Ex Parte Olson et al

Patent Trial and Appeal BoardMay 30, 2013

11998035 (P.T.A.B. May. 30, 2013)

UNITED STATES PATENT AND TRADEMARK OFFICE ____________________ BEFORE THE PATENT TRIAL AND APPEAL BOARD ____________________ Ex parte LEE ANN OLSON, PHILIP ROY, JOHN W. BEARDSLEY, RALPH STEARNS, DAVID C. RACENET, and CLIFFORD EMMONS ____________________ Appeal 2011-002937 Application 11/998,035 Technology Center 3700 ____________________ Before: GAY ANN SPAHN, BENJAMIN D. M. WOOD, and MICHELLE R. OSINSKI, Administrative Patent Judges. WOOD, Administrative Patent Judge. DECISION ON APPEAL Appeal 2011-002937 Application 11/998,035 2 STATEMENT OF CASE Appellants appeal under 35 U.S.C. § 134 from a rejection of claims 1- 5, 8, and 9. Claims 6 and 7 have been canceled. We have jurisdiction under 35 U.S.C. § 6(b). We reverse. THE INVENTION The claims relate to a surgical stapler with universal articulation and tissue pre-clamp. Sole independent claim 1, reproduced below, is illustrative of the claimed subject matter: 1. A tool assembly comprising: an anvil and a cartridge assembly, the cartridge assembly having a plurality of staples aligned in a plurality of linear rows, the cartridge assembly and anvil being movable in relation to one another between an open position and an approximated position, the cartridge assembly and the anvil defining a tissue gap in the approximated position; a clamp collar positioned adjacent the proximal end of the cartridge assembly and the anvil and being movable from a first position to a second position to effect movement of the anvil in relation to the cartridge assembly from the open position towards the approximated position, wherein in the second position, the clamp collar is positioned about the proximal ends of the cartridge assembly and anvil; a dynamic clamping member movably positioned in relation to the anvil and the cartridge assembly, the dynamic clamping member being movable from a first position to a second position to define a maximum tissue gap between the anvil and the cartridge assembly adjacent the dynamic clamping member during ejection of the plurality of staples from the cartridge assembly; Appeal 2011-002937 Application 11/998,035 3 at least one first actuator operatively associated with the dynamic clamping member to effect movement of the dynamic clamping member from the first position of the dynamic clamping member to the second position of the dynamic clamping member, wherein the at least one first actuator includes a first cable secured to the dynamic clamping member; and at least one second actuator operatively associated with the clamp collar to effect movement of the clamp collar from the first position of the clamp collar to the second position of the clamp collar, wherein the at least one second actuator includes a second cable secured to the clamp collar. REFERENCES Fontayne Oberlin McGuckin US 5,485,952 US 5,797,537 US 6,835,199 B2 Jan. 23, 1996 Aug. 25, 1998 Dec. 28, 2004 REJECTIONS Claims 1-3, 5, 8, and 9 stand rejected under 35 U.S.C. § 103(a) as unpatentable over McGuckin and Fontayne. Ans. 3-5. Claim 4 stands rejected under 35 U.S.C. § 103(a) as unpatentable over McGuckin, Fontayne, and Oberlin. Ans. 6. ANALYSIS Claims 1-3, 5, 8, and 9 – Obviousness – McGuckin and Fontayne The Examiner found, inter alia, that McGuckin’s clamping member 60 corresponds to claim 1’s clamp collar, and that it is positioned adjacent the proximal end of the cartridge and anvil assembly, and [is] movable from a first to a second position to effect movement of the cartridge in relation to the anvil from the open position towards the approximated position . . . wherein in the second position, the clamp collar is positioned about the proximal ends of the cartridge and anvil. Appeal 2011-002937 Application 11/998,035 4 Ans. 4 (citing McGuckin, col. 4, l. 63 – col. 5, l. 13; figs. 5, 7); see also Ans. 7. Appellants argue that McGuckin does not disclose a clamp collar that operates in accordance with claim 1. According to Appellants, “when the clamp collar 60 of McGuckin is assertedly moved to its second position to approximate the jaw members, the clamp collar 60 is positioned adjacent the distal ends (i.e., not the proximal ends, as claimed) of its jaw members.” App. Br. 17-18 (citing McGuckin, col. 4, l. 67 – col. 5, l. 5; figs. 7, 18); see also Reply Br. 5. We are persuaded by Appellants’ argument. McGuckin discloses a stapling apparatus in which staple jaws 17 are moved from an open to a grossly approximated (i.e., mostly closed) position by twisting knob 38. McGuckin, col. 4, ll. 46-50; figs. 3-5, 12. Handle 12a is squeezed to move clamp collar 60 from a position adjacent the proximal end of jaws 17 (the first position), to the distal end of the jaws (second position), to finely approximate (i.e., tightly clamp) the jaws prior to stapling. Id. at col. 4, l. 63 – col. 5, l. 13; col. 5, ll. 51-54; figs. 8, 18. Accordingly, clamp collar 60 does not remain adjacent the proximal ends of the jaws after moving from the first to second positions, as claim 1 requires. In addition, while clamp collar 60 does remain adjacent the proximal ends of the jaws while the jaws are moved from an open to a grossly approximated position (McGuckin, col. 3, ll. 42-50; figs 3, 5), such movement of the jaws is effected by twisting knob 38, not by moving clamp collar 60 from a first to a second position. Accordingly, we do not sustain the Examiner’s rejection of claim 1, as well as of claims 2, 3, 5, 8, and 9, which depend from claim 1, as unpatentable over McGuckin and Fontayne. Appeal 2011-002937 Application 11/998,035 5 Claim 4 – Obviousness – McGuckin, Fontayne, and Oberlin Claim 4 depends from independent claim 1. The Examiner’s rejection of claim 4 relies upon the erroneous finding that McGuckin discloses a clamp collar that operates in accordance with claim 1. Oberlin is not relied upon by the Examiner to cure the deficiency in McGuckin. Accordingly, we do not sustain the rejection of claim 4 as unpatentable over McGuckin, Fontayne, and Oberlin. DECISION For the above reasons, the Examiner’s rejection of claims 1-5, 8, and 9 is reversed. REVERSED mls