Ex Parte WILSON et al

Patent Trial and Appeal Board

Sep 20, 2018

14182997 (P.T.A.B. Sep. 20, 2018)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
14/182,997 02/18/2014
6980 7590 09/24/2018
TROUTMANSANDERSLLP
600 Peachtree St., NE, Suite 3000
Atlanta, GA 30308
FIRST NAMED INVENTOR
STEPHEN WILSON
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
ATTORNEY DOCKET NO. CONFIRMATION NO.
252464. 000018 4547
EXAMINER
MARCETICH, ADAM M
ART UNIT PAPER NUMBER
3761
NOTIFICATION DATE DELIVERY MODE
09/24/2018 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):
j im. schutz@troutmansanders.com
ryan. schneider@troutmansanders.com
patents@troutmansanders.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte STEPHEN WILSON and EMILIE NEUKOM
Appeal2017-008671
Application 14/182,997 1
Technology Center 3700
Before LYNNE H. BROWNE, LISA M. GUIJT, and
FREDERICK C. LANEY, Administrative Patent Judges.
LANEY, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Stephen Wilson and Emilie Neukom (Appellants) appeals under 35
U.S.C. § 134(a) from the Examiner's final decision (filed Apr. 25, 2016
hereinafter "Final Act.") rejecting claims 30 and 31 under 35 U.S.C. §
103(a) as unpatentable over Dextradeur (US 2005/0159697 Al, pub. July 21,
2005) and Akahoshi (US 2011/0172590 Al, pub. July 14, 2011). 2 We have
jurisdiction over this appeal under 35 U.S.C. § 6(b).
We REVERSE.
1 According to Appellants, the real party in interest for this application is
DePuy Synthes Products, Incorporated. Br. 1. (filed Oct. 25, 2016).
2 Claims 1-29 have been cancelled. Br. 2.
Appeal2017-008671
Application 14/182,997
INVENTION
Appellants' invention "relates generally to a shunt and a catheter
having a system for reducing the risk of blockage or obstruction of the
catheter apertures and also increases the ease of revision surgery if the
catheter is removed." Spec. 1.
Claims 30 and 31 are independent. Claim 30 is illustrative of the
claimed invention and is reproduced below.
30. A method of removing an obstruction from within an inner
lumen of a ventricular catheter of a shunt system when the
ventricular catheter is implanted in a brain, the ventricular
catheter having a longitudinal length, a proximal end, a distal
end, and the inner lumen extending therethrough, the inner lumen
of the catheter being comprised of at least two lumens at the
distal end and being comprised of only one lumen at the proximal
end, the catheter having an aperture adjacent to the distal end
corresponding to each of the at least two lumens; wherein each
aperture has an enlarged opening at the distal end and transitions
from the enlarged opening to a tapering slit only at the proximal
end of the aperture, the method comprising the steps of:
accessing the ventricular catheter; and
moving the ventricular catheter in the proximal direction
such that the obstruction is removed from the ventricular catheter
inner lumen at the enlarged opening at the distal end.
Appeal Br. 6 (Claims App.).
ANALYSIS
The Examiner determines that the combined teachings of Dextradeur
and Akahoshi demonstrates the recited combination of elements in claims 30
and 31 would have been obvious to a skilled artisan at the time of the
invention. Final Act. 2--4. The Examiner finds Dextradeur "teaches the
invention substantially as claimed," although it is missing the following
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elements: "removing an obstruction, an enlarged opening, and a tapering
slit." Id. at 3. Finding Akahoshi discloses these missing elements, the
Examiner explains that a skilled artisan would have known to assemble all
the elements in the manner claimed to perform the recited method "to
overcome obstructions from clogged pores" and "preserve a flow path
through a catheter." Id. at 4.
Appellants succinctly argue "that the combination of Dextradeur and
Akahoshi fails to teach or suggest the recited structure being used in the
manner recited to remove an obstruction from a ventricular catheter inner
lumen at the enlarged opening at the distal end," as recited by claims 30 and
31. Br. 4. Akahoshi only teaches, Appellants contend, "an infusion sleeve
to deliver an irrigating liquid into the eye" and "cannot teach or suggest
anything with respect to removing an obstruction from a ventricular
catheter." Id. And Appellants assert, though Dextradeur identifies generally
a need to remove obstructions from ventricular catheters, it lacks any
teaching or suggestion for doing so using the method claimed. Id.
In response, the Examiner finds, in addition to evidencing that the
need to avoid obstructions continually, Dextradeur "acknowledges the
drawbacks and danger of removing or replacing the catheter." Ans. 4. From
this, the Examiner concludes it "suggests that cleaning or unclogging the
catheter in-place is a safer and less harmful alternative." Id. Turning to
Akahoshi, the Examiner "notes that Akahoshi also overcomes occlusion by
increasing the cross-sectional area of a port available for liquid flow . . . . In
other words, Akahoshi exploits the shape of an opening to prevent it from
clogging." Id. ( citing Akahoshi ,r 33). The Examiner further explains,
"[ w ]hen applied to a ventricular catheter, the enlarged opening and slit will
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Application 14/182,997
produce a similar effect and prevent tissue ingrowth or clots from
obstructing the opening .... Akahoshi offers a solution with a combined
opening and slit that overcomes occlusion." Ans. 4--5. Finally, the
Examiner provides the additional reasoning:
Although Dextradeur does not move the catheter in an effort to
dislodge obstructions, moving the catheter will have the same
effect on tissue or clots that obstruct the opening. Dextradeur
performs the same physical step (moving a catheter) and will
therefore produce an identical effect ( dislodging an occlusion).
Any movement or sliding applied to the distal tip ofDextradeur's
catheter will apply strain to tissue or clot material at surrounding
the distal tip, and thereby loosen it from the opening.
Id. at 5.
Akahoshi describes an infusion sleeve through which an irrigating
liquid is directed. Akahoshi Abstract. The infusion sleeve of Akahoshi is
intended to address a need for a such a sleeve that "allows for a greater
volume of liquid to be infused into the eye while avoiding ... pushing lens
and cortical material away from the aspiration port or damaging delicate eye
tissue impacted by such direct flow due to increased pressure, turbulence
and the like." Id. ,r 29. This need arises while performing an
ophthalmological surgical technique, which requires an infusion of a
sufficient amount of liquid into the eye during the operation, because the
infusion port on the surgical tool can become occluded with lens fragments
or particles. Id. ,r 7. "When this happens, flow of irrigating liquid into the
eye may decrease, meaning that not enough liquid flow may be available to
help clear the occlusion." Id. A surgeon responding to this condition by
increasing liquid flow through the infusion sleeve "can cause an increase in
the Reynolds number of the infusion liquid to the point where the liquid flow
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Application 14/182,997
become[s] turbulent which can, in itself cause damage to the eye."
Akahoshi ,r 7. Furthermore, sleeves having discharge ports that direct the
liquid toward the surgical needle tip "may create a flow pattern that pushes
lens or cortical material away from the aspiration port of the needle,
prolonging phaco procedure." Id. ,r 8.
To solve these potential problems, Akahoshi teaches a phaco infusion
sleeve that has at least one infusion liquid discharge port "formed by
severing a portion of the sleeve to create a flap which, responsive to an
increase in the flow of the irrigation liquid, swings out to direct the liquid in
a desired direction." Id. ,r 32. In one such configuration, the port has a slit
beginning at the periphery of the port and extends a selected distance away
from the port. Id. ,r 33; see also ,r,r 63----67. "When an occlusion of the
aspiration port occurs and increased pressure in the eye causes the flow of
infusion liquid to back up the slit is forced open, increasing the cross-
sectional area of the port available for liquid flow allowing a larger volume
of liquid to enter the eye more safely." Id. ,r 33.
In view of the foregoing, the Examiner's rationale based on Akahoshi
is unpersuasive. The Examiner's assertion that the enlarged opening and slit
in Akahoshi overcomes occlusions and prevents tissue growth or clots from
obstructing the opening lacks support from the record. The enlarged
opening and slit in Akahoshi is actually an aspiration port to provide
irrigation liquid, and the slit is only open when the irrigating pressure exceed
a particular threshold. Akahoshi describes the slit as remaining closed
during irrigation and only opening after an occlusion causes the irrigating
liquid pressure to increase and exert a force that opens the slit. In addition,
we note that the kind of occlusions Akahoshi appears to address are those
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cause by lens fragments or particles that have been created during a surgical
procedure rather tissue growth or clots.
Given these differences in operation and application, the Examiner's
findings regarding the ability of the enlarged opening and slit in Akahoshi to
prevent tissue growth or clots from obstructing the opening in a ventricular
catheter is not supported by a preponderance of the evidence. To the
contrary, when considering Akahoshi's disclosure as a whole, it does not
suggest the port and slit themselves provide any beneficial effect to avoid
tissue growth or clots, but that those structures improve the ability of the
infusion sleeve to provide an irrigating liquid, and it is the liquid that
removes blockage caused by the lens fragments or particles. Therefore, we
do not sustain the Examiner's rejection of claims 30 and 31.
DECISION
The Examiner's rejection of claims 30 and 31 is reversed.
REVERSED
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