Keith Richard. Anderson

Patent Trials and Appeals Board

Jul 25, 2019

14605634 - (D) (P.T.A.B. Jul. 25, 2019)

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.
14/605,634 01/26/2015 Keith Richard Anderson 511383.000006 2930
25764 7590 07/25/2019
Faegre Baker Daniels LLP
PATENT DOCKETING - INTELLECTUAL PROPERTY
2200 WELLS FARGO CENTER
90 SOUTH SEVENTH STREET
MINNEAPOLIS, MN 55402-3901
EXAMINER
KU, SI MING
ART UNIT PAPER NUMBER
3775
NOTIFICATION DATE DELIVERY MODE
07/25/2019 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):
PatentDocketing@FaegreBD.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________

Ex parte KEITH RICHARD ANDERSON
____________

Appeal 2019-000326
Application 14/605,6341
Technology Center 3700
____________

Before EDWARD A. BROWN, JAMES P. CALVE, and
MICHAEL J. FITZPATRICK, Administrative Patent Judges.

BROWN, Administrative Patent Judge.

DECISION ON APPEAL

STATEMENT OF THE CASE
Appellant seeks review under 35 U.S.C. § 134(a) of the Examiner’s
decision rejecting claims 14–37.2 The Board has jurisdiction under 35
U.S.C. § 6(b).
We REVERSE.

1 Keith Richard Anderson (“Appellant”) is identified as the real party in
interest. Appeal Br. 2.
2 Claims 1–13 are canceled. Appeal Br. (Claims App.).
Appeal 2019-000326
Application 14/605,634

2
CLAIMED SUBJECT MATTER
Claims 14, 24, 27, and 34 are independent. Claim 14, reproduced
below, illustrates the claimed subject matter.
14. A method for performing a wedge osteotomy
comprising:
providing a surgical saw blade comprising a bottom plane,
a cutting point, and a cutting slope, the cutting slope comprising
a plurality of offset planes positioned along the cutting slope, the
cutting slope defining a second plane that intersects the bottom
plane, each of the plurality of offset planes having an upper
surface that is parallel to the bottom plane, and the cutting slope
further comprising a plurality of rows of teeth, each of the
plurality of rows of teeth positioned between the cutting slope
and the offset planes;
attaching the surgical saw blade to a saw;
selecting a desired area of a bone for resection; and
initiating a cut in the bone with the cutting point and
advancing the surgical saw blade through the bone to create a
wedge osteotomy.

Appeal Br. (Claims App.).

REJECTIONS3
Claims 14–17, 20–30, and 33–37 stand rejected under 35 U.S.C.
§ 103(a) as unpatentable over Ryd (US 5,087,261, issued Feb. 11, 1992) and
Phillips (US 349,119, issued Sept. 14, 1886).
Claims 18, 19, 31, and 32 stand rejected under 35 U.S.C. § 103(a) as
unpatentable over Ryd, Phillips, and Song (US 2007/0233131 A1, published
Oct. 4, 2007).

3 A rejection under 35 U.S.C. § 112, second paragraph, has been withdrawn.
See Advisory Act. (dated Apr. 17, 2018) (Cont. Sheet).
Appeal 2019-000326
Application 14/605,634

3
ANALYSIS
Rejection of claims 14–17, 20–30, and 33–37 over Ryd and Phillips
As to claim 14, the Examiner finds that Ryd discloses a method for
performing an osteotomy comprising, in part, providing a surgical saw blade
(saw blade 1) comprising a bottom plane (side 22) and a cutting point (saw
tooth row 28), but finds that the surgical blade lacks a cutting slope
comprising a plurality of offset planes positioned along the cutting slope.
Final Act. 3 (citing Ryd, Figs. 1, 2). The Examiner relies on Phillips as
teaching a “blade” (cold chisel) comprising a plurality of offset planes
(steps c) positioned along a cutting slope. Id. (citing Phillips, Fig. 1). The
Examiner concludes that it would have been obvious to one of ordinary skill
in the art to modify Ryd’s saw blade surface (e.g., side 22) to have a
plurality of offset planes positioned along a cutting slope, as taught by
Phillips, to “provide an alternative blade shape that would provide an
alternative cut.” Id. at 4. The Examiner explains that the cutting slope in the
modified saw blade would define a second plane that interests the bottom
plane, with each offset plane having an upper surface (Phillips Fig. 1) that is
parallel to the bottom plane (side 22). Id.
The Examiner finds that, in the modified surgical saw blade, the
cutting slope does not include a plurality of rows of teeth, with each of the
rows of teeth positioned between the offset planes, as claimed. Id. The
Examiner notes that Ryd teaches that the saw blade design and function may
be varied, and that the saw blade may have saw portions on more than one
side and at more than two edges. Id. (citing Ryd, col. 5, ll. 7–16). The
Examiner finds that Ryd teaches a plurality of teeth (e.g., saw tooth row 28).
Id. The Examiner concludes that it would have been obvious to one of
Appeal 2019-000326
Application 14/605,634

4
ordinary skill in the art to modify each of the saw blade steps of the modified
saw blade of Ryd with a plurality of teeth, as taught by Ryd, to “provide a
saw blade with alternative teeth design.” Id.
Appellant contends the Examiner has not articulated a reason why a
person of ordinary skill in the art would have modified Ryd in view of
Phillips to obtain “an alternative blade shape” or an “alternative cut.”
Appeal Br. 8. Appellant also contends that “[the] Examiner provides no
evidence [to show] that one skilled in the art would desire to modify Ryd’s
saw blade to include a cutting slope with a plurality of offset planes
positioned along the cutting slope” or “would settle on the particularly-
claimed saw blade as opposed to another ‘alternative’ shape or cut.” Id.
We agree with Appellant. Saw blade 1 shown in Figures 1 and 2 of
Ryd comprises sides 21, 22 including respective saw portions 9, 8 with saw
tooth rows 29, 28 at their front end edges. See also Ryd, col. 2, ll. 66–69,
col. 3, ll. 33–36 and 48–51. As recognized by the Examiner, Ryd describes
that “[t]he saw-blade may possibly have saw portions on more than one side
and at more than two edges.” See id. col. 5, ll. 15–16. However, this
general statement does not, by itself, disclose or suggest that the saw blade
depicted in Figures 1 and 2 of Ryd “may possibly” be modified to include, in
particular, a “cutting slope” having every feature recited in claim 14.
As pointed out by Appellant, “Phillips describes [its] invention as
relating to ‘a cold-chisel designed particularly for plumbers’ use in forming
openings in pipes.’” Appeal Br. 6. Phillips discloses that “the invention
consists in forming the chisel with one or more shoulders above the bit,
whereby an opening formed by the bit may be easily enlarged with the same
tool.” See Phillips ll. 9–11. Accordingly, the disclosed purpose of the
Appeal 2019-000326
Application 14/605,634

5
shoulders or steps in chisel A is to enable openings to be easily enlarged
once formed without having to use another tool. Even if “a chisel is a
cutting tool for cutting material,” as stated by the Examiner (Ans. 2),
Phillips’ chisel is still not a saw blade and its steps are not provided for
sawing.
The Examiner has not articulated an adequate reason with a rational
underpinning why a person of ordinary skill in the art would have been
motivated to modify Ryd’s saw blade in view of Phillips’ chisel to result in
the claimed saw blade. The Examiner identifies Ryd’s (upper) side 22 as the
“bottom plane.” Final Act. 3. The Examiner’s modification of Ryd’s saw
blade 1 would require changing its structure by somehow incorporating a
cutting slope that includes each of the claimed features. As recited in claim
14, this would require that the resulting “cutting slope defin[e] a second
plane that intersects the bottom plane [22], each of the plurality of offset
planes [of the cutting slope] having an upper surface that is parallel to the
bottom plane [22].” (emphasis added). The Examiner does not, however,
explain sufficiently how the proposed modification of Ryd’s saw blade
would even meet this requirement. Nor does the Examiner explain
adequately how the applied combination of Ryd and Phillips teaches or
suggests that the cutting slope incorporated in Ryd’s saw blade would
“further compris[e] a plurality of rows of teeth, each of the plurality of rows
of teeth positioned between the cutting slope and the offset planes,” as
recited in claim 14. In that regard, we agree with Appellant that the general
description in Ryd cited by the Examiner fails to teach or suggest any
particular modification to include a cutting slope comprising a plurality of
rows of teeth, with each row of teeth positioned between offset planes, as
Appeal 2019-000326
Application 14/605,634

6
claimed. Appeal Br. 8; see Ryd, col. 5, ll. 7–17. We thus agree with
Appellant that the Examiner does not provide sufficient evidence that one
skilled in the art would have modified Ryd’s saw blade to result in “the
particularly-claimed saw blade as opposed to another ‘alternative teeth
design.’” Appeal Br. 8.
For these reasons, we do not sustain the rejection of claim 14, or its
dependent claims 15–17, 20–23, and 35–37, as unpatentable over Ryd and
Phillips.
Claim 24 recites a method of performing a one-pass wedge
osteotomy, comprising, inter alia, attaching a surgical saw blade comprising
“iv) a plurality of offset planes positioned along the cutting slope, each offset
plane having an upper surface that is parallel to the bottom plane” and “v) a
plurality of rows of teeth positioned between the upper surface of the offset
planes and the cutting slope, each row of teeth having multiple teeth
comprising cutting tips.” Appeal Br. (Claims App.) (emphasis added). For
reasons similar to those discussed above for claim 14, we do not sustain the
rejection of claim 24, or its dependent claims 25 and 26, as unpatentable
over Ryd and Phillips.
Claim 27 recites a surgical blade for performing a wedge osteotomy
comprising, inter alia, “a blade having a bottom plane . . . and a cutting
slope defining a second plane that intersects the bottom plane,” and “the
cutting slope . . . comprising a plurality of offset planes, each of the plurality
of offset planes having an upper surface that is parallel to the bottom plane .
. ., and wherein a plurality of teeth are positioned in between the offset
planes and the cutting slope.” Appeal Br. (Claims App.) (emphasis added).
For reasons similar to those discussed for claim 14, we also do not sustain
Appeal 2019-000326
Application 14/605,634

7
the rejection of claim 27, or its dependent claims 28–30 and 33, as
unpatentable over Ryd and Phillips.
Lastly, claim 34 recites a method for performing a wedge-osteotomy
comprising providing a blade having a bottom plane and a cutting slope.
Appeal Br. (Claims App.) (emphasis added). For reasons similar to those
discussed above, we also do not sustain the rejection of claim 34 as
unpatentable over Ryd and Phillips.

Rejection of claims 18, 19, 31, and 32 over Ryd, Phillips, and Song
The Examiner’s reliance on Song in rejecting claims 18, 19, 31, and
32 does not cure the deficiencies in the rejection of parent claim 14 or 27.
Final Act. 6 (citing Song, Figs. 9, 13). We thus do not sustain the rejection
of claims 18, 19, 31, and 32 as unpatentable over Ryd, Phillips, and Song.

DECISION
We reverse the rejections of claims 14–37.

REVERSED