Ex Parte Dreyfuss

Patent Trial and Appeal Board

Mar 20, 2013

11224060 (P.T.A.B. Mar. 20, 2013)

UNITED STATES PATENT AND TRADEMARKOFFICE
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.
11/224,060 09/13/2005 INV001Peter J. Dreyfuss A8130.0463/P463 2461
24998 7590 03/20/2013
DICKSTEIN SHAPIRO LLP
1825 EYE STREET NW
Washington, DC 20006-5403
EXAMINER
MASHACK, MARK F
ART UNIT PAPER NUMBER
3773
MAIL DATE DELIVERY MODE
03/20/2013 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 PATENT TRIAL AND APPEAL BOARD
__________

Ex parte JOSEPH W. RUCKER
__________

Appeal 2011-006741
Application 11/224,060
Technology Center 3700
__________

Before DEMETRA J. MILLS, ULRIKE W. JENKS, and SHERIDAN K.
SNEDDEN, Administrative Patent Judges.

SNEDDEN, Administrative Patent Judge.

DECISION ON APPEAL
This is an appeal under 35 U.S.C. § 134 involving claims to a suture
anchor. The Examiner has rejected the claims for obviousness. We have
jurisdiction under 35 U.S.C. § 6(b). We affirm.

Appeal 2011-006741
Application 11/224,060

2
STATEMENT OF THE CASE
Claims 1, 2, 5, 7, 8, 12, and 14-19 are on appeal. Claims 1, 10, 11, 18,
19, and 20 are representative and reads as follows (emphasis added):
1. A suture anchor comprising:
a fully threaded anchor body extending longitudinally
from a proximal end to a distal end;
a strand of flexible material disposed within the anchor
body, the strand forming a loop extending through more than
half the length of the anchor body and being disposed at least
partially within a longitudinal bore of the anchor body, the loop
forming an eyelet at the proximal end of the anchor body for
slidingly receiving at least one suture strand for tying tissue to
bone, the strand having ends tied together in a knot disposed
within a socket at the distal end of the anchor body, wherein the
socket is in communication with the longitudinal bore; and
at least one suture strand threaded through the loop and
passing slidingly through the eyelet, for tying tissue to bone.

10. The suture anchor of claim 1, wherein the flexible
material comprises a suture formed of ultrahigh molecular
weight polyethylene.

11. The suture anchor of claim 1, wherein the knot is
coated with a glue material.

18. A method of attaching tissue to bone using a suture
anchor assembly including a suture anchor comprising: a fully
threaded anchor body having a distal end, a proximal end, a
longitudinal axis, a first central longitudinal bore located at the
proximal end, and a second central longitudinal bore located at
the distal end, the first central longitudinal bore being in
communication with the second central longitudinal bore; a first
strand of flexible material comprising aloop and a knot formed
of ends of the first strand of flexible material tied together, the
first strand being disposed within the anchor body so that the
loop is disposed within the first central longitudinal bore and
Appeal 2011-006741
Application 11/224,060

3
extends through more than half the length of the anchor body,
the loop forming an eyelet at the proximal end, and the knot is
disposed within the second central longitudinal bore; the
method comprising the steps of:
providing at least a second strand of flexible material
through the eyelet;
coupling the suture anchor assembly to a driver;
threading the ends of the second strand of flexible
material attached to the suture anchor through a cannula of the
driver; and
installing the suture anchor assembly into bone, using the
driver, to approximate tissue to bone.

19. The method of claim 18, wherein the second strand of
flexible material further comprises a needle attached to one end.

20. The method of claim 19, further comprising the step
of securing the needle within a cavity of a handle of the driver.

The claims stand rejected as follows:
I. Claims 1, 2, 5, 7, 8, 12, and 14-19 under 35 U.S.C. § 103(a) as
being unpatentable over the combination of Grafton ‘9501 and
Meadows.2
II. Claim 10 under 35 U.S.C. § 103(a) as being unpatentable over the
combination of Grafton ‘950, Meadows and Grafton ‘234.3
III. Claim 11 under 35 U.S.C. § 103(a) as being unpatentable over the
combination of Grafton ‘950, Meadows and Dreyfuss.4

1 Grafton et al., US 2004/0106950 A1, published Jun. 3, 2004.
2 Meadows et al., US 5,156,616, issued Oct. 20, 1992.
3 Grafton et al., US 6,716,234 B2, issued Apr. 6, 2004.
4 Dreyfuss et al., US 6,652,563 B2, issued Nov. 25, 2003.
Appeal 2011-006741
Application 11/224,060

4
IV. Claim 20 under 35 U.S.C. § 103 (a) as being unpatentable over the
combination of Grafton ‘950, Meadows and Li.5

Each rejection relies on Grafton ‘950 for the teaching of a loop
“extending through more than half the length of the anchor body.” As such,
the same issue is dispositive for each rejection and we will consider them
together.
Issue
The Examiner finds that Grafton ‘950 discloses “[l]oop 20 extends
more than half the length of the anchor body . . . and forms and eyelet 57”
(Ans. 4, citing Grafton ‘950, ¶ 24). In reaching this conclusion, the
Examiner finds, with reference to claim 1, that “the clause ‘extending
through more than half the length of the anchor body’ modifies ‘the strand’
not the ‘loop’” (Ans. 6). In an alternative interpretation, the ‘loop’ can be
considered a ‘intertwined’ loop 8 extending from end 15 to end 17 with
eyelet 20” (id.).
The issue presented is:
Does the evidence of record support the Examiner’s findings that
Grafton ‘950 discloses a loop extending through more than half the length of
the anchor body as required by claim 1?
Findings of Fact
The following findings of fact (“FF”) are supported by a
preponderance of the evidence of record.
FF1. Figure 1 of the Specification is reproduced below.

5 Li, US 5,002,550, issued Mar. 26, 1991.
App
App

loop
anch
is di
See a
mate
eyele
eal 2011-0
lication 11
Figure 1
of a flexib
or during
Thus the
sposed wit
FF2. Th

Th
preferab
fully-thr
40] and
at least p

lso ¶ [005
rial exten
t.

FF3. Fi
06741
/224,060
a threaded
le strand o
the manufa
eyelet is f
hin the ent
e Specific
e interna
ly extends
eaded cent
forms an e
artially w
3]. There
ds through
gures 1 an
suture an
f material
cturing pr
ormed of
ire suture
ation ¶ [00
l loop [
through
ral body [
yelet at th
ithin the dr
fore, acco
half of th
d 6 of Gra
5
chor havin
[30] that
ocess. Sp
a loop of f
anchor.
08] states
of flexib
more than
from eyele
e proxima
ive socket
rding to ¶
e central
fton ‘950
g an eyele
is disposed
ecification
lexible str
that
le strand
half the
t end 32 to
l end. The
[or bore
[0008] the
body, and
are reprod
t 32 form
within th
¶ [0006].
and of mat
material
length o
bore end
loop is loc
10].
loop or s
is not jus
uced below

ed of a
e suture

erial that
30]
f the
near
ated
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.

App
App

mold
secti
(id. a
eal 2011-0
lication 11
Figure 1
ed suture
onal view
t 1, ¶ [001
FF4. G
The loop
body 4 b
of the an
the lengt
The larg
orientate
sliding c

06741
/224,060
is a top vi
(Grafton ‘
of the full
5]).
rafton ‘950
20 is rece
y a distan
chor body
h L, more
e, flexible
the eyelet
haracterist
ew of a fu
950 1, ¶ [0
y-threaded
discloses
ssed from
ce L1 (FIG
4. The dis
preferably
suture eye
during an
ics.
6
lly-threade
010]). Fig
suture an
that
the proxim
. 1) of abo
tance L1 i
about two
let elimin
chor inser
d suture a
ure 6 prov
chor with
al end 13
ut one-thi
s greater t
-thirds th
ates the ne
tion to opt
nchor with
ides a cro
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rd the leng
han about
e length L
ed to prec
imize sutu

insert-
ss-
ded suture
hor
th L
half
.
isely
re

App
App

(Id. a
(id. a
with
2, ¶

Mea
eal 2011-0
lication 11
t 2, ¶ [002
FF5. G
A
preferab
Alternat
of the an
the anch

t 2, ¶ [002
FF6. G
a drive so
[0023]).
FF7. Fi
Figure 2
dows (Me
FF8. M
06741
/224,060
4].)
rafton ‘950
t the distal
ly trimm
ively, a kn
chor to in
or.
5]).
rafton ‘950
cket 10 (F
gure 2 of M
shows a s
adows col.
eadows di
discloses
end 12 of
ed flush
ot can be
crease the
discloses
IGS. 1-4)
eadows i
ection view
2, l. 11).
scloses as
7
that
anchor 10
to prov
formed in
pull out st
that “[t]h
in the shap
s reproduc
of a bon

follows:
0, intertw
ide a b
suture 8 a
rength of
e suture an
e of a tape
ed below.
e screw ac
ined suture
lunt tip
t the dista
the suture
chor 100
red cylind

cording to
8 is
15.
l end
from
is provided
er” (id. at

the

Appeal 2011-006741
Application 11/224,060

8
A passageway 23 extends through the body 13, and includes a
central portion 24 and a distal portion 25. The distal portion is
sized to receive a suture thread knot 27. Central portion 24 is
sized to receive a suture thread therethrough. However, central
portion 24 is sized sufficiently smaller than the distal portion 25
such that the suture thread knot 27 is prevented from being
drawn therein.

(Id. at col. 2, l. 67, to col. 3, l. 6.)

Principles of Law
Our mandate is to give claims their broadest reasonable interpretation.
In re American Academy of Science Tech Center, 367 F.3d 1359, 1364, 70
U.S.P.Q.2d 1827, 1830 (Fed. Cir. 2004). “An essential purpose of patent
examination is to fashion claims that are precise, clear, correct, and
unambiguous. Only in this way can uncertainties of claim scope be removed,
as much as possible, during the administrative process.” In re Zletz, 893
F.2d 319, 322 (Fed. Cir. 1989).
“[A] claim must be read in view of the specification of which it is a
part.” Renishaw plc v. Marposs Societa per Azioni, 158 F.3d 1243, 1248
(Fed. Cir. 1998). Claim language must be interpreted according to how it
would have been understood by those skilled in the art at the time the
application was filed. See Schering Corp. v. Amgen Inc., 222 F.3d 1347,
1353 (Fed. Cir. 2000).
“The ordinary and customary meaning of a claim term may be
determined by reviewing a variety of sources. Some of these sources
include the claims themselves; dictionaries and treatises; and the written
description, the drawings, and the prosecution history.” Brookhill-Wilk 1,
Appeal 2011-006741
Application 11/224,060

9
LLC v. Intuitive Surgical, Inc., 334 F.3d. 1294, 1298 (Fed. Cir.
2003)(internal citations omitted).
“‘[A]’ or ‘an’ in patent parlance carries the meaning of ‘one or more’
in open-ended claims containing the transitional phrase ‘comprising.’” KCJ
Corp. v. Kinetic Concepts, Inc., 223 F.3d 1351, 1356 (Fed. Cir. 2000). This
convention is overcome only when “the claim is specific as to the number of
elements” or “when the patentee evinces a clear intent to . . . limit the
article.” Id.
“A patent composed of several elements is not proved obvious merely
by demonstrating that each of its elements was, independently, known in the
prior art.” KSR Int’l v. Teleflex Inc., 550 U.S. 398, 418 (2007). However, a
prima facie conclusion of obviousness may be supported by a showing that a
combination of familiar elements according to known methods yields no
more than predictable results. Id. at 401; citing United States v. Adams, 383
U.S. 39, 40 (1966). Furthermore, the Supreme Court has emphasized that
“the [obviousness] analysis need not seek out precise teachings directed to
the specific subject matter of the challenged claim, for a court can take
account of the inferences and creative steps that a person of ordinary skill in
the art would employ.” Id. at 418. “If a person of ordinary skill can
implement a predictable variation, § 103 likely bars its patentability.” Id. at
417.

Appeal 2011-006741
Application 11/224,060

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Analysis
Appellant contends that “the phrase ‘extending through more than half
the length of the anchor body’ modifies the term ‘loop’ and not the term
‘strand’” (Reply Br. 3). The Examiner contends
that the clause “extending through more than half the length of
the anchor body” modifies “the strand” not the “loop”. This is
a reasonable interpretation of the claim [consistent] with the
specification. In an alternative interpretation, the “loop” can be
considered a[n] “intertwined” loop 8 extending from end 15 to
end 17 with eyelet 20.

(Ans. 6).
We begin our analysis with claim interpretation, since until a claim is
properly interpreted, its scope cannot be compared to the prior art. We apply
the broadest reasonable claim interpretation standard. Claim 1 requires, in
pertinent part, “the strand forming a loop extending through more than half
the length of the anchor body.” “[A] claim must be read in view of the
specification of which it is a part.” Renishaw at 1248. As shown in FF1,
Fig. 1 of the Specification discloses an eyelet 32 formed of a loop of a
flexible strand of material [30] that is disposed within the suture anchor
during the manufacturing process (see also, Specification ¶ [0006]).
Specification ¶ [0008] states that the internal loop of strand material extends
through half of the central body, and is not just the eyelet (FF2).
In view of the above, we find that the Specification discloses that the
loop of strand material extends through more than half of the length of the
anchor and into the drive socket or bore, where the loop is not limited to the
eyelet.
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Application 11/224,060

11
Using the above claim construction, we agree with the Examiner’s
findings that Grafton ‘950 discloses a loop of strand material that extends
through more than half of the length of the anchor as required by claim 1
(Ans. 3-4; FF4 and FF5). The strand may be tied by into a knot, thus
forming a loop that extends from the proximal end of the anchor to the distal
end of the anchor where the knot is formed (FF5). Appellant has failed to
show that the Examiner’s claim interpretation is unreasonable in view of the
disclosure.
We also agree with the Examiner’s alternative interpretation
suggesting that the “intertwined” suture shown in Figure 6 of Grafton’ 950
forms a loop. The “intertwined” loop disclosed by Grafton ‘950 and
depicted in Figure 6 (FF3; see also, Grafton at ¶¶ [0024] and [0025]) may be
interpreted as a doubling of a line6 that is twisted, and which forms an eyelet
at the proximal end of the anchor body and comprises strands that are
trimmed at the distal end (id.). In Grafton ‘950 the doubling of the stand at
the distal end (15 in Figure 6) or the suggested knot at the end of the strand
closes the loop ¶ [0025]. As the “intertwined” loop of Grafton ‘950 extend
from the proximal end to the distal end of the anchor, we find it reasonable
to suggest that the “intertwined” loop of Grafton ‘950 extend through more
than half the length of the anchor body as required by the claim.

6 Loop: 1(a) : a curving or doubling of a line so as to form a closed or partly
open curve within itself through which another line can be passed or into
which a hook may be hooked; (b) : such a fold of cord or ribbon serving as
an ornament. Meriam Webster’s; http://www.merriam-
webster.com/dictionary/loop, accessed March 14, 2013.
Appeal 2011-006741
Application 11/224,060

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We further find that Grafton ‘950 discloses a loop “being disposed at
least partially within a longitudinal bore of the anchor body.” Here, the
drive socket of Grafton ‘950 may reasonably be interpreted as a “bore”
according the ordinary meaning of that term, discussed above. Grafton ‘950
discloses a loop or eyelet located within drive socket (FF2). We are thus not
persuaded by Appellant’s arguments to the contrary (see, App. Br. 3).
It is uncontested that Grafton ‘950 fails to disclose or suggest a suture
anchor with “a strand of flexible material ... having ends tied together in a
knot disposed within a socket at the distal end of the anchor body” as
required by claim 1 (cf. Ans. 4 and App. Br. 6). For this aspect of the
claims, the Examiner relies on the teaching of Meadows, where the
Examiner finds that “it would have obvious to provide the socket structure
of Meadows to the tissue anchor of Grafton ‘950 to protect the knotted
suture from the surrounding tissue and prevent pull-out” (Ans. 4). Here, we
find Appellants have failed to traverse the Examiner’s specific findings.
Rather, Appellants contend:
 “Meadows is silent about a ‘loop extending through more than half
the length of the anchor body and being disposed at least partially
within a longitudinal bore of the anchor body, the loop forming an
eyelet at the proximal end of the anchor body’ for slidingly
receiving another suture strand, as claim 1 recites” (App. Br. 8);
and
 “Meadows specifically teaches against the use of a loop and
against the use of a second suture attached to the suture thread 29”
(id.).
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We are not persuaded. The fact that Meadows fails to disclose, for
example, a loop extending through more than half the length of the anchor
body is not sufficient to establish that the Examiner erred in reaching a
conclusion of obviousness based upon the combined teachings of the
references. See In re Merck & Co. Inc., 800 F.2d 1091, 1097 (Fed. Cir.
1986) (Each reference “must be read, not in isolation, but for what it fairly
teaches in combination with the prior art as a whole.”). In this regard, the
Examiner has provided a rational basis for combining the cited references,
where the proposed modifications address each disputed element of the
claims (Ans. 3-4) and are supported by a preponderance of the evidence on
this record (FF1 – FF5).
Appellants further contend “[a] person of ordinary skill in the art
would also not have been motivated to combine Grafton ‘950 with
Meadows, to arrive at the claimed invention” (App. Br. 11). We are not
persuaded. “The test for obviousness is not whether the features of a
secondary reference may be bodily incorporated into the structure of the
primary reference …. Rather, the test is what the combined teachings of the
references would have suggested to those of ordinary skill in the art.” In re
Keller, 642 F.2d 413, 425 (CCPA 1981). In this situation, the combined
teachings of Grafton ‘950 and Meadows teach the elements of the claims
where the combination yields no more than predictable results. KSR Int’l v.
Teleflex Inc., 550 U.S. 398, 401 (2007). Specifically, Grafton teaches: 1) a
loop extending through more than half the length of the anchor body; 2) said
loop being disposed in a bore of the anchor body; and 3) said loop forming
an eyelet at the proximal end of the anchor body (FF1 – FF3). Meadows
Appeal 2011-006741
Application 11/224,060

14
teaches a knot disposed within a socket at the distal end of the anchor body,
wherein the socket is in communication with the bore (FF4 and FF5).
Regarding the obviousness rejections of dependent claims 10, 11, and
20 over Grafton ‘950 and Meadows in view of Grafton’234 Dreyfuss and Li,
Appellants argue that “[t]he additionally-cited prior art references (i.e.,
Grafton ‘234, Dreyfuss and Li) fail to address the deficiencies of Grafton
‘950 and Meadows, without providing additional argument or evidence”
(App. Br. 9.). As discussed above, we have found no deficiency in the
combination of Grafton and Meadows, and thus we are not persuaded by this
argument of Appellant.
With regard to the rejection of claim 10, Appellant argues that
“Grafton ‘234 discloses a ‘high strength abrasion resistant surgical suture
material’ having ‘braided strands of ultra high molecular weight long chain
polyethylene and polyester,’ and not a suture anchor, much less a suture
anchor having all the structural characteristics recited in independent claims
1 and 18” (App. Br. 9). We are not persuaded. Appellant’s argument does
not address the Examiner’s specific finding with regard to claim 20 or the
combined teachings of the cited references.
With regard to the rejection of claim 11, Appellant argues that
Dreyfuss is silent about a “fully threaded” anchor, as Dreyfuss discloses an
anchor with a tip that tapers to a point. Dreyfuss also fails to disclose or
suggest “a knot formed of ends of the first strand of flexible material tied
together,” as claim 18 recites (emph. added). No ends of a strand of flexible
material are “tied together in a knot” in Dreyfuss. Dreyfuss is also silent
about a “first strand being disposed within the anchor body so that the loop
Appeal 2011-006741
Application 11/224,060

15
is disposed within the first central longitudinal bore and the knot is disposed
within the second central longitudinal bore,” as claim 18 recites. The suture
anchor of Dreyfuss is not provided with first and second longitudinal bores.
(App. Br. 9-10.) We are not persuaded. The Examiner finds that Dreyfuss
teaches that it was known to apply adhesive to a tied knot” and thus “[i]t
would have been obvious to have sealed the tied knot of Grafton ‘950 in
order to prevent it from coming untied and to make it stronger” (Ans. 5,
citing Dreyfus at col. 4, ll. 27-37). Appellant’s arguments do not address the
specific finding of the Examiner and thus do not address the teachings of the
combined references. See In re Merck & Co. Inc., 800 F.2d 1091, 1097
(Fed. Cir. 1986) (Each reference “must be read, not in isolation, but for what
it fairly teaches in combination with the prior art as a whole.”).
With regard to the rejection of claim 20, Appellant argues that “Li
teaches an installation tool for a suture anchor that is configured to
releasably hold a curved needle which is attached to suture, and not a suture
anchor, much less a suture anchor with all the specific characteristics recited
in claims 1 and 18” (App. Br. 10). We are not persuaded. Appellant’s
argument does not address the Examiner’s specific finding with regard to
claim 20 or the combined teachings of the cited references to one of ordinary
skill in the art.
As discussed above, we have found no deficiency in the Examiner’s
prima facie case based on Grafton ‘950 and Meadows. We conclude that the
preponderance of the evidence supports the Examiner’s conclusion that the
combination of Grafton ‘950 and Meadows, with Grafton ‘234 (Ans. 4),
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Application 11/224,060

16
Dreyfuss (Ans. 5), or Li (Ans. 5) meet all the limitations set out in claims the
dependent claims 10, 11, and 20.
SUMMARY
We affirm all rejections on appeal for the reasons herein and of
record.

AFFIRMED

dm