L.Vad Technology, Inc.

Trademark Trial and Appeal Board

Apr 28, 2006

No. 78285714 (T.T.A.B. Apr. 28, 2006)

Mailed:
April 28, 2006

UNITED STATES PATENT AND TRADEMARK OFFICE
________

Trademark Trial and Appeal Board
________

In re L.Vad Technology, Inc.
________

Serial No. 78285714
_______

Molly B. Markley of Young & Basile, P.C. for L.Vad
Technology, Inc.

Georgia Ann Carty Ellis, Trademark Examining Attorney, Law
Office 108 (Andrew Lawrence, Managing Attorney).
_______

Before Bucher, Grendel and Drost, Administrative Trademark
Judges.

Opinion by Grendel, Administrative Trademark Judge:

Applicant seeks registration on the Principal Register
of the mark PATCH BOOSTER (in standard character form) for
International Class 10 goods identified in the application
as:

permanent and temporary heart assist devices
utilizing intra arterial air pressure to assist
the circulating assist machinery and controls
therefor; percutaneous access devices
consisting of a disk implantable beneath the
THIS OPINION IS NOT
CITABLE AS PRECEDENT
OF THE TTAB
Ser. No. 78285714
2
skin for use in transmitting fluid, air, or
electricity through the collar and attachments
therefor; implanted blood pumps and attachments
therefor; and external drive units serving as
pump actuators and controllers and attachments
therefor.

The application is based on applicant’s asserted bona fide
intent to use the mark in commerce. Trademark Act Section
1(b), 15 U.S.C. §1051(b).
At issue in this appeal is the Trademark Examining
Attorney’s final refusal to register the mark on the ground
that it is merely descriptive of applicant’s goods.
Trademark Act Section 2(e)(1), 15 U.S.C. §1052(e)(1). The
appeal is fully briefed. No oral hearing was requested.
We reverse the refusal to register.
A term is deemed to be merely descriptive of goods or
services, within the meaning of Trademark Act Section
2(e)(1), if it forthwith conveys an immediate idea of an
ingredient, quality, characteristic, feature, function,
purpose or use of the goods or services. See, e.g., In re
Gyulay, 820 F.2d 1216, 3 USPQ2d 1009 (Fed. Cir. 1987), and
In re Abcor Development Corp., 588 F.2d 811, 200 USPQ 215,
217-18 (CCPA 1978). A term need not immediately convey an
idea of each and every specific feature of the applicant’s
goods or services in order to be considered merely
descriptive; it is enough that the term describes one
Ser. No. 78285714
3
significant attribute, function or property of the goods or
services. In re Oppedahl & Larson LLP, 373 F.3d 1171,
1173, 71 USPQ2d 1370, 1371 (Fed. Cir. 2004); In re
H.U.D.D.L.E., 216 USPQ 358 (TTAB 1982); In re MBAssociates,
180 USPQ 338 (TTAB 1973). Whether a term is merely
descriptive is determined not in the abstract, but in
relation to the goods or services for which registration is
sought, the context in which it is being used on or in
connection with those goods or services, and the possible
significance that the term would have to the average
purchaser of the goods or services because of the manner of
its use. That a term may have other meanings in different
contexts is not controlling. In re Bright-Crest, Ltd., 204
USPQ 591, 593 (TTAB 1979). Moreover, it is settled that
“[t]he question is not whether someone presented with only
the mark could guess what the goods or services are.
Rather, the question is whether someone who knows what the
goods or services are will understand the mark to convey
information about them.” In re Tower Tech Inc., 64 USPQ2d
1314, 1316-17 (TTAB 2002). See also In re Patent &
Trademark Services Inc., 49 USPQ2d 1537 (TTAB 1998); In re
Home Builders Association of Greenville, 18 USPQ2d 1313
(TTAB 1990); and In re American Greetings Corporation, 226
USPQ 365 (TTAB 1985).
Ser. No. 78285714
4
The Trademark Examining Attorney contends that PATCH
is merely descriptive of applicant’s goods, and relies on
three different arguments to support that contention.
First, she cites to dictionary evidence in the record
defining “patch,” in its noun form, as “something that
covers or mends: a piece of material used to cover,
strengthen, or mend a hole in something,”1 and as “a piece
of material used to mend a hole or strengthen a weak
point.”2 She also cites to dictionary evidence defining
“patch,” in its verb form, as “repair something with
material: to cover or mend a hole in something or to
strengthen a weak place using cloth or a pasty substance,”3
and as “mend, strengthen or protect by means of a patch.”4
She argues that “patch,” so defined, merely describes
applicant’s goods because the goods “are used for the
purpose of mending and strengthening the ability of the
heart to function.” (Trademark Examining Attorney’s brief
at 4.) She also notes that applicant, at page 5 of its
brief, states that “[a]pplicant’s heart pump and heart
assist devices in a sense act as a patch in that they help

1 MSN Encarta Dictionary.

2 Compact Oxford English Dictionary.

3 MSN Encarta Dictionary.

4 Compact Oxford English Dictionary.
Ser. No. 78285714
5
to keep the patient’s heart working,” and she argues that
this statement essentially is a concession that applicant’s
goods function as a patch and that “patch” therefore is
merely descriptive of the goods.
We disagree. Applicant’s statement that its goods “in
a sense” act as a patch is not a concession that “patch” is
merely descriptive. Rather, we agree with applicant’s
contention that its goods can be deemed to be a patch only
figuratively, not literally. This purely figurative
significance of “patch” as applied to applicant’s goods
does not suffice as a basis for finding that “patch” is
merely descriptive, i.e., that it immediately and directly
conveys information about applicant’s goods.
Second, the Trademark Examining Attorney cites to
dictionary evidence of record which defines “patch” as a
“cover for wound: a piece of material used to cover a
wound,”5 as well as to excerpts of articles obtained from
the NEXIS database which refer to a medical procedure
involving a patch of tissue (from human and/or animal
cells) used to patch a hole in the heart or to mend damaged
heart tissue. Representative examples of these excerpts
include the following:

5 MSN Encarta Dictionary.

Ser. No. 78285714
6

Jessica, who is only 3 years old, has very
few bruises after a medical procedure that
inserted a patch to cover a hole in her heart –
all without open-heart surgery. Doctors found
the hole in her heart – called an atrial septal
defect – when she was 2 years old.
The patch, which looks like a small, coiled
white flower blossom, is made of a special type
of Gore-Tex material used for medical purposes.
Unlike its predecessor, which was made mostly
of wire, the new patch is made of Gore-Tex and
less wire, so it’s more flexible and adaptable
to the heart muscle tissues. ...
Doctors such as Javois place a catheter – a
thin, flexible tube – into the largest vein in
the leg to carry the patch to the heart, where
it is placed to cover the hole.
(Chicago Sun Times, May 30, 2003);

...Melanie rallied enough that the
cardiologists decided the time had come for
immediate surgery to patch her heart. By
closing the hole, it would decrease the amount
of blood flowing to her lungs, which was
already three times as much as it should have
been. ...
(The Times (Albany, NY), November 18, 1994);

The recipe for growing a patch of heart
tissue in the bioreactor begins with 54 million
or so individual mammalian heart cells. ...
It takes about one week for the bioreactor
to produce a patch of tissue 5 mm in diameter
and a mere 0.10 mm thick. The heart tissue
patch acts just like real heart tissue and
beats spontaneously.
(Aerospace America, July 2002); and

HEADLINE: Local Bioengineers Want to Build
Patch for Heart
BODY: Local scientists are working on a
tissue engineering project that could one day
allow doctors to repair a damaged heart with a
Ser. No. 78285714
7
bioengineered blood vessel or a patch of
cardiac muscle. ...
To make the engineered blood vessels and
heart patches, the researchers have created a
biodegradable polymer “scaffold” that is
flexible and porous. ...
The challenge is that the cardiac patch
should be able to contract with the healthy
heart muscle and replacement blood vessels
should be able to dilate and constrict like the
real thing. ...
The researchers have been working with a
patch that’s about a third of an inch wide and
aim to be testing a quarter-sized patch in
large animal studies by the end of the five-
year grant period. It could ultimately be used
to strengthen scarred, nonfunctioning areas of
heart muscle that have been damaged by a heart
attack. ...
(Pittsburgh Post-Gazette, August 5, 2003).

These articles do not support a finding that “patch”
is merely descriptive of applicant’s goods. There is no
evidence in the record from which we might conclude that
applicant’s goods, as identified in the application, are,
or involve, tissue patches of the type mentioned in these
articles.
The Trademark Examining Attorney’s third argument in
support of her contention that “patch” is merely
descriptive of applicant’s goods is based on dictionary
evidence in the record which defines “patch” as “drug-
impregnated material: a piece of material impregnated with
a drug and worn on the skin to allow the gradual absorption
Ser. No. 78285714
8
of the drug - a nicotine patch,6 and as “an adhesive piece
of drug-impregnated material worn on the skin so that the
drug may be gradually absorbed.”7 She also cites to the
following NEXIS evidence showing this usage of the term:

You’ve heard of the nicotine patch for
smokers? The estrogen patch for menopausal
women? The nitroglycerine patch for heart
patients? Now there’s an anti-wrinkle patch.
(The Vancouver Sun (British Columbia), August 1,
1998);

...Alza makes what it calls drug-delivery
patches – small adhesive patches worn by the
patient that work like an intravenous infusion,
but without the needle. The patches consist of
a thin system of layered membranes: an
impermeable backing, a minute drug reservoir, a
rate-controlling membrane and an adhesive
surface that keeps the patch on the skin. ...
And Alza’s popular Transderm Nitro, a patch
for heart patients, is being challenged by a
similar product from Key Pharmaceuticals Inc.,
of Miami.
(PC Week, March 18, 1986).

Finally, she cites to the following dictionary definitions
of “percutaneous”: “passed, done, or effected through the
skin,”8 and “performed through the skin, as injection of
radiopaque material in radiological examination, or the

6 MSN Encarta Dictionary.

7 Compact Oxford English Dictionary.

8 The American Heritage Dictionary of the English Language (4th
ed. 2000).

Ser. No. 78285714
9
removal of tissue for biopsy accomplished by a needle. Cf.
transdermal.”9
Based on this evidence, the Trademark Examining
Attorney argues that those goods identified in the
application as “percutaneous access devices consisting of a
disk implantable beneath the skin for use in transmitting
fluid, air, or electricity through the collar and
attachments therefor,” although they might not be “the
conventional type of ‘patch’ goods, such as the very
commonly known nicotine or birth control type patches,”
nonetheless “function exactly the same as these other
patches because the goods have the capacity to introduce
substances [including medical fluids, i.e., medicine] into
the body via a device under the skin.” (Trademark
Examining Attorney’s brief at 4-5.)
We are not persuaded by this argument. Even assuming
that applicant’s goods identified as a “disk implantable
beneath the skin” are used or can be used to transmit
medicine into the body, just as a “patch” does, we cannot
conclude that “patch” merely describes the goods.
Significantly, applicant’s disk is implanted beneath the
skin; it is not adhered to the skin like the patches

9 Dorland’s Illustrated Medical Dictionary.

Ser. No. 78285714
10
identified in the dictionary and NEXIS evidence of record.
There is no evidence that medication delivery devices
implanted beneath the skin are called “patches.” It is not
enough, even if true, that applicant’s goods could be used
to deliver medicines like a “patch” does. On this record,
“patch” has a particular connotation, that of a drug
delivery device that is adhered to the skin, not one which
is implanted beneath the skin.
In short, we are not persuaded by any of the Trademark
Examining Attorney’s three arguments in support of her
contention that “patch” is merely descriptive of
applicant’s goods. Applicant’s goods do not comprise or
involve a “patch” of the types identified in the evidence
(i.e., a heart tissue patch or a medication skin patch).
That applicant’s goods might figuratively be viewed as a
“patch” for the heart does not suffice to render the term
merely descriptive of the goods. We find that the term is
at most suggestive of the goods.
We also find, on this record, that the word BOOSTER is
at most suggestive, rather than merely descriptive, of
applicant’s goods. The Trademark Examining Attorney relies
on dictionary evidence showing that “booster” is defined as
Ser. No. 78285714
11
“something which improves or increases something,”10 and she
argues that the word is merely descriptive of applicant’s
goods because the goods “are used to boost the ability of
the heart to work.” (Trademark Examining Attorney’s brief
at page 6.) We find, however, that this significance of
the word “booster,” as applied to applicant’s goods, is too
vague and generalized to be deemed merely descriptive of
the goods. We note that the record also includes a
reference to a heart “booster pump” in an August 12, 1971
New York Times Abstracts news article (see infra)
concerning applicant’s goods. We find, however, that this
isolated reference does not suffice to establish that
“booster” would be perceived today as a merely descriptive
term in connection with applicant’s goods.
In addition to finding that “patch” and “booster” are
at best suggestive of applicant’s goods, we also find that
the composite created by combining the two words is
suggestive, not merely descriptive. “Patch booster” would
seem to have two possible grammatically correct
constructions, neither of which appears to make sense as
applied to applicant’s identified goods. Whether the
composite is viewed to mean “a patch which boosts,” or is

10 Cambridge Advanced Learner’s Dictionary (2004).

Ser. No. 78285714
12
viewed to mean “a booster for a patch,” the construction is
awkward and does not directly describe applicant’s goods,
which do not involve a “patch” as that term is defined in
the record (i.e., a heart tissue patch or a medication skin
patch).
Finally, we acknowledge that the record includes
evidence of four instances of use of the designation “patch
booster.” Applicant asserts that each of these instances
of use are in reference to applicant’s goods, and that Dr.
Kantrowitz is a principal of applicant. The instances of
use are as follows:

Sinai Hosp, Detroit, drs led by Dr A Kantrowitz
implant permanent, partly mechanical booster
pump in H Shanks, 63-yr-old man suffering from
congestive heart failure: device, known as
patch booster, was inserted during 5-hr
operation; is air powered and can be used as
long as required; is made of silicone rubber
and Dacron, is 6 inches long and 1 ¼ inches
wide and is powered by 8-lb portable driving
unit powered by batteries mounted on belt ...

(New York Times Abstracts, August 12, 1971);

H Shanks, recipient of patch booster,
permanently implanted mechanical heart pump,
dies of complications stemming from kidney
failure, Sinai Hosp, Detroit

(New York Times Abstracts, November 15, 1971;

Dr A Kantrowitz says he and his Detroit team
have modified their partly mechanical heart
device and are preparing 4 persons with chronic
Ser. No. 78285714
13
heart disease for implantation with pump-
controlled balloon, meeting, NYS Med Soc;
modifications follow intensive study of cause
of death of H Shanks, who recd permanently
implanted mechanical heart pump at Sinai Hosp
in Aug ’71; pump worked, but Shanks died 3 mos
later from kidney failure following massive
doses of antibiotics to counteract chest
infection that developed as complication of
surgery; modifications, designed to eliminate
cause of infection, described; device, known as
patch booster, does not replace natural heart;
device described...

(New York Times Abstracts, February 17, 1972);

and, from an online article entitled “The 25 Landmark
‘Milestone’ Papers Published by ASAIO 1955-2003”
(echo.gmu.edu/bionics/Toppapers5.htm):

I was very fortunate to train with Dr. Adrian
Kantrowitz. Dr. Kantrowitz pioneered the
development and implantation of temporary and
permanent heart pumps – devices that, to date,
have saved many thousands of lives. ... As I
remember, one afternoon in 1967, Dr. Kantrowitz
called me and said, “Steve, we’re ready to
implant the balloon pump in a patient.” ...
From its initial clinical use, over 37 years
ago, to its current extensive use of over
100,000 times annually in the US alone, the
balloon pump, developed and pioneered by Dr.
Adrian Kantrowitz, remains the first choice
intervention for mechanical circulatory
assistance. A permanent balloon pump, (the
experimental patch booster), was commercialized
as the CardioVad System and successfully
implanted in a number of patients. ...

We are not persuaded that this evidence of use of the
designation “patch booster” in connection with applicant’s
Ser. No. 78285714
14
goods, whether considered by itself or in connection with
the other evidence of record, establishes the mere
descriptiveness of the designation as applied to
applicant’s goods. These are isolated instances of use
spread over thirty-five years, and we therefore accord
these articles little or no probative value as evidence of
how the designation “patch booster” is or would be
perceived today. Moreover, these instances of use of
“patch booster” are somewhat nebulous, to the extent that
they may be the writer’s attempt to refer to the trademark
of applicant’s specific product, i.e., “known as patch
booster.” If the term were in fact merely descriptive as
applied to applicant’s goods or competitors’ similar goods,
we would expect to see more numerous and more clearly
descriptive usages of the term in the press and the
literature in the thirty-plus years since the appearance of
the articles quoted above. The paucity of the evidence of
use of the term “patch booster” weighs against a finding of
mere descriptiveness.
In summary, we find that the evidence of record does
not support a conclusion that PATCH BOOSTER is merely
descriptive of applicant’s goods. To the extent that any
doubts might exist as to the mere descriptiveness of
applicant’s mark, we resolve such doubts in favor of
Ser. No. 78285714
15
applicant and in favor of publication of the mark for
opposition. See In re Grand Forest Holdings Inc., 78
USPQ2d 1152 (TTAB 2006); In re Grand Metropolitan
Foodservice Inc., 30 USPQ2d 1974 (TTAB 1994).
Decision: The refusal to register is reversed.

- o O o -

Bucher, Administrative Trademark Judge, concurring:
I agree that the combined term, PATCH BOOSTER, is not
merely descriptive of this device. Since Dr. Kantrowitz
first implanted a similar device in a patient with terminal
heart failure in 1971, it seems no one else has used this
combination of terms. Nonetheless, those knowledgeable
about these goods will understand the etymology of each
individual word. This left ventricular assist device helps
patients with severe chronic congestive heart failure by
permitting the failing heart to work more effectively –
assisting the circulation by diastolic augmentation. The
patient can turn the device off and disconnect the external
power source for minutes or hours. The involved item has
three main parts as set out in the identification of goods.
! In the accompanying picture one can see illustrated the
Ser. No. 78285714
16
inflatable polyurethane bladder which has
been sutured to replace an excised portion
of the aorta, making it an “aortic patch.”
This is a patch in the general sense that it
‘covers a hole’ made by a surgeon in the 11
lateral aspect of the descending thoracic aorta. " This
is a connector through which the patch, or internal portion
of the pumping mechanics, connects to an external power
source. This collar is a percutaneous access device
designed to provide a through-the-skin coupling between the
implanted, dynamic aortic patch and the external unit. #
This is the external drive unit that operates the pump.
As noted by the majority, the word BOOSTER has meaning
in that this entire device, given its augmentation
function, appears to serve the patient as a “booster pump.”
However, even if the word PATCH conveys information
about the nature of the implanted balloon pump portion of
the device, and even if the word BOOSTER conveys
information about the function of the entire device, I
agree with applicant’s alternative position herein, that
when these two arguably descriptive words are combined, the

11 The image was taken from applicant’s website and introduced
into the record by the Trademark Examining Attorney. This author
has added the numbers 1, 2 and 3 to clarify the three portions of
applicant’s identified device.
Ser. No. 78285714
17
composite appears to be nothing more than suggestive of the
device. As noted by the majority, to the extent we have
doubt, we must resolve such doubt in favor of applicant.