Ex Parte Stevenson et al

Patent Trials and Appeals BoardMar 28, 2019

13029487 - (D) (P.T.A.B. Mar. 28, 2019)

UNITED STA TES p A TENT AND TRADEMARK OFFICE APPLICATION NO. FILING DATE 13/029,487 02/17/2011 145655 7590 04/01/2019 McCarter & English, LLP/LifeCell 265 Franklin Street Boston, MA 02110 FIRST NAMED INVENTOR Eric Stevenson 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. 128196-06301 1805 EXAMINER DAVID, SHAUN L ART UNIT PAPER NUMBER 3771 NOTIFICATION DATE DELIVERY MODE 04/01/2019 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): docket@mccarter.com mvaneman@mccarter.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte ERIC STEVENSON, WENDELL SUN, and AARON BARBRE Appeal2018-005151 Application 13/029,487 Technology Center 3700 Before MICHAEL J. FITZPATRICK, RICHARD J. SMITH, and DAVID COTTA, Administrative Patent Judges. FITZPATRICK, Administrative Patent Judge. DECISION ON APPEAL Eric Stevenson, Wendell Sun, and Aaron Barere ("Appellants") 1 appeal under 35 U.S.C. Â§ 134(a) from the Examiner's final decision rejecting claims 1---6, 8-11, 28, and 29. We have jurisdiction under 35 U.S.C. Â§ 6(b). We reverse. 1 Appellants identify LifeCell Corporation as the real party in interest. Appeal Br. 1. Appeal2018-005151 Application 13/029,487 STATEMENT OF THE CASE The Specification The disclosure "relates to devices and methods for treating or repairing openings in body cavities, including abdominal openings." Spec. i-f2. Figure 2 is reproduced below. FIG~ 2 Figure 2, reproduced above, shows device 200 for treating abdominal defects. Id. ,I22. The device "includes a first synthetic polymeric material 210 and an acellular tissue matrix 220 attached to an entire peripheral border 230 of the synthetic polymeric material 210." Id. The device is used by securing the peripheral, acellular tissue matrix to tissues surrounding a defect in a body cavity while leaving the inner, synthetic polymeric material unsecured to any body tissue. The synthetic polymeric material includes an opening 240 to allow repeated access for a surgeon. Id. ,I32. 2 Appeal2018-005151 Application 13/029,487 The Rejected Claims Claims 1---6, 8-19, 28, and 29 are pending. Final Act. 1. Claims 1---6, 8-11, 28, and 29 stand rejected, claims 12-19 having been withdrawn. Id. Claims 1 and 28 are independent. Appeal Br. 32, 35. Claim 1 is representative of the rejected claims and reproduced below. 1. An abdominal or fascia treatment device, compnsmg: a sheet of synthetic polymeric material; and an acellular tissue matrix attached to and extending from a peripheral border of the sheet of synthetic polymeric material such that the acellular tissue matrix can be secured to tissues surrounding a defect in a wall of a body cavity to close the body cavity without attaching the sheet of synthetic polymeric material to tissue, wherein the acellular tissue matrix defines a peripheral portion of the abdominal or fascia treatment device, and the sheet of synthetic polymeric material defines a central portion of the abdominal or fascia treatment device, and wherein the sheet of synthetic polymeric material includes an elongated opening extending across a portion of the sheet of synthetic polymeric material, the elongated opening being configured to provide access to the body cavity in an open configuration and close the body cavity in a closed configuration. Appeal Br. 32. 3 Appeal2018-005151 Application 13/029,487 The Appealed Rejections The following rejections under 35 U.S.C. Â§ 103(a) are before us for review: 1. claims 1---6 and 28 as unpatentable over Kullas2 and Hutchinson3 (Final Act. 3); 2. claim 29 as unpatentable over Kullas, Hutchinson, and Schwartz4 (id. at 8); 3. claim 8 as unpatentable over Kullas, Hutchinson, Schwartz, and Corcoran5 (id. at 8-9); and 4. claims 9-11 as unpatentable over Kullas, Hutchinson, Schwartz, Corcoran, and Daro is (id. at 9). 6 DISCUSSION Rejection 1 The Examiner rejected claims 1---6 and 28 as unpatentable over Kullas and Hutchinson. Final Act. 3. Independent claim 1 is directed to "[a]n abdominal or fascia treatment device, comprising: [1] a sheet of synthetic polymeric material; and [2] an acellular tissue matrix attached to and extending from a peripheral border of the sheet of synthetic polymeric material." Appeal Br. 32. The Examiner found that Kullas teaches a treatment device having these two general components. Final Act. 3. 2 WO 2009/075786 Al, published June 18, 2009 ("Kullas"). 3 US 5,425,740, issued June 20, 1995 ("Hutchinson"). 4 US 7,163,563 B2, issued Jan. 16, 2007 ("Schwartz"). 5 US 6,843,767 B2, issued Jan. 18, 2005 ("Corcoran"). 6 US 2011/0295283 Al, published Dec. 1, 2011 ("Darois"). 4 Appeal2018-005151 Application 13/029,487 Claim 1 further recites that "the sheet of synthetic polymeric material defines a central portion of the abdominal or fascia treatment device" and "includes an elongated opening extending across a portion of the sheet of synthetic polymeric material." Appeal Br. 32 (emphasis added). The Examiner found that Kullas fails to disclose such an opening. Final Act. 5. However, the Examiner found that Hutchinson discloses a hernia treatment device made of a sheet of synthetic polymeric material ("mesh 14") having an opening ("slot 16") therein, which the Examiner concluded would have been obvious to incorporate into Kullas's treatment device. Id.; see also Hutchinson 1 :65-2:9, Fig. 2. Appellants argue that Kullas, as modified by Hutchinson, would not have "an elongated opening extending across a portion of the sheet of synthetic polymeric material," as recited in claim 1. Appeal Br. 14--17. This is so, Appellants argue, because Kullas does not disclose an "opening" in the first instance. See, e.g., id. at 17. Instead, as Appellants argue, Hutchinson discloses a wedged-shaped "slot 16" that extends all the way to the perimeter of the sheet of synthetic polymeric material. Id.; see also Hutchinson, 2:5-9, Fig. 2 (ref. 16). We agree with Appellants that the proposed combination of Kullas and Hutchinson fails to render claim 1 unpatentable because it does not satisfy the claim's recitation of "an elongated opening extending across a portion of the sheet of synthetic polymeric material." First, there is no dispute in the purported teachings of Hutchinson as they relate to an "opening." Both the Examiner and Appellants agree that Hutchinson teaches a wedge-shaped cut-out (i.e., slot 16) that extends to the perimeter of 5 Appeal2018-005151 Application 13/029,487 the mesh 14. Appeal Br. 17; Ans. 4--5; Hutchinson, Fig. 2. What they disagree on is the meaning of the claim. See Appeal Br. 10-14; Ans. 4---6. Thus, the issue before us is whether the broadest reasonable construction of "an elongated opening extending across a portion of the sheet of synthetic polymeric material" encompasses Hutchinson's slot 16. Under this standard, the disputed "claim language should be read in light of the specification as it would be interpreted by one of ordinary skill in the art." In re Sneed, 710 F.2d 1544, 1548 (Fed. Cir. 1983); see also In re Hyatt, 211 F.3d 1367, 1372 (Fed. Cir. 2000) ("[D]uring examination proceedings, claims are given their broadest reasonable interpretation consistent with the specification."). The Specification consistently illustrates an "opening" as being a hole, aperture, or the like extending through a sheet and surrounded on all sides and does not disclose any embodiments in which the "opening" is a slot in the side of the sheet of synthetic polymeric material. See Spec. Fig. 2 (ref. 240); Fig. 3 (ref. 340); Fig. 4 (ref. 340). Accordingly, we agree with Appellants that "an elongated opening extending across a portion of the sheet of synthetic polymeric material" requires a bound opening formed in the sheet of polymeric material. See Reply. Br. 2. As applied to the prior art cited by the Examiner, the "elongated opening" limitation does not encompass a slot formed in the side of a sheet of polymeric material like the slot disclosed in Hutchinson. For this reason, we reverse the rejection of claim 1 as unpatentable over Kullas and Hutchinson, as well as the rejection of claims 2-5, which ultimately depend from claim 1. See In re Fine, 837 F.2d 1071, 1076, 5 USPQ2d 1596, 1600 (Fed. Cir. 1988) ("Dependent claims are nonobvious 6 Appeal2018-005151 Application 13/029,487 under section 103 if the independent claims from which they depend are nonobvious. "). We also reverse the rejection of independent claim 28, as it too recites "an elongated opening extending across a portion of the sheet of synthetic polymeric material." See Appeal Br. 35. Rejections 2--4 Claims 8-11 and 29 ultimately depend from claim 1. See Appeal Br. 33, 35. The Examiner rejected claims 8-11 and 29 over Kullas, Hutchinson, and additional prior art. Final Act. 8-9. These rejections do not apply the additional prior art to cure the deficiencies in the rejection of claim 1 over Kullas and Hutchinson. Id. Thus, we reverse the rejections of claims 8-11 and 29 for the same reason we reverse the rejection of claim 1. DECISION Rejections 1--4 are reversed. REVERSED 7