Covidien LP

Patent Trials and Appeals Board

Feb 1, 2022

2021004506 (P.T.A.B. Feb. 1, 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. 15/665,542 08/01/2017 Justin Williams 356698.USU2(203-11241) 5951 50855 7590 02/01/2022 Covidien LP 60 Middletown Avenue Mailstop 54, Legal Dept. North Haven, CT 06473 EXAMINER IMAM, TANZIM ART UNIT PAPER NUMBER 3731 NOTIFICATION DATE DELIVERY MODE 02/01/2022 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): 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 JUSTIN WILLIAMS and STEPHEN PAUL ____________ Appeal 2021-004506 Application 15/665,542 Technology Center 3700 ____________ Before EDWARD A. BROWN, BENJAMIN D. M. WOOD, and BRETT C. MARTIN, Administrative Patent Judges. BROWN, Administrative Patent Judge. DECISION ON APPEAL STATEMENT OF THE CASE Appellant1 seeks review under 35 U.S.C. § 134(a) of the Examiner’s decision rejecting claim 1.2 We have jurisdiction under 35 U.S.C. § 6(b). We AFFIRM. 1 We use the word “Appellant” to refer to “applicant” as defined in 37 C.F.R. § 1.42. Appellant identifies Covidien LP as the real party in interest, and Medtronic plc as the ultimate parent. Appeal Br. 1. 2 Claims 2-9 are objected to as being dependent upon a rejected base claim, but indicated to contain allowable subject matter. Final Act. 6. Appeal 2021-004506 Application 15/665,542 2 CLAIMED SUBJECT MATTER Claim 1, reproduced below, illustrates the claimed subject matter. 1. A surgical stapling device comprising: a handle assembly; an elongate body portion extending distally from the handle assembly; a shell assembly supported on a distal end of the elongate body portion; an anvil retainer assembly extending through the shell assembly, the anvil retainer assembly including a retainer member including a retainer body defining a first longitudinal axis and an engagement member defining a second longitudinal axis, the engagement member extending distally from the shell assembly and being pivotally supported on a distal portion of the retainer body and movable[] from a first position in which the first and second longitudinal axes are aligned to a second position in which the first and second longitudinal axes are misaligned; and an anvil assembly including an anvil shaft and an anvil head, the anvil assembly releasably coupled to the engagement member of the anvil retainer assembly. Appeal Br. 9 (Claims App.). REJECTION ON APPEAL Claim 1 stands rejected under 35 U.S.C. §§ 102(a)(1) and 102(a)(2) as anticipated by Kuramoto (US 5,395,030, issued Mar. 7, 1995).3 3 The Examiner has withdrawn the rejection of claim 10 under this ground (Ans. 5; Final Act. 3), and the rejection of claim 11 under 35 U.S.C. § 103 as unpatentable over Kuramoto and Milliman (US 2009/0230170 A1, published Sept. 17, 2009) (Ans. 5). Appeal 2021-004506 Application 15/665,542 3 ANALYSIS The Examiner finds that Kuramoto discloses a surgical stapling device comprising, inter alia, an elongate body portion (insertion section 2 and bendable portion 3); a shell assembly (housing 30) supported on a distal end of the elongate body portion; an anvil retainer assembly (operating tube 20, bending segments 21, and tubular shaft 23, collectively) extending through the shell assembly, the anvil retainer assembly including a retainer member (bending segments 21 and tubular shaft 23, collectively) including a retainer body (bending segments 21) and an engagement member (tubular shaft 23); and an anvil assembly (anvil 6 and hollow cylinder 42) including an anvil shaft (hollow cylinder 42) and an anvil head (anvil body 40), the anvil assembly being releasably coupled to the engagement member of the anvil retainer assembly (via screw engagement between hollow cylinder 42 and tubular shaft 23). Final Act. 3-4 (citing Kuramoto, Figs. 1, 2; col. 6, ll. 12- 14, 60-66). Appellant first contends that Kuramoto’s bending segments 21 do not form part of an anvil retainer assembly, as claimed. Appeal Br. 6-7. Appellant contends that claim 1 recites that the anvil retainer assembly, which includes the retainer member and engagement member, “‘extend[s] through the shell assembly.’” Id. at 7. In contrast, Appellant contends, Kuramoto’s bending segments 21 are wholly confined within bendable portion 3 and do not “extend through” the shell assembly of the stapler. Id. at 6-7. In response, the Examiner explains that Kuramoto’s operating tube 20, bending segments 21, and tubular shaft 23, collectively, correspond to the claimed anvil retainer assembly, and, accordingly, Kuramoto discloses Appeal 2021-004506 Application 15/665,542 4 an anvil retainer assembly that “extends completely through” the shell assembly, i.e., housing 30. Id. (see annotated version of Kawamoto Fig. 1). In the Reply Brief, Appellant does not address the Examiner’s response, and thus, does not apprise us of error. Second, Appellant contends that Kuramoto’s anvil 6 is not “releasably coupled to” tubular shaft 23. Appeal Br. 7. Appellant notes that Kuramoto discloses that “the cylinder 42 is fitted in the rigid tubular shaft 23 in screw engagement therewith, whereby the anvil 6 is fastened to the rigid tubular shaft 23.” Id. at 5 (citing Kuramoto, col. 6, ll. 63-66) (bold face omitted). Appellant contends that tubular shaft 23 is “threadably coupled” to hollow cylinder 42. Id. at 7. According to Appellant, “[t]he anvil 6 is not intended to be removed from the cylinder 42, nor could it be accomplished without great effort.” Id. (emphasis added). Appellant further contends that the advantage of the disclosed anvil retainer assembly is “to simplify attachment of an anvil assembly to an anvil retainer in a confined space defined by a surgical site,” which is not achieved by Kuramoto’s stapler. Id. (citing Spec. ¶¶ 5, 49). The Examiner responds that Kuramoto’s “screw engagement is inherently a releasable coupling.” Ans. 5 (emphasis omitted). The Examiner states, “Appellant’s statement that ‘[t]he anvil 6 is not intended to be removed from the cylinder 42’ is baseless since this is not alluded to in any part of the specification of Kuramoto.” Id. (emphasis omitted). The Examiner also submits that the amount of effort required to release the screw engagement between hollow cylinder 42 and tubular shaft 23 is irrelevant to the patentability of the claim. Id. Appeal 2021-004506 Application 15/665,542 5 Appellant replies: Interpreting the claims in light of the specification as it would be interpreted by one of ordinary skill in the art would require the anvil assembly and the anvil retainer assembly to be interpreted as two distinct assemblies that are releasably coupled together. Kuramoto does not disclose a surgical stapling device that includes an anvil assembly and an anvil retainer assembly that are releasably coupled together. Although it is not clear from Kuramoto whether the threaded connection between Kuramoto’s shaft 23 could be separated from the cylinder 42 of the anvil 6 with the appropriate tools, it is clear, however, that Kuramoto never intended for the shaft 23 to be separated from the cylinder 42. One having ordinary skill in the art would not consider the shaft 23 releasably coupled to the cylinder 42 within the meaning of the specification. Reply Br. 4 (emphasis added). Accordingly, the Examiner and Appellant disagree about the meaning of “releasably coupled.” “[D]uring examination proceedings, claims are given their broadest reasonable interpretation consistent with the specification.” See In re Translogic Tech., Inc., 504 F.3d 1249, 1256 (Fed. Cir. 2007) (quoting In re Hyatt, 211 F.3d 1367, 1372 (Fed. Cir. 2000)); see also In re Am. Acad. of Sci. Tech Ctr., 367 F.3d 1359, 1364 (Fed. Cir. 2004) (explaining that the scope of claims in patent applications is not determined solely on the basis of the claim language, but upon giving claims their broadest reasonable construction in light of the specification as it would be interpreted by one of ordinary skill in the art). Here, claim 1 provides no guidance as to the meaning of “releasably coupled.” Turning to the Specification, Appellant indicates that support for the recited anvil assembly limitation is provided in paragraph 48, which discloses: Appeal 2021-004506 Application 15/665,542 6 In embodiments, the engagement member 132 is configured as a trocar having a tapered tip configured to pierce tissue or a suture line and the anvil shaft 28 (FIG. 3) is configured to define a bore (not shown) dimensioned to receive the engagement member 132 to releasably couple the anvil assembly 20 to the anvil retainer assembly 18. It is envisioned that the anvil shaft may be configured as a trocar and the anvil retainer may define a bore configured to receive and releasably couple the anvil assembly to the anvil retainer. Appeal Br. 2; Spec. ¶ 48 (emphasis added). This disclosure does not provide an explicit definition of “releasably couple.” Nor does it describe how engagement member 132 is “coupled” to anvil assembly 20, or how these elements are “released” from each other. Appellant does not provide a persuasive reason why the anvil assembly and anvil retainer assembly disclosed in Kuramoto, as found by the Examiner, are not “two distinct assemblies.” Nor does Appellant show that the threaded connection between hollow cylinder 42 and tubular shaft 23 disclosed in Kuramoto is not “releasable.” We note that a dictionary definition of “couple” is “to fasten together: LINK.” See Merriam- Webster’s Collegiate Dictionary 286 (11th ed. 2003). Appellant acknowledges that Kuramoto’s “anvil 6 is fastened to the rigid tubular shaft 23,” which is “coupling” under this definition. Appeal Br. 5. To the extent Appellant is contending that the term “releasably coupled” excludes the use of “appropriate tools” to “release” the anvil assembly from the engagement member when they are fastened together, Appellant does not direct us to any disclosure that supports such construction. Accordingly, we are not persuaded that Kuramoto fails to disclose the anvil assembly limitation based on the position that Kuramoto discloses a threaded connection between cylinder 42 and shaft 23. Appeal 2021-004506 Application 15/665,542 7 As for Appellant’s contention that “Kuramoto never intended for the shaft 23 to be separated from the cylinder 42,” Appellant provides no evidentiary support for this position. Regardless, the relevant issue as to the rejection is whether these elements are “releasably coupled,” as claimed, not whether Kuramoto explicitly expresses such an “intent.” Lastly, we agree with the Examiner that the purported advantage of the claimed anvil retainer assembly asserted by Appellant is not germane to the anticipation rejection of claim 1. Ans. 5; Appeal Br. 7. Thus, we sustain the rejection of claim 1 as anticipated by Kuramoto. CONCLUSION We affirm the rejection of claim 1. DECISION SUMMARY In summary: Claim(s) Rejected 35 U.S.C. § Reference(s)/Basis Affirmed Reversed 1 102(a)(1), 102(a)(2) Kuramoto 1 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