Ex Parte Dobrilovic

Patent Trial and Appeal Board

Aug 16, 2017

13611945 (P.T.A.B. Aug. 16, 2017)

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.
13/611,945 09/12/2012 Nikola Dobrilovic D057 P02357-US1 1795
3017 7590 08/17/2017
BARLOW, JOSEPHS & HOLMES, LTD.
101 DYER STREET
5THFLOOR
PROVIDENCE, RI02903
EXAMINER
KNAUSS, CHRISTIAN D
ART UNIT PAPER NUMBER
3731
MAIL DATE DELIVERY MODE
08/17/2017 PAPER
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.
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte NIKOLA DOBRILOVIC
Appeal 2016-006948
Application 13/611,945
Technology Center 3700
Before JEFFREY N. FREDMAN, TIMOTHY G. MAJORS, and
RACHEL H. TOWNSEND, Administrative Patent Judges.
FREDMAN, Administrative Patent Judge.
DECISION ON APPEAL
This is an appeal under 35U.S.C. § 134 involving claims to a stent
graft. The Examiner rejected the claims as anticipated and obvious.1 We
have jurisdiction under 35 U.S.C. § 6(b). We reverse.
Statement of the Case
Background
“During an EVAR [Endovascular Aneurysm Repair] procedure,
access of the contralateral gate of a stent graft to place the contralateral limb
in place can often be one of the more challenging and time consuming
aspects of the procedure” (Spec. 1 5). “Surgeons devote a significant
amount of time and effort, both preoperatively and intraoperatively, planning
1 Appellant identifies the Real Party in Interest as the Applicant (see App.
Br. 1).
Appeal 2016-006948
Application 13/611,945
the insertion, position, orientation, and approach to the contralateral gate to
ensure rapid cannulation” (id.).
“Therefore, there is a need for a method of consistently ensuring
accurate and successful access to the contralateral gate to prevent excess
operating room time and risk to the patient” (Spec. 19).
The Claims2
Claims 1 and 5—14 are on appeal. Claim 1 is representative and reads
as follows:
1. A stent graft, comprising:
a body portion with a sidewall and an opening at the top;
the top of the sidewall configured and arranged to engage a wall
of an aorta above an aneurysmal site;
an ipsilateral limb descending from the body portion, the
ipsilateral limb configured and arranged to align with one of an
iliac arteries; and
a contralateral gate having a flared opening configured
and arranged to align with an other of the iliac arteries, the
flared opening formed with an extra length of material forming
a flange, the flange extending asymmetrically about a central
axis of the flared opening and extending outwardly from the
body portion and directionally within an aneurysmal sac of the
aneurysmal site and further configured to deploy completely
without contacting the wall of the aorta at the aneurysmal site,
the flange facilitating wire access through the flared opening of
the contralateral gate.
2 Claims 2 and 3 were cancelled in the After Final Amendment filed Oct. 27,
2015 and entered by the Examiner in the Advisory Action mailed Nov. 9,
2015, rendering the indefmiteness rejection over these claims moot.
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Appeal 2016-006948
Application 13/611,945
The Issues
A. The Examiner rejected claims 1 and 5-10 under 35 U.S.C. § 102(b) as
anticipated by Stephens3 (Final Act. 3-4).
B. The Examiner rejected claims 11-14 under 35 U.S.C. § 103(a) as
obvious over Stephens (Final Act. 5-7).
A. 35 U.S.C. § 102(b) over Stephens
The Examiner finds
Stephens discloses (Figures 1-3) stent graft (10), comprising: a
body portion (12) with a sidewall (12A) and an opening at the
top; the top of the sidewall capable of engaging a wall of an
aorta above an aneurysmal site (11); an ipsilateral limb (42)
descending from the body portion, the ipsilateral limb capable
of aligning with one of an iliac arteries (Figure 2A); and a
contralateral gate (14) having a flared opening (15) capable of
aligning with an other of the iliac arteries (Figure 2 A), the
flared opening formed with an extra length of material forming
a flange (20), the flange extending asymmetrically about a
central axis of the flared opening and extending outwardly from
the body portion and directionally within an aneurysmal sac of
the aneurysmal site and further capable of deploying completely
without contacting the wall of the aorta at the aneurysmal site,
the flange capable of facilitating wire access through the flared
opening of the contralateral gate.
(Final Act. 3—4).
3 Stephens et al., US 2005/0228484 Al, published Oct. 13, 2005.
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Appeal 2016-006948
Application 13/611,945
The issues with respect to this rejection are: Does the evidence of
record support the Examiner’s conclusion that Stephens anticipates the
claims?
Findings of Fact
1. Figure 2A of Stephens is reproduced below:
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Appeal 2016-006948
Application 13/611,945
The graft 10 is shown deployed within an abdominal aortic
aneurysm 11 in FIG. 2 A. The graft 10 has a main graft body
section 12 with a wall portion 12A that bounds a main fluid
flow lumen 13 disposed therein. An ipsilateral attachment
element 14 is disposed on a ipsilateral leg 14A that extends
distally from a distal portion 19 of the main graft body section
12 and has a ipsilateral port 15 that is in fluid communication
with the main fluid flow lumen 13.
(Stephens 144).
2. Figure 3 of Stephens is reproduced below:
FIG. 3
A network of inflatable elements or channels 21 is disposed on
the main graft body section 12 which may be inflated under
pressure with an inflation material through a main fill port 20
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Appeal 2016-006948
Application 13/611,945
that has a lumen disposed therein in fluid communication with
the network of inflatable channels 21. The inflation material
may be retained within the network of inflatable channels 21 by
a one way-valve 20A (FIG. 3), disposed within the lumen of
the main fill port 20.
(Stephens 148).
Principles of Law
Although we apply the broadest reasonable interpretation during
examination, “[ajbove all, the broadest reasonable interpretation must be
reasonable in light of the claims and specification.” PPC Broadband, Inc. v.
Corning Optical Communications RF, LLC, 815 F.3d 747, 755 (Fed. Cir.
2016).
Analysis
Appellant contends: “The Examiner’s argument is not a reasonable
interpretation of the claim language, the structures disclosed in Stephens,
and ignores other features of the claim” (Reply Br. 1). Appellant contends:
“Main fill port 20 includes a one way valve 20A to keep the channels 21
from deflating. Main fill port 20 is not a flange or funnel” (App. Br. 5).
Appellant contends “fill port (20) of Stephens provides no such
functionality. It can’t guide a wire into the contralateral gate by the very
nature of its tubular structure, as shown” (Reply Br. 2).
The Examiner responds that a “flange is defined as ‘an edge that
sticks out from something’. Fill port (20) is an edge that sticks out from
reinforced portion (61) forming the flared opening. For this reason, it is
being interpreted as a flange” (Ans. 2).
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Appeal 2016-006948
Application 13/611,945
We find that Appellant has the better position. Fill port 20 is not an
“edge that sticks out from something” but rather a different component that
is adjacent to the main body of the stent as shown in Figures 2 and 3 of
Stephens (FF 1—2). However, even if we interpreted the tube as an “edge
that sticks out” as argued by the Examiner, we agree with Appellant that fill
port 20 does not satisfy the functional requirement of a “flange facilitating
wire access through the flared opening of the contralateral gate” because the
space located between fill port 20 and the wall of graft body section 27 as
shown in figure 3 is not associated with lumen 28 (FF 2). Therefore, fill port
20 would not assist in wire access through a contralateral gate as required by
the claim.
We also agree with Appellant that: “Although Stephens includes a
flared reinforced portion 61 (best seen in Fig. 3), this portion 61 appears to
be symmetrical from the drawings and describes the shapes as
‘frustoconical’, which is a symmetrical shape.. . . Stephens is clearly not
asymmetrical as the Applicant has claimed” (App. Br. 6).
Conclusion of Law
The evidence of record does not support the Examiner’s conclusion
that Stephens anticipates the claims.
B. 35 U.S.C. § 103(a) over Stephens
This rejection relies upon the underlying anticipation rejection over
Stephens. Having reversed the rejection of claim 1, we also necessarily
reverse this obviousness rejection because the Examiner does identify where
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Application 13/611,945
Stephens renders obvious the “flange facilitating wire access through the
flared opening of the contralateral gate” as required by claim 11.
SUMMARY
In summary, we reverse the rejection of claims 1 and 5—10 under 35
U.S.C. § 102(b) as anticipated by Stephens.
We reverse the rejection of claims 11—14 under 35 U.S.C. § 103(a) as
obvious over Stephens.
REVERSED
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