C.R. BARD INC.

Patent Trials and Appeals Board

Aug 18, 2021

2021000245 (P.T.A.B. Aug. 18, 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.
15/690,751 08/30/2017 Corey E. Stapleton P-19498.US03CON 7544
79990 7590 08/18/2021
Andrew D. Dorisio
300 West Vine Street
Suite 1700
Lexington, KY 40507
EXAMINER
LOUIS, RICHARD G
ART UNIT PAPER NUMBER
3771
NOTIFICATION DATE DELIVERY MODE
08/18/2021 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 COREY E. STAPLETON

Appeal 2021-000245
Application 15/690,751
Technology Center 3700
____________

Before STEFAN STAICOVICI, MICHAEL J. FITZPATRICK, and
JEREMY M. PLENZLER, Administrative Patent Judges.

FITZPATRICK, Administrative Patent Judge.

DECISION ON APPEAL
Appellant, C.R. Bard, Inc.,1 appeals under 35 U.S.C. § 134(a) from
the Examiner’s final decision rejecting claims 1–4, 6–8, 10–14, and 16–21.
We have jurisdiction under 35 U.S.C. § 6(b).
We affirm.

1 “Appellant” refers to the applicant as defined in 37 C.F.R. § 1.42.
Appellant identifies itself as the sole real party in interest. Appeal Br. 3.
Appeal 2021-000245
Application 15/690,751

2
STATEMENT OF THE CASE
The Specification
The Specification’s disclosure “relates generally to balloon catheter
assemblies for use in angioplasty and stent delivery procedures.” Spec. ¶2.
The Claims
Claims 1–4, 6–8, 10–14, and 16–21 are rejected. Final Act. 1. Claims
5, 9, and 15 are canceled. Appeal Br. 28–30. No other claims are pending.
Final Act. 1; Appeal Br. 28–31. Claims 1 and 21 are illustrative of the
claimed subject matter on appeal and are reproduced below.
1. An assembly comprising:
an elongate catheter;
a balloon on a catheter distal end;
an inflation lumen through the catheter; and
a vent hole connected from the inflation lumen into the
balloon interior at a central longitudinal location, said vent hole
comprising a chamfer and adapted to yield uniform radial
inflation and substantially uniform longitudinal inflation of the
balloon, wherein said central longitudinal location is the only
longitudinal location in the balloon interior including any vent
hole.
21. A catheter assembly for engaging a stenosis and
for stent delivery, the assembly comprising:
a catheter including a wall having a proximal end and a
distal end disposed along a longitudinal axis, the wall having an
interior surface and an exterior surface, the interior surface
defining a first lumen and a second lumen spaced apart and
disposed about the longitudinal axis, the wall defining an
opening extending between the inner surface and the exterior
surface, the opening being in communication with the first
lumen so as to define a flow path having an angle incident to
the longitudinal axis;
Appeal 2021-000245
Application 15/690,751

3
a first marker disposed about the exterior surface along
the longitudinal axis;
a second marker disposed about the exterior surface
along the longitudinal axis, the first and second markers being
spaced from one another along the longitudinal axis so as to be
substantially equidistant from the opening;
a balloon having a first end and a second end defining a
holding volume therebetween, the first end and the second ends
being sealed about the exterior surface, the opening being
disposed within the holding volume so as to place the first
lumen in sealed fluid communication with the holding volume
for inflating and deflating the balloon through the opening, the
first and second ends being spaced substantially equidistantly
about the opening along the longitudinal axis; and
a balloon dilatable stent disposed about the balloon, the
balloon being condifured [sic] to engage the stent with a
stenosis and effect stent delivery by channeling a contrast fluid
along the catheter and into the holding volume of the balloon
through the opening to fully dilate the balloon and the stent,
characterized in that the stent is disposed about a non-tapered
central region of the balloon only, the stent being evenly and
radially expanded about the central region of the balloon.
Appeal Br. 28, 30–31.
The Examiner’s Rejections
The Examiner’s rejections before us on appeal are as follows:
1. claims 7, 8, and 20 under 35 U.S.C. § 112 ¶1 as failing to
comply with the written description requirement (Final Act. 2);
2. claims 1, 2, 10–12, and 16–19 under 35 U.S.C. § 103(a) as
unpatentable over Gumm,2 Walls,3 and Wolvek4 (id. at 3);

2 US 2003/0055483 A1, published Mar. 20, 2003 (“Gumm”).
3 US 2005/0192560 A1, published Sept. 1, 2005 (“Walls”).
4 US 4,276,874, issued July 7, 1981 (“Wolvek”).
Appeal 2021-000245
Application 15/690,751

4
3. claims 1, 2, 10–12, and 16–19 under 35 U.S.C. § 103(a) as
unpatentable over Gumm, Walls, and Jackson5 (id. at 5);
4. claim 3 under 35 U.S.C. § 103(a) as unpatentable over Gumm,
Walls, Wolvek, and Boyle6 (id. at 7);
5. claims 4 and 6–8 under 35 U.S.C. § 103(a) as unpatentable over
Gumm, Walls, Wolvek, and Rutner7 (id.);
6. claim 13 under 35 U.S.C. § 103(a) as unpatentable over Gumm,
Walls, Wolvek, and Boyle (id. at 8);
7. claim 14 under 35 U.S.C. § 103(a) as unpatentable over Gumm,
Walls, Wolvek, Boyle, and Rutner (id. at 9);
8. claim 18 under 35 U.S.C. § 103(a) as unpatentable over Gumm,
Walls, Wolvek, and Boyle (id.);
9. claim 20 under 35 U.S.C. § 103(a) as unpatentable over Gumm,
Walls, Wolvek, Boyle, and Rutner (id. at 10); and
10. claim 21 under 35 U.S.C. § 103(a) as unpatentable over Gumm,
Boyle, Patel,8 and Igaki9 (id. at 12).

5 US 3,707,151, issued Dec. 26, 1972 (“Jackson”).
6 US 2004/0181252 A1, published Sept. 16, 2004 (“Boyle”).
7 US 6,254,570 B1, published July 3, 2001 (“Rutner”).
8 US 6,306,162 B1, issued Oct. 23, 2001 (“Patel”).
9 US 2003/0033001 A1, published Feb. 13, 2003 (“Igaki”).
Appeal 2021-000245
Application 15/690,751

5
DISCUSSION
Rejection 1— Lack of Adequate Written Description
Section 112(a) states the following:
The specification shall contain a written description of the
invention, and of the manner and process of making and using it,
in such full, clear, concise, and exact terms as to enable any
person skilled in the art to which it pertains, or with which it is
most nearly connected, to make and use the same[.]
35 U.S.C. § 112(a). “In order to satisfy the written description requirement,
the disclosure as originally filed does not have to provide in haec verba
support for the claimed subject matter at issue.” Purdue Pharma L.P. v.
Faulding, Inc., 230 F.3d 1320, 1323 (Fed. Cir. 2000). Nonetheless, the
disclosure must convey with reasonable clarity to those skilled in the art that
the inventor was in possession of the invention. See id. Whether it does is a
question of fact. Id. at 1329.
Claims 7 and 20 each recite a stent that “has an unexpanded state and
an expanded state that is radially uniform and longitudinally substantial
uniform.” Appeal Br. 28, 30 (emphasis added); see also id. at 28 (claim 8
depending from claim 7 and thus incorporating its recitation by reference).
The Examiner found that the Specification as filed fails to describe the
italicized limitation. Final Act. 2. The Examiner explained:
[T]his is new matter because any previous discussion of the stent
expanded state or radial inflation was always modified by
“substantially”. See claims 1–20 as originally filed. Nowhere in
the specification is there any support for a stent that has an
expanded state which is radially uniform.
Id. Appellant does not dispute that the Specification as filed fails to
explicitly describe a stent in the expanded state being “radially uniform” as
opposed to being “radially substantially uniform” as recited in original
Appeal 2021-000245
Application 15/690,751

6
claims 7 and 20. However, Appellant persuasively argues that the
Specification as filed nonetheless describes such a feature using other words
and shows such a feature in Figure 4. Appeal Br. 7–8. For example,
Appellant quotes the Specification as disclosing:
one goal of this invention is “to have an apparatus and method
for medial inflation of a dilation balloon to evenly expand the
stent,” and that the “consistent medial inflation of the dilation
balloon . . . expands evenly and radially from a central point, thus
avoiding uneven distortions in the dilation balloon as it is
inflated.”
Id. at 7 (quoting Spec. ¶10). Further, Figure 4 does appear to show stent 50
in an expanded state that is radially uniform.
Accordingly, we reverse the rejection of claims 7, 8, and 20 under 35
U.S.C. § 112(a).
Rejection 2—Claims 1, 2, 10–12, and 16–19 as Obvious
in View of Gumm, Walls, and Wolvek
Appellant argues the claims subject to this rejection together and
presents separate arguments only for claim 2. See Appeal Br. 8–18 (arguing
all claims), 18–21 (arguing claim 2). Accordingly, we choose claim 1 as
representative of claims 10–12 and 16–19. See 37 C.F.R. § 41.37(c)(1)(iv)
(“When multiple claims subject to the same ground of rejection are argued
as a group or subgroup by appellant, the Board may select a single claim
from the group or subgroup and may decide the appeal as to the ground of
rejection with respect to the group or subgroup on the basis of the selected
claim alone.”).
Claims 1, 10–12, and 16–19
The Examiner found that Gumm discloses most of the subject matter
of claim 1 but not a vent hole including a chamfer. Final Act. 3–4 (citing
Appeal 2021-000245
Application 15/690,751

7
Gumm ¶42, Fig. 1). Walls discloses a urology catheter, and Wolvek
discloses an inflatable balloon catheter. Walls ¶3; Wolvek 1:5. The
Examiner found that Walls and Wolvek both disclose vent holes with
chamfers for the purpose of providing laminar or non-turbulent flow. Final
Act. 4 (citing Walls ¶¶45, 50, Fig. 3B); Wolvek 1:66–7, 2:12, Figs. 1, 3, 6,
7). The Examiner determined it would have been obvious to a person of
ordinary skill in the art to modify Gumm to include a chamfer such as
disclosed by Walls “to create laminar flow, which is non-turbulent, while the
balloon is being inflated or deflated which provides for good pumping
action.” Id.
Appellant argues that Gumm’s “opening 46 is clearly not ‘at a central
longitudinal location’ as specifically required by claim 1.” Appeal Br. 9
(quoting claim 1). This is so, Appellant explains, because opening 46, as
shown in Gumm Figure 1, is closer to one end of the balloon than the other.
Figure 1 of Gumm is reproduced below.

Figure 1 of Gumm, reproduced above, shows stent deliver assembly
10 having, among other things, catheter balloon 28 with opening 46. Gumm
¶¶39, 41, 42. We agree with Appellant’s observation that opening 46 is
Appeal 2021-000245
Application 15/690,751

8
slightly closer to the right end of the balloon than to the left end. We
nonetheless disagree with the significance of that observation in view of the
limitation in dispute. The limitation recites “a vent hole connected from the
inflation lumen into the balloon interior at a central longitudinal location.”
We agree with the Examiner that this limitation does not require a “vent hole
equally distant between the ends of the balloon.” Ans. 4. Rather, “[t]he
plain and ordinary meaning of the term ‘central longitudinal location’
includes locations not in the exact center between the ends of the balloon
under the broadest reasonable interpretation of the term.” Id.
In reply, Appellant takes issue with this construction, urging that it is
not faithful to the meaning of “central.” Reply Br. 2 (“Appellant is curious
what ‘plain and ordinary meaning’ of the word ‘central’ it is to which the
Examiner is referring. There is no definition cited that would place a
‘central’ longitudinal location anywhere other than the center between the
ends of the balloon.”). We are not persuaded by Appellant’s argument
because it discounts the remainder of the limitation. Claim 1 recites a
“central longitudinal location.” (Emphasis added). Appellant does not point
to any evidence that “location” should be restricted to mean a singular point
that is equidistant between longitudinal ends of a balloon. In sum, Appellant
is advocating for an unreasonably narrow construction of the claim language
with which it chose to define its claimed invention.
Appellant also challenges the Examiner’s finding that Gumm’s vent
hole (opening 46) is “adapted to yield uniform radial inflation and
substantially uniform longitudinal inflation of the balloon,” as recited in
claim 1. The Examiner found this limitation met in Gumm because opening
46 “is capable of delivering fluid to substantially uniformly radially inflate
Appeal 2021-000245
Application 15/690,751

9
and substantially uniformly longitudinally inflate of [sic] the balloon if fluid
is passed through it at a uniform rate and the catheter is manipulated by hand
to distribute the fluid throughout the balloon uniformly.” Final Act. 4.
Appellant argues that “directional arrows in Fig. 1 illustrate the fluid exiting
hypotube 40 into the cavity defined between the balloon 28 and the
hypotube 40 in a direction from a proximal to a distal end of the balloon.”
Appeal Br. 10. Appellant reads too much into the “directional arrows” of
Gumm, which we interpret as showing that the inflation fluid flows into the
balloon from the proximal end of the catheter (right side in Figure 1). In any
event, we need not speculated as Figure 1 shows that the inflation “yield[ed]
uniform radial inflation and substantially uniform longitudinal inflation of
the balloon,” as evidence by the shape of the balloon illustrated in Figure 1.
Appellant argues that a person of ordinary skill in the art would not
have modified Gumm in view of Walls (although the rejection also relies on
Wolvek). Appeal Br. 12–16. The gist of Appellant’s argument is that Walls
discloses a urological drain catheter that operates at lower fluid pressures
than Gumm’s stent delivery balloon catheter, which is both inflated and
deflated (or drained). Id. Thus, according to Appellant, a person of ordinary
skill in the art would not view Wall’s teachings as to the benefit of its
chamfered drain hole as applicable to Gumm’s opening 46. Id. The
Examiner responds that Appellant’s arguments in this regard are attorney
argument and “based on speculation,” as “[n]either Gumm nor Walls
teach[es] a minimum operating or maximum operating pressure for fluid”
and “Walls also does not qualify the laminar flow as dependent on a low
pressure or absent during high pressure.” Ans. 6. The Examiner has the
better position. Walls discloses that its chamfer contributes to laminar flow
Appeal 2021-000245
Application 15/690,751

10
without qualification, for example, as to pressure. See Walls ¶50 (“The
geometry of drain eye 42, including the radii and chamfer discussed,
provides a smooth transition about its perimeter, which facilitates a laminar
flow of fluids exiting drain eye 42.”). That other factors such as pressure
may affect whether the fluid flowing through Gumm’s opening may be
laminar or turbulent does not negate that Walls’s teaching that a chamfered
surface can promote laminar flow.
Appellant also notes that Walls teaches that “laminar flow prevents
bacteria buildup and the formation of a bacteria film or the like about drain
eye 42,” which is important for urological catheters but not a concern for
Gumm’s stent delivery balloon catheter. Appeal Br. 15. The Examiner
responds, pointing out that his reason for modifying Gumm is not to prevent
bacteria buildup but rather “to create a desired flow characteristic in the
form of laminar flow.” Ans. 7. We agree and find the Examiner’s reason
for modifying to be based on sufficient rational underpinning, which
underpinning includes, not only Walls’s chamfered drain hole, but also the
Examiner-cited teachings of Wolvek, which we discuss next.
The Examiner found that Wolvek is from the same field of endeavor
as Appellant’s claimed invention and that it teaches a similar assembly “with
a similar vent hole (opening 38) with a chamfer (curved surfaces or angled
surfaces of coils 84, slits 40) for the purpose of providing non-turbulent flow
of fluid during inflation or deflation which provides for good pumping
operation.” Final Act. 4 (citing Wolvek 1:66–67, 2:12, Figs. 1, 3, 6, and 7).
Appellant argues that Wolvek fails to teach what the Examiner finds it to
teach. More specifically, Appellant argues: “Wolvek does not indicate that
any chamfer or even shape of an opening contributes to whether or not flow
Appeal 2021-000245
Application 15/690,751

11
is turbulent. Instead, it is the ratio of the size of the hole to an area of the
balloon cross-section which determines whether or not there is turbulent
flow.” Appeal Br. 17 (citing Wolvek 3:24–36, 8:46–69). The Examiner,
relying on the same teachings of Wolvek, responds that it is the chamfer of
the helical slit, which provides the “continuously extending opening
ha[ving] an area substantially greater than the cross-sectional area of the
fluid supply tube,” that is described as “providing an increased and non-
turbulent fluid flow.” Ans. 9 (quoting Wolvek 3:24–36).
In reply, “Appellant first notes that neither the words of Wolvek nor
the drawing itself identifies . . . any ‘chamfer;’ this allegation is invented
whole-cloth by the Examiner.” Reply Br. 5. However, that argument is late,
as the Appeal Brief did not argue against the Examiner’s finding in the Final
Action that Wolvek “teaches . . . a similar vent hole (opening 38) with a
chamfer (curved surfaces or angled surfaces of coils 84, slits 40).” Final
Act. 4. The Appeal Brief argues that “Wolvek does not indicate that any
chamfer or even shape of an opening contributes to whether or not flow is
turbulent,” but it does not challenge the Examiner’s interpretation of
Wolvek’s helical hole 38 having a chamfer. Appeal Br. 17. Accordingly,
we do not consider that argument. See 37 C. F.R. § 41.41(b)(2) (“Any
argument raised in the reply brief which was not raised in the appeal brief, or
is not responsive to an argument raised in the examiner's answer, including
any designated new ground of rejection, will not be considered by the Board
for purposes of the present appeal, unless good cause is shown.”).
We have considered Appellant’s arguments but they fail to apprise us
of error in the Examiner’s rejection of claim 1 as unpatentable over Gumm,
Walls, and Wolvek. Accordingly, we affirm the rejection of claim 1 as well
Appeal 2021-000245
Application 15/690,751

12
as that of claims 10–12 and 16–19, which fall therewith. 37 C.F.R.
§ 41.37(c)(1)(iv).
Claim 2
Appellant argues the patentability of claim 2 separately. Appeal Br.
18–21. Claim 2 recites: “The assembly of claim 1 wherein the location is
equidistant from both ends of the balloon working area.” Appeal Br. 28.
Appellant argues that this feature is not shown in Gumm Figure 1 and the
Examiner’s finding to the contrary is erroneous. Appeal Br. 18–21.
However, the Examiner’s rejection of claim 2 is not dependent on Gumm
Figure 1 disclosing the “equidistant” limitation. Rather, the Final Action
states:
Regarding claim 2, alternatively, it is the position of the
Office that it would have been obvious to one of ordinary skill in
the art, at the time the invention was made to modify the
assembly disclosed by Gum[m] such that the location is
equidistant from both ends of the balloon working area because
it would only require the rearrangement of parts [and] would
[not] modify[] the principle operation of the device. See In re
Japikse, 181 F.2d 1019, 86 USPQ 70 (CCPA 1950).
Final Act. 6. The Appeal Brief fails to show error in, let alone even
challenge, this alternative basis for rejecting claim 2. See Appeal Br. 18–21.
Accordingly, we affirm the rejection of claim 2.
Rejection 3—Claims 1, 2, 10–12, 16–19 as Obvious in
View of Gumm, Walls, and Jackson
Appellant argues the claims subject to this rejection together. Appeal
Br. 21–24. Accordingly, we choose claim 1 as representative. 37 C.F.R.
§ 41.37(c)(1)(iv).
In this rejection, the Examiner employs Gumm and Walls in a similar
fashion as Rejection 2. In addition, the Examiner found that Jackson is from
Appeal 2021-000245
Application 15/690,751

13
the same field of endeavor as Appellant’s claimed invention and that it
teaches a similar assembly “with a similar vent hole (openings) with a
chamfer (angled edges of openings) laminar flow which is useful is directing
the direct of fluid during inflation and deflation of a balloon.” Final Act. 6
(citing Jackson 1:39–43, Figs. 1–7). The Examiner determined it would
have been obvious to a person of ordinary skill in the art to modify Gumm to
include a chamfer such as disclosed by Walls “to create laminar flow, while
the balloon is being inflated or deflated in order to facilitate directing fluid in
or out of the balloon.” Id.
Appellant argues that Jackson employs a chamfer for the specific
purpose of promoting laminar flow in one direction to open a check valve
while preventing the check valve from opening when the flow is reversed.
Appeal Br. 22–23 (citing Jackson 1:39–43, Figs. 2–4). Thus, according to
Appellant, “Jackson does not stand for any general proposition that ‘laminar
flow is good’ or ‘chamfering generally produces laminar flow.’” Appeal
Br. 22 (no citation for quotes). Appellant further argues that Jackson’s
chamfered hole would lead to non-uniform inflation of a balloon as the flow
would be predominantly left to right, for example, in the orientation shown
in Figures 2 through 4 of Jackson. Id. at 23.
The Examiner cogently responds: “Jackson teaches a chamfer in one
direction directs fluid in that direction. Since Walls teach[e]s a chamfer in
all directions, it follows that that the chamfer disclosed by Walls would
[promote] uniform radial inflation.” Ans. 12 (internal citation omitted). The
Examiner has the better position, as Appellant’s arguments erroneously
hinge on considering the teachings of Jackson in isolation and not in the
context of the prior art as a whole. See In re Merck & Co., 800 F.2d 1091,
Appeal 2021-000245
Application 15/690,751

14
1097 (Fed. Cir. 1986) (“Non-obviousness cannot be established by attacking
references individually where the rejection is based upon the teachings of a
combination of references. . . . [The reference] must be read, not in
isolation, but for what it fairly teaches in combination with the prior art as a
whole.”).
We have considered Appellant’s arguments but they fail to apprise us
of error in the Examiner’s rejection of claim 1 as unpatentable over Gumm,
Walls, and Jackson. Accordingly, we affirm the rejection of claim 1 as well
as that of claims 2, 10–12 and 16–19, which fall therewith. 37 C.F.R.
§ 41.37(c)(1)(iv).
Rejections 4–7—Claims 3, 4, 6–8, 13, 14, and 18 as
Obvious in View of Gumm, Walls, Wolvek, and
Additional Art
All of the claims subject to Rejections 4 through 7—namely, claims 3,
4, 6–8, 13, 14, and 18—ultimately depend from claim 1. Appeal Br. 28–30.
Appellant argues against the rejections of all of these claims solely on the
basis of alleged error in the rejection of claim 1 over Gumm, Walls, and
Wolvek. Appeal Br. 8–9. Because Appellant fails to show error in that
rejection of claim 1, we likewise affirm these rejections.
Rejection 9—Claim 20 as Obvious in View of Gumm,
Walls, Wolvek, Boyle, and Ruttner
Claim 20 is independent and recites, among other things, “a vent hole
. . . at a location that . . . is equidistant from both ends of the balloon
working area.” Appeal Br. 30. Appellant argues against the rejection of
claim 20 solely based on reasons already considered above but found
unpersuasive. First, Appellant argues claim 20 is patentable “[f]or at least
the reasons stated above with respect to claim 1.” Id. at 21. Second,
Appeal 2021-000245
Application 15/690,751

15
Appellant argues claim 20 is patentable “for the reasons stated above with
respect to claim 2.” Id. Because Appellant fails to show error in the
rejection of either claim 1 or claim 2, as discussed above, we likewise affirm
the rejection of claim 20.
Rejection 10—Claim 21 as Obvious in View of Gumm,
Boyle, Patel, and Igaki
Claim 21 is independent. The Examiner found that Gumm discloses
much of the subject matter of claim 21 except the limitations relating to first
and second lumens, first and second markers, and contrast fluid. Final Act.
12 (citing Gumm ¶¶41–43, Fig. 1). The Examiner relies on Boyle for
teaching first and second lumens. Id. at 13 (citing Boyle Fig. 2). The
Examiner cites Patel for teaching first and second markers equidistant from
the opening and alternatively finds that it would have been obvious to locate
said markers substantially equidistant from the opening. Id. at 13–14 (citing
Patel 5:9, Fig. 1A; In re Japikse, 181 F.2d 1019, 86 USPQ 70 (CCPA
1950)). The Examiner cites Igaki for teaching using contrast fluid as the
balloon dilating fluid. Id. at 14 (citing Igaki ¶49, Fig. 1).
Appellant argues that the Examiner’s rejection fails to satisfy “the
stent being evenly and radially expanded about the central region of the
balloon,” as recited in claim 21. Appeal Br. 25. Appellant’s argument in
this respect is a rehash of its argument, considered above but found
unpersuasive, that Gumm’s directional arrows (see Gumm Fig. 1) indicate
non-uniform flow of fluid into the balloon. Appeal Br. 25. That argument is
also not persuasive here. Further, the Examiner cites Gumm’s stent 50,
which is shown evenly and radially expanded about the central region of
Gumm’s balloon 28. See Gumm Fig. 2.
Appeal 2021-000245
Application 15/690,751

16
Appellant also argues that the proposed modification of Gumm in
view of Patel would not result in the markers being positioned as claim 21
requires. Appeal Br. 26–27. We need not consider this argument because
the Examiner found “[a]lternatively,” i.e., independent of Patel’s teaching
regarding the location of its markers, that it would have been obvious to
locate Patel’s markers substantially equidistant from Gumm’s opening
because it would only require the rearrangement of parts without modifying
how the markers operate. Final Act. 13–14. Appellant does not challenge
this alternative finding. See Appeal Br. 24–27.

Appeal 2021-000245
Application 15/690,751

17
SUMMARY
Claims
Rejected
35 U.S.C. § Reference(s)/Basis Affirmed Reversed
7, 8, 20 112(a) Written description 7, 8, 20
1, 2, 10–
12, 16–19
103(a) Gumm, Walls,
Wolvek
1, 2, 10–12,
16–19

1, 2, 10–
12, 16–19
103(a) Gumm, Walls,
Jackson
1, 2, 10–12,
16–19

3 103(a) Gumm, Walls,
Wolvek, Boyle
3
4, 6–8 103(a) Gumm, Walls,
Wolvek, Rutner
4, 6–8
13 103(a) Gumm, Walls,
Wolvek, Boyle
13
14 103(a) Gumm, Walls,
Wolvek, Boyle,
Rutner
14
18 103(a) Gumm, Walls,
Wolvek, Boyle
18
20 103(a) Gumm, Walls,
Wolvek, Boyle,
Rutner
20
21 103(a) Gumm, Boyle, Patel,
Igaki
21
Overall
outcome
1–4, 6–8,
10–14, 16–
21

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