Covidien LP

Patent Trials and Appeals Board

Jan 20, 2022

2021003934 (P.T.A.B. Jan. 20, 2022)

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. 15/952,001 04/12/2018 Ashok Nageswaran C00018019.USU4 6870 137574 7590 01/20/2022 Medtronic 826 Coal Creek Circle Louisville, CO 80027 EXAMINER LAUER, CHRISTINA C ART UNIT PAPER NUMBER 3771 NOTIFICATION DATE DELIVERY MODE 01/20/2022 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): docketing@fortemip.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 ASHOK NAGESWARAN, AUGUSTO ALONSO, and SABRINA BRUCE-AKMAN ____________ Appeal 2021-003934 Application 15/952,001 Technology Center 3700 ____________ Before MICHAEL L. HOELTER, MICHAEL J. FITZPATRICK, and WILLIAM A. CAPP, Administrative Patent Judges. CAPP, Administrative Patent Judge. DECISION ON APPEAL STATEMENT OF THE CASE Appellant1 seeks our review under 35 U.S.C. § 134(a) of the final rejection of claims 1, 4-13, and 17-23 under 35 U.S.C. § 103 as unpatentable over Griffin (US 7,935,140 B2, iss. May 3, 2011) and Jordan (US 2006/0100688 A1, pub. May 11, 2006). We have jurisdiction under 35 U.S.C. § 6(b). We REVERSE. 1 We use the word “Appellant” to refer to “applicant” as defined in 37 C.F.R. § 1.42(a). Appellant identifies Medtronic plc, as the applicant and real party in interest. Appeal Br. 2. Appeal 2021-003934 Application 15/952,001 2 THE INVENTION Appellant’s invention is a device for delivering stents within vascular walls. Spec. ¶ 1. Claim 1, reproduced below, is illustrative of the subject matter on appeal. 1. A stent delivery system comprising: a core member configured for advancement within a corporeal lumen; a coupling assembly positioned about the core member, the coupling assembly comprising: a first plate rotatably positioned about the core member, the first plate including an outer surface having three or more projections separated by recesses; a pushing element positioned on the core member proximal of the first plate, the pushing element having a distal-facing engagement surface; and a stent extending along the core member such that the stent is engaged by one or more projections of the first plate, the stent having a proximal edge; wherein the distal-facing engagement surface of the pushing element abuts the proximal edge of the stent; wherein the pushing element is configured to transmit distally directed force to the stent but not proximally directed force; and wherein the coupling assembly is configured so that the first plate transmits proximally directed force to the stent but little or no distally directed force. OPINION Claim 1 The Examiner finds that Griffin discloses the invention substantially as claimed except for projections separated by recesses, for which the Examiner relies on Jordan. Final Action 3-5. The Examiner concludes that it would have been obvious to a person of ordinary skill in the art at the time Appeal 2021-003934 Application 15/952,001 3 of the invention to modify Griffin’s plate to have 3 projections as taught by Jordan. Id. at 5. According to the Examiner, a person of ordinary skill in the art would have done this to securely anchor and control the position of the stent. Id. Appellant argues that Griffin’s anchors do not transmit proximally directed force to the stent as claimed. Appeal Br. 7. Appellant argues that contact between Griffin’s anchors 18 and stent 16 is a distally directed force that occurs as outer tube 14 slides relative to stent 16. Id. at 9. In response, the Examiner finds that Griffin’s anchors transmit a proximally directed force if the core is retracted “when the plate or engagement member is engaged with the stent.” Ans. 3. The Examiner states that such force could be applied at times other than during deployment of the stent. According to the Examiner, the proximally directed force may be transmitted during either deployment, or distal advancement, of the stent or during retraction of the core. In this instance, the anchors are configured to transmit proximally directed force to the stent as claimed during retraction of the core. Id. The Examiner, however, fails to adequately explain how or under what conditions the core would be engaged with the stent so that a proximally directed force can be applied. Griffin is directed to a delivery device for use with an implantable device, such as a stent. Griffin, Abstract. As shown in Figure 8, stent 16 is disposed within and near the distal end of outer tube 14. Id. Fig. 8. Griffin’s pusher 26, which is analogous to Appellant’s claimed pushing element, abuts the proximal end of stent 16. Id. Pusher 26, spacers 28, anchors 16, and tip 32 are disposed near the distal end of inner tube 12. Id. Anchors 18 are radially spaced away from stent 16 prior to deployment, but are Appeal 2021-003934 Application 15/952,001 4 configured to engage the stent during deployment. Id. at col. 6, ll. 63-67. During deployment, outer tube 14 is slidingly retracted over inner tube 12 while pusher 26 supports the proximal end of stent 16. Id. at col. 8, ll. 44-55. As the outer tube slidingly retracts, friction may develop between outer tube 14 and stent 16. Such friction may cause a portion of stent 16 to protrude inwardly. Id. at col. 7, ll. 3-8. At this point, anchors 18 may engage the stent where it protrudes inwardly due to friction generated by retraction of outer tube 14. Id. at col. 7, ll. 8-15. In this way, anchors 18 aid in overcoming friction between stent 16 and outer tube 14. Id. The force applied by anchors 18 is a force that resists proximal movement of stent 16 as outer tube 14 slides proximally relative to stent 16. Thus, to the extent that anchors 18 impart a force to stent 16, it is a force that is applied in the distal direction. Appellant’s device is designed and configured to alternatively apply proximal and distal forces to a stent in a more-or-less push-pull arrangement. Appellant features stent engagement members 123a,b that transmit a proximally-directed pull force to stent 105 during retraction of core 103. Spec. ¶ 328. Griffin’s device is not similar to Appellant’s device in this regard. In Griffin, both pusher 26 and anchors 18 operate to apply a distally directed force to resist proximal movement of stent 16 during retraction of outer tube 14. Because Griffin’s anchors are radially spaced away from stent 16 (which configuration differs markedly from Appellant) there is no engagement between anchors 18 and stent 16 by which a proximally directed force can be applied to stent 16 by anchors 18. Unlike Appellant’s device, which contemplates retraction of core 103 with corresponding proximal movement of stent engagement members 123a,b and stent 105, Griffin Appeal 2021-003934 Application 15/952,001 5 provides no analogous teaching that inner tube 12 may be retracted with corresponding proximal movement of anchors 18 and stent 16. The Examiner’s findings of fact are not supported by a preponderance of the evidence and, therefore, the Examiner’s legal conclusion of unpatentability is not well-founded. In view thereof, we do not sustain the Examiner’s unpatentability rejection of claim 1. Claim 13 Claim 13 is an independent claim that is substantially similar in scope to claim 1. Claims App. The Examiner’s rejection of claim 13 suffers from the same infirmity that was identified above with respect to claim 1. Thus, for essentially the same reason expressed above in connection with claim 1, we do not sustain the rejection of claim 13. Claims 4-12 and 17-23 These claims depend from either claim 1 or claim 13. Dependent claims are nonobvious if the independent claims from which they depend are nonobvious. In re Fritch, 972 F.2d 1260, 1266 (Fed. Cir. 1992). We do not sustain the rejection of claims 4-12 and 17-23. CONCLUSION Claims Rejected 35 U.S.C. § References Affirmed Reversed 1, 4-13, 17-23 103 Griffin, Jordan 1, 4-13, 17-23 REVERSED