Ex Parte Racenet et alDownload PDFPatent Trial and Appeal BoardJun 13, 201611786251 (P.T.A.B. Jun. 13, 2016) Copy Citation UNITED STA TES p A TENT AND TRADEMARK OFFICE APPLICATION NO. FILING DATE 111786,251 04/11/2007 50855 7590 06/15/2016 Covidien LP 555 Long Wharf Drive Mail Stop SN-I, Legal Department New Haven, CT 06511 FIRST NAMED INVENTOR David C. Racenet 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. 1894CON2 8087 EXAMINER SIRMONS, KEVIN C ART UNIT PAPER NUMBER 3763 NOTIFICATION DATE DELIVERY MODE 06/15/2016 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): mail@cdfslaw.com SurgicalUS@covidien.com medtronic_mitg-si_docketing@cardinal-ip.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte DAVID C. RACENET, GENE A. STELLON, WILLIAM J. VUMBACK, and JOSEPH P ASQUALUCCI 1 Appeal2014-005403 Application 11/786,251 Technology Center 3700 Before ERIC B. GRIMES, ULRIKE W. JENKS, and ROBERT A. POLLOCK, Administrative Patent Judges. PERCURIAM DECISION ON APPEAL This is a decision on appeal under 35 U.S.C. § 134(a) from the Examiner's rejection of claims 2-19. We have jurisdiction under 35 U.S.C. § 6(b ). We reverse. 1 Appellants identify the Real Party in Interest as Tyco Healthcare Group LP (App. Br. 1 ). Appeal2014-005403 Application 11/786,251 STATEMENT OF THE CASE The Specification discloses "a seal system to be used in combination with a cannula assembly where the cannula assembly is intended for insertion into a patient's body and an instrument is inserted into the patient's body through the cannula." Spec. 1:9-12. Figure 3 is shown below: ~26 Hfu, ........................................ ~~... ;-..,,,,,,,,,,,,,,,,,,,,, ~~: ...... ,,,,,,,, .. ~~~:~!~~~ii~T ( / · ..... ,.,_ \.._.,," "'''·. H~~. kt! ,,,,,,,,~ m~ Figure 3 shows "a cross-sectional view of a seal member [118]." Spec. 5:28. Figure 4 is shown below: \ >::"'Xi. ..~~\ :.;(..xi.,"{_~ l.~4 \ i2& Figure 4 shows "a cross-sectional view of the seal assembly." Spec. 6:1-2. "[S]eal assembly 100 includes a seal member 118 disposed within a body or housing which is formed by the snap fitting together of end cap 114 and lower housing member 116." Spec. 7:26-29. "A two part ring assembly which includes ring members 120 and 122 are snap fitted together on either side of seal member 118." Spec. 7:33-8: 1. "Ring 120 is provided with 2 Appeal2014-005403 Application 11/786,251 holes 120a and posts 120b which are alternately disposed around the ring and are aligned with holes 118a on seal member 118." Spec. 8:4--6. "Ring 122 is provided with posts 122a and holes 122b which mate with holes 120a and posts 120b of ring member 120." Spec. 8:6-9. Claim 2 is representative of the claims on appeal and reads as follows (italics added): Issue 2. A surgical access apparatus, which comprises: an access member defining a longitudinal axis, the access member having a longitudinal opening to permit passage of a surgical object, the access member being dimensioned for insertion within body tissue to permit access to an underlying site, and defining proximal and distal ends; and an object seal including: a generally annular seal support mounted within the access member, the seal support adapted and dimensioned to move in at least a radial direction with respect to the longitudinal axis during manipulation of the surgical object; and a seal member secured to the seal support, the seal member comprising a resilient material and a fabric material, the seal member including an outer flange segment disposed radial outward of the seal support and an inner seal segment defining an inner passage adapted to permit passage of a surgical object body in substantial sealed relation therewith. The Examiner has rejected claims 2-8 and 11-19 under 35 U.S.C. § 103(a) as obvious in view of Loomas,2 Stablein,3 and Greene4 (Ans. 5-7). 2 Bryan E. Loomas, US 5,634,908, June 3, 1997 3 Alexander Stablein, DE 3737121 Al, May 11, 1989 4 David T. Green et al., US 2005/0096605 Al, May 5, 2005 3 Appeal2014-005403 Application 11/786,251 The Examiner has also rejected claims 9 and 10 under 35 U.S.C. § 103(a) as obvious in view of Loomas, Stablein, and Flatland5 (Ans. 7-8). The same issue is dispositive for both of these rejections, and we will consider them together. The issue presented is: Does the evidence of record support the Examiner's conclusion that the combination of the cited references would have made obvious a surgical access apparatus which comprises an access member having a longitudinal opening and an object seal, wherein the object seal includes a generally annular seal support mounted within the access member and a seal member secured to the seal support, wherein "the seal support [is] adapted and dimensioned to move in at least a radial direction with respect to the longitudinal axis during manipulation of [a] surgical object," as required by independent claim 2? Findings of Fact 1. Loomas discloses "a gas-tight seal for use in a surgical instrument to provide a gas-tight seal with an instrument passed through the seal". (Loomas, col. 1, 11. 8-10). 2. Figures 1 and 2 of Loomas are shown below: 5 Marty Flatland et al., US 6,228,061 Bl, May 8, 2001 4 Appeal2014-005403 Application 11/786,251 i ... ~ ........ ---·-..... -.._ .......... -.-.-.... ---.._~ ........ "-.., i Fl'G, 1 F!(t 2 Figure 1 "shows a perspective view of the auxiliary gas-tight seal 10 ... aligned with the rear housing 12 of the trocar tube 14, just prior to attaching the auxiliary gas-tight seal to the rear housing." Loomas, col. 7, 11. 62---65. Figure 2 shows "a cross sectional view of the auxiliary gas-tight seal ... attached to the rear housing of a trocar tube." Loomas, col. 5, 11. 45--47. "The auxiliary gas-tight seal 10 includes ... the instrument seal 32." Loomas, col. 8, 11. 18-21. "[R]ear face 16 of the rear housing 12 includes the main gas-tight seal 18 in its center." Loomas, col. 7, 11. 65-67. "The auxiliary gas-tight seal 10 includes lugs that engage in the grooves 22 to retain the auxiliary trocar seal in position on the rear face 16 of the rear housing 12." Loomas, col. 8, 11. 5-7. 5 Appeal2014-005403 Application 11/786,251 3. Loomas discloses that "the main gas-tight seal 18 ... includes the main sealing lip 84, which seals with the trocar (not shown) or other instrument passed through the main gas-tight seal." Loomas, col. 12, 11. 44-- 48. "The main gas-tight seal also includes the annular inner sealing lip 86, which forms a gas-tight seal with the spring-loaded door 88 ... [which] swings in the direction indicated by the arrow 90 to form a seal with the inner sealing lip 86 when no instrument is inserted into the main gas-tight seal 18." Loomas, col. 12, 11. 48-54. Analysis The Examiner finds that Loomas discloses "an object seal (10, the seal member) including: a generally annular seal support (88, the spring loaded door) mounted within the access member, the seal support adapted and dimensioned to move in at least a radial direction with respect to the longitudinal axis during manipulation of the surgical object." Ans. 5. The Examiner relies on Greene as disclosing a seal member that includes an outer flange segment disposed radially outward from the seal support, and on Stablein as teaching that the seal member may comprise a "resilient material and a fabric material." Ans. 6. Appellants argue that Loomas does not disclose or suggest a generally annular seal support "adapted and dimensioned to move in at least a radial direction with respect to the longitudinal axis," as recited in claim 2. App. Br. 10. In particular, Appellants argue that, in Loomas, "the laterally- compliant seal 40, which includes the instrument seal 32, is mounted in the seal mounting 34, and that during use of the disclosed apparatus, the spring- loaded door 88 swings in the direction illustrated by arrow 90 in FIG. 2." 6 Appeal2014-005403 Application 11/786,251 App. Br. 8, citing Loomas, col. 8, 11. 18-26, col. 12, 11. 51-54, and Figs. 2 and 3A. Appellants argue that "the position of the Loomas door 88 relative to the longitudinal axis of the apparatus is fixed." App. Br. 10. Appellants argue that "the swinging motion of the Loomas door 88 is achieved by fixing one end of the door 88 to provide a pivot point about which the door 88 swings ... [wherein] fixation of the door 88 at this pivot point prevents movement of the door 88 relative to the longitudinal axis." App. Br. 10, citing Loomas, Fig. 2. The Examiner responds that although the door 88 in Loomas is "fixed at one point, its swinging motion provides for movement in the radial direction." Ans. 8. We agree with Appellants that the Examiner has not adequately explained how Loomas, or any combination of the cited references would have made obvious a surgical access apparatus which comprises a generally annular seal support "adapted and dimensioned to move in at least a radial direction with respect to the longitudinal axis during manipulation of [a] surgical object," as required by independent claim 2. Claim terms are given their ordinary and customary meaning, as they would be understood by one of ordinary skill in the art in the context of the entire disclosure. In re Translogic Tech., Inc., 504 F.3d 1249, 1257 (Fed. Cir. 2007). A claim term will not, however, receive its ordinary meaning "if the patentee acted as his own lexicographer and clearly set forth a definition of the disputed claim term in either the specification or prosecution history." CCS Fitness, Inc. v. Brunswick Corp., 288 F.3d 1359, 1366 (Fed. Cir. 2002). In the present case, the Specification does not define the term radial, or even use the word radial. Nor does the Examiner contend that Appellants 7 Appeal2014-005403 Application 11/786,251 have applied a special meaning to the term. Accordingly, we look to a general-purpose dictionary to discern the ordinary meaning of the term. Merriam-Webster's, 6 for example, provides the following definitions of radial: "arranged or having parts arranged like rays;" "relating to, placed like, or moving along a radius;" "characterized by divergence from a center;" "of, relating to, or adjacent to a bodily radius;" and "developing uniformly around a central axis." As noted above, the Examiner relies on the spring loaded door 88 of Loomas as being the generally annular seal support "adapted and dimensioned to move in at least a radial direction with respect to the longitudinal axis," as required by claim 2. Loomas, however, discloses that spring loaded door 88 pivots downward along the longitudinal axis, in the direction indicated by arrow 90, and not in a radial direction with respect to the longitudinal access (FF 3). In light of the common and ordinary meaning of "radial" as, for example, "moving along a radius," or "diverging from a center," we agree with Appellants that the Examiner has not adequately explained how the cited references would have made obvious the surgical access apparatus of claim 2. Thus, we reverse the rejection of independent claim 2 and dependent claims 3-8 and 11 as being obvious in view of Loomas, Stablein, and Greene. The Examiner has also rejected independent claim 12 as obvious in view of Loomas, Stablein, and Greene. Like claim 2, claim 12 is directed to 6 :rvlen-iam-Webster, http://www.merriamwebster.com/ dictionary /radial (last accessed I\1ay 26, 2016). 8 Appeal2014-005403 Application 11/786,251 a surgical apparatus that comprises an access member and an object seal, wherein the object seal includes a generally annular seal support that is "adapted and dimensioned to move in at least a radial direction with respect to the longitudinal axis during manipulation of the surgical object." Thus, we also reverse the rejection of independent claim 12 and dependent claims 13-19 as being obvious in view of Loomas, Stablein, and Greene. The Examiner has also rejected dependent claims 9 and 10 under 35 U.S.C. § 103(a) as obvious over the combination ofLoomas, Stablein, and Flatland. Ans. 7. Claims 9 and 10 depend from claim 2, directly and indirectly, respectively. For these rejections, the Examiner relies on Loomas and Stablein, as discussed above, and relies on Flatland to supply dependent claim limitations. Thus, we reverse the rejection of claims 9 and 10 for the reasons discussed above. SUMMARY We reverse the rejection of claims 2-8 and 11-19 under 35 U.S.C. § 103(a) in view of Loomas, Stablein, and Greene. We also reverse the rejection of claims 9 and 10 under 35 U.S.C. § 103(a) in view of Loomas, Stablein, and Flatland. REVERSED 9 Copy with citationCopy as parenthetical citation