Ex Parte Vardi et al

Patent Trial and Appeal BoardApr 11, 2014

12359872 (P.T.A.B. Apr. 11, 2014)

UNITED STATES PATENT AND TRADEMARK OFFICE ____________ BEFORE THE PATENT TRIAL AND APPEAL BOARD ____________ Ex parte GIL M. VARDI and CHARLES J. DAVIDSON ____________ Appeal 2012-000859 Application 12/359,872 Technology Center 3700 ____________ Before JENNIFER D. BAHR, JOHN C. KERINS, and STEFAN STAICOVICI, Administrative Patent Judges. STAICOVICI, Administrative Patent Judge. DECISION ON APPEAL Appeal 2012-000859 Application 12/359,872 2 STATEMENT OF THE CASE Gil M. Vardi and Charles J. Davidson (Appellants) appeal under 35 U.S.C. § 134 from the Examiner’s decision rejecting under 35 U.S.C. § 102(b) claims 1, 5-10, and 12-14 as anticipated by Goicoechea (WO 95/21592, published Aug. 17, 1995) and under 35 U.S.C. § 103(a) claim 11 as unpatentable over Goicoechea and Hardy (US 4,182,339, iss. Jan. 8, 1980) or Andersen (US 5,674,276, iss. Oct. 7, 1997). Claims 2-4 have been canceled. We have jurisdiction over this appeal under 35 U.S.C. § 6(b). INVENTION Appellants’ invention relates to a “stent apparatus comprising an extendable stent which is suitable for treating bifurcation lesions.” Spec. 5, ll. 2-4 and fig. 1. Claim 1, the sole independent claim, is representative of the claimed invention and reads as follows: 1. A stent for treatment of a vessel bifurcation, the stent comprising: a) a main body portion adapted to be positioned in a main vessel and comprising a surrounding side wall defining a passageway, the passageway extending to a first opening at a first end of the main body and a second opening at a second end of the main body; b) at least one side branch opening provided in the surrounding side wall of the main body portion and in fluid flow communication with the passageway extending to the first opening and the second opening; c) a side branch ring provided on the surrounding side wall of the main body portion to surround and define the at least one side branch opening, wherein the side branch ring is sized to be positioned over an opening of a side branch vessel such that the side branch ring is adapted to seat against a side wall of the main vessel surrounding the intersection with the Appeal 2012-000859 Application 12/359,872 3 side branch vessel when the main body is positioned in the main artery; and d) a secondary body, wherein at least a portion of the secondary body is engaged to the side branch ring and comprises a flared portion. SUMMARY OF DECISION We REVERSE. ANALYSIS Independent claim 1 requires, inter alia, “a main body portion . . . comprising a surrounding wall defining a passageway, the passageway extending to a first opening at a first end of the main body and a second opening at a second end of the main body” and “at least one side branch opening provided in the surrounding side wall of the main body portion.” App. Br., Clms. App’x. Pointing to the embodiments shown in Figures 1a, 19, and 20 of Goicoechea, the Examiner found that Goicoechea teaches a main body, a first opening in the top of the bifurcated stent, a second opening in the bottom of the bifurcated stent, and a side branch opening in frustoconical part 18. Ans. 5. Appellants argue that “Goicoechea does not disclose a side branch opening, as claimed, ‘in the surrounding side wall of the main body portion’,” but rather, “the ‘openings’ of Goicoechea are located at the proximal and distal ends, respectively.” App. Br. 12. The Examiner responds, “the fact that Goicoechea et al calls certain portions distal or proximal does not mean that the structure shown in Figures 1a, 19 and 20 does not read on the claims or meet all the structure limitation recited therein.” Ans. 7. Appeal 2012-000859 Application 12/359,872 4 We agree with Appellants that frustoconical part 18 is not in the “surrounding side wall of the main body portion,” as called for by claim 1. Reply Br. 2 (emphasis added). An ordinary and customary meaning of the term “surrounding” is “to enclose on all sides: ENVELOP . . . ENCIRCLE.” Merriam Webster’s Collegiate Dictionary (10th Ed. 1997). In this case, the opening in frustoconical section 18 is not in a wall that encloses or encircles the passageway extending from the top end to the bottom end of the device, but rather is in the end wall of section 18. Accordingly, we do not sustain the rejection of claims 1, 5-10, and 12-14 under 35 U.S.C. as anticipated by Goicoechea. The Examiner’s use of the teachings of either Hardy or Andersen1 does not remedy the deficiencies of Goicoechea as described supra. Therefore, we also do not sustain the rejection of claim 11 under 35 U.S.C. 103(a) as unpatentable over Goicoechea and Hardy or Andersen. SUMMARY The Examiner’s decision to reject claims 1 and 5-14 is reversed. REVERSED mls 1 The Examiner used the teachings of either Hardy or Andersen to show “a flared end with a roll.” See Ans. 6 (citing Hardy, fig. 5 or Andersen, figs. 5 and 5a-5c and col. 7, l. 55 through col. 8, l. 8).