Ex Parte Rasmussen et al

Patent Trial and Appeal BoardMar 11, 2016

12849470 (P.T.A.B. Mar. 11, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE APPLICATION NO. FILING DATE 12/849,470 48003 7590 EGL/Cook - Chicago PO BOX 10395 CHICAGO, IL 60610 08/03/2010 03/11/2016 FIRST NAMED INVENTOR Erik Rasmussen 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. 12730-775 (PA-6662-RUP) 7899 EXAMINER MILLER, CHERYLL ART UNIT PAPER NUMBER 3738 MAILDATE DELIVERY MODE 03/11/2016 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 ERIK RASMUSSEN, BENT OHLENSCHLAGER, KIM MOEGEL VANG JENSEN, and JESPER SCHADE PETERSEN Appeal2014-002347 Application 12/849,470 Technology Center 3700 Before MICHAEL L. HOELTER, ANNETTE R. REIMERS, and MARK A. GEIER, Administrative Patent Judges. HOELTER, Administrative Patent Judge. DECISION ON APPEAL STATEMENT OF THE CASE This is a decision on appeal, under 35 U.S.C. Â§ 134(a), from a final rejection of claims 1-7 and 10-19. App. Br. 5. Claims 8 and 9 have been canceled. App. Br. 5. Claims 4 and 17 are indicated as containing allowable subject matter (Final Act. 8) but are rejected as being dependent from claim 1 which is found to be indefinite (Final Act. 2). We have jurisdiction under 35 U.S.C. Â§ 6(b). We AFFIRM. Appeal2014-002347 Application 12/849,470 THE CLAIMED SUBJECT MATTER The disclosed subject matter "relates to an implantable medical device, such as a stent graft. In the preferred embodiment, the device includes a plurality of bridging elements coupled at a proximal and/or distal end of the medical device." Spec. 1: 5-8. Claims 1 and 19 are independent. Claim 1 is illustrative of the claims on appeal and is reproduced below: 1. An implantable medical device including: a tubular graft member; at least one stent provided on the graft member proximate an end of the graft member, wherein the at least one stent is formed of a plurality of struts having ends, the ends of the struts being coupled together in the form of a stent ring having proximal and distal peaks and valleys, the at least one stent being formed of a flexible material to allow the at least one stent to be compressed and to expand, wherein the struts have a first flexibility; and a plurality of bridging elements, each bridging element disposed between and providing a bridge between adjacent struts of said at least one stent and across a zone defined by the area between adjacent peaks, each bridging element comprising first and second free ends, wherein the first free end of each bridging element is coupled to a strut of a proximal peak and the second free end of each bridging element is coupled to a strut of an adjacent proximal peak, and said bridging elements extending towards and proximate said end of said graft member; said bridging elements having a second flexibility, wherein second flexibility is greater than said first flexibility; wherein said bridging elements produce in use an expansion force urging graft material of said graft member in a graft opening direction, wherein an opening force produced by said bridging elements is less than an opening force produced by said stent ring. REFERENCES RELIED ON BY THE EXAMINER 2 Appeal2014-002347 Application 12/849,470 Schreck Baker Osborne US 6,454, 799 B 1 US 2007/0179591 Al US 2007 /0191929 Al THE REJECTIONS ON APPEAL Sept. 24, 2002 Aug. 2, 2007 Aug. 16, 2007 Claims 1-7 and 10-19 are rejected under 35 U.S.C. Â§ l 12(b) or 35 U.S.C. Â§ 112 (pre-AIA), second paragraph, as being indefinite. Claims 1, 2, and 19 are rejected under 35 U.S.C. Â§ 102(b) as anticipated by Schreck. Claims 1, 2, 7, 10-12, and 19 are rejected under 35 U.S.C. Â§ 102(b) as anticipated by Baker. Claims 1, 2, 7, 13, 14, and 19 are rejected under 35 U.S.C. Â§ 102(b) as anticipated by Osborne. Claims 3, 5, 6, 15, 16, and 18 are rejected under 35 U.S.C. Â§ 103(a) as unpatentable over Schreck. ANALYSIS The rejection of claims 1-7 and 10--19 as being indefinite Appellants address independent claim 1 separate from independent claim 19. App. Br. 12-13; Reply Br. 3-5. We also address each separately. Regarding independent claim 1 (and hence dependent claims 2-7 and 10-18), the Examiner addresses the limitation therein of "having proximal and distal peaks and valleys." Final Act. 2; Ans. 8-9. The Examiner finds that this claim limitation "may be interpreted to include proximal peaks, proximal valleys, distal peaks, and distal valleys." Ans. 8. The Examiner asks "[ w ]here would the proximal peaks and valleys be located as well as the distal peaks and valleys?" Final Act. 2. Appellants respond by providing an 3 Appeal2014-002347 Application 12/849,470 annotation of their Figure 4 (reproduced below) in response to the Examiner's question. App. Br. 12; Reply Br. 3. Distal Peaks Distal Valleys nqure 4- Annotated Figure 4 from the pending application depicts where proximal peaks and valleys, and also distal peaks and valleys, are illustrated. Appellants state that "[ o ]ne of ordinary skill would clearly understand" that a proximal peak is synonymous with a proximal valley, and likewise, a distal valley is synonymous with a distal peak. 1 App. Br. 13. The Examiner disagrees stating that "[t]his is not however, how peaks and valleys are referred to in the art." Ans. 8. The Examiner states that "[i]n the art, peaks typically reference bend[ s] at one end of a ring/stent (proximal for example) and valleys typically reference bends at the opposite end of a ring/stent (distal for example)." Ans. 8. The Examiner also identifies where Appellants' Specification is consistent with this understanding. Ans. 8-9 (citations omitted). The Examiner further states that "distal peaks, and 1 Appellants state that "[t]he proximal peaks are the top apices, the distal peaks are the bottom apices. The proximal valleys are the valleys underlying the proximal peaks as shown and the distal valleys those corresponding to the distal peaks." Reply Br. 3. 4 Appeal2014-002347 Application 12/849,470 proximal valleys, do not appear to be supported" in Appellants' Specification. Ans. 9. To resolve this issue, the Examiner suggests that "the claim should more appropriate[ly] read --peaks and valleys-- or --proximal peaks and distal valleys--." Ans. 9. We agree with the Examiner that Appellants' usage of the claim terms "peaks" and "valleys" is ordinarily and customarily understood to be a reference to bends at opposite ends of the stent/ring. Appellants do not point to any express definition in their Specification to the contrary. We also agree with the Examiner that one skilled in the art would not readily understand that an illustration of a proximal peak is also a disclosure of a proximal valley, and vice versa. Ans. 8. Appellants have not provided any evidence in support of such an allegation, and it is not otherwise self-evident from the record. Accordingly, Appellants do not persuade us of Examiner error. We sustain the Examiner's rejection of claims 1-7 and 10-18 as being indefinite. Regarding independent claim 19, the Examiner addresses the limitation "wherein the proximal and distal apices lie between adjacent struts." Final Act. 3; Ans. 9. The Examiner states that this language is "unclear" because "[i]t would appear that only one apex lies between two adjacent struts." Final Act. 3; see also Ans. 9. The Examiner asks "[h]ow may it be that multiple (proximal and distal) apices lie between two adjacent struts?"2 Final Act. 3. Appellants contend that "[ o ]ne of ordinary skill in the art, reading Applicants' specification and viewing the figures would understand this to 2 The Examiner reiterates that "it is unclear how both proximal and distal apices (plural; 18 and 20) may lie between two adjacent struts (16)." Ans. 9. 5 Appeal2014-002347 Application 12/849,470 mean that the proximal apices lie between adjacent struts and the distal apices lie between adjacent struts" (App. Br. 13), and further that these are different pairs of adjacent struts (Reply Br. 5). We are instructed by our reviewing court that "the name of the game is the claim." In re Hiniker Co., 150 F.3d 1362, 1369 (Fed. Cir. 1998). Here, the limitation in question is that both apices "lie between adjacent struts." We understand this to mean that both apices lie between the same recited adjacent struts. This limitation is not understood to mean that each apex lies between its own respective pair of adjacent struts.3 Appellants' explanation does not persuade us of Examiner error on this point. We sustain the Examiner's rejection of claim 19 as being indefinite. The rejection of claims 1, 2, and 19 as anticipated by Schreck Appellants argue claims 1, 2, and 19 together. App. Br. 15-17. We select claim 1 for review with claims 2 and 19 standing or falling with claim 1. See 37 C.F.R. Â§ 41.37(c)(l)(iv) (2014). Appellants contend the Examiner erred when "stating that because the heart valve leaflets [i.e., the corresponding "bridging elements"] 'open and close in response to blood pressure' they must 'urge' the graft material." App. Br. 14 (referencing Final Act. 4). Appellants contend that "[a]s claim 1 recites, the bridging element itself provides the expansion force that urges graft material in a graft opening direction." App. Br. 16; see also Reply Br. 6-7. Further, Appellants contend that although the pulsating forces of blood flow may also apply a force, such pulsating forces are "not a disclosure that 3 The Examiner states that "[i]t instead appears applicant intended to claim alternating struts and apices." Ans. 9. 6 Appeal2014-002347 Application 12/849,470 the leaflets have and provide the expansion force." App. Br. 16; see also Reply Br. 6-7. Claim 1 recites "wherein said bridging elements produce in use an expansion force urging graft material of said graft member in a graft opening direction" (emphasis added). Claim 1 is silent as to the initial cause of the urging force, only that "in use" the bridging elements produce an expansion force that acts on the graft material in an opening direction. The Examiner finds that because Schreck's bridging elements 108 "open and close in response to blood flow pressure," when bridging elements 108 open, they apply an "expansion force" that urges graft material 110 in an open direction. Final Act. 4; see also Ans. 11. In other words, the Examiner finds that "as leaflets [i.e., bridging elements 108] open with blood flow, they thus transfer some of this opening force to the stent and graft attached thereto." Final Act. 4. The Examiner further finds that "since the leaflets/bridging elements 108 are attached to the graft material 110, they contribute to the force to urge the graft open slightly during this phase of the cardiac cycle." Ans. 11. Appellants are not persuasive in their contention that some of the opening forces caused by blood flow does not initially urge the bridging elements open or that, in tum, the bridging elements transfer or transmit some of this opening force to the graft member as claimed. 4 Appellants further speculate that Schreck's bridging elements "may very well be entirely passive." App. Br. 16. Even presuming this to be the case, Appellants do not explain how the blood flow forces which open these presumably passive bridging elements would not still be transferred or 4 "The leaflet portion forms a one-way flow occluder on an outflow end of the valve." Schreck 2:61---63. 7 Appeal2014-002347 Application 12/849,470 transmitted through these passive bridging elements to the graft member as claimed. Appellants also contend that claim 1 requires the bridging element to urge "the graft material" in an opening direction and Appellants contend that "the leaflets make no contact whatsoever with the graft material." App. Br. 16. The Examiner states that "[f]irst, the claim does not require the bridging elements to be in contact with the graft material, the claim only requires the bridging elements to be 'extending towards and proximate' a graft end." Ans. 10-11. Further, the Examiner correlates Schreck's item 110 with the claimed "graft material." Final Act. 4; see also Ans. 11 (referencing Schreck Figure 12). Figure 12 of Schreck illustrates that bridging element/leaflet 108 and graft material/fabric skirt 110 are interconnected via stitching 186. Additionally Schreck teaches that "by virtue of the continuous connection between the cusp edges 124 of the leaflets 108 and the fabric skirt 110, the skirt forms a flow channel for blood entering the inflow end 120 of the valve 100." Schreck 13:23-26; see also Schreck 3:9- 10 (stating "wherein the individual leaflets are stitched along the fabric covering"). Accordingly, Appellants' contention to the effect that Schreck's "leaflets make no contact whatsoever with the graft material" (App. Br. 16) is not persuasive of Examiner error. Appellants also dispute that Schreck discloses bridging elements having a "free end" as recited. App. Br. 16. Appellants contend that "there is nothing about the cusp edge that is 'free' as that term means to one of ordinary skill." App. Br. 16. On this point, the Examiner correlates the claimed first and second free ends to "right edge of 124 and left edge of 124, 8 Appeal2014-002347 Application 12/849,470 attaching to vertical struts; OR tabs 130."5 Final Act. 3; see also Ans. 10. Schreck Figure 6 illustrates the structure identified (i.e., left/right edge of 124 or tab 130) as extending underneath and projecting away from wireform commissures 112.6 In fact, Schreck states that adjacent tabs 130 "join together and pass through the inverted U-shaped commissures 112." Schreck 9:44--46; see also Schreck 9:58-59 (discussing a location with respect to wireform commissures 112, "below the leaflet tabs 130 extending therethrough"). In view of the above, Appellants' contention that Schreck's bridging elements lack free ends is not persuasive of Examiner error. Based on the record presented, we sustain the Examiner's rejection of claims 1, 2, and 19 as anticipated by Schreck. The rejection of claims 1, 2, 7, 10--12, and 19 as anticipated by Baker Appellants argue claims 1, 2, 7, 10-12, and 19 together as a group. App. Br. 17-18. We select claim 1 for review with claims 2, 7, 10-12, and 19 standing or falling with claim 1. See 37 C.F.R. Â§ 41.37(c)(l)(iv) (2014). Appellants contend that the Examiner erred when stating that Baker's bridging elements 274 have a second flexibility which is "assumed to have a greater flexibility" than the flexibility of Baker's strut 212. App. Br. 14 (referencing Final Act. 5); see also Reply Br. 7. Appellants also contend that the Examiner erred in finding that the "'opening force by bridging 5 Appellants also argue that the Examiner "changes his mind" and "now states either 106 or 116 are the free ends." Reply Br. 5-6. Appellants do not identify where such a change of mind occurred or where the Examiner abandoned the finding that Schreck items 124/13 0 correlate to the claimed "free ends." Appellants' assertion is not persuasive. 6 The Examiner notes that "[t]uming to applicant's specification, P0035 of the published application recites, 'the bridging elements 28 have free ends 30 which extend beyond the couplings 32 on the struts 16. "' Ans. 10. 9 Appeal2014-002347 Application 12/849,470 elements' is greater because 'this makes common sense."' App. Br. 14 (referencing Final Act. 5). Appellants state that "an anticipation rejection cannot be based on assumptions or conjecture," and, "[t]o the extent the Examiner relies on inherency, there is no evidence presented that this claim element is necessarily present." App. Br. 17. The Examiner states that "[t]he rejection is not relying on inherency, but instead the structure of the bridging elements and struts, which is shown in [Baker's] figures 19-21." Ans. 12. The Examiner makes the point that Baker's bridging elements "have free unattached ends, as compared to the struts of the stent that are more restricted by the attachment to other struts in the stent ring." Final Act. 5; see also Ans. 11. In other words, because Baker's bridging elements are less constrained than Baker's strut, the Examiner reasons that Baker's bridging elements have greater flexibility than Baker's strut. The Examiner supports this analysis by identifying where Baker states that "[t]o provide stability andjlexibility, the lumen piercing members are formed from a single strand of wire with two ends 2 90 and 292." Ans. 11 (citing Baker i-f 123 (emphasis added)). Baker further states that bridging members "274 are not welded to the wire frame 202" which is made from struts 212. Baker i-f 123. Appellants do not indicate how or why Baker's disclosure of a non-welded bridging element with free ends is not, as the Examiner finds, a disclosure of a bridging element with more flexibility than Baker's welded wire strut. Final Act. 5; Ans. 11. In further support of Appellants' contentions, Appellants state that "nothing in Baker discloses" that (a) "the elements relied on by the Examiner for the bridging elements have an expansion force;" (b) "the expansion force of the bridging elements is less than that of the stent;" ( c) 10 Appeal2014-002347 Application 12/849,470 "the bridging elements in any way urge the graft material open;" or, ( d) "the bridging elements are more flexible than the struts of the stent." App. Br. 18. Appellants render these contentions without providing any further explanation as to how or why Baker fails to provide these disclosures. On the other hand, the Examiner, in both the Final Office Action and the Examiner's Answer, provides an explanation as to where and how Baker discloses each of the above. See Final Act. 5; Ans. 11-12. For example, regarding Appellants' first contention supra (that Baker's bridging elements lack an expansion force), the Examiner identifies where Baker teaches that the bridging elements include "a helical coil 300." Ans. 12 (referencing Baker i-f 124). Paragraph 124 of Baker states that "[t]he wire of each V- shaped lumen piercing member[i.e. "bridging element"] is wound at the apex to form a helical coil 300." This same paragraph continues stating that "[ s ]uch a helical coil contributes to the outward bias and spring of the entire attachment system." Emphasis added. In view of these teachings, Appellants' first contention is not persuasive. Regarding Appellants' second contention supra ("the expansion force of the bridging elements is less than that of the stent"), the Examiner explains that "bridging elements have only one spring coil, and the stent ring has a plurality of spring coils at apices that connect adjacent struts." Ans. 12. Accordingly, the Examiner reasons that "the stent struts provides more urging expansion force due to the compounding of all spring coils at the apices of the stent ring," which are greater in number. Ans. 12. These and other reasons provided by the Examiner, and based on Baker's disclosures (see Final Act. 5; Ans. 11-12), render Appellants' contentions unpersuasive. 11 Appeal2014-002347 Application 12/849,470 Accordingly, we sustain the Examiner's rejection of claims 1, 2, 7, 10-12, and 19 as being anticipated by Baker. The rejection of claims 1, 2, 7, 13, 14, and 19 as anticipated by Osborne Appellants argue claims 1, 2, 7, 13, 14, and 19 together as a group. App. Br. 18-20. We select claim 1 for review with claims 2, 7, 13, 14, and 19 standing or falling with claim 1. See 37 C.F.R. Â§ 41.37(c)(l)(iv) (2014). Appellants contend that the Examiner erred when stating that, as regarding Osborne, "[a]ssuming that 'since the stent struts and the bridging elements are made of the same material, the bridging elements having a greater length would possess more flexibility and less opening force.'" App. Br. 14--15 (referencing Final Act. 6). Appellants state that "[t]here is no disclosure as to the length of element 5 relative to the struts." App. Br. 19; see also Reply Br. 9. Presuming arguendo that Appellants' contention is correct regarding a showing of greater length, the Examiner also rendered a finding of more flexibility of the bridging elements via other analysis which Appellants do not contest. Reply Br. 9. One such analysis relied on by the Examiner pertains to the bridging elements having fewer connections than found in the struts of the adjoining stents. Ans. 15. The Examiner finds that "[ s ]trots ( 6) are wires connected to additional wires in the form of a continuous ring circumferentially ( 4), and shown to be further restrained by additional connections in the form of bends (7)." Ans. 15. Hence, according to the Examiner, the greater number of strut connections hinder their flexibility when compared to the fewer number of connections found with respect to the bridging elements. The Examiner also referenced a "higher density of wires" in the strut areas of the stent than in the adjacent "more open area" of the bridging element areas of the stent. Ans. 15. In summary, 12 Appeal2014-002347 Application 12/849,470 the Examiner found that fewer connections and less wire density results in "higher flexibility and less material to provide expansion force." Ans. 15. As indicated supra, Appellants do not address these additional reasons provided by the Examiner to explain the difference in flexibility between the struts and the bridging elements. Accordingly, we are not persuaded by Appellants' contention that "the Examiner has not shown anything in Osborne that discloses that the connectors have an expansion force or that [it] is less than that of the stent."7 App. Br. 20. Appellants' contentions are not persuasive of Examiner error. Appellants also contend that "Osborne's connecting members 5 do not bridge adjacent proximal struts of a stent" as recited, but instead, Osborne "shows a bar 5 connecting a distal apex of one stent ring to a proximal apex of a different stent ring." App. Br. 18; see also App. Br. 19; Reply Br. 8. Appellants' contentions are inaccurate on two accounts. First, claim 1 recites a bridging element that is "disposed between and providing a bridge between adjacent struts," not adjacent "proximal" struts as argued. See Ans. 13-14. Second, Figures 2 and 3 of Osborne disclose that bar 5 is connected to a strut 6 (at fastening point 8), not to an apex as Appellants assert. 8 Additionally, it appears that Appellants' usage of the term "adjacent" means adjacent in a circumferential direction, but no such direction is recited in 7 Regarding Appellants' contention concerning connectors having an expansion force, the Examiner states that the wire implant as a whole "has an expansion force that urges the graft open." Ans. 15; see also Osborne ,-r 44 ("[t]he stent may be self-expanding"). Appellants do not explain how Osborne's bridging elements 5 are not a part of that expansion force. 8 Paragraph 51 of Osborne states that "FIG. 3 shows that the fastening point 8 is at a distance from the elbow sections 7," (i.e., the apices). Emphasis added. 13 Appeal2014-002347 Application 12/849,470 claim 1, and hence "adjacent" is reasonably (and broadly) interpreted to also encompass struts that are adjacent in an axial direction, as found by the Examiner. See Final Act. 6; Ans. 13. Appellants' contentions are not persuasive of Examiner error. Appellants further contend that "the purported free ends, to the extent they may exist, which Applicants dispute, of connectors 5 are not attached to adjacent proximal apices or struts of one stent." App. Br. 19; see also Reply Br. 9. First, claim 1 does not recite that the free ends be connected to "apices" but instead, claim 1 states that the free ends be "coupled to a strut" of one proximal peak and another "strut of an adjacent proximal peak." See Ans. 13; see also Ans. 14. Second, claim 1 also does not recite that these connectors/bridging elements 5, or their free ends, connect between struts "of one stent" as asserted. Instead, claim 1 states that the bridging elements have free ends and that these bridging elements "bridge between adjacent struts of said at least one stent." See Ans. 13 (emphasis added). Thus, we agree with the Examiner that "[t]he claim does not require a bridging element to bridge adjacent struts on a single/individual stent ring." Ans. 13; see also Final Act. 6. Additionally, the Examiner interprets the limitation "a strut of a proximal peak" to mean "a strut that's connected to a proximal peak." Ans. 14. Thus, as indicated by the Examiner (see Final Act. 6; Ans. 13-14), Osborne's bridging element 5 connects between adjacent stent rings 4, and these bridging elements 5 also connect to axially adjacent struts 6 (at 8) that themselves are connected to proximal peaks 7. Appellants' contentions are not persuasive of Examiner error. 14 Appeal2014-002347 Application 12/849,470 Appellants also contend that because Osborne Figure 13, as relied on by the Examiner, "only shows a single end e around arm 6," that the Examiner erred in relying on this figure because it does not show first and second ends as recited. App. Br. 19. The Examiner states that "Figure 13 is an example of one type of fastening, creating a free end and coupling to a strut (P0067)." Ans. 14--15. The Examiner continues stating that "[c]learly, as shown in figure 2, the connections exist at both ends of the connector, as markings are shown at each end thereof." Ans. 15. Appellants' contention that Figure 13 of Osborne is only illustrative of one end of the bridging element, and not also its opposite end, is not persuasive. 9 Accordingly, we sustain the Examiner's rejection of claims 1, 2, 7, 13, 14, and 19 as being anticipated by Osborne. The rejection of claims 3, 5, 6, 15, 16, and 18 as unpatentable over Schreck Appellants argue claims 3, 5, 6, 15, 16 and 18 together as a group. App. Br. 20-21. We select claim 3 for review with claims 5; 6; 15; 16; and 18 standing or falling with claim 3. See 37 C.F.R. Â§ 41.37(c)(l)(iv) (2014). Claim 3 depends from claim 1 and includes the additional limitation "wherein the opening force produced by said bridging elements is between 10% to 75% of the opening force produced by said stent ring." The Examiner acknowledges that in Schreck "there is no disclosure to an exact amount" of the forces recited. Final Act. 7. However, the Examiner states that because the cited range "is such a wide range of relative force," that it 9 Paragraph 67 of Osborne states that "[f]or example, in FIG. 13 an end e of a stent connecting member 5 is wound around a portion of a stent connecting arm section 6." There is no indication that the same illustrated connection does not occur at the opposite end of member 5. 15 Appeal2014-002347 Application 12/849,470 would have been obvious to make bridging elements "that would provide 10-7 5% the opening force of the stent as such would have been [an] obvious choice in the material (material property) in the art." Final Act. 7 (referencing In re Leshin, 277 F.2d 197 (CCPA 1960)). Based on the discussion in Leshin by our reviewing court, it has been held to be within the general skill of a worker in the art to select a known material on the basis of its suitability for the intended use as a matter of obvious design choice. Leshin, 277 F.2d at 199. Schreck teaches that the stent wireform "is formed of a biocompatible, elastic material" (Schreck 9:22-24) and that corresponding bridging element 108 can be formed of "a synthetic material[] that has been suitably treated to render it biocompatible" (Schreck 9:47-50). Appellants, however, do not address the Examiner's reliance on design choice, but instead contends that "[t]he Examiner relies on optimization" and thus the need for the Examiner to provide a "result effective variable" to support reliance on an optimization rationale. App. Br. 20; see also Reply Br. 10. However, the Examiner states that a "[r]esult effective variable rational is only required however, for In re Aller, optimization of ranges, see MPEP 2144.05, II.A, B, and III." Ans. 16 (emphasis added). The Examiner continues stating that "[t]he rejections relied upon were In re Leshin for obvious choice of material" rationale. Ans. 16 (emphasis added). Further, the Examiner states that "[ s ]ince no criticality appears to be present with such a large range and commonly used materials in the stent art, it [i.e., the In re Leshin rationale] appears an appropriate obvious rejection." Ans. 16. Appellants focus on a rejection not expressed by the Examiner is not persuasive of Examiner error. We sustain the Examiner's rejection of claims 3, 5, 6, 15, 16 and 18 as unpatentable over Schreck. 16 Appeal2014-002347 Application 12/849,470 DECISION The Examiner's rejections of claims 1-7 and 10-19 are affirmed. No time period for taking any subsequent action in connection with this appeal may be extended under 37 C.F.R. Â§ 1.136(a)(l )(iv). AFFIRMED 17