10346697 (B.P.A.I. Jul. 20, 2012)

Ex Parte Zhou et al

Board of Patent Appeals and InterferencesJul 20, 2012

10346697 (B.P.A.I. Jul. 20, 2012)

MOD PTOL-90A (Rev.06/08) APPLICATION NO./ CONTROL NO. FILING DATE FIRST NAMED INVENTOR / PATENT IN REEXAMINATION ATTORNEY DOCKET NO. 10/346,697 01/17/2003 Zhou, Pu EXAMINER SEAGER, TUFTE & WICKHEM, LLC 1221 Nicollet Avenue Suite 800 Minneapolis, MN 55403 Flick, Jason ART UNIT PAPER NUMBER 3763 MAIL DATE DELIVERY MODE 07/23/2012 PAPER 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. UNITED STATES DEPARTMENT OF COMMERCE U.S. Patent and Trademark Office Address : COMMISSIONER FOR PATENTS P.O. Box 1450 Alexandria, Virginia 22313-1450 www.uspto.gov UNITED STATES PATENT AND TRADEMARK OFFICE _____________________________________________________________________________________ UNITED STATES PATENT AND TRADEMARK OFFICE __________ BEFORE THE BOARD OF PATENT APPEALS AND INTERFERENCES __________ Ex parte PU ZHOU and LING WANG __________ Appeal 2011-004501 Application 10/346,697 Technology Center 3700 __________ Before MELANIE McCOLLUM, STEPHEN WALSH, and ERICA A. FRANKLIN, Administrative Patent Judges. McCOLLUM, Administrative Patent Judge. DECISION ON APPEAL This is an appeal under 35 U.S.C. § 134 involving claims to a braided reinforcement member, a method for its formation, and a medical device including a reinforcement layer. The Examiner has rejected the claims as anticipated or obvious. We have jurisdiction under 35 U.S.C. § 6(b). We reverse. STATEMENT OF THE CASE Claims 1-14 and 25-33 are pending and on appeal (App. Br. 4). Claim 1 is representative and reads as follows: Appeal 2011-004501 Application 10/346,697 2 1. A medical device comprising: an elongate shaft including a reinforcement layer, the reinforcement layer comprising a plurality of interwoven strands forming a braid, with a first set of one or more strands wound in a first helical direction and a second set of one or more strands wound in a second helical direction different than the first helical direction, and wherein the number of strands in the first set is less than the number of strands in the second set; wherein the first set of strands is wound at a first pitch and the second set of strands is wound at a second pitch, wherein the first pitch is different than the second pitch. Claims 1, 6, 8, 11-13, 25, 26, 28, and 30-33 stand rejected under 35 U.S.C. § 102(b) as anticipated by Truckai (WO 97/37713 A1, Oct. 16, 1997) (Ans. 4). Claims 2, 3, 9, 10, 27, and 29 stand rejected under 35 U.S.C. § 103(a) as obvious over Truckai (Ans. 7). Claims 4, 5, 7, and 14 stand rejected under 35 U.S.C. § 103(a) as obvious over Truckai in view of Garabedian et al. (US 6,171,295 B1, Jan. 9, 2001) (Ans. 8). ANTICIPATION The Examiner finds that Truckai discloses a reinforcement layer having a first set of strands 212 and a second set of strands 214 (Ans. 4). Truckai discloses that “[a]ll large diameter elements 212 of the braided reinforcement structure 204 are wound helically in a same rotational direction” and that “[a]ll small diameter elements 214 of the braided structure 204 . . . are wound in a counter-rotational direction” (Truckai 5: 25-28). Thus, strand sets 212 and 214 are wound in different helical directions, as required by claim 1. However, Appellants argue that “[n]othing in Truckai appears to disclose . . . „the first set of strands is Appeal 2011-004501 Application 10/346,697 3 wound at a first pitch and the second set of strands is wound at a second pitch, wherein the first pitch is different than the second pitch‟” (App. Br. 12). In Figure 4A, Appellants depict “a prior art catheter shaft 12A [that] includes a braid reinforcement layer with an equal number of strands 36A/38A wound in each direction at the same pitch” (Spec. 11: 4-6 (emphasis added)). In Figures 4B and 4C, Appellants depict catheter shafts that “include a braid reinforcement layer with an unequal number of strands 36/38 wound in each direction . . . at the same pitch as shown in Figure 4B or at differing pitch as seen in Figure 4C” (id. at 11: 8-11). Based on how the term “pitch” is used in the Specification, we agree with Appellants that claim 1 should not be interpreted to include first and second strand sets that are at the same degree of slope, albeit at opposite directions. Thus, we agree with Appellants that the Examiner has not set forth a prima facie case that Truckai discloses first and second strand sets that are wound at different pitches. We therefore reverse the anticipation rejection. OBVIOUSNESS The Examiner also fails to explain why it would have been obvious to include first and second strand sets that are wound at different pitches. Thus, we also reverse the obviousness rejections over Truckai alone or in view of Garabedian. Appeal 2011-004501 Application 10/346,697 4 REVERSED alw