13801979 (P.T.A.B. Apr. 17, 2018)

Ex Parte Follmer et al

Patent Trial and Appeal BoardApr 17, 2018

13801979 (P.T.A.B. Apr. 17, 2018)

UNITED STA TES p A TENT AND TRADEMARK OFFICE APPLICATION NO. FILING DATE 13/801,979 03/13/2013 27777 7590 04/19/2018 JOSEPH F. SHIRTZ JOHNSON & JOHNSON ONE JOHNSON & JOHNSON PLAZA NEW BRUNSWICK, NJ 08933-7003 FIRST NAMED INVENTOR Brett Allen Follmer 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. COD5336USNP 8116 EXAMINER DANG, PHONG SON H ART UNIT PAPER NUMBER 3731 NOTIFICATION DATE DELIVERY MODE 04/19/2018 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): jnjuspatent@corus.jnj.com lhowd@its.jnj.com pairjnj@firsttofile.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte BRETT ALLEN FOLLMER and SHEILA V ALLESTEROS ASUNCION Appeal2017-003805 Application 13/801,979 Technology Center 3700 Before DONALD E. ADAMS, DEMETRA J. MILLS, and ERIC B. GRIMES, Administrative Patent Judges. MILLS, Administrative Patent Judge. DECISION ON APPEAL This is an appeal under 35 U.S.C. Â§ 134. The Examiner has rejected the claims for anticipation and obviousness. We have jurisdiction under 35 U.S.C. Â§ 6(b). We affirm. Appeal2017-003805 Application 13/801,979 STATEMENT OF CASE The following claim is representative. 1. Apparatus for removal of at least a portion of an obstruction from an obstructed blood vessel for treatment of ischemic stroke, comprising: a telescoping support member including an outer tubular shaft and an inner elongate member extending through said outer tubular shaft and slidable within said outer tubular shaft, said outer tubular shaft having a distal end, and said inner elongate member having a distal end and a proximal end; a first expandable member having a proximal end and a distal end and a tubular body extending between the proximal and distal ends of the first expandable member, said proximal end of said first expandable member being attached to said distal end of said outer tubular shaft of said telescoping support member, and said distal end of said first expandable member being attached to a distal portion of said inner elongate member, said first expandable member having a radially compressed configuration and a radially expanded configuration, and said first expandable member having a longitudinally extended configuration with said proximal and distal ends of said first expandable member disposed at opposing ends of said first expandable member, and an everted configuration with said distal end of said first expandable member withdrawn within said tubular body of said first expandable member adjacent to said proximal end of said first expandable member; and a second expandable member configured to be deployed into an obstruction within the blood vessel, said second expandable member having a closed distal end and a closed proximal end, and a tubular mesh body extending between the proximal and distal ends of the second expandable member, said closed proximal end of said second expandable member being permanently joined to said distal end of said inner elongate member of said telescoping support member, said tubular mesh body being configured to radially expand into contact with at least a portion of the obstruction such that a portion of the obstruction is dislodged to enhance blood flow through the blood vessel, said tubular mesh body including a plurality of interstices, at least a portion of the interstices being adapted to allow passage of at 2 Appeal2017-003805 Application 13/801,979 least one dislodged portion of the obstruction therethrough in a radial direction into the tubular mesh body, wherein movement of said inner elongate member in a proximal direction relative to said outer tubular shaft of the telescoping support member moves the first expandable member between said longitudinally extended configuration and said everted configuration such that said first expandable member envelopes said second expandable member. Cited References Welch et al. ("Welch") Mazzocchi et al. ("Mazzocchi") Dieck et al. ("Dieck") Grounds of Rejection US 2006/0259067 Al Nov. 16, 2006 US 7 ,556,635 B2 July 7, 2009 WO 2012/162437 Al Nov. 29, 2012 1. Claims 1, 2, 4--10, 12, 14--17, 19, and 20 are rejected under pre- AIA 35 U.S.C. Â§ 102(b) as being anticipated by Mazzocchi. 2. Claim 3 is rejected under pre-AIA 35 U.S.C. Â§ 103(a) as being unpatentable over Mazzocchi. 3. Claim 11 is rejected under pre-AIA 35 U.S.C. Â§ 103(a) as being unpatentable over Mazzocchi in view of Dieck. 4. Claim 13 is rejected under pre-AIA 35 U.S.C. Â§ 103(a) as being unpatentable over Mazzocchi in view of Welch. FINDINGS OF FACT The Examiner's findings of fact are set forth in the Final Action at pages 2-9. The following facts are highlighted. 3 Appeal2017-003805 Application 13/801,979 1. Figures 2 and 3 of Appellants' Specification are reproduced below. )-â€¢- -Â·-Â·h-Â·-Â·-Â·-Â·-Â·---~---~--- -Â·-Â·- -Â·-Â·-"'--Â·-Â·-Â·-Â·-Â·-Â·-Â·1"-Â·-~--- -Â·-:::::;;..-Â·-Â·-Â·-h:::::::~:~:~Â· l~'!.'.-.~<-.~~~~~~~~{.~~~Â¥-.~~~~~~~~~~~~~~~~~~~~~~~~~t~~'-.~!!-.~ Figures 2 and 3 show the ischemic stroke device of the invention. Element 32 is a first, proximal expandable member or cover and element 54 is a second, distal expandable member. Spec. i-fi-123, 25. The first or proximal expandable member covers, or envelops or enfolds the second or distal expandable member. Spec. i128. 2. Figure 14 of Mazzocchi is reproduced below. 4 \ \ \ 320 322 Appeal2017-003805 Application 13/801,979 Figure 14 shows the body filtering device of Mazzocchi with basket element 320 and cover element 340 in its collapsed state. Mazzocchi, col. 22, 11. 34--47. 3. Figure 15 of Mazzocchi is reproduced below. Figure 15 shows the body filtering device of Mazzocchi and deployment of cover element 340 and basket element 320. Mazzocchi, col. 22, 11. 48---61. When the basket is drawn proximally toward the cover, the basket will be substantially enclosed in the cover. The cover 340 will therefore tend to trap any emboli (not shown) or other particulate matter retained within the cavity of the basket 320. Col. 23, 11. 8-14. PRINCIPLES OF LAW In making our determination, we apply the preponderance of the evidence standard. See, e.g., Ethicon, Inc. v. Quigg, 849 F .2d 1422, 1427 (Fed. Cir. 1988) (explaining the general evidentiary standard for proceedings before the Office). 5 Appeal2017-003805 Application 13/801,979 In order for a prior art reference to serve as an anticipatory reference, it must disclose every limitation of the claimed invention, either explicitly or inherently. See In re Schreiber, 128 F.3d 1473 (Fed. Cir. 1997). "The combination of familiar elements according to known methods is likely to be obvious when it does no more than yield predictable results." KSR Int'! Co. v. Teleflex Inc., 550 U.S. 398, 416 (2007). Anticipation Rejection 1 We agree that the Examiner has set forth a prima facie case of anticipation in the Final Rejection and Answer for the reasons and evidence presented therein. Mazzocchi teaches each and every element claimed. The only argument put forth by Appellants is that, "[i]n no way can cover 340 be said to cover or envelop basket 320. These elements are clearly separated by a cavity 329." App. Br. 6. We are not persuaded by Appellants' argument. Mazzocchi discloses that when the basket is drawn proximally toward the cover it will be substantially enclosed therein. Mazzocchi, col. 23, 11. 10-12; Ans. 2. The cover 340 will, therefore, trap any emboli or other particulate matter retained within the cavity of the basket 320. FF3. As to Appellants' argument concerning cavity 329, we agree with the Examiner that, when the basket cover 340 substantially encloses basket 320, no cavity 329 remains. No Reply Brief was filed by Appellants. Arguments not made are waived. Thus, Mazzocchi teaches each and every element claimed, and the anticipation rejection is affirmed. Obviousness Rejections 2-4 6 Appeal2017-003805 Application 13/801,979 We agree with the Examiner's fact finding, statement of the rejection and responses to Appellants' arguments as set forth in the Answer. We find that the Examiner has provided evidence to support a prima facie case of obviousness. Obviousness Rejections 2--4 as set forth in the grounds of rejection are not argued on the merits in the Appeal Brief. Appellants argue that the obviousness rejections of claims 3, 11, and 13 stand or fall with the rejection of claim 1. App. Br. 6. Having had no convincing argument with respect to the rejection of claim 1, we also affirm rejections 2--4. CONCLUSION OF LAW The cited references support the Examiner's anticipation and obviousness rejections, which are affirmed for the reasons of record. All pending, rejected claims fall. 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. Â§ 1.136(a). AFFIRMED 7