Ex Parte Stevenson et al

Patent Trial and Appeal Board

Mar 28, 2019

13029487 (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. § 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. § 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.
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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.
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Appeal2018-005151
Application 13/029,487
The Appealed Rejections
The following rejections under 35 U.S.C. § 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").
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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
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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
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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
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