Ex Parte Kusleika et al

Board of Patent Appeals and Interferences

Jul 11, 2012

11517222 (B.P.A.I. Jul. 11, 2012)

UNITED STATES PATENT AND TRADEMARK OFFICE
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
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR ATTORNEY DOCKET NO. CONFIRMATION NO.
11/517,222 09/07/2006 Richard S. Kusleika MVA1004USC4 1233
14018 7590 07/12/2012
Covidien
Attn: IP Legal Department
15 Hampshire Street, Bldg. 4A
Mansfield, MA 02048
EXAMINER
COLELLO, ERIN L
ART UNIT PAPER NUMBER
3734
MAIL DATE DELIVERY MODE
07/12/2012 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 BOARD OF PATENT APPEALS
AND INTERFERENCES
__________

Ex parte RICHARD S. KUSLEIKA and
BRIAN V. FINANDER
__________

Appeal 2011-004109
Application 11/517,222
Technology Center 3700
__________

Before DEMETRA J. MILLS, ERIC GRIMES, and JACQUELINE
WRIGHT BONILLA, Administrative Patent Judges.

GRIMES, Administrative Patent Judge.

DECISION ON APPEAL
This is an appeal under 35 U.S.C. § 134 involving claims to methods
of deploying a medical filter. The Examiner has rejected the claims as
obvious. We have jurisdiction under 35 U.S.C. § 6(b). We affirm.
STATEMENT OF THE CASE
The Specification discloses “a method of deploying a medical filter
within a channel in a patient’s body” (Spec. 2). Figure 2 of the Specification
is shown below:
App
App

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Claims 1
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04109
/517,222
a side ele
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n a patient
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Appeal 2011-004109
Application 11/517,222

3
Issue
The Examiner has rejected claims 1-11 under 35 U.S.C. § 103(a) as
being obvious in view of Gilson.1 The Examiner finds that “Gilson discloses
a method of deploying a medical filter within a channel in a patient”
(Answer 3) comprising “providing a filter having a radially expandable body
having proximal and distal ends” that are connected to proximal and distal
ring shaped elements which are sized to receive an elongate member
(guidewire) (id.). The Examiner finds that Gilson discloses that the
expandable body is “formed of a porous, resilient fabric” and defines an
enclosure having at least one proximally oriented opening (id. at 3-4). The
Examiner finds that Gilson discloses that the enclosure defines a cavity
“which is open from an outer surface of a portion of the elongate member …
contained within the enclosure to an inner surface of the resilient fabric” (id.
at 4). The Examiner concludes that it “would have been obvious to one of
ordinary skill in the art … to modify the proximal opening to be at least ten
times the size of the distal pores” to allow blood and embolic material to
enter the filter element (id. at 5).
Appellants contend that Gilson does not disclose a filter with an
enclosure that defines “a cavity which is open from an outer surface of a
portion of the guidewire contained within the enclosure to an inner surface
of the resilient fabric” of the filter, as required by claim 1 (Appeal Br. 6-8).
The issue with respect to this rejection is: Does the evidence of record
support the Examiner’s conclusion that the method of deploying a medical
filter of claim 1 would have been obvious in view of Gilson?

1 Gilson et al., US 6,336,934 B1, Jan. 8, 2002.
App
App

Find

colla
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onto
wire
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tube

dista
ll. 64

31, w
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ings of Fa
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re 11 show
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s 30. The
be 32 mou
34.” (Id.
4. Gilso
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-65).
5. Gilso
hose pore
ing a scree
04109
/517,222
ct
n disclose
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of a pati
e 11 of Gi
s an isom
id. at col.
n disclose
radially o
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nted on th
at col. 10,
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xtent that
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size is sel
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s “an embo
mounted o
ent” (Gilso
lson is sho
etric view
7, ll. 56-57
s that the “
r circumfe
re joined o
e substrate
ll. 59-64.)
s that the “
it will ope
s that the “
ected to a
id. at col.
4
lic protec
n a filter
n, col. 1, l
wn below
of a filter
).
design con
rentially b
n the prox
shaft 33 a
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llow the m
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tion devic
carrier for
. 66 – col.
:
element in
sists of a
onded a se
imal end
nd at the
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overed wi
edia throu
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ries of pre
into a mov
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bly” (id.
th a porou
gh, effecti
ng: a
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haft 33
-shaped
able collar
into a fixe
and
at col. 10,
s material
vely

d

Appeal 2011-004109
Application 11/517,222

5
6. Gilson discloses that “[w]hen the assembly is configured
longitudinally a sheath or pod may be slid over it to cover it.… [T]he loaded
catheter is positioned in the required location by threading it over the
guidewire.” (Id. at col. 11, ll. 12-15.)
7. Gilson discloses that the “invention above is described as it relates
to a device that can be used over a medical guidewire. The opportunity
exists to configure the invention in a manner that it could in itself be used as
the primary crossing device.” (Id. at col. 12, ll. 1-4.)
8. Gilson discloses that “[a]ll of the filter designs described above
could be moulded onto either the over the wire or the primary crossing
device” (id. at col. 12, ll. 4-6).
9. Gilson discloses that “[f]or a primary crossing device the filter
would be bonded to a solid substrate. Some benefits would accrue in that the
inner diameter onto which the filter could be wrapped down would be
smaller because it would not need to move over another instrument.” (Id. at
col. 12, ll. 7-11.)
10. Gilson discloses that, in one embodiment, “a proximal inlet end
of the filter body is fixed to the filter carrier and a distal end of the filter
body is slidably mounted on the filter carrier, although this arrangement may
be reversed” (id. at col. 3, ll. 1-4).
11. Gilson discloses that “[a]dvantageously, the filter carrier … may
for example be a guidewire” (id. at col. 2, ll. 45-49).
12. Gilson discloses that “[i]n a preferred embodiment, a sleeve is
slidably mounted on the filter carrier between the stops, … the filter element
being mounted on the sleeve” (id. at col. 2, ll. 52-55).
Appeal 2011-004109
Application 11/517,222

6
Analysis
Claim 1 is directed to a method of deploying a medical filter within a
channel in a patient comprising, among other things, providing a filter
having a radially expandable body that defines an enclosure that defines “a
cavity which is open from an outer surface of a portion of the guidewire
contained within the enclosure to an inner surface of the resilient fabric” of
the filter.
Appellants do not dispute that Gilson discloses a method of deploying
a medical filter within a channel in a patient that comprises providing a filter
having a radially expandable body that defines an enclosure, or that Gilson
discloses the deployment steps (b) through (e) of claim 1.
However, Appellants argue that the cavity defined by the filter
enclosure of Gilson is not open from the outer surface of a guidewire
contained within the enclosure as required by claim 1 because, in Gilson,
“the substrate tube or sleeve comprises an additional layer of structure
between the inner surface of the filter body and the guidewire” (Appeal Br.
6-7). Appellants argue that “Gilson consistently discloses the substrate shaft
to be a separate element to which the filter is attached, whether the filter
assembly is slideable over the guidewire in an over the wire configuration or
whether the filter assembly is carried by the guidewire in a primary crossing
configuration” (id. at 6).
Appellants’ arguments are not persuasive. Although Gilson discloses
that, in some embodiments, the filter element is mounted on a sleeve that is
slidably mounted on the filter carrier between two stops, Gilson also
discloses that the filter element can be mounted directly on a filter carrier,
Appeal 2011-004109
Application 11/517,222

7
which can be a guidewire (FFs 10, 11). Further, Gilson also discloses that a
filter element could be moulded to a primary crossing device, which would
entail bonding of the filter to a solid substrate, in which case the filter could
be wrapped down to a smaller diameter because it would not have to move
over another instrument (FF 9). This disclosure would at least suggest, if not
explicitly disclose, that the filter element is bonded directly to the guidewire
or primary crossing device since there is no discussion of any intermediate
element.
Conclusion of Law
The evidence of record supports the Examiner’s conclusion that the
method of deploying a medical filter of claim 1 would have been obvious in
view of Gilson.
SUMMARY
We affirm the rejection of claim 1 under 35 U.S.C. § 103(a). Claims
2-11 have not been argued separately and therefore fall with claim 1.
37 C.F.R. § 41.37(c)(1)(vii)
TIME PERIOD FOR RESPONSE
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a).

AFFIRMED

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