Covidien LP

Patent Trials and Appeals BoardSep 22, 2021

2020005844 (P.T.A.B. Sep. 22, 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. 16/354,796 03/15/2019 Lee Ann Olson 2866US02CON(203-3509CON4B 1004 50855 7590 09/22/2021 Covidien LP 60 Middletown Avenue Mailstop 54, Legal Dept. North Haven, CT 06473 EXAMINER TECCO, ANDREW M ART UNIT PAPER NUMBER 3731 NOTIFICATION DATE DELIVERY MODE 09/22/2021 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): docket@carterdeluca.com rs.patents.two@medtronic.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE ____________ BEFORE THE PATENT TRIAL AND APPEAL BOARD ____________ Ex parte LEE ANN OLSON, PHILIP ROY, JOHN W. BEARDSLEY, RALPH STEARNS, DAVID C. RACENET, and CLIFFORD J. EMMONS ____________ Appeal 2020-005844 Application 16/354,796 Technology Center 3700 ____________ Before MURRIEL E. CRAWFORD, ANTON W. FETTING, and BIBHU R. MOHANTY, Administrative Patent Judges. MOHANTY, 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 2–21. We have jurisdiction under 35 U.S.C. § 6(b). SUMMARY OF THE DECISION We AFFIRM. 1 We use the word Appellant to refer to “applicant” as defined in 37 C.F.R. § 1.42(a). Appellant identifies the real party in interest as Covidien LP (Appeal Br. 1). Appeal 2020-005844 Application 16/354,796 2 CLAIMED SUBJECT MATTER The Appellant’s claimed invention relates to a surgical stapling apparatus (Spec., para. 2). Claim 2, reproduced below, is representative of the subject matter on appeal. 2. A surgical stapling device comprising: a proximal end configured to be removably associated with a robotic system; and a distal end having an anvil assembly and a channel assembly pivotable relative to the anvil assembly, the channel assembly having a channel dimensioned to releasably receive a replaceable staple cartridge assembly, the replaceable staple cartridge assembly having a plurality of surgical staples and a sled including at least one cam wedge, wherein the replaceable staple cartridge assembly is configured to be selectively coupled to and decoupled from the channel to facilitate replacement of the staple cartridge assembly during a surgical procedure. THE REJECTIONS The Examiner relies upon the following as evidence in support of the rejections: Green US 5,318,221 June 7, 1994 Knodel US 5,465,895 Nov. 14, 1995 Young US 5,507,426 Apr. 16, 1996 Boiarski US 5,529,235 June 25, 1996 Bolanos US 5,752,644 May 19, 1998 Alesi US 5,779,130 July 14, 1998 The following rejections are before us for review: 1. Claims 2, 4–11, 13, and 15–17 are rejected under 35 U.S.C. § 103(a) as unpatentable over Alesi and Bolanos. Appeal 2020-005844 Application 16/354,796 3 2. Claim 3 is rejected under 35 U.S.C. § 103(a) as unpatentable over Alesi, Bolanos, and Young. 3. Claim 12 is rejected under 35 U.S.C. § 103 as unpatentable over Alesi, Bolanos, and Knodel. 4. Claim 14 is rejected under 35 U.S.C. § 103 as unpatentable over Alesi, Bolanos, Boiarski, and Green. 5. Claims 18–21 are rejected under 35 U.S.C. § 103 as unpatentable over Alesi, Bolanos, and Green. FINDINGS OF FACT We have determined that the findings of fact in the Analysis section below are supported at least by a preponderance of the evidence.2 ANALYSIS The Appellant argues that the rejection of claim 2 is improper because the prior art does not disclose or suggest “a channel assembly having a channel dimensioned to releasably receive a replaceable staple cartridge assembly having a sled including at least one cam wedge” (Appeal Br. 3, 4). The Appellant further argues that Alesi discloses two separate and distinct surgical stapling apparatuses that are not interchangeable (Appeal Br. 4–10; Reply Br. 1, 2). The Appellant also argues that Alesi teaches away from replacement of the staple cartridge assembly and that Bolanos fails to 2 See Ethicon, Inc. v. Quigg, 849 F.2d 1422, 1427 (Fed. Cir. 1988) (explaining the general evidentiary standard for proceedings before the Patent Office). Appeal 2020-005844 Application 16/354,796 4 disclose that the staple cartridge can be replaced during a surgical procedure (Appeal Br. 11, 12). In contrast, the Examiner has determined that the rejection is proper (Final Act. 2–4; Ans. 4–13). We agree with the Appellant. Alesi in Figures 1–12 discloses a first embodiment of a surgical stapling device, and in Figures 13–19 a second embodiment (Abstract, Description of the Drawings). Alesi in the first embodiment shown in Figures 4, 6, and 12 discloses an anvil (64), pivotable channel assembly (34), and staple cartridge assembly (44) with staples (48). In Alesi at column 9:19–25 it is also disclosed that the staple cartridge can be removed and replaced. Bolanos discloses a surgical stapler with in Figures 1–5 with a disposable loading unit including staple cartridge body (30) and including a cam wedge member (50) with cam wedge surfaces (54, 56). Bolanos at column 6:19–29 also discloses that the use of the cam plates reduces the size of the actuator required from the forced frictional contact of the camming surfaces. Here, the modification of the surgical stapler device of Alesi to have the replaceable surgical staple device include cam wedges as disclosed by Bolanos would have been an obvious, predictable combination of familiar elements for the advantage of having the wedge not be overused as it would be changed with each cartridge replacement in the surgical environment, and also to reduce the size of the actuator required from the forced frictional contact of the camming surfaces. The Appellant has argued that Alesi discloses two separate and distinct surgical apparatuses and that the apparatuses that are not interchangeable (Appeal Br. 5–10; Reply Br. 1, 2). As noted above, we Appeal 2020-005844 Application 16/354,796 5 agree that Alesi discloses two separate surgical stapling apparatuses in Figures 1–12 and 13–19 respectively. However, all the elements of Alesi that are cited in the rejection can be found in the single embodiment of Alesi disclosed at Figures 1–12 as cited above. The Appellant in the Reply Brief states that the first embodiment of Alesi uses “camming bars” while the second embodiment uses a “sled.” However, in the combination of cited references Bolanos discloses a “sled” in member 50. The Appellant has also argued that Alesi teaches away from a cartridge assembly that is selectively coupled to facilitate replacement of the staple cartridge assembly (Appeal Br. 11). However, Alesi at column 9:19–25 specifically discloses that the staple cartridge can be removable. The Appellant also argues that Bolanos fails to disclose a staple cartridge assembly that can be replaced “during a surgical procedure” (Appeal Br. 11, 12). Initially, we note that in the apparatus claim the phrase “during a surgical procedure” is a statement of intended use. Regardless, the phrase “during a surgical procedure” is broad enough to encompass the surgical stapler device being withdrawn, reloaded, and reinserted during the same surgical procedure. For these above reasons, the arguments presented are not persuasive, and the rejection of claim 2 is sustained. The Appellant has presented the same arguments for the remaining claims and the rejections of these claims are sustained as not individually argued. Appeal 2020-005844 Application 16/354,796 6 CONCLUSIONS OF LAW We conclude that Appellant has not shown that the Examiner erred in rejecting claims 2, 4–11, 13, and 15–17 under 35 U.S.C. § 103(a) as unpatentable over Alesi and Bolanos. We conclude that Appellant has not shown that the Examiner erred in rejecting claim 3 under 35 U.S.C. § 103(a) as unpatentable over Alesi, Bolanos, and Young. We conclude that Appellant has not shown that the Examiner erred in rejecting claim 12 under 35 U.S.C. § 103 as unpatentable over Alesi, Bolanos, and Knodel. We conclude that Appellant has not shown that the Examiner erred in rejecting claim 14 under 35 U.S.C. § 103 as unpatentable over Alesi, Bolanos, Boiarski, and Green. We conclude that Appellant has not shown that the Examiner erred in rejecting claims 18–21 under 35 U.S.C. § 103 as unpatentable over Alesi, Bolanos, and Green. Appeal 2020-005844 Application 16/354,796 7 DECISION SUMMARY In summary: Claims Rejected 35 U.S.C. § Reference(s)/Basis Affirmed Reversed 2, 4–11, 13, 15–17 103 Alesi, Bolanos 2, 4–11, 13, 15–17 3 103 Alesi, Bolanos, Young 3 12 103 Alesi, Bolanos, Knodel 12 14 103 Alesi, Bolanos, Boiarski, Green 14 18–21 103 Alesi, Bolanos, Green 18–21 Overall Outcome 2–21 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). See 37 C.F.R. § 1.136(a)(1)(iv). AFFIRMED