Kerr, Andrew

Patent Trials and Appeals Board

Jun 1, 2021

2020005196 (P.T.A.B. Jun. 1, 2021)

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.
15/440,145 02/23/2017 Andrew Kerr 200359-00002 4165
1218 7590 06/01/2021
HESPOS & PORCO LLP
P. O. BOX 68
ESSEX FELLS, NJ 07021-0068
EXAMINER
BLANCO, JAVIER G
ART UNIT PAPER NUMBER
3774
NOTIFICATION DATE DELIVERY MODE
06/01/2021 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):
USPTO@dockettrak.com
docketing@hpiplaw.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte ANDREW KERR
Appeal 2020-005196
Application 15/440,145
Technology Center 3700
Before STEFAN STAICOVICI, JILL D. HILL, and
LEE L. STEPINA, Administrative Patent Judges.
STEPINA, Administrative Patent Judge.
DECISION ON APPEAL1
STATEMENT OF THE CASE
Pursuant to 35 U.S.C. § 134(a), Appellant2 appeals from the
Examiner’s decision to reject claims 62–83.3 See Final Act. 1. We have
jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM.

1 Appellant indicates that the present Appeal is related to an appeal in co-
pending U.S. Application Serial Number 15/864,845. Appeal Br. 4.
2 We use the term “Appellant” to refer to “applicant” as defined in 37 C.F.R.
§ 1.42. Appellant identifies the real party in interest as Andrew Kerr.
Appeal Br. 3.
3 Claims 1–61 and 84–88 are withdrawn. Final Act. 1.
Appeal 2020-005196
Application 15/440,145
2
CLAIMED SUBJECT MATTER
The claims are directed to a method of repairing a section of a blood
vessel by using a stent/graft assembly (along with recitation of numerous
limitations on the structure of the assembly). Claim 62, reproduced below,
is illustrative of the claimed subject matter:
62. A method for repairing a section of a blood vessel that has
an aneurysm, the method comprising:
inserting a stent graft assembly into the blood vessel, the
assembly comprising:
a tubular stent configured to contact a first relatively
healthy section of the blood vessel, the stent having opposite first
and second axial ends;
a tubular graft having a first axial end, the tubular graft
having a flexible wall at least a portion of which is adjacent the
first axial end and configured to contact the first relatively
healthy section of the blood vessel;
a discrete annular element affixed to the graft in proximity
to the first axial end of the graft, the annular element being
connected by a plurality of circumferentially spaced apart
hooking devices to the second axial end of the stent to achieve a
substantially end-to-end non-abutting connection between the
stent and the graft without overlap; and
whereby the substantially end-to-end connection without
overlap enables a smaller cross-section than a connection with
overlap so that the assembly can be introduced more easily into
the blood vessel.
Appeal Br. 22. (Claims App.).
Appeal 2020-005196
Application 15/440,145
3
REFERENCES
The prior art relied upon by the Examiner is:
Name Reference Date
Brown US 5,769,887 June 23, 1998
Cox US 5,824,040 Oct. 20, 1998
Pierce US 6,152,956 Nov. 28, 2000
Clerc US 6,860,900 B2 Mar. 1, 2005
Kerr US 9,937,066 B2 Apr. 10, 2018

REJECTIONS
I. Claims 62–83 are rejected on the ground of obviousness-type
double patenting over claim 1 of Kerr. Final Act. 3.
II. Claims 62–64, 71–75, 80, and 83 are rejected under 35 U.S.C.
§ 102(b) as anticipated by Clerc.4 Final Act. 4.
III. Claims 62–80 and 83 are rejected under 35 U.S.C. § 102(b) as
anticipated by Pierce.5 Final Act. 6.
IV. Claims 81 and 82 are rejected under 35 U.S.C. § 103(a) as
unpatentable over Clerc and either of Brown and Cox.6 Final Act. 10–11.

4 The heading for this rejection indicates that these claims are also rejected
as unpatentable under 35 U.S.C. § 103(a) over Clerc, but the body of the
rejection addresses claim 62 only on the basis of anticipation. See Final Act.
4–5.
5 The heading for this rejection indicates that these claims are also rejected
as unpatentable under 35 U.S.C. § 103(a) over Pierce, but the body of the
rejection addresses claim 62 only on the basis of anticipation. See Final Act.
6–7.
6 The heading for this rejection indicates that the rejection is based on Clerc,
Brown, and Cox taken together, but the body of the rejection indicates that
Brown and Cox are relied upon to teach the same claim element. See Final
Act. 10–11. Therefore, for the purposes of this rejection, Brown and Cox
are understood to be alternatives to each other.
Appeal 2020-005196
Application 15/440,145
4
V. Claims 81 and 82 are rejected under 35 U.S.C. § 103(a) as
unpatentable over Pierce and either of Brown and Cox. 7 Final Act. 12–13.
OPINION
Rejection I—Obviousness-type Double Patenting over Kerr
Claims 62–83
Appellant does not address this rejection. See Appeal Br. 9–21.
Accordingly, we summarily affirm Rejection I.

Rejection II—Anticipation by Clerc
Claims 62, 63, 64, 71–75, 80, and 83
The Examiner finds Clerc discloses all of the elements recited by
claim 62. Final Act. 4–5. In particular, the Examiner finds Clerc’s fixation
section 430 meets the requirements of the recited tubular stent, and Clerc’s
tubular graft cover 450 meets the requirements of the tubular graft. Final
Act. 4–6 (citing Clerc, Fig. 7); see also Clerc 7:3–31.
Appellant argues “[Clerc] does not teach or suggest the claimed
‘annular element being connected by a plurality of circumferentially spaced
apart hooking devices to the second axial end of the stent to achieve a
substantially end-to-end non-abutting connection between the stent and the
graft without overlap.’” Appeal Br. 10 (emphasis omitted). Specifically,
Appellant argues, Figure 7 of Clerc fails to meet the “without overlap”
requirement in claim 62. According to Appellant, tubular graft cover 450 of

7 The heading for this rejection indicates that the rejection is based on Clerc,
Brown, and Cox taken together, but the body of the rejection indicates that
Brown and Cox are relied upon to teach the same claim element. See Final
Act. 12–13. Therefore, for the purposes of this rejection, Brown and Cox
are understood to be alternatives to each other.
Appeal 2020-005196
Application 15/440,145
5
Clerc overlaps Clerc’s stent because it overlaps diseased aorta section 434,
which, Appellant asserts, is part of Clerc’s stent. Id. at 9–10. In other
words, Appellant contends the Examiner erred in finding that the stent in
Clerc may be characterized as being limited to fixation section 430. Id. In
this regard, Appellant contends that Clerc’s description of Figure 2 indicates
that Clerc’s stent includes both fixation section 30 and diseased aorta section
34. Id. Appellant compares Clerc’s discussion of Figure 2 with Clerc’s
discussion of Figure 7 and notes that Clerc describes the principle difference
between these Figures as the addition of tubular graft cover 450 to cover
diseased aorta section 434, (which is similar to its counterpart 34 in Figure
2). Id. at 9. Thus, Appellant argues diseased aorta section 434 in Figure 7
of Clerc should be considered part of a stent, similar to the way diseased
aorta section 34 of Figure 2 is. Appellant thus concludes Clerc fails to meet
the “without overlap” requirement because “[Clerc] has complete overlap
between the diseased aorta section 434 of the stent-graft 410 and the tubular
graft cover 450.” Id. at 10.
In response, the Examiner states that the rejection relies on
“interpreting stent 430 as the [sic] ‘a tubular stent for contacting said first
relatively healthy section of said blood vessel, the stent having opposite first
and second axial ends’, not stent 434.” Ans. 12.
We agree with Appellant that the Examiner has not established, by a
preponderance of the evidence, that tubular graft cover 450 of Clerc is
“without overlap” of a portion of Clerc’s stent. First, a person of ordinary
skill in the art would have considered Clerc’s diseased aorta section 34 in
Figure 2 to be part of a stent. For example, Clerc states, “[s]tent 10 is a
tubular device and includes an upstream or fixation section 30, renal artery
branch section 32 and downstream or diseased aorta section 34.” Clerk,
Appeal 2020-005196
Application 15/440,145
6
3:32–35. “[T]he fixation section 30 and diseased aorta section 34 are
formed from structures which are substantially similar with the exception of
their length.” Clerc, 3:46–47. Second, column 7 of Clerc makes clear that
diseased aorta section 434 includes a braided filament and would be
considered by a person of ordinary skill in the art to be structured similarly
to diseased aorta section 34 depicted in Figure 2. Thus, as diseased aorta
section 434 in Figure 7 is similar to diseased aorta section 34 in Figure 2,
diseased aorta section 434 would also have been considered to be part of a
stent in Clerc (the same way diseased aorta section 34 is). Consequently, as
tubular graft cover 450 overlaps diseased aorta section 434, Figure 7, tubular
graft cover 450 overlaps part of a stent. As a result, the Examiner’s finding
that Figure 7 meets the “without overlap” requirement in claim 62 is not
supported by a preponderance of the evidence. Accordingly, we do not
sustain the rejection of claim 62, and claims 63, 64, 71–75, 80, and 83
depending therefrom, as anticipated by Clerc.
Rejection III—Anticipation by Pierce
Claim 62
In rejecting claim 62 as anticipated by Pierce, the Examiner
determines that Pierce discloses the recited “discrete annular element” in
each of Figures 3, 5, 6B, and 8 as follows.
Figure 3 shows first axial end of graft 44 as comprised of a series
of interconnected rings or annular members, with the axial-most
ring annular member broadly interpreted to be “a discrete annular
element”; Figure 5 shows annular element 50, which is clearly
shown in Figure 5 as a discrete annular element in proximity to
first axial end of the graft 44; Figure 6B shows annular member
78, which is clearly shown in Figure 6B as a discrete annular
member in proximity to first axial end of the graft 44; Figure 8
shows annular element 76, which is clearly shown in Figure 8 as
Appeal 2020-005196
Application 15/440,145
7
discrete annular element in proximity to first axial end of graft
44.
Final Act. 7 (emphasis added).
First, Appellant argues that Pierce fails to disclose a discrete annular
ring as recited in claim 62. Specifically, Appellant argues that element 44 of
Pierce is not a separate entity, and, therefore, is not a “discrete” annular ring.
Appeal Br. 15–16.
This argument does not address all of the Examiner’s findings of fact
regarding Pierce and the recited “discrete annular element.” In this regard,
the Examiner relies on any one of elements 44, 50, 76, and 78 in Pierce as
disclosure of this structure. See Final Act. 7.
In the Reply Brief, Appellant adds an attack on element 76 of Pierce
in relation to the “discrete annular element” recited in claim 62. See Reply
Br. 1–2. This argument is untimely and will not be considered. Further,
Appellant again fails to address elements 50 and 78 in Pierce. See id.
Accordingly, Appellant’s arguments regarding the “discrete annular
element” are unavailing.
Second, Appellant argues that Pierce fails to disclose a substantially
end-to-end non-abutting connection between the stent and the graft without
overlap. Appeal Br. 16–18. In particular, Appellant argues that the axial
spacing between Pierce’s stent and graft is too large to meet the requirement
of claim 62 that these components be substantially end-to-end. See id. For
example, Appellant states, “[i]t also is submitted that the skilled artisan
would understand that the spacing between the stent and the graft taught by
Pierce exceeds the diameters of the stent and the graft and also exceeds the
length of the stent.” Id. at 17.
Appeal 2020-005196
Application 15/440,145
8
The Examiner has the better position on this point because
Appellant’s attempt to patentably distinguish claim 62 does not apply the
broadest reasonable interpretation of claim 62 in light of the Specification.
Paragraphs 13, 83, and 115 of Appellant’s Specification, among others,
discuss connections that are substantially end-to-end, and Appellant’s Figure
46 (reproduced below), depicts such a connection.

Appellant’s Figure 46 depicts end 714 of graft 712 connected to end 724 of a
stent across an axial space. See Spec. ¶ 115.
Paragraph 13 of Appellant’s Specification states,
The tubular graft and the fixation device are connected
substantially in end-to-end relationship with little or no
longitudinal overlap. In certain embodiments, the substantially
end-to-end relationship of the tubular graft and the fixation
device may include a small axial space between the tubular graft
and the fixation device. One or more connecting wires may
bridge the space between the axially align tubular graft and
Appeal 2020-005196
Application 15/440,145
9
fixation device. The tubular graft has a length that exceeds the
length of a damaged section of a blood vessel that is being
repaired by the endovascular graft assembly.
Emphasis added. From this, we understand that the substantially end-to-end
relationship allows for at least a small axial space to be present. Paragraph
83 of Appellant’s Specification states,
As a further alternate, substantially end-to-end axial
relationship may comprise an axial gap between the tubular graft
12 and the tubular stent 20, as shown in FIGS. 4A and 4B. FIG.
4A shows the general concept of an axial gap between the
tubular graft 12 and the tubular stent 20 prior to deployment.
FIG. 4B shows one optional deployment. The axial spacing can
provide even further advantages for the deployment and
positioning of the tubular graft 12 and the tubular stent 20.
Emphasis added. Further, claim 72 depends from claim 62 and recites,
The method of claim 62 wherein the stent graft assembly has a
substantially end-to-end connection between the stent and the
graft with an axial gap between the stent and the graft, and the
plurality of circumferentially spaced apart looking devices are
disposed within the gap between the stent and the graft.
Appeal Br. 23 (Claims App.) (emphasis added). Thus, although no
indication is given as to the maximum allowed size (if any) of the axial gap,
the axial gap in this section is not explicitly described as being “small.”
Paragraph 83 of Appellant’s Specification supports an interpretation that the
axial gap need not be small. Accordingly, in light of the Specification, we
discern no requirement for the substantially end-to-end connection to have a
“small” size, much less a particular size that patentably distinguishes over
the embodiments in Pierce cited by the Examiner. Thus, Appellant’s
arguments are based on an unreasonably narrow claim interpretation, and we
sustain the Examiner’s rejection of claim 62 as anticipated by Pierce.
Appeal 2020-005196
Application 15/440,145
10
Claims 63–80 and 83
Appellant does not make arguments for the patentability of claims 63–
80 and 83 aside from those discussed above regarding claim 62. See Appeal
Br. 14–18. Accordingly, for the same reasons, we sustain the rejection of
claims 63–80 and 83 as anticipated by Pierce.

Rejection IV—Unpatentability over Clerc and either of Brown and Cox
Claims 81 and 82
The Examiner does not use the teachings of Brown and Cox in any
manner that would remedy the deficiency discussed above regarding
Rejection II. Accordingly, for the same reasons, we do not sustain Rejection
IV.

Rejection V—Unpatentability over Pierce and either of Brown and Cox
Claims 81 and 82
The Examiner finds that, “[a]lthough [Pierce] discloses the subject
matter of ‘hooks or barbs are welded to the stent’ . . . it is not particularly
clear if the ‘members’ (or ‘hooking devices’) are mounted to the annular
member by a weld, fuse, or adhesive (or fixedly mounted to the stent by a
weld, fuse, or adhesive).” Final Act. 12 (citing Pierce, 2:47–49) (emphasis
omitted).
Nonetheless, the Examiner finds
[T]his is already known in the art. For example, each of [Brown]
(C5:L53-57) and [Cox] (C14:L18-33) discloses “hooking
devices” mounted to an “annular member” (which “annular
member” could be a ring of a stent) by a weld, fuse, or adhesive
(or fixedly mounted to a stent by a weld, fuse, or adhesive) in
order to securely attach an end of said stent to an end of said
Appeal 2020-005196
Application 15/440,145
11
graft, and in order to securely attach said “hooking device” to
said stent [onto] said “annular member”.
Final Act. 12 (emphasis added). From this, the Examiner reasons it would
have been obvious to a person of ordinary skill in the art
[T]o have combined the teaching of an end-to-end connection
between a stent and a graft, and fixation/connection of a
“hooking device” to a stent or an “annular member”, which
fixation/connection is achieved by welding or soldering (i.e.,
fusing), bonding/adhesive (i.e., fusing) and tying (i.e.,
stitching/suturing), as taught by each of [Brown or Cox], with the
stent/graft assembly of [Pierce], in order to securely attach an end
of said stent to an end of said graft, and in order to securely
fixed/mount said “hooking device” to said stent or to said
“annular member”. Notice, there is no criticality provided for
the particular “fixedly mounted” of the “hooking device” to
either one of the stent or the “annular member”. Therefore, a
person having ordinary skill in the art will be left with the choice
of fixing the “hooking device” to either the stent or the “annular
member”.
Id. at 12–13 (emphasis added).
Pierce and Brown
Appellant asserts,8
[Brown] has no suggestion of the opposite ends of those wires 29
being connected to a discrete annular element as set forth in
independent claims [sic] 62. Rather, the wires 29 “are woven
into the graft 12” (Brown et al., column 5, line 54) and the wires
29 appear to extend a significant part of the length of the graft
12.

8 To address the rejection based on Pierce and either of Brown and Cox,
Appellant incorporates its discussion of the rejection based on Clerc and
either of Brown and Cox. See Appeal Br. 20.
Appeal 2020-005196
Application 15/440,145
12
Appeal Br. 18 (emphasis added). Thus, Appellant attacks Brown for failing
to disclose a connection of its wires to a discrete annular element.
This argument does not point out error in the Examiner’s findings of
fact regarding Brown and does not address the reasoning applied by the
Examiner to provide the specifically recited connection to the annular
member. Rather, Appellant’s argument merely identifies a specific
connection in Brown that is not made to an element that is “discrete.” As
the Examiner proposes to further modify Brown’s (welding, soldering,
fusing, bonding, adhesive) connection as it is applied to the assembly of
Pierce, Appellant’s argument does not address the rejection presented by the
Examiner. See Final Act. 12–13. Accordingly, we sustain the Examiner’s
rejection of claims 81 and 82 as unpatentable over Pierce and Brown.
Pierce and Cox
Appellant argues that Figures 7E–7G of Cox describe “how a stent
can be assembled by using flat connecting members 118 cut from a flat sheet
material to join ring members 114 of the stent to one another. Each ring
member 114 will be joined to an upstream or downstream ring member 114
by a large number of circumferentially arrayed flat connecting members
118.” Appeal Br. 19 (emphasis omitted).
Appellant further contends, “[t]he connection of the ring members 114
to the flat connecting members 118 has nothing to do with the substantially
end-to-end connection of a stent and a graft,” and “the entire complex
assembly of ring members 114 and flat connecting members 118 taught by
Cox et al. is circumferentially coextensive with the graft 112.” Appeal Br.
19 (emphasis omitted).
Appellant’s argument is persuasive because, in the rejection of claims
81 and 82, the Examiner’s finding that Cox discloses securely attaching an
Appeal 2020-005196
Application 15/440,145
13
end of a stent to an end of a graft (Final Act. 12) is not supported by a
preponderance of the evidence. Rather, as Appellant points out, Cox’s
connections are from one part of a stent to another part of a stent. See Cox,
Fig. 7A. Accordingly, we do not sustain the Examiner’s rejection of claims
81 and 82 as unpatentable over Pierce and Cox.

CONCLUSION
The Examiner’s decision to reject claims 62–83 is affirmed.
More specifically,
DECISION SUMMARY
Claim(s)
Rejected
35 U.S.C. § Reference(s)/Basis Affirmed Reversed
62–83 Nonstatutory
Double Patenting
62–83
62–64, 71–
75, 80, 83
102(b) Clerc 62–64, 71–
75, 80, 83
62–80, 83 102(b) Pierce 62–80, 83
81, 82 103(a) Clerc, Brown 81, 82
81, 82 103(a) Clerc, Cox 81, 82
81, 82 103(a) Pierce, Brown 81, 82
81, 82 103(a) Pierce, Cox 81, 82
Overall
Outcome
62–83

TIME PERIOD FOR RESPONSE
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a).
Appeal 2020-005196
Application 15/440,145
14
AFFIRMED