Ex Parte BarkerDownload PDFPatent Trial and Appeal BoardMar 9, 201613021162 (P.T.A.B. Mar. 9, 2016) Copy Citation UNITED STA TES p A TENT AND TRADEMARK OFFICE APPLICATION NO. FILING DATE FIRST NAMED INVENTOR 13/021, 162 02/04/2011 Stephen Edward George Barker 23557 7590 03/11/2016 SALIW ANCHIK, LLOYD & EISENSCHENK A PROFESSIONAL ASSOCIATION PO Box 142950 GAINESVILLE, FL 32614 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. GJE.7630Dl 3945 EXAMINER MATHEW, SEEMA ART UNIT PAPER NUMBER 3738 NOTIFICATION DATE DELIVERY MODE 03/11/2016 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): euspto@slepatents.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte STEPHEN EDWARD GEORGE BARKER Appeal2014-000805 Application 13/021, 162 Technology Center 3700 Before LYNNE H. BROWNE, THOMAS F. SMEGAL, and MARK A. GEIER, Administrative Patent Judges. BROWNE, Administrative Patent Judge. DECISION ON APPEAL STATEMENT OF THE CASE Stephen Edward George Barker (Appellant) appeals under 35 U.S.C. § 134 from the Examiner's decision rejecting claims 1-13. We have jurisdiction under 35 U.S.C. § 6(b ). We REVERSE. CLAIMED SUBJECT MATTER Claim 1, reproduced below, is illustrative of the claimed subject matter: 1. An arteriovenous bypass grafting procedure, which comprises fitting an elongate device around an external surface of a vessel Appeal2014-000805 Application 13/021, 162 to be grafted, wherein the device is arcuate in cross-section and self-supporting, and wherein the device comprises inner and outer layers that are maintained in contact by their natural elasticity or by bonding, wherein the outer layer is more rigid than the inner layer such that it provides a structural framework for the device, wherein the inner layer stimulates neovascularisation and degrades faster than the outer layer, and wherein the device is fitted around the external surface of the vessel such that there is a space between the device and the vessel. REFERENCES The prior art relied upon by the Examiner in rejecting the claims on appeal is: Kowligi Dubrow Martin US 5,152,782 Oct. 6, 1992 US 2005/0038498 Al Feb. 17, 2005 WO 98/20027 May 14, 1998 REJECTIONS I. Claims 1-6, 8, 9, and 11-13 stand rejected under 35 U.S.C. § 103(a) as being unpatentable over Martin and Dubrow. II. Claims 7 and 10 stand rejected under 35 U.S.C. § 103(a) as being unpatentable over Martin, Dubrow, and Kowligi. DISCUSSION Rejection I The Examiner finds that Martin teaches all of the limitations of claim 1 except that "Martin et al. does not expressly disclose the outer layer is more rigid than the inner layer." See Final Act. 2--4. We note that the rejection does not address the limitation requiring "a space between the 2 Appeal2014-000805 Application 13/021, 162 device and the vessel." See id. In the Advisory Action, the Examiner finds that "Martin et al. teaches the inner layer is wetted with a pharmaceutical formulation containing the agents to be delivered (see page 25, lines 13-19), therefore teaching that there is a space between the inner layer and the blood vessel." Ad. Act. 2. Appellant argues that in Martin The inner layer is impregnated with the pharmaceutical formulation having the active agent and, therefore, must be in contact with the adventitial surface of the vessel along the device's entire length. That is, the Martin embodiment discussed at page 25, lines 10-25, has no space between the device and the vessel, as required by the claimed invention. Appeal Br. 4. Martin states In the embodiments described above, the sealed reservoirs are shown as taking the form of a radial space or clearance between the adventitial surface of the blood-carrying vessel and the interior of at least the first body portion, which space is at least part-filled in use by a pharmaceutical formulation. Such a space is not, however, essential. For example, in an alternative embodiment, the body may have a generally impermeable flexible outer layer and a flexible inner layer which is impregnated with the formulation and which is arranged to be in contact the adventitial surface in use. The outer layer may, for example, be made of solid collagen and the inner layer made of sponge-like collagen cross-linked thereto, the sponge-like layer being capable of being impregnated with the pharmaceutical formulation containing the agent to be delivered. In such a situation, the device may be provided to the surgeon for fitment with the formulation already impregnated therein, or it may be wetted with the formulation after fitment, for example by being injected as described earlier. Martin, p. 5, 11. 6-18. Thus, Martin describes a single layer embodiment which employs a reservoir and has a space, and a two layer embodiment 3 Appeal2014-000805 Application 13/021, 162 which does not use a reservoir and has no space. 1 As the rejection relies on the two layer embodiment, the Examiner's determination that "there is a space between the inner layer and the blood vessel" is in error. See Ad. Act. 2. In the Advisory Action, the Examiner alternatively concludes that "it would have been obvious to one having ordinary skill in the art to recognize Martin's inner layer can be spaced apart from the vessel at a distance of at least 1 mm for the purpose of accommodating a needle and syringe that can inject a pharmaceutical formulation." Adv. Act. 2. The Examiner fails to provide evidence in support of this conclusion or explain why one skilled in the art would consider it obvious to provide such a space. Accordingly, the Examiner's alternative reasoning lacks rational underpinnings. Dubrow does not cure the deficiencies in the Examiner's rejection of claim 1 discussed supra. Accordingly, we do not sustain the Examiner's decision rejecting independent claim 1, and claims 2---6, 8, 9, and 11-13 which depend therefrom. Re} ection II The rejection of claims 7 and 10 relies upon the same erroneous findings and determinations as the rejection of claim 1 from which claims 7 and 10 depend. Accordingly, we do not sustain the Examiner's decision rejecting claims 7 and 10. 1 We note that while one or more layers of material between the bioactive agents and the wall of the blood vessel provide separation between the bioactive agents and the wall of the blood vessel, they do not constitute a space. See Ans. 3. 4 Appeal2014-000805 Application 13/021, 162 DECISION The Examiner's rejection of claims 1-13 is REVERSED. REVERSED 5 Copy with citationCopy as parenthetical citation