2020006545 (P.T.A.B. Jul. 7, 2021)

AGA Medical Corporation

Patent Trials and Appeals BoardJul 7, 2021

2020006545 (P.T.A.B. Jul. 7, 2021)

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. 14/593,625 01/09/2015 Kurt Amplatz 031USC3 1924 94678 7590 07/07/2021 Armstrong Teasdale LLP (32736) 7700 Forsyth Boulevard Suite 1800 St. Louis, MO 63105 EXAMINER MCEVOY, THOMAS M ART UNIT PAPER NUMBER 3771 NOTIFICATION DATE DELIVERY MODE 07/07/2021 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): ASJM_Patents@abbott.com USpatents@armstrongteasdale.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte KURT AMPLATZ, MATT GLIMSDALE, JANA SANTER, DEREK WISE, JOHN C. OSLUND, KENT ANDERSON, DANIEL O. ADAMS, and ZHONG QIAN Appeal 2020-006545 Application 14/593,625 Technology Center 3700 Before STEFAN STAICOVICI, BRETT C. MARTIN, and JEREMY M. PLENZLER, Administrative Patent Judges. PLENZLER, Administrative Patent Judge. DECISION ON APPEAL STATEMENT OF THE CASE Pursuant to 35 U.S.C. § 134(a), Appellant1 appeals from the Examiner’s decision to reject claims 104–121 and 123. We have jurisdiction under 35 U.S.C. § 6(b). We AFFIRM. 1 We use the word Appellant to refer to “applicant” as defined in 37 C.F.R. § 1.42(a). Appellant identifies the real party in interest as St. Jude Medical, Cardiology Division, Inc. Appeal Br. 2. Appeal 2020-006545 Application 14/593,625 2 CLAIMED SUBJECT MATTER The claims are directed to multi-layer braided structures for occluding vascular defects. Claim 104, reproduced below and reformatted for clarity, is illustrative of the claimed subject matter: 104. A medical device for occluding a target site, the medical device comprising: a tubular fabric structure having proximal and distal ends and a preset, expanded configuration, wherein the tubular fabric structure comprises at least one layer of braided fabric comprising a plurality of braided strands, the plurality of braided strands having ends secured together at each of the proximal and distal ends, the tubular fabric structure configured to be constrained to a reduced configuration for delivery to the target site and to at least partially return to the preset, expanded configuration within the target site when unconstrained, wherein the preset, expanded configuration comprises at least three expanded volume sections and a plurality of intermediate clamps arranged in a repeating pattern with each intermediate clamp extending between a pair of expanded volume sections, and each expanded volume section having a cross-sectional dimension that is larger than a cross-sectional dimension of a respective intermediate clamp, wherein at least one expanded volume section has a cross- sectional dimension at least as large as that of the target site and is generally spherical or ovaloid in shape in the preset, expanded configuration, and wherein when the medical device is in the preset, expanded configuration, the medical device is configured for delivery to and deployment at the target site. Appeal 2020-006545 Application 14/593,625 3 REFERENCES The prior art relied upon by the Examiner is: Name Reference Date Amplatz US 2005/0228434 A1 Oct. 13, 2005 Sepetka US 2006/0116709 A1 June 1, 2006 Soltesz US 2006/0135947 A1 June 22, 2006 REJECTIONS2 Claims 104–107, 110–121, and 123 are rejected under 35 U.S.C. § 103(a) as being unpatentable over Soltesz and Sepetka. Claims 108 and 109 are rejected under 35 U.S.C. § 103(a) as being unpatentable over Soltesz, Sepetka, and Amplatz. OPINION The Examiner finds that Soltesz teaches most of the features recited in claim 104, but “fail[s] to disclose a plurality of intermediate clamps.” Final Act. 9. The Examiner finds, for example, that “Soltesz . . . disclose[s] that the device may be radiopaque to allow visualization during deployment (paragraph 0084).” Id. The Examiner also finds that “Sepetka . . . disclose[s] an occlusion device having a plurality of radiopaque intermediate clamps (54, 186, 196; Figures 6, 11 and 12) arranged in a repeating pattern between larger expanded volume sections which allow visualization of the device during deployment in order to determine its orientation (paragraph 0053).” Id. The Examiner reasons that “[i]t would have been obvious . . . to have provided the plurality of intermediate clamps of Sepetka . . . between the expanded volume sections of Soltesz . . . in order to allow visualization 2 Some rejections from the Final Action were withdrawn in the Answer. See Ans. 3. Appeal 2020-006545 Application 14/593,625 4 of the device during deployment to determine its orientation.” Id. In the Answer, the Examiner further explains that the modified arrangement “provide[s] the added benefit of allowing the relative orientation of the expanded volume sections to be determined.” Ans. 4. Appellant’s response is largely unresponsive to the rejection. Appellant does not dispute any of the findings noted above. Rather, Appellant contends that because “covering 405 . . . may have radiopaque qualities” “stent 46 of Soltesz would already be entirely visible during deployment using any suitable visualization technique due to the presence of covering 405.” Appeal Br. 11. Appellant contends that, therefore, “it would not have been obvious . . . to add additional, and unnecessary, components to the device of Soltesz for the same purpose as is already described as being provided by covering 405.” Id. The Reply Brief does not present argument not already found in the Appeal Brief. Appellant acknowledges that “Soltesz . . . discloses at paragraph [0084] that [] the covering 405 may be comprised of any suitable material” and that “the covering has radiopaque qualities to provide visibility of the covering with the use of fluoroscopy or any other suitable visualization technique.” Appeal Br. 11. Appellant does not allege any particular difficulty with the Examiner’s proposed modification. Indeed, Appellant acknowledges that “to have radiopaque properties is something that one skilled in the art would be readily able to do.” Id. Appellant, however, does not even acknowledge, let alone dispute in any persuasive manner, the Examiner’s rationale that one skilled in the art would have made the proposed modification to “provide the added benefit of allowing the relative orientation of the expanded volume sections to be determined.” Ans. 4. Appeal 2020-006545 Application 14/593,625 5 Moreover, as Soltesz discloses that “covering 405 may be comprised of any suitable material” and that “[i]n some embodiments, the covering 405 has radiopaque qualities,” Soltesz encompasses embodiments in which covering 405 is not radiopaque. Soltesz ¶ 84 (emphasis added). Providing Sepetka’s plurality of intermediate clamps between the expanded volume sections of Soltesz would “allow visualization of the device during deployment to determine its orientation,” as the Examiner reasons. Therefore, in contrast to Appellant’s position, when covering 405 is not radiopaque, the Examiner’s modification would not “add additional, and unnecessary, components to the device of Soltesz for the same purpose.” See Appeal Br. 11. For the reasons set forth above, we are left with a rejection that is essentially undisputed. Appellant does not provide separate argument for the claims depending from claim 104. We are not apprised of error in the Examiner’s decision to reject claims 104–121 and 123. CONCLUSION The Examiner’s rejections are affirmed. DECISION SUMMARY In summary: Claim(s) Rejected 35 U.S.C. § References/Basis Affirmed Reversed 104–107, 110–121, 123 103(a) Soltesz, Sepetka 104–107, 110–121, 123 108, 109 103(a) Soltesz, Sepetka, Amplatz 108, 109 Appeal 2020-006545 Application 14/593,625 6 Overall Outcome 104–121, 123 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). See 37 C.F.R. § 1.136(a)(1)(iv). AFFIRMED