Phil Langston

Patent Trials and Appeals Board

Sep 26, 2019

14971504 - (D) (P.T.A.B. Sep. 26, 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.
14/971,504 12/16/2015 Phil Langston 2005.63US04 8828
24113 7590 09/26/2019
PATTERSON THUENTE PEDERSEN, P.A.
80 SOUTH 8TH STREET
4800 IDS CENTER
MINNEAPOLIS, MN 55402-2100
EXAMINER
TOTH, KAREN E
ART UNIT PAPER NUMBER
3791
MAIL DATE DELIVERY MODE
09/26/2019 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.
PTOL-90A (Rev. 04/07)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________

Ex parte PHIL LANGSTON

Appeal 2019-002778
Application 14/971,504
Technology Center 3700
____________

Before JOHN C. KERINS, MICHAEL J. FITZPATRICK, and
MICHELLE R. OSINSKI, Administrative Patent Judges.

FITZPATRICK, Administrative Patent Judge.

DECISION ON APPEAL

Appellant, Phil Langston,1 appeals under 35 U.S.C. § 134(a) from the
Examiner’s final decision rejecting claims 23–43 and 45–53. We have
jurisdiction under 35 U.S.C. § 6(b).
We affirm in part.

1 Appellant states that “Teleflex Incorporated and its affiliates” are
additional real parties in interest by virtue of Teleflex Incorporated being an
exclusive licensee of the instant Application. Appeal Br. 2.
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STATEMENT OF THE CASE
The Specification
The Specification’s disclosure relates generally to the field of cardiac
catheters and, more specifically, to cardiac catheters for performing
procedures for the testing of aortic stenosis, a condition in which the aortic
valve has become narrowed and does not open normally. Spec. 1:11–17.

The Rejected Claims
Claims 23–43 and 45–53 are rejected; no other claims are pending.
Final Act. 1. Independent claims 23 and 46 are illustrative and reproduced
below.
23. A catheter comprising:
a manifold portion including a first connector and a
second connector; and
a catheter body including,
a proximal dual lumen portion including exactly two
longitudinally-extending lumens, an inner lumen and a
surrounding outer lumen, that share a common axis, the outer
lumen surrounded by a proximal outer wall and the inner lumen
surrounded by a proximal inner wall that is structured to
withstand high-pressure injections; and
a distal single lumen portion including an extension of
the inner lumen, the single lumen portion surrounded by a distal
outer wall,
the first connector in fluid communication with the inner
lumen and the second connector in fluid communication with
the outer lumen.
46. A catheter comprising:
a manifold portion including a first connector and a
second connector; and a catheter body including, a proximal
dual lumen portion including exactly an inner lumen and a
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surrounding outer lumen that share a common axis and at least
two side holes, the inner lumen in fluid communication with the
first connector, the outer lumen in fluid communication with
the second connector, and the at least two side holes
consecutively aligned with each other along a line that is
parallel with the common axis; and
a distal single lumen portion forming an extension of the
inner lumen, the single lumen portion including a bend, a
plurality of side holes, and a pigtail tip.
Appeal Br. 29, 33.
The Examiner’s Rejections
The following rejections, all under 35 U.S.C. § 103(a), are before us
for review:
1. claims 23–28 over Martin2 and Bodicky3 (Final Act. 2);
2. claim 29 over Martin, Bodicky, and Andrews4 (id. at 3);
3. claims 30–37 over Martin, Bodicky, and Schweich5 (id. at 4);
4. claims 38–43 over Martin, Bodicky, and Ladika6 (id. at 7);
5. claim 45 over Martin, Bodicky, and Duffy7 (id. at 8);
6. claims 46–49 and 51 over Martin ’380,8 Ladika, and Schweich
(id. at 9);
7. claim 52 over Martin ’380, Ladika, Schweich, and Duffy (id. at
12);

2 US 5,976,103, issued Nov. 2, 1999 (“Martin”).
3 US 4,961,731, issued Oct. 9, 1990 (“Bodicky”).
4 US 5,865,721, issued Feb. 2, 1999 (“Andrews”).
5 US 5,782,797, issued July 21, 1998 (“Schweich”).
6 US 4,747,840, issued May 31, 1988 (“Ladika”).
7 US 6,048,332, issued Apr. 11, 2000 (“Duffy”).
8 US 5,480,380, issued Jan. 2, 1996 (“Martin ’380”).
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8. claims 46, 47, and 51 over Aigner9 and Ladika (id.);
9. claim 50 over Aigner, Ladika, and Bodicky (id. at 14); and
10. claim 53 over Martin, Bodicky, and Miller (id. at 14).
DISCUSSION
Rejections 8 and 9—Aigner as Primary Reference
Appellant does not argue against the rejection of claims 46, 47, and 51
over Aigner and Ladika or the rejection of claim 50 over Aigner, Ladika,
and Bodicky. Thus, Appellant fails to apprise of error in those rejections.
Rejections 8 and 9 are affirmed.
Rejections 1–5 and 10—Martin as Primary Reference
The Examiner found that Martin teaches all of the subject matter of
independent claim 23 except for the proximal inner wall of the inner lumen
being “structured to withstand high-pressure injections,” as claimed. Final
Act. 2–3 (citing Martin 3:13–27, 4:48–61, Figs. 1 and 2). The Examiner
found that “Bodicky teaches forming a catheter configured to withstand high
pressure injections at pressures up to 1200 pounds per square inch in order to
inject a diagnostic fluid.”10 Id. at 3 (citing Bodicky 3:15–20). The
Examiner concluded: “It would have been obvious to one of ordinary skill
in the art at the time the invention was made to have made the catheter of
Martin and made [sic, make] it suitable for high pressure injections, as
taught by Bodicky, in order to allow its use in diagnostics.” Id.
Appellant argues that this reason for why a person of ordinary skill in
the art allegedly would have so modified Martin’s catheter in view of

9 US 4,666,426, issued May 19, 1987 (“Aigner”).
10 The cited portion of Bodicky actually recites “1000 pounds per square
inch” not the 1,200 asserted by the Examiner. Bodicky 3:19–20.
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Bodicky is insufficient. Appeal Br. 25–26; see also KSR Int’l Co. v. Teleflex
Inc., 550 U.S. 398, 418 (2007) (“requiring an apparent reason to combine the
known elements in the fashion claimed by the patent at issue”); InTouch
Techs., Inc. v. VGO Commc’ns, Inc., 751 F.3d 1327, 1347 (Fed. Cir. 2014)
(Obviousness requires “evidence that a skilled artisan would have been
motivated to combine the teachings of the prior art references to achieve the
claimed invention, and that the skilled artisan would have had a reasonable
expectation of success in doing so.”). We agree with Appellant.
Martin teaches “dual lumen catheters for use in hemodialysis
treatments and more particularly to a dual lumen catheter having coaxial
intake and return lumens.” Martin 1:13–16. Dual lumen hemodialysis
catheters are preferred because they use a single incision rather than two. Id.
at 1:26–28. Prior art needles, as well as Martin’s “tip section,” are inserted
into veins, not arteries. See id. at 1:21–22 (“The earliest treatments were
conducted using two needles in the same vein.”), 2:40–44 (“[I]t is desirable
that the tip section be sufficiently soft and pliable to permit this section to
take up the local shape of a vein containing the catheter, thereby to avoid
applying distorting forces to the vein and to permit prolonged access with a
suitable selection of materials.”). Martin does not disclose that cleaned
blood is returned to a patient’s vein via high pressure injections, nor would
that be expected to be safe or desirable.
Bodicky “relates generally to angiographic catheters for injecting a
radiopaque material or contrast medium into arteries and/or the heart, for
radiological diagnostic purposes.” Bodicky 1:7–10. Tubular portion 20 is
constructed of a material “selected to give the catheter the desired torque and
column strength necessary to push and rotate the catheter while inserting and
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placing the catheter in position in the patient’s heart or coronary artery or
other blood vessel.” Id. at 3:7–17. The material is “sufficiently strong to
withstand high-pressure fluid injection at pressures on the order of 1000
pounds per square inch.” Id. at 3:17–20.
The Examiner proposes that a person of ordinary skill in the art would
want to make “the catheter of Martin . . . suitable for high pressure
injections, as taught by Bodicky, in order to allow its use in diagnostics.”
Final Act. 3. But this begs the question: Why would a person of ordinary
skill in the art want to convert Martin’s dual lumen catheter, which is used
for hemodialysis, into a diagnostics tool capable of providing high pressure
fluid injection? No reason is provided by the Examiner.
On the record presented, there is not an apparent reason a person of
ordinary skill in the art would have modified Martin in view of Bodicky.
The lack of an apparent reason is fatal to all of Rejections 1–5 and 10.
For the foregoing reasons, we reverse Rejections 1–5 and 10.
Rejections 6 and 7—Martin ’380 as Primary Reference
The Examiner found that Martin ’380 teaches all of the subject matter
of independent claim 46 except for the distal single lumen portion which
forms an extension of the inner lumen “including a bend, a plurality of side
holes, and a pigtail tip,” as claimed. Final Act. 9–10 (citing Martin ’380
Figs. 1, 2, 6, and 8). The Examiner found that “Ladika teaches a catheter
comprising a single lumen portion with a straight section (element 26), a
bend (element 20), and a pigtail portion (element 18) distal to the straight
portion (see figure 1), in order to prevent the catheter from puncturing the
patient’s tissue. Id. at 10 (citing Ladika 1:60–66). The Examiner concluded:
“It would have been obvious to one of ordinary skill in the art at the time the
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invention was made to have made the device of Martin[ ]’380 with a distal
bend and pigtail section, as taught by Ladika, in order to prevent the catheter
from puncturing the patient’s tissue.” Id.
Appellant again argues insufficient rationale for combining the cited
prior art features. Appeal Br. 27. And again we agree with Appellant.
Like Martin, Martin ’380 “relates to dual lumen catheters for use in
haemodialysis treatments and more particularly to a dual lumen catheter
having intake and return lumens.” Martin ’380 1:5–7. The distal end of the
catheter, tip portion 65, is narrow so as to be inserted into, and positioned
within, a vein. Id. at Fig. 6, 4:2 (“tip portion 65”), 1:14–15 (“The earliest
treatments were conducted using two needles in the same vein.”), 1:38–40
(“As a result, no matter where the catheter may rest against a vein, some of
the intake 40 openings remain patent.”).
Ladika relates “to heart catheters for use in pulmonary arteriography.”
Ladika 1:7–8.
The widely accepted technique for pulmonary arteriography (as
it is known) is via the femoral approach wherein a catheter is first
inserted into the patient’s body through a vein in a lower limb
and fed through the inferior vena cavae, into the right atrium of
the heart, then through the tricuspid valve and into the right
ventricle, then through the pulmonary semilunar valve and into
the main or right or left pulmonary artery. Thereafter, the
radiopaque fluid is injected through the catheter for disbursement
within the selected portion of the pulmonary artery.
Id. at 1:21–31. Pigtail 18 on distal end of Ladika’s catheter is used to
facilitate complex maneuvering of the catheter during a femoral approach.
Id. at 2:4–5.
The Examiner proposes that a person of ordinary skill in the art would
want to make “the device of Martin ’380 with a distal bend and pigtail
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section, as taught by Ladika, in order to prevent the catheter from puncturing
the patient’s tissue.” Final Act. 10. But a hemodialysis catheter is inserted
merely into a vein. Martin ’380 1:14–15, 1:38–40. It is not advanced into
the heart or pulmonary tissue as is Ladika’s pulmonary arteriography
catheter.
On the record presented, there is not an apparent reason a person of
ordinary skill in the art would have modified Martin ’380 in view of Ladika.
Further, we agree with Appellant that incorporating Ladika’s distal
bend and pigtail into Martin ’380 would render it “unsuitable for its intended
placement within a vein and accommodating dialysis of the blood.” Appeal
Br. 22.
For the foregoing reasons, we reverse Rejection 6, as well as
Rejection 7.
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SUMMARY
Claims
Rejected
Basis Affirmed Reversed
23–28 §103(a);
Martin, Bodicky
23–28
29 §103(a);
Martin, Bodicky,
Andrews
29
30–37 §103(a);
Martin, Bodicky, and
Schweich
30–37
38–43 §103(a);
Martin, Bodicky, and
Ladika
38–43
45 §103(a);
Martin, Bodicky, and
Duffy
45
46–49, 51 §103(a);
Martin ’380, Ladika,
Schweich
46–49, 51
52 §103(a);
Martin ’380, Ladika,
Schweich, Duffy
52
46, 47, 51 §103(a);
Aigner, Ladika
46, 47, 51
50 §103(a);
Aigner, Ladika,
Bodicky
50
53 §103(a);
Martin, Bodicky, Miller
53
Overall Outcome 46, 47, 50,
51
23–43, 45,
48, 52

No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a)(1)(iv).

AFFIRMED-IN-PART