Ex Parte Kveen et al

Patent Trial and Appeal BoardApr 15, 2016

12005881 (P.T.A.B. Apr. 15, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE APPLICATION NO. FILING DATE 12/005,881 12/28/2007 11050 7590 04/19/2016 SEAGER, TUFTE & WICKHEM, LLP 100 South 5th Street Suite 600 Minneapolis, MN 55402 FIRST NAMED INVENTOR Graig L. Kveen 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 ATTORNEY DOCKET NO. CONFIRMATION NO. 2001.1539101 5338 EXAMINER WOZNICKI, JACQUELINE ART UNIT PAPER NUMBER 3774 NOTIFICATION DATE DELIVERY MODE 04/19/2016 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): BSC.USPTO@stwiplaw.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte GRAIG L. KVEEN, MARK L. JENSON, JOSEPH M. THIELEN, WILLIAM J. DRASLER, and TRACEE E.J. EIDENSCHINK Appeal2013-007780 Application 12/005,881 Technology Center 3700 Before JAMES P. CALVE, LEE L. STEPINA, and RICHARD H. MARSCHALL, Administrative Patent Judges. STEPINA, Administrative Patent Judge. DECISION ON APPEAL STATEMENT OF THE CASE Graig L. Kveen et al. (Appellants) seek our review under 35 U.S.C. Â§ 134 of the Examiner's decision rejecting claims 1, 2, 5, 7, 8, and 26-35. We have jurisdiction over the appeal under 35 U.S.C. Â§ 6(b). We REVERSE. THE CLAIMED SUBJECT MATTER The claimed invention is directed to a device for treating diseased cardiac valves. Spec. 32 (Abstract). Claim 1 is the sole independent claim on appeal and is reproduced below. Appeal2013-007780 Application 12/005,881 1. A percutaneous prosthetic heart valve, the heart valve having a first end, and a second end, the heart valve compnsmg: an expandable valve frame including first valve frame members, the valve frame having a first valve frame end and a second valve frame end, the second valve frame end being the second end of the heart valve; a first valve leaflet, the first valve leaflet comprising a first leaflet end and a free leaflet end, the first leaflet end coupled to the second end of the valve frame so that the first valve leaflet extends from the second end of the heart valve towards the first end of the heart valve; and an expandable stent anchoring frame, the expandable stent anchoring frame having a first stent frame end and a second stent frame end, the first stent frame end being the first end of the heart valve, the expandable stent anchoring frame including stent frame members defining a first stent frame portion and a second stent frame portion having greater flexibility than the first stent frame portion. Appeal Br. 31. REFERENCES RELIED ON BY THE EXAMINER Roubin Schreck Hojeibane Seguin us 6,106,548 US 6,454, 799 B 1 US 2004/0019374 Al US 2004/0210304 Al Aug. 22, 2000 Sept. 24, 2002 Jan.29,2004 Oct. 21, 2004 THE REJECTIONS ON APPEAL 2 Appeal2013-007780 Application 12/005,881 (l) Claims 1, 2, 5, 7, 8, 26, and 28-34 are rejected under 35 U.S.C. Â§ 103(a) as unpatentable over Schreck and Seguin. 1 (II) Claim 27 is rejected under 35 U.S.C. Â§ 103(a) as unpatentable over Schreck, Seguin, and Roubin. (III) Claim 35 is rejected under 35 U.S.C. Â§ 103(a) as unpatentable over Schreck, Seguin, and Hojeibane. ANALYSIS Rejection(!) The Examiner finds that Schreck discloses most of the features recited in claim 1, "but is silent with respect to the second stent frame portion having greater flexibility than the first stent frame portion." Non-Final Act. 2-3. The Examiner relies on Seguin to teach this feature and reasons that it would have been obvious to modify Schreck to include this feature "in order to create a more flexible end of the valve, allowing it to more closely conform to a more curvy vessel or location of implantation so as to prevent leakage on the end of the valve." Non-Final Act. 3--4. Regarding the first valve leaflet comprising a first leaflet end and a free leaflet end required by claim 1, the Examiner refers to leaflet 108 (Figure 6) of Schreck for this feature. See Non-Final Act. 2-3. 1 Page 2 of the Non-Final Action dated May 24, 2012, includes a heading listing claims 1, 2, 5, 7-9, and 28-34 as rejected as unpatentable over Schreck and Seguin, and pages 5---6 of the Non-Final Action discuss what is listed as "claim 9." However, the discussion on pages 5---6 of the Non-Final Action makes clear that this portion of the Non-Final Action addresses the features of dependent claim 26 rather than withdrawn independent claim 9. See also Ans. 3, 7 and Appellants' Claims Appendix (omitting withdrawn claim 9 and listing claim 26). 3 Appeal2013-007780 Application 12/005,881 Appellants contend that leaflet 108 is not coupled to the valve frame in the way required by claim 1. See Appeal Br. 8-11. Specifically, Appellants contend that edge 126 is the "free" end of leaflet 108, and edge 124 is a coupled end. See Appeal Br. 9-11; see also Schreck, Figs. 6, 7. Thus, according to Appellants, Schreck does not teach a leaflet with an end coupled to a second valve frame end, wherein the second valve frame end is also the second end of the heart valve. Appeal Br. 11 (referring to outflow end 122 of valve 100 as the second end of the valve). In other words, it is Appellants' position that leaflet 108 has a free end in the position claim 1 requires a coupled end. See Appeal Br. 9-11. In response, the Examiner provides an annotated portion of Figure 6 of Schreck (which we reproduce below), and the Examiner states that this figure supports a finding that leaflet 108 is coupled to the second end of the valve frame of Schreck at commissure 112. Ans. 11. 130 116 coupling of second end of feaf~et and second valve fram.e ,end 4 Appeal2013-007780 Application 12/005,881 The Examiner's annotated portion of Figure 6 from Schreck depicts one end of leaflet 108 with an added ellipse identifying commissure 112 of wireform 106 passing around an edge of leaflet 108. In reply, Appellants state, "[i]f the Examiner considers the coapting edge of the Schreck leaflet to be 'a first leaflet end' as recited in claim 1, then the Schreck leaflet does not teach or suggest a 'free leaflet end' as recited in claim 1." Reply Br. 3. We agree with Appellants on this issue. If, as the Examiner states, the top part of leaflet 108 in Schreck is coupled to the valve frame of Schreck, and the opposite end of leaflet 108 is attached to other structure in Schreck such as cusp connectors 170 as shown in Figure 7 (see also col. 10, 11. 55- 57), then Schreck does not include a free end as required by independent claim 1. Accordingly, we do not sustain the Examiner's rejection of claim 1 and claims 2, 5, 7-9, and 28-34 depending therefrom as unpatentable over Schreck and Seguin. Rejections (11-111) The Examiner's use of Roubin and Hojeibane does not remedy the deficiency in Rejection (I), and we therefore do not sustain the Examiner's rejection of claim 27 as unpatentable over Schreck, Seguin, and Roubin or the Examiner's rejection of claim 35 as unpatentable over Schreck, Seguin, and Hojeibane. DECISION We reverse the Examiner's decision to reject claims 1, 2, 5, 7, 8, and 26-35. 5 Appeal2013-007780 Application 12/005,881 REVERSED 6