CLEARSTREAM TECHNOLOGIES LIMITED

Patent Trials and Appeals Board

Aug 3, 2021

2020005174 (P.T.A.B. Aug. 3, 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.
14/383,764 09/08/2014 Paul Anders Fillmore P-17028.US02 / A-050 7120
138315 7590 08/03/2021
Andrew D. Dorisio
300 West Vine Street
Suite 1700
Lexington, KY 40507
EXAMINER
ROMANOWSKI, MICHAEL C
ART UNIT PAPER NUMBER
1782
NOTIFICATION DATE DELIVERY MODE
08/03/2021 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):
dwpatents@dickinsonwright.com
ip.docket@bd.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte PAUL ANDERS FILLMORE, ALLAN RONAN,
EOIN RYAN, and ANDREW SCHAFFER
Appeal 2020-005174
Application 14/383,764
Technology Center 1700
Before ERIC B. GRIMES, LINDA M. GAUDETTE, and
DEBRA L. DENNETT, Administrative Patent Judges.
GAUDETTE, Administrative Patent Judge.
DECISION ON APPEAL1
Pursuant to 35 U.S.C. § 134(a), Appellant2 appeals from the
Examiner’s decision twice rejecting claims 9–12, 14–18, and 36–38. We
have jurisdiction under 35 U.S.C. § 6(b).

1 This Decision includes citations to the Specification, filed Sept. 8, 2014, as
amended (“Spec.”), the Non-Final Office Action dated Aug. 22, 2019
(“Non-Final Act.”), the Appeal Brief filed Jan. 21, 2020 (“Appeal Br.”), the
Examiner’s Answer dated Apr. 30, 2020 (“Ans.”), and the Reply Brief filed
June 30, 2020 (“Reply Br.”)
2 “Appellant” refers to “applicant” as defined in 37 C.F.R. § 1.42(a).
Appellant identifies the real party in interest as Clearstream Technologies
Limited. Appeal Br. 2.
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We AFFIRM IN PART.
CLAIMED SUBJECT MATTER
The invention “relates generally to balloons for performing medical
procedures, such as angioplasty.” Spec. 1, Technical Field. Claims 9 and 36,
reproduced below, are illustrative of the subject matter on appeal. For
convenience, claim 13, from which claim 9 depends, is also reproduced
below.
1. A parison for being blow molded into a medical balloon
for a catheter, comprising:
a first tubular layer having a functional modification; and
a second tubular layer adapted for bonding with the first
tubular layer to form the blow molded balloon.

9. A medical balloon formed by the parison of claim 1,
comprising:
a tubular, inflatable body comprising a wall, the body
including first and second generally conical ends and a
generally cylindrical barrel section between the generally
conical ends and providing a working surface.

36. A medical balloon formed by a parison for being blow
molded into the medical balloon for a catheter, the parison
comprising a first tubular layer having a functional
modification, and a second tubular layer for bonding with the
first tubular layer to form the blow molded balloon, the medical
balloon comprising a tubular, inflatable blow molded body
comprising a wall formed of the first and second tubular layers
bonded together by heat and pressure, the body including first

3 In response to a Restriction Requirement entered July 11, 2017, the
Appellant elected claims 9–12 and 14–18 with traverse. Response to
Restriction Request, filed Sept. 5, 2017. Claim 1 is pending, but withdrawn
from consideration. See Non-Final Act., Office Action Summary.
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and second generally conical ends and a generally cylindrical
barrel section between the generally conical ends and providing
a working surface.
Appeal Br. 22–23 (Claims App.).
REFERENCES
Name Reference Date
Tucker US 2006/0135916 A1 June 22, 2006
Durcan US 2007/0142771 A1 June 21, 2007
Burton US 2009/0234283 A1 Sept. 17, 2009
Allex US 2010/0234875 A1 Sept. 16, 2010

REJECTIONS
1. Claims 9–12 and 14–18 stand rejected under 35 U.S.C. § 102(b)
as anticipated by Allex. Non-Final Act. 4–8.
2. Claims 36 and 37 stand rejected under 35 U.S.C. § 103(a) as
unpatentable over Allex. Non-Final Act. 22–24.
3. Claims 9–12, 14–18, 36, and 37 stand rejected under 35 U.S.C.
§ 103(a) as unpatentable over Durcan in view of Allex. Non-Final Act. 9–14.
4. Claims 9–12, 14–18, and 36–38 stand rejected under 35 U.S.C.
§ 103(a) as unpatentable over Durcan in view of Burton and Allex, with
Tucker4 relied on as an evidentiary reference for claims 16 and 37. Non-
Final Act. 14–22.

4 The Appellant does not argue the Examiner’s findings as to Tucker. See
Non-Final Act. 20; Appeal Br. 10.
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OPINION
Rejections based on Allex
The Examiner rejected claim 9 and its dependent claims 10–12 and
14–18 as anticipated by Allex, and claim 36 and its dependent claim 37 as
obvious in view of Allex. Non-Final Act. 4–8, 22–24. In rejecting the
claims, the Examiner determined that no distinctive structural characteristic
is imparted by the product-by-process recitations of the medical balloon
being formed by blow-molding a parison. See Non-Final Act. 3, 23–24.
1. Claim 9
The Appellant argues that the Examiner “failed to carry the burden of
showing that the medical balloon of Allex is ‘the same or similar’ to that
claimed,” and improperly shifted the burden to the Appellant to show a
difference between Allex’s and the claimed medical balloons. Appeal Br. 5.
The Appellant argues that claim 9 requires “a parison with a layer that is
‘functionally modified,’ which can simply be blown into an RO
[(radiopaque)] balloon without the need for a printing step.” Id. at 4–5. The
Appellant explains that a “parison” is “[a] hollow plastic tube from which a
bottle or other hollow object is blow-molded.” Id. at 12 (quoting McGraw-
Hill Dictionary of Scientific and Technical Terms (6th ed. 2003)). The
Appellant argues that Allex’s balloon is formed in a multistep process that
includes steps of blow molding a compliant nylon inflation layer 20, and
then applying radiopaque coating 210 to inflation layer 200’s outer surface
via printing in a longitudinally striped pattern. Appeal Br. 4 (citing Allex
¶ 70). The Appellant argues that the ordinary artisan would not have been
able to blow mold a two-layer parison using Allex’s materials because the
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outer layer comprises an inelastic material. Appeal Br. 5 (asserting that the
Examiner has conceded this point).
“[W]hen considering the patentability of product claims that contain
process limitations, claim scope is generally based on the product itself, not
the process. If the process limitation connotes specific structure and may be
considered a structural limitation, however, that structure should be
considered.” In re Nordt Dev. Co., 881 F.3d 1371, 1374 (Fed. Cir. 2018)
(internal citations omitted) (emphasis added). In Nordt, the Federal Circuit
determined that the claim term “injection molded” connoted a particular
structure of the claimed product (e.g., a knee brace), even though the
application used the term to describe a manufacturing process. Id. at 1375. In
making this determination, the court found that “at a minimum, the
specification demonstrates that ‘injection molded’ connotes an integral
structure,” and “neither the Board nor the examiner dispute[d] Nordt’s
assertion that ‘there are clear structural differences’ between a knee brace
made with fabric components and a knee brace made with injection-molded
components.” Id.
In contrast to the facts in Nordt, the present Specification does not use
the terms “parison” or “blow molded” to describe a structural characteristic
of the claimed “medical balloon.” The Appellant does not identify, and, like
the Examiner, we do not discern any structural differences between the
Appellant’s claimed medical balloon and Allex’s medical balloon. Compare
Non-Final Act. 4–5, with Appeal Br. 3–5. Rather, as indicated by the
Examiner, Ans. 26, the Appellant’s argued distinctions between the claimed
and the prior art medical balloons relate solely to manufacturing advantages.
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See, e.g., Appeal Br. 4–5 (“[B]y having a parison with a layer that is
‘functionally modified,’ which can simply be blown into an RO balloon
without the need for a printing step,” “multi-step processing [as used in
Allex] is avoided.”). For these reasons, we agree with the Examiner’s
determination that the recitation “formed by the parison of claim 1” is not a
structural limitation and, therefore, claim 9 does not require a two-layer
parison that is capable of being blow molded.
“Where a product-by-process claim is rejected over a prior art
product that appears to be identical, although produced by a different
process, the burden is upon the applicants to come forward with evidence
establishing an unobvious difference between the claimed product and the
prior art product.” In re Marosi, 710 F.2d 799, 803 (Fed. Cir. 1983). As
discussed above, the Appellant has not met this burden. Accordingly, we
sustain the rejection of claim 9 as anticipated by Allex.
2. Claim 36
The Appellant argues that the Examiner reversibly erred in construing
claim 36 as including a product-by-process limitation because the recitation
of a “blow molded body” is a structural limitation, under numerous
precedential decisions. Appeal Br. 13.
This argument is not persuasive because it fails to identify error in the
Examiner’s finding that Allex teaches a blow molded body. Specifically, the
Examiner found that Allex teaches that “[t]he inner inflation layer (which
defines the body of the balloon) is formed through, inter alia, blow molding
[0030], and the fiber layer is pre-formed and then adhesively bonded to the
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inflation layer or wrapped around and adhesively bonded to the inflation
layer [0014, 0031–0044].” Non-Final Act. 22–23.
The Appellant also argues that the Examiner did not identify evidence
to support a finding that Allex’s balloon, formed by “thermobonding” to
“attach[] successive layers of inelastic fibers,” would have the same or a
similar structure to the claim 36 balloon, formed by blow-molding to bond
first and second tubular layers by heat and pressure. Id. at 13.
This argument is not persuasive because it is not commensurate in
scope with claim 36. Claim 36 recites “a tubular, inflatable blow molded
body comprising a wall formed of the first and second tubular layers bonded
together by heat and pressure.” As explained above in the discussion of
claim 9, the recitation “formed by a parison for being blow molded into the
medical balloon for a catheter” is not a structural limitation. The Examiner
found that Allex discloses the use of thermobonding, “i.e., the application of
heat and pressure” as claim 36 recites, to adhesively bond the medical
balloon’s fiber and inflation layers. Non-Final Act. 22–23 (citing Allex
¶ 43). The Appellant has not persuasively explained—i.e., the Appellant has
not cited evidence but relies solely on attorney argument—why this finding
is erroneous or unreasonable. See Appeal Br. 13–14.
The Appellant’s remaining arguments are not persuasive for the
reasons discussed above regarding the claim 9 rejection. Accordingly, we
also sustain the rejection of claim 36 as obvious in view of Allex.
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3. Dependent Claims 10–12, 14–18, and 37
The Appellant separately argues the patentability of each of claims 11,
14, 16, 17, and 37. We sustain the rejections of claims 11, 16, and 37, but
reverse the rejections of claims 14 and 17.
a. Claims 11, 16, 37
As to claims 11, 16, and 37, we agree with the Examiner’s
explanations of why the arguments are unpersuasive of reversible error. See
generally Ans. 26–32. As explained by the Examiner, the Appellant’s
arguments are based on overly narrow interpretations of the claim language.
We add the following.
The Appellant argues that the Examiner erred in interpreting the claim
11 term “working surface” as encompassing the balloon’s conical or
tapering sections at the proximal and distal ends. See Appeal Br. 6–7. In
support of this interpretation, the Examiner finds that the Specification
defines the “working surface” as “typically co-extensive with a generally
cylindrical barrel section,” Spec. 2:3–4 (emphasis added). See Ans. 27.
Citing to a different portion of the same Specification sentence, the
Appellant argues that the ordinary artisan would have understood that the
“working surface” is limited to the balloon’s barrel section because the
Specification describes the “working surface” as “the surface along the
portion of the balloon that is used to achieve the desired treatment effect,
such as contacting the calcified plaque,” Spec. 2:1–2. See Reply Br. 2. The
Appellant adds that there is no description of the working surface as
“coextensive with the [balloon’s] conical sections.” Id.
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The Appellant’s argument is unpersuasive because it fails to identify
error in the Examiner’s finding that Allex paragraph 42 describes an
embodiment “wherein the first layer extends along only the [cylindrical
barrel section (C)]” (Non-Final Act. 5), i.e., the portion of a balloon that the
Appellant contends corresponds to the claimed working surface, see Reply
Br. 2. Allex paragraph 42 states that “[f]or example, a pre-form[,
corresponding to the claim 11 “first layer,”] may be constructed of one or
more regions (A), (B), (C)[, a central inflation region (Allex ¶ 38) having a
cylindrical barrel shape (see id. at Fig. 6)], (D) and/or (E), which may be
assembled on to inflation layer 20 before the braided sleeve is slid over the
inflation layer 20. The pre-form may be designed to fit over only a single
region[].” Allex ¶ 42 (emphasis added).
In addition, we agree with the Examiner’s interpretation of claim 11’s
“working surface” as not limited to the cylindrical barrel section. Ans. 27.
During examination, claim terms must be given their broadest reasonable
construction consistent with the Specification. In re ICON Health and
Fitness, Inc., 496 F.3d 1374, 1379 (Fed. Cir. 2007). The broadest reasonable
interpretation of the claims must also be consistent with the interpretation
that those skilled in the art would reach. In re Cortright, 165 F.3d 1353,
1358 (Fed. Cir. 1999). We agree with the Examiner that the ordinary artisan
reasonably would have understood from the adverb “typically,” Spec. 2:3,
that the working surface is usually, but not necessarily, limited to the
cylindrical barrel section. The Appellant has not provided persuasive
evidence demonstrating that a medical balloon’s working surface never
extends beyond the barrel section or that the ordinary artisan would have
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understood that the working surface is always limited to the barrel section.
See, e.g., Appeal Br. 7 (arguing, without citation to evidence, that “the
conical ends are not ‘used to achieve the desired treatment effect.’”).
We have considered the Appellant’s argument against the rejections
based on Durcan that a construction of the claim term “working surface” as
coextensive with both the barrel and conical sections of the balloon “violates
well-established canons of claim construction. RF De., Inc. v. Pac. Keystone
Techs., Inc., 326 F.3d 1255, 1263 (Fed. Cir. 2003) (‘each claim in a patent is
presumptively different in scope.’).” Appeal Br. 17. “However, the doctrine
of claim differentiation is not a conclusive basis for construing claims, and
[a] patent specification [may] override[] its effect.” American CALCAR,
INC. v. American Honda Motor Co., Inc., 651 F.3d 1318, 1337 (Fed. Cir.
2011); see also RF De., Inc., 326 F.3d at 1263 (explaining that claim
differentiation is not a “hard and fast rule of construction,” and is applicable
where there is a dispute over whether a limitation found in a dependent
claim should be read into an independent claim). Here, use of “typically” in
the Specification indicates that Appellant’s interpretation of “working
surface” is overly narrow.
As to claims 16 and 37, the Appellant disputes the Examiner’s finding
that the recited “radiopaque tube,” Appeal Br. 23 (Claims App.), reads on
Allex’s coating layer 40, arguing that “a ‘coating layer’ applied by spraying
is not a ‘tube’ in any sense of the term.” Appeal Br. 9, 14; see also Reply Br.
3.5 As shown in the quotations below, this argument is not persuasive

5 In Reply Brief page 3, the Appellant argues that “[t]he Examiner does not
appear to respond to Appellant’s argument for claim 37, requiring ‘an at
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because it lacks evidentiary support and is inconsistent with both the
Specification and Allex’s disclosure.
The Specification discloses that the second tube may comprise a metal
film or a thin flexible material, e.g., a polymer such as nylon. See, e.g., Spec.
4:2 (“The balloon 12 may be a non-compliant balloon . . . .”); id. at 4:26–29
(“[A] first tube 50 comprising a thin layer of material (such as a polymer),
may be inserted within a second tube 52 . . . . The second tube 52 may also
comprise a compatible polymeric material, but could also be formed of a
different material, . . . [and] includes the one or more radiopaque markings
30 . . . .”); id. at 5:10–13 (“As noted above for tube 52, the collars 52, 52b
may be comprised of a thin flexible, material (e.g., a polymer, such as nylon)
compatible with the material (e.g., a polymer, such as nylon) of the adjacent
layer formed by tube 50, but could also be made of different materials, such
as one or more metal foils.”).

least partially radiopaque tube positioned over the barrel section and
extending substantially along only the working surface.’” In arguing the
rejection of claim 37 in the Appeal Brief, the Appellant states that “[a]s
previously noted, a coating layer is not a ‘tube’ under any reasonable
interpretation of the term, including in light of the teachings of Appellant’s
specification. Hence, the obviousness rejection of claim 37 should be
reversed for this additional reason.” Appeal Br. 14. Claims 16 and 37 are
identical except for their dependencies from claims 9 and 36, respectively,
and the Examiner fully addresses this argument in responding to the
Appellant’s claim 16 Appeal Brief arguments. See Ans. 29–30. As the
Appellant refers back to its claim 16 argument when discussing claim 37 in
the Appeal Brief, we view the Examiner’s failure to reiterate the claim 16
response in responding to Appellant’s claim 37 Appeal Brief argument as
harmless error.
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Allex similarly discloses that “coating layer 40 is composed of one or
more layers of a compliant polymeric material. . . . . [S]uitable materials . . .
include nylon . . . .” Allex ¶ 45. Allex discloses that “[t]he coating layer 40
may be applied in any number of ways as are known in the art.” Id. ¶ 46.
Allex does not require application by spray coating, but states that “[t]ypical
coating methods include spray coating, dip coating, dispense coating, pad
printing and the like.” Id.
In sum, the Examiner’s determination that the claimed “at least
partially radiopaque tube” reads on Allex’s coating layer is consistent with
the Specification’s disclosure that the radiopaque tube is not limited to a
particular material or rigidity, but may, like Allex’s coating layer, be a
flexible layer of a material such as nylon.
For the above reasons, and those stated in the Non-Final Office Action
and the Answer, we sustain the rejections of claims 11 and 16 as anticipated
by Allex, and of claim 37 as obvious in view of Allex.
b. Claims 14 and 17
Claims 14 and 17 require that the medical balloon includes first and
second shoulders between which the first layer is positioned (claim 14) and
for retaining the radiopaque tube against longitudinal movement (claim 17).
Appeal Br. 22, 23 (Claims App.). The Appellant cites Figure 15 in support
of an interpretation of the term “shoulder” as meaning “a raised abutment.”
Appeal Br. 7. The Appellant also cites a dictionary definition of the term
“shoulder,” as meaning “[t]he area of an item or object that serves as an
abutment or surrounds a projection. American Heritage Dictionary of the
English Language, © 2018.” Appeal Br. 8. As to claim 17, the Appellant
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further argues that the Examiner has not explained how Allex meets the
requirement that “the shoulders serv[e] to retain the radiopaque tube against
movement in a longitudinal direction. Id. at 10–11.
In response, the Examiner explains that “while Appellant’s Figure 15,
instance 12a illustrates a raised portion, . . . it is improper to import
limitations from the specification into the claims.” Ans. 28. The Examiner
also refers back to a prior final office action which quotes the Merriam-
Webster Dictionary’s definition of “shoulder,” Ans. 28: “a rounded or
sloping part (as of a stringed instrument or bottle) where the neck joins the
body,” Final Office Action mailed Dec. 12, 2018, at 17. As to claim 17, the
Examiner finds that because Allex’s tubular layer is “bonded to the
shoulders, the shoulders serve to retain the tubular coating layer from any
longitudinal movement. In other words, bonding a material to substrate
holds the material in place.”
We disagree with the Examiner that the ordinary artisan, upon
reviewing the Specification and Drawings, would have understood that the
claim term “shoulder” encompasses Allex’s structure. Application Figure 10
depicts an embodiment of the inventive medical balloon having a shape
similar to Allex’s balloon shape, see Alex ¶ 28, Fig. 1. The Specification
does not describe this embodiment as including shoulders. See, e.g., Spec.
pp. 4–5. Rather, “with reference to Figure[] 15,” Spec. 5:31, the
Specification describes “a further embodiment,” id. at 3:9, in which “the
mold cavity may be adapted . . . to form shoulders 12a on the balloon 12
once blown.” Spec. 5:31–33. As to claim 17’s requirement that “the
shoulders serv[e] to retain the radiopaque tube against movement in a
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longitudinal direction,” we likewise determine that the Examiner’s
interpretation of this phrase as encompassing adhesive bonding of the tube is
inconsistent with the Specification. The Specification distinguishes between
retaining outer tube 52 on inner tube 50 via shoulders 12a, frictional
engagement, and an adhesive. See Spec. 5:33–6:5.
In sum, because the Examiner’s rejections of claims 14 and 17 are
based on overly broad interpretations, we do not sustain the rejections of
these claims as anticipated by Allex.
c. Claims 10, 12, 15, and 18
The Appellant does not separately argue the patentability of claims
10, 12, 15, or 18. As we have sustained the rejections of the claims from
which these claims depend, we also sustain the rejection of claims 10, 12,
15, and 18 as anticipated by Allex.

Rejections based on Durcan
The Examiner rejected claims 9–12, 14–18, 36, and 37 as
unpatentable over Durcan in view of Allex, and claims 9–12, 14–18, and 36–
38 as unpatentable over Durcan in view of Burton and Allex. Non-Final Act.
9–22. The Examiner found that “Durcan, Burton, and Allex are directed
toward inflatable medical balloons for use with catheters for angioplasty
procedures.” Id. at 19. The Examiner found that Durcan discloses the
invention of claims 9 and 36 except for a functional modification on the first
tubular layer. Id. at 9, 16. The Examiner determined that at the time of the
invention, the ordinary artisan would have coated Durcan’s medical balloon
“with a radiopaque coating [i.e., a functional modification], as taught by
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Allex, in order to facilitate the accurate and safe intraluminal placement and
inflation of the inflatable medical balloon in a patient utilizing a
visualization technique such as fluoroscopy.” Id. at 12, 19. The Examiner
also determined that the ordinary artisan would have modified Durcan’s
balloon to include protuberances (i.e., a functional modification) as “an
integral feature of the outer surface of the wall of the inflatable medical
balloon, taught by Burton, in order to form a balloon that would have been
sufficient at fracturing plaque from a stenosed vessel wall during
angioplasty.” Id. at 19.
The Appellant argues that the Examiner did not articulate a sufficient
reason for combining the teachings of Durcan and Allex. See Appeal Br. 14–
16. The Appellant quotes various Federal Circuit decisions for the
proposition that a reason to combine is necessary to establish a prima facie
case of obviousness. See id. But the Appellant does not explain why the
Examiner’s reasons for combining the prior art teachings do not comport
with case law standards. See, e.g., Non-Final Act. 11–12 (citing Allex ¶¶ 5–
7, 13).
The Appellant argues that “[p]roviding the Durcan balloon with a
radiopaque coating over its entire length, as proposed, would serve no useful
purpose, given that it is covered by a stent that already identifies its location
under fluoroscopy.” Appeal Br. 16; see also id. at 19. The Appellant
contends that “making the entire balloon radiopaque would obscure the
margins of the stent 16, actually hindering proper placement.” Id. at 16.
The Appellant’s argument is not persuasive because it is based on an
unsupported contention that Durcan’s disclosure is limited to medical
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balloons used with metal stents. See Ans. 33. Although a stent is shown in
the depicted embodiment, see Durcan ¶ 22 (describing Figure 1 as “an over-
the-wire type stent delivery balloon catheter embodying features of the
invention”), Durcan discloses that “[v]arious designs for balloon catheters
well known in the art may be used in the catheter system of the invention[,
f]or example, conventional over-the-wire balloon catheters for angioplasty
or stent delivery,” id. ¶ 20 (emphasis added). See also id. ¶ 50 (“[A]lthough
the embodiment illustrated in FIG. 1 is an over-the-wire type stent delivery
balloon catheter, the catheter of this invention may comprise a variety of
intravascular catheters, such as a rapid exchange type balloon catheter.”);
¶¶ 2–3 (“In percutaneous transluminal coronary angioplasty (PTCA)
procedures . . . physicians frequently implant . . . a stent.”). In any event, as
noted by the Examiner, Ans. 3, the Appellant has not identified persuasive
evidence to support its contention that Durcan’s stent is metal. See Appeal
Br. 16 (arguing that the Durcan’s stent 16 is depicted with “cross hatching
for metal”).
The Appellant argues that there would have been no reason to modify
Durcan’s balloon to include protuberances as disclosed in Burton, because
Durcan requires a stent that would cover the protuberances such that they
could not serve their purpose of “fracturing plaque from a stenosed vessel
during angioplasty.” Appeal Br. 19. As discussed above, we are not
persuaded that Durcan’s medical balloons are designed for use only with
metal stents.
We sustain the rejection of claims 9 and 36 as unpatentable over (1)
Durcan and Allex, and (2) Durcan, Burton, and Allex.
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The Appellant also argues in support of patentability of each of claims
11, 14, 17, and 38. See Appeal Br. 17–21.6
As noted by the Examiner, Ans. 33, the Appellant’s arguments as to
claim 11, see Appeal Br. 17, 19–20, are similar to those made in arguing the
rejection over Allex, and are based on the same, overly narrow interpretation
of the “working surface” as limited to the generally cylindrical barrel
surface. For the reasons discussed above, these arguments are not
persuasive, and we sustain the rejection of claim 11 as unpatentable over (1)
Durcan and Allex, and (2) Durcan, Burton, and Allex.
As to claims 14 and 17, the Examiner relies on the same overly broad
interpretations discussed above in the rejections based on Allex. See
Non-Final Act. 13–14, 21–22. Accordingly, for the same reasons discussed
regarding the rejection based on Allex, we do not sustain the rejections of
claims 14 and 17 as unpatentable over (1) Durcan and Allex, and (2) Durcan,
Burton, and Allex.
Claim 38 depends from claim 37 and requires that the balloon further
include “first and second raised portions of the wall adjacent a proximal end
and a distal end of the radiopaque tube.” Appeal Br. 23 (Claims App.). As
noted above, the Examiner found that claim 36’s “first tubular layer having a
functional modification” reads on Durcan’s outer layer, as modified based

6 The Appellant argues that because “the Examiner’s interpretation of the
claim language is not in accord with clear legal precedent and Office policy,
the rejections of claims 10 and 11 should be reversed.” Appeal Br. 17. As
the Appellant has not explained why the interpretation of claim 10 is
erroneous or unreasonable, or otherwise presented arguments directed to
claim 10 limitations, we do not consider the Appeal Brief to raise a separate
argument in support of patentability of claim 10.
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on Burton to include protuberances. Non-Final Act. 19. The Examiner found
that the protuberances in the Durcan/Burton combination would be
“disposed along the length of the balloon from conical section to conical
section, including over the cylindrical barrel section.” Id. at 20. The
Examiner found that, when modified based on Allex’s teaching to include a
radiopaque coating over the barrel section and extending substantially along
only the working surface, the protuberances of the resultant structure would
be adjacent to the proximal and distal end(s) of the radiopaque tube, as
required by claim 38. Id.
The Appellant argues that because the protuberances in the
Durcan/Burton/Allex combination would extend along the entire length of
the balloon, and claim 37 recites that the at least partially radiopaque tube
extends substantially along only the working surface, which the Appellant
interprets as the cylindrical barrel section, claim 38’s requirement that the
protuberances are adjacent the radiopaque tube’s proximal and distal ends
would not be met.
The term “adjacent” is not defined in the Specification. Applying the
ordinary meaning of the term “adjacent,” i.e., “lying near, close, or
contiguous,” https://www.dictionary.com/browse/adjacent# (accessed July
28, 2021), we agree with the Examiner, Ans. 37, that regardless of whether
the “working surface” is interpreted as limited to the balloon’s cylindrical
barrel section, as argued by the Appellant, or as including the entire balloon,
various points along the protuberances would be adjacent proximal and
distal portions of a radiopaque coating that extends substantially along only
the working surface.
Appeal 2020-005174
Application 14/383,764

19

Accordingly, we sustain the rejection of claim 38 as unpatentable over
Durcan, Burton, and Allex.
The remaining dependent claims were not separately argued. As we
have sustained the rejections of the claims from which these claims depend,
we also sustain the rejections of claims 10, 12, 15, 16, 18, and 37 as
unpatentable over (1) Durcan and Allex, and (2) Durcan, Burton, and Allex.

CONCLUSION
The Appellant has not identified reversible error in the Examiner’s
prior art rejections of claims 9–12, 15, 16, 18, and 36–38 for the reasons
stated above, and in the Non-Final Office Action and the Answer. Any
arguments made in the Appeal or Reply Briefs as to these claims, but not
discussed in this Decision, have been fully addressed by the Examiner and
are not persuasive of reversible error for the reasons stated in the Non-Final
Office Action and the Answer. Accordingly, we sustain the rejections of
claims 9–12, 15, 16, 18, and 36–38. The rejections of claims 14 and 17 are
not sustained for the reasons discussed above.

Appeal 2020-005174
Application 14/383,764

20

DECISION SUMMARY
Claim(s)
Rejected
35 U.S.C.
§
Reference(s)/Basis Affirmed Reversed
9–12, 14–18 102(b) Allex 9–12, 15,
16, 18
14, 17
36, 37 103(a) Allex 36, 37
9–12, 14–
18, 36, 37
103(a) Durcan, Allex 9–12, 15,
16, 18, 36,
37
14, 17
9–12, 14–
18, 36–38
103(a) Durcan, Burton,
Allex, Tucker
9–12, 15,
16, 18, 36–
38
14, 17
Overall
Outcome
9–12, 15,
16, 18, 36–
38
14, 17

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).

AFFIRMED IN PART