BOSTON SCIENTIFIC SCIMED, INC.Download PDFPatent Trials and Appeals BoardApr 7, 20212020003257 (P.T.A.B. Apr. 7, 2021) Copy Citation 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. 15/083,245 03/28/2016 Robert Squire 8150BSC0387 5667 121974 7590 04/07/2021 Kacvinsky Daisak Bluni PLLC 2601 Weston Parkway, Suite 103 Cary, NC 27513 EXAMINER SCHWIKER, KATHERINE H ART UNIT PAPER NUMBER 3771 NOTIFICATION DATE DELIVERY MODE 04/07/2021 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): bbonneville@kdbfirm.com docketing@kdbfirm.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte ROBERT SQUIRE, JOEL MUNSINGER, DEREK LARSON, MARTIN WILLARD, and JOSEPH CONNOLLY Appeal 2020-003257 Application 15/083,245 Technology Center 3700 Before JUSTIN BUSCH, AMEE A. SHAH, and ROBERT J. SILVERMAN, Administrative Patent Judges. BUSCH, Administrative Patent Judge. DECISION ON APPEAL STATEMENT OF THE CASE Pursuant to 35 U.S.C. § 134(a), Appellant1 appeals from the Examiner’s decision to reject claims 1–5, 7–15, and 17–20. We have jurisdiction under 35 U.S.C. § 6(b). We AFFIRM. 1 We use the term Appellant to refer to “applicant” as defined in 37 C.F.R. § 1.42(a). Appellant identifies the real party in interest as Boston Scientific Scimed, Inc. Appeal Br. 2. Appeal 2020-003257 Application 15/083,245 2 CLAIMED SUBJECT MATTER The claimed subject matter relates to systems and methods for vascular occlusion. Claim 1, reproduced below, is illustrative of the claimed subject matter: 1. A system for treating a patient, comprising: an expandable occlusive plug, comprising an elongate shaft and, disposed at a distal end of the elongate shaft, a flexible framework at least partially covered by a membrane, wherein at least a portion of the membrane includes a coating to improve adhesion of the membrane to a vessel wall, the flexible framework moveable between a first configuration characterized by a first diameter and a second configuration characterized by a second diameter larger than the first diameter; a pushrod configured to deliver the expandable occlusive plug within the patient; and a dissolvable sleeve disposed about the flexible framework and configured to detachably couple the elongate shaft to the pushrod and constrain the flexible framework, in the first configuration. REFERENCES The prior art relied upon by the Examiner is: Name Reference Date Himpens US 5,397,331 Mar. 14, 1995 Avellanet (“Avellanet ’097”) US 2003/0093097 A1 May 15, 2003 Avellanet (“Avellanet”) US 2003/0093108 A1 May 15, 2003 Porter US 2004/0044391 A1 Mar. 4, 2004 Johnson US 2006/0293741 A1 Dec. 28, 2006 Komlos US 2013/0131701 A1 May 23, 2013 Cragg US 2015/0039019 A1 Feb. 5, 2015 Appeal 2020-003257 Application 15/083,245 3 REJECTIONS Claims 1–5, 7–10, 12–15, 17, and 18 stand rejected under 35 U.S.C. § 103 as obvious over Avellanet, Cragg, and Johnson. Final Act. 4–10. Claim 11 stands rejected under 35 U.S.C. § 103 as being obvious over Avellanet, Cragg, Johnson, and Avellanet ’097. Final Act. 10–11. Claim 19 stands rejected under 35 U.S.C. § 103 as being obvious over Avellanet, Cragg, Johnson, and Porter. Final Act. 11. Claim 20 stands rejected under 35 U.S.C. § 103 as being obvious over Avellanet, Cragg, Johnson, Porter, and Avellanet ’097. Final Act. 11–12. Claims 1–5, 7–10, and 12–15 stand rejected under 35 U.S.C. § 103 as being obvious over Himpens, Komlos, and Johnson. Final Act. 12–16. ANALYSIS REJECTIONS INVOLVING MODIFYING AVELLANET WITH JOHNSON The Examiner rejects claims 1–5, 7–10, 12–15, 17, and 18 as obvious over Avellanet, Cragg, and Johnson. Final Act. 4–10. Appellant argues the claims as a group. See Appeal Br. 9–12; Reply Br. 5–7. We select claim 1 as representative of these claims. See 37 C.F.R. § 41.37(c)(1)(iv). Specifically, the Examiner finds Avellanet teaches or suggests the pushrod and the expandable occlusive plug recited in representative claim 1, including the particular details of the plug except that Avellanet “is silent regarding [at] least a portion of the [plug’s] membrane includes a coating to improve adhesion of the membrane to a vessel wall.” Final Act. 4 (citing Avellanet ¶¶ 28, 29, 32, Figs. 1–6). The Examiner finds Cragg teaches the recited coating, and the Examiner provides a reason for combining Cragg’s coating with Avellanet’s membrane. Final Act. 4–5 (citing Cragg ¶¶ 28, Appeal 2020-003257 Application 15/083,245 4 218). Appellant does not dispute these findings. See generally Appeal Br. 9–12; Reply Br. 5–7. Of particular relevance to Appellant’s arguments regarding this rejection, the Examiner finds Avellanet, as modified by Cragg, “is silent regarding a dissolvable sleeve disposed about the flexible framework and configured to detachably couple the elongate shaft to the pushrod and constrain the flexible framework, in the first configuration.” Final Act. 5. However, the Examiner finds Johnson, which relates to similar technology for delivering implants, teaches or suggest the dissolvable sleeve recited in representative claim 1. Final Act. 5. More specifically, the Examiner finds that, similar to Avellanet, Johnson teaches: a system for treating a patient comprising an implant 40' having a flexible framework moveable between a first collapsed configuration and a second expanded configuration (see ¶0037), a push rod 16' configured to deliver the implant 40' (see ¶0037 and fig. 4), a dissolvable sleeve 46' (not shown in fig. 4, see sleeve 46 in fig. 2A) disposed about the flexible framework (see ¶0037) and configured to detachably couple the implant 40' to the pushrod 16' and constrain the flexible framework, in the first configuration (see ¶0037); the sleeve 46' sized to hold the flexible framework in the first configuration and configured to dissolve, degrade or erode when placed in a blood vessel of a patient (see ¶0037). Final Act. 5. In other words, the Examiner finds Johnson teaches a dissolvable sleeve in a similar system that is designed to fit around an implant device having a flexible framework and to secure the implant device in a first, compressed, configuration. See Final Act. 5–6 (explaining that the proposed modification to Avellanet involves adding Johnson’s dissolvable sleeve so that the sleeve covers Avellanet’s implant and a portion of the pushrod and, Appeal 2020-003257 Application 15/083,245 5 because Avellanet’s “elongate shaft is part of the implant and directly connected to the portion of the implant covered by the [added] dissolvable sleeve, therefore the [added] dissolvable sleeve couples the elongate shaft to the push rod.”). The Examiner determines a person of ordinary skill in the art would have modified Avellanet with Johnson’s dissolvable sleeve in order “to keep the implant in the collapsed configuration after it has been extended out of the catheter to allow more time and maneuverability of the implant before expansion to ensure that it is in the proper place.” Final Act. 5–6 (citing Johnson ¶ 37). Avellanet discloses an aneurysm neck cover having a support element connected to two expandable sealing members, the sealing members expand when the aneurysm neck cover is deployed. Avellanet, Abstract; see Figs. 1–6. Figure 2, which depicts aneurysm neck cover 10 in a collapsed configuration within lumen 24 of sheath 14, is reproduced below: Avellanet, Fig. 2 (depicting “an enlarged, sectional view of the aneurysm neck cover [10] in a collapsed configuration within a lumen [24] of the sheath [14] and attached to a distal end of the deployment catheter [12],” Avellanet ¶ 19). Avellanet further teaches lumen 24 of “sheath 14 is sufficiently small enough so that the aneurysm neck cover 10 is compressed to a collapsed configuration.” Avellanet ¶ 27. Appeal 2020-003257 Application 15/083,245 6 Avellanet’s Figures 4 through 6 depict deploying aneurysm neck cover 10 within the aneurysm. See Avellanet ¶¶ 34–36, Figs. 4–6. Maintaining aneurysm neck cover 10 in a collapsed configuration by being disposed within sheath 14 allows “aneurysm neck cover 10 to be inserted and transported through narrow vasculature of the human body.” Avellanet ¶ 34. In addition to the elements depicted in Figures 1 through 3, Avellanet positions a delivery catheter in the blood vessel to help guide deployment catheter 12 to the aneurysm. Avellanet ¶ 34. Avellanet positions sheath 14’s distal end at the aneurysm mouth, then moves the deployment catheter distally causing aneurysm neck cover 10 to begin exiting sheath 14. Avellanet ¶ 35. Johnson discloses systems and techniques that include carrying an implant (i.e., a stent) through a blood vessel in a compressed configuration using a sheath and deploying the implant in and expanded configuration at the desired location. Johnson, ¶¶ 29, 37, Abstract. In one embodiment that uses a dissolvable sheath, which the Examiner finds teaches the claimed dissolvable sleeve, the implant deploys to the expanded configuration when the sleeve dissolves. Johnson ¶ 37. With respect to this ground of rejection, Appellant argues only that there is no motivation or suggestion in Avellanet or Johnson to combine Johnson’s sleeve with Avellanet’s neck cover. Appeal Br. 10; see Appeal Br. 11–12; Reply Br. 5–7. More specifically, Appellant asserts Johnson’s dissolvable sleeve could not be formed over Avellanet’s aneurysm neck cover in its collapsed configuration because Avellanet’s “aneurysm neck cover 10 fills the lumen 24 and is mostly spaced away from the catheter 12 rather than against the wall of the deployment catheter 12.” Appeal Br. 11; see Reply Br. 6 (arguing Avellanet discloses that aneurysm neck cover 10 Appeal 2020-003257 Application 15/083,245 7 fills lumen 24 of sheath 14 and sealing members 30, 32 must be spaced apart from the deployment catheter because lumen 24 must be small enough to compress aneurysm neck cover 10). Appellant contends that, because Johnson does not suggest how to form the dissolvable sleeve over Avellanet’s aneurysm neck cover in its collapsed configuration, the proposed modified device would not operate for its intended purpose. Appeal Br. 11. Appellant also asserts using Johnson’s dissolvable sleeve to restrain Avellanet’s aneurysm neck cover “would be needlessly redundant with” Avellanet’s sheath. Appeal Br. 11; see Reply Br. 7 (arguing “Johnson does not teach or suggest a device including both a dissolvable coating 46' and a sheath 55' for constraining the stent 40'”). The Examiner provides a specific reason a person of ordinary skill in the art would have modified Avellanet with Johnson’s dissolvable sleeve. Specifically, the Examiner states that the modification would “keep the implant in the collapsed configuration after it has been extended out of the catheter to allow more time and maneuverability of the implant before expansion to ensure that it is in the proper place.” Final Act. 5–6 (citing Johnson ¶ 37). This explanation also explains why it would not be redundant to modify Avellanet with Johnson’s teachings. Avellanet’s sheath allows for positioning the deployment catheter at the aneurysm mouth and Johnson’s dissolvable sleeve provides more time to ensure the implant is properly placed prior to expansion. See Johnson ¶ 37 (explaining that using a dissolvable sleeve still requires a guide catheter to “cannulate a vessel of the heart” so that the stent (constrained by the dissolvable sleeve) can be advanced beyond the guide catheter to the implant deployment position). To the extent Johnson’s sleeve would otherwise be redundant with Avellanet’s sheath and with respect to Appellant’s arguments that modifying Appeal 2020-003257 Application 15/083,245 8 Avellanet would not work due to the size and spacing of the neck cover and lumen, we disagree. “[I]t is not necessary that the inventions of the references be physically combinable to render obvious the invention under review.” In re Sneed, 710 F.2d 1544, 1550 (Fed. Cir. 1983). The test for obviousness is not whether the features of a secondary reference may be bodily incorporated into the structure of the primary reference; . . . [r]ather, the test is what the combined teachings of those references would have suggested to those of ordinary skill in the art. In re Keller, 642 F.2d 413, 425 (CCPA 1981) (citations omitted). As the Examiner explains, “the aneurysm neck cover as modified with the dissolvable sleeve of Johnson will still fit in the sheath 14.” Ans. 4. We agree with the Examiner that the combined teachings of Avellanet and Johnson would have suggested to an ordinarily skilled artisan the Examiner’s proposed modification. We understand the Examiner’s rejection as applying Johnson’s teachings to result in an aneurysm neck cover held in its collapsed configuration by the dissolvable sleeve such that the collapsed neck cover and sleeve would fit within Avellanet’s sheath. This would be similar to Johnson’s disclosure that the implant and dissolvable sleeve fit within a guide catheter. See Johnson ¶ 37. Because Appellant’s argument is directed to a bodily incorporation of the references, and not directed to the combined teachings of the references, we are unpersuaded of Examiner error. Moreover, we see no evidence on this record to indicate that a modification allowing room for the dissolvable sleeve would either be beyond the abilities of an ordinarily skilled artisan or change the principle of Avellanet’s intended purpose. An obviousness analysis “need not seek out precise teachings directed to the specific subject matter of the challenged Appeal 2020-003257 Application 15/083,245 9 claim, for a court can take account of the inferences and creative steps that a person of ordinary skill in the art would employ.” KSR Int’l Co. v. Teleflex Inc., 550 U.S. 398, 418 (2007). “A person of ordinary skill is also a person of ordinary creativity, not an automaton.” KSR, 550 U.S. at 421. In fact, Johnson discloses that various techniques were known in the art for containing and restraining implants in a collapsed configuration and suggests such techniques generally are fungible. Johnson ¶ 29 (“sheath 46 may have other configurations and removal features as are known in the art” such as, for example “sheath 46 may be slidable over the catheter 43 [or] sheath 46 is made from a dissolvable, biocompatible coating such as sugar disposed over the stent 40 but not necessarily extending over the length of the catheter 43”). Accordingly, the evidence of record indicates that a person of ordinary skill in the art would know how to implement different techniques or elements for maintaining an implant in a collapsed configuration until deployment, and how to modify the necessary dimensions to ensure proper design of the modified system. Appellant also asserts the proposed modification “is in direct opposition” to how Avellanet’s aneurysm neck cover operates. Reply Br. 5. Specifically, Appellant contends “it is desirable that the aneurysm neck cover 10 expands immediately upon exiting the sheath 14.” Reply Br. 5; see Reply Br. 6 (arguing Avellanet discloses that “it is desirable for the sealing members 30, 32 of the aneurysm neck cover 10 to immediately expand upon exiting the sheath 14 at the mouth of an aneurysm 12 for sealing purposes rather than for example a delayed expansion after the coating 46' is dissolved”). Appellant quotes Avellanet’s paragraph 35 as supporting this assertion. Reply Br. 5. Appeal 2020-003257 Application 15/083,245 10 We disagree. The relevant disclosure states that, “[w]ithout the sheath 14 maintaining the aneurysm neck cover 10 in a collapsed configuration, the first sealing member 30 expands within the aneurysm 42.” Avellanet ¶ 35. This statement discloses that sealing member 30, which is a part of aneurysm neck cover 10, expands when sealing member 30 is no longer within sheath 14. However, we disagree that this disclosure indicates a preference or desirability that expansion occurs immediately upon exiting sheath 14. In Avellanet, there is no choice when expansion occurs because sheath 14 is the only element constraining sealing member 30 in its collapsed configuration. Therefore, when sealing member 30 is no longer within sheath 14, it is free to expand. Avellanet, however, does not opine on whether this immediate expansion is desired. Moreover the Examiner’s rationale for modifying Avellanet—“to allow more time and maneuverability of the implant before expansion to ensure that it is in the proper place”—provides a benefit that may offset any desirability, which is not explicitly stated in Avellanet, to deploy the implant immediately upon exiting sheath 14. Thus, even to the extent a person of ordinary skill in the art would have appreciated any benefit from expanding the implant immediately upon exiting the sheath, such recognition does not undermine the Examiner’s rationale in this case. In re Urbanski, 809 F.3d 1237, 1243 (Fed. Cir. 2016) (“On this record, the Board properly found that one of ordinary skill would have been motivated to pursue the desirable properties taught by Wong, even at the expense of foregoing the benefit taught by Gross.”); Medichem, S.A. v. Rolabo, S.L., 437 F.3d 1157, 1165 (Fed. Cir. 2006) (“[A] given course of action often has simultaneous advantages and disadvantages, and this does not necessarily obviate motivation to Appeal 2020-003257 Application 15/083,245 11 combine.”); Winner Int’l Royalty Corp. v. Wang, 202 F.3d 1340, 1349 n.8 (Fed. Cir. 2000) (“The fact that the motivating benefit comes at the expense of another benefit, however, should not nullify its use as a basis to modify the disclosure of one reference with the teachings of another. Instead, the benefits, both lost and gained, should be weighed against one another.”) Moreover, in the Examiner’s proposed combination, Johnson’s dissolvable sleeve or sheath functions to constrain aneurysm neck cover 10 in its collapsed configuration. In the proposed system, aneurysm neck cover 10 would expand immediately upon dissolution of the dissolvable sleeve or sheath. In other words, the proposed modification would maintain Avellanet’s alleged, but unstated, desire to expand immediately upon exiting the element constraining aneurysm neck cover 10 because the combination’s dissolvable sleeve or sheath is the constraining element. For these reasons, we sustain the Examiner’s rejection of representative claim 1, as well as grouped claims 2–5, 7–10, 12–15, 17, and 18 as obvious over Avellanet, Cragg, and Johnson. The Examiner rejects: claim 11 as obvious over Avellanet, Cragg, Johnson, and Avellanet ’097; claim 19 as obvious over Avellanet, Cragg, Johnson, and Porter; and claim 20 as obvious over Avellanet, Cragg, Johnson, Porter, and Avellanet ’097. Final Act. 10–12. Appellant argues only that the additionally cited references do not cure the deficiencies of Avellanet, Cragg, and Johnson asserted regarding claim 1. Appeal Br. 14–15; Reply Br. 8–9. Because we do not find any deficiency with respect the Examiner’s combination of Avellanet, Cragg, and Johnson, and because Appellant presents no separate substantive arguments with respect to claims 11, 19, and 20, we also sustain the Examiner’s rejections of claims 11, 19, and 20. Appeal 2020-003257 Application 15/083,245 12 REJECTION INVOLVING MODIFYING HIMPENS WITH JOHNSON The Examiner rejects claims 1–5, 7–10, and 12–15 as obvious over Himpens, Komlos, and Johnson. Final Act. 12–16. Appellant argues the claims as a group. See Appeal Br. 12–14; Reply Br. 8. We select claim 1 as representative. Specifically, the Examiner finds Himpens teaches or suggests the pushrod and the expandable occlusive plug recited in representative claim 1, including the particular details of the plug except that Himpens “is silent regarding [at] least a portion of the [plug’s] membrane includes a coating to improve adhesion of the membrane to a vessel wall.” Final Act. 13 (citing Himpens 1:20–31, 2:20–31, 4:66–5:34, 5:47–58, 6:1–17, Figs. 3–9). The Examiner finds Komlos teaches the recited coating, and the Examiner provides a reason for combining Komlos’s coating with Avellanet’s membrane. Final Act. 13 (citing Komlos ¶ 315). Appellant does not dispute these findings. See generally Appeal Br. 12–14; Reply Br. 8. Of particular relevance to Appellant’s arguments regarding this rejection, the Examiner finds Himpens, as modified by Komlos, “is silent regarding a dissolvable sleeve disposed about the flexible framework and configured to detachably couple the elongate shaft to the pushrod and constrain the flexible framework, in the first configuration.” Final Act. 13. However, the Examiner finds Johnson, which relates to similar technology for delivering implants, teaches or suggest the dissolvable sleeve recited in representative claim 1. Final Act. 13–14. More specifically, the Examiner finds that, similar to Himpens, Johnson teaches: a system for treating a patient comprising an implant 40' having a flexible framework moveable between a first collapsed configuration and a second expanded configuration (see ¶0037), Appeal 2020-003257 Application 15/083,245 13 a push rod 16' configured to deliver the implant 40' (see ¶0037 and fig. 4), a dissolvable sleeve 46' (not shown in fig. 4, see sleeve 46 in fig. 2A) disposed about the flexible framework (see ¶0037) and configured to detachably couple the implant 40' to the pushrod 16' and constrain the flexible framework, in the first configuration (see ¶0037). Final Act. 13–14. In other words, the Examiner finds Johnson teaches a dissolvable sleeve in a similar system that is designed to fit around an implant device having a flexible framework and to secure the implant device in a first, compressed, configuration. See Final Act. 14 (explaining that the proposed modification to Himpens involves adding Johnson’s dissolvable sleeve so that the sleeve covers Himpens’s implant and part of the pushrod and, because Himpens’s “elongate shaft is part of the implant and directly connected to the portion of the implant covered by the [added] dissolvable sleeve, therefore the [added] dissolvable sleeve couples the elongate shaft to the push rod.”). The Examiner determines a person of ordinary skill in the art would have modified Himpens with Johnson’s dissolvable sleeve in order “to keep the implant in the collapsed configuration after it has been extended out of the catheter to allow more time and maneuverability of the implant before expansion to ensure that it is in the proper place.” Final Act. 14 (citing Johnson ¶ 37). With respect to this ground of rejection, Appellant argues only that the “proposed combination would render the device of Himpens inoperable for its intended purpose.” Appeal Br. 13; see Appeal Br. 13–15; Reply Br. 8. More specifically, Appellant first asserts that Johnson’s dissolvable sleeve could not be formed over Himpens’s implant device because then the implant device could not “be inserted into and folded by the dissolvable” Appeal 2020-003257 Application 15/083,245 14 sleeve because “Johnson does not suggest that the dissolvable coating 46' (e.g., a sugar coating) would have the material strength to withstand such folding by the trocar sheath 23.” Appeal Br. 13 (citation omitted); see Reply Br. 8 (arguing that, in order to use Johnson’s dissolvable sleeve with Himpens’s implant, the dissolvable sleeve “would need to establish and maintain the folded layers and stiffener wires 14 of supporting device 12 before insertion into the trocar sheath 23” but “Johnson does not suggest that the dissolvable” sleeve covering a stent “would have the material strength to establish and maintain the folded layers and stiffener wires 14 of the supporting device 12”). Appellant does not support the assertion that Johnson’s dissolvable sleeve lacks the necessary material strength to constrain Himpens’s implant with any persuasive reasoning or evidence. It is well settled that mere attorney arguments and conclusory statements, which are unsupported by factual evidence, are entitled to little probative value. In re Geisler, 116 F.3d 1465, 1470 (Fed. Cir. 1997); see also In re Pearson, 494 F.2d 1399, 1405 (CCPA 1974) (attorney argument is not evidence). Accordingly, we are not apprised of Examiner error. Appellant next contends that “Himpens does not disclose that the supporting device 12 could or is intended to be restrained in such a way.” Appeal Br. 13. The Examiner correctly notes that “Himpens is not required to . . . expressly teach this in order to be modified with Johnson” because the rejection is based on what the Himpens and Johnson’s combined disclosures would have taught or suggested to a person of ordinary skill in the art. Ans. 6. The Examiner finds Himpens does not provide any disclosure that would teach away from the proposed combination or otherwise suggest that Appeal 2020-003257 Application 15/083,245 15 the proposed combination would not work or have been an obvious modification to a person of ordinary skill in the art. The test for obviousness is not whether the claimed invention is expressly suggested in any one or all of the references, but whether the claimed subject matter would have been obvious to those of ordinary skill in the art in light of the combined teachings of those references. See Keller, 642 F.2d at 425. Moreover, what a reference teaches or suggests to a person of ordinary skill is not limited to what a reference specifically “talks about” or what is specifically “mentioned” or “written” in the reference; rather the disclosures must be examined in the context of the knowledge, skill, and reasoning ability of a skilled artisan. Syntex (U.S.A.) LLC v. Apotex, Inc. 407 F.3d 1371, 1380 (Fed. Cir. 2005). Appellant also asserts modifying Himpens’s system as proposed would result in the gapped space in the trocar sheath coring out “rather than percutaneously pass[ing] through the abdominal wall, rendering the device of Himpens inoperable.” Appeal Br. 13–14. In response, the Examiner finds Himpens discloses percutaneously passing the trocar sheath through the abdominal wall prior to introducing the implant into the trocar sheath. Ans. 7 (citing Himpens 5:62–6:16). The Examiner explains that this means Himpens’s trocar sheath is empty when passing through the abdominal wall and, thus, the proposed modification would not alter how the trocar sheath functions. Ans. 7. We agree with and adopt these findings. Himpens explicitly discloses “a trocar sheath 23 is percutaneously passed through the abdominal wall,” then the implant is collapsed to allow the implant to pass through the trocar sheath and into the abdominal cavity. Himpens 5:64–6:11. Appeal 2020-003257 Application 15/083,245 16 Finally, Appellant argues Johnson’s dissolvable sleeve “would be needlessly redundant in view of the folding trocar sheath 23” in Himpens, so a person of ordinary skill in the art would not make the proposed combination. Appeal Br. 14. The Examiner provides a rationale for modifying Himpens with Johnson’s dissolvable sleeve—namely, “to keep the implant in the collapsed configuration after it has been extended out of the catheter to allow more time and maneuverability of the implant to ensure that it is in the proper place.” Final Act. 14 (citing Johnson ¶ 37). Contrary to Appellant’s assertion, this rationale explains why it would not be redundant to modify Himpens with Johnson’s teachings. Himpens’s trocar sheath percutaneously passes through the abdominal wall, positioning the distal end at the location where the implant will be deployed. Himpens 5:64–6:11. Modifying Himpens with Johnson’s dissolvable sleeve provides more time to ensure the implant is properly placed prior to expansion. See Johnson ¶ 37 (explaining that using a dissolvable sleeve still requires a guide catheter to “cannulate a vessel of the heart” so that the stent (constrained by the dissolvable sleeve) can be advanced beyond the guide catheter to the implant deployment position). For these reasons, we sustain the Examiner’s rejection of representative claim 1, as well as grouped claims 2–5, 7–10, and 12–15 as obvious over Himpens, Komlos, and Johnson. CONCLUSION The Examiner’s rejections are AFFIRMED. Appeal 2020-003257 Application 15/083,245 17 DECISION SUMMARY Claim(s) Rejected 35 U.S.C. § Reference(s)/Basis Affirmed Reversed 1–5, 7–10, 12–15, 17, 18 103 Avellanet, Cragg, Johnson 1–5, 7–10, 12–15, 17, 18 11 103 Avellanet, Cragg, Johnson, Avellanet ’097 11 19 103 Avellanet, Cragg, Johnson, Porter 19 20 103 Avellanet, Cragg, Johnson, Porter, Avellanet ’097 20 1–5, 7–10, 12–15 103 Himpens, Komlos, Johnson 1–5, 7–10, 12–15 Overall Outcome 1–5, 7–15, 17–20 RESPONSE No time period for taking any subsequent action in connection with this appeal may be extended. 37 C.F.R. § 1.136(a)(1)(iv). AFFIRMED Copy with citationCopy as parenthetical citation