that Viola’s pusher 26 plates define “an acute
angle therebetween,” as recited in claim 1, because the phrase is construed
as lacking a particular origin of reference and as such, the origin of reference
is arbitrary and an infinite number of acute angles could be defined
“therebetween.” See Ans. 15.
In response, the Appellants correctly explain that the phrase “an acute
angle therebetween” in “a plurality of pusher plates extending from the base
portion such that adjacent pusher plates define an acute angle therebetween,”
as recited in claim 1, requires the angle between pusher plates to be acute.
See Reply Br. 2–3. The Appellants point out that Viola’s pusher 26 plates
appear to travel in a substantially parallel, vertical path in relation to one
another during the firing of the surgical stapling apparatus. Appeal Br. 7–8,
Reply Br. 3–4. We agree.
Thus, the Examiner’s rejection of claims 1–8, 10, 12, 13, and 15 as
anticipated by Viola is reversed.

Claims 17–20
The Appellants contend that Viola does not disclose “ . . . the plurality
of pusher plates are repositionable relative to a centerline of the cartridge
member during movement of the at least one pusher,” as recited in claim 17.
Appeal Br. 8. The Appellants assert that “repositioning, i.e., movement” of
the pusher plates of claim 17 are distinguished from Viola’s pusher 26 plates
because Viola pusher 26 plates appear to travel along a vertical path in a
substantially parallel orientation to one another during the firing of the
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surgical stapling apparatus. See Appeal Br. 7, 8–9, Reply Br. 2–5. The
Appellants’ contention is unpersuasive.
The Appellants’ assertion is not commensurate in scope with claim
17. First, claim 17 does not require that the claimed “pusher plates” are
repositionable to one another, but are repositionable to a centerline of the
cartridge member. Second, a “centerline” is a reference to a line and not a
plane. For example, the instant Specification states “[t]he slot 1204 may
extend along a centerline of the surgical fastener cartridge body 1202, as
shown in the embodiment illustrated in FIGS. 3 and 6.” Spec. ¶ 0060
(emphasis added). Further, slot 1204 is “[a] longitudinal slot . . . [that]
extends through the surgical fastener cartridge body 1202 that is configured
and dimensioned to accommodate longitudinal movement of the knife 1007
(FIG. 3) such that tissue may be severed along the aforementioned cut-line.”
In other words, slot 21 is a knife slot. Similarly, Viola’s knife slot 21
extends along a centerline of surgical fastener cartridge 22. See also Ans. 7.
Third, Viola’s pusher 26 plates move upward relative to knife slot 21 and as
such, are repositionable, i.e., moveable, relative to a centerline of the
cartridge member. See Ans. 6, 17.
Thus, the Examiner’s rejection of claim 17 as anticipated by Viola is
sustained. The Appellants do not separately argue the Examiner’s rejection
of claims 18–20, which depend from claim 17. Thus, the Examiner’s
rejection of claims 18–20 is sustained.

Claim 21
Claim 21 depends from claim 17 and recites, “wherein the pusher
plates extend from the base portion such that adjacent pusher plates define
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an acute angle therebetween.” Appeal Br., Claims App. Similar to the
disputed language with regard to the rejection of claim 1, the disputed
language of claim 21 requires the angle between pusher plates to be acute.
See Appeal Br. 10. As discussed above, the Appellants point out that
Viola’s pusher 26 plates appear to travel in a substantially parallel, vertical
path in relation to one another during the firing of the surgical stapling
apparatus. Appeal Br. 7–8, 10. We agree.
Thus, the Examiner’s rejection of claim 21 as anticipated by Viola is
reversed.

Obviousness based on Viola and Hess
Claims 9 and 14 indirectly depend from claim 1. Appeal Br., Claims
App. The Examiner’s rejection of claims 9 and 14 fails to evidence the
proper construction of the disputed claimed language, i.e., that the angle
between pusher plates is acute. The Examiner’s rejection of claims 9 and 14
relies on the same misconstruction. Additionally, the Examiner’s findings
attributed to Viola and Hess for the rejection of claims 9 and 14 fail to
remedy the deficiency in the Examiner’s rejection of claim 1. Thus, the
Examiner’s rejection of claims 9 and 14 as unpatentable over Viola and Hess
is reversed.

Obviousness based on Viola and Olson
Claims 22, 24, and 25
Claim 22 depends directly from independent claim 1 and claims 24
and 25 depend directly and indirectly, respectively, from dependent claim
21. Appeal Br., Claims App. As discussed above, the Examiner’s rejection
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of claims 1 and 21 fails to evidence the proper construction of the disputed
claimed language, i.e., that the angle between pusher plates is acute. The
Examiner’s rejection of claims 22, 24, and 25 relies on the same
misconstruction. Additionally, the Examiner’s findings attributed to Viola
and Olson for the rejection of claims 22, 24, and 25 fail to remedy the
deficiency in the evidence offered by the Examiner for the rejection of
claims 1 and 21. More particularly, Olson’s pusher plates 166, similar to
Viola, appear to travel in a substantially parallel, vertical path in relation to
one another during the firing of the surgical stapling apparatus. Infra.
Thus, the Examiner’s rejection of claims 22, 24, and 25 as
unpatentable over Viola and Olson is reversed.

Claim 23
Claim 23 depends directly from independent claim 17. Appeal Br.,
Claims App. The Appellants do not separately argue the Examiner’s
rejection of claim 23. Rather, the Appellants rely on the arguments
presented against the Examiner’s rejection of claim 17 for the rejection of
claim 23 and argue that Olson does not remedy the deficiencies in the
Examiner’s rejection of claim 17. See Appeal. Br. 14–19, Reply Br. 9–14.
The Appellants’ arguments are unpersuasive because no deficiencies exist in
the Examiner’s rejection claim 17.
Thus, the Examiner’s rejection of claim 23 as unpatentable over Viola
and Olson is sustained.

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Claims 26–30
Claim 26 recites, “the pusher comprising a plurality of pusher plates
configured and dimensioned such that at least one of the pusher plates is
moved in first and second directions during ejection of the surgical fasteners,
the first direction extending along a first axis, and the second direction
extending along a second axis transverse in relation to the first axis.”
Appeal Br., Claims App. (emphasis added). The Examiner finds that Viola
does not disclose, but that Olson does disclose, the emphasized language of
claim 26. Ans. 11–15. The Appellants contend that Olson does not disclose
the emphasized language of claim 26 because Olson’s pusher plates 166,
similar to Viola’s, appear to travel in a substantially parallel, vertical path in
relation to one another during the firing of the surgical stapling apparatus.
Appeal Br. 7–8, 17–18; Reply Br. 3–4, 11–13. We agree. As such, the
Appellants’ contention is persuasive.
Thus, the Examiner’s rejection of claim 26, and dependent claims 27–
30, as unpatentable over Viola and Olson, is reversed.

DECISION
We AFFIRM the rejections of: claims 17–20 under 35 U.S.C.
§ 102(b) as anticipated by Viola; and claim 23 under 35 U.S.C. § 103(a) as
unpatentable over Viola and Olson.
We REVERSE the rejections of: claims 1–8, 10, 12, 13, 15, and 21
under 35 U.S.C. § 102(b) as anticipated by Viola; claims 9 and 14 under 35
U.S.C. § 103(a) as unpatentable over Viola and Hess; and claims 22 and 24–
30 under 35 U.S.C. § 103(a) as unpatentable over Viola and Olson.

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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).

AFFIRMED-IN-PART

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