Ex Parte Fuller et al

Board of Patent Appeals and Interferences

Aug 17, 2012

11998692 (B.P.A.I. Aug. 17, 2012)

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.
11/998,692 11/29/2007 Kay L. Fuller 0146(17205) 6238
46909 7590 08/17/2012
TERUMO CARDIOVASCULAR SYSTEMS CORPORATION
ATTN: GAEL DIANE TISACK
6200 JACKSON ROAD
ANN ARBOR, MI 48103
EXAMINER
HOEKSTRA, JEFFREY GERBEN
ART UNIT PAPER NUMBER
3736
MAIL DATE DELIVERY MODE
08/17/2012 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 BOARD OF PATENT APPEALS
AND INTERFERENCES
__________

Ex parte KAY L. FULLER and RANDAL J. KADYKOWSKI
__________

Appeal 2011-007218
Application 11/998,692
Technology Center 3700
__________

Before ERIC GRIMES, STEPHEN WALSH, and ULRIKE W. JENKS,
Administrative Patent Judges.

JENKS, Administrative Patent Judge.

DECISION ON APPEAL
This is a decision on appeal under 35 U.S.C. § 134 from the
Examiner’s rejection of claims 1, 4-11, and 14-22. We have jurisdiction
under 35 U.S.C. § 6(b). We reverse.
Appeal 2011-007218
Application 11/998,692

2
STATEMENT OF THE CASE
Claims 1, 4-11, and 14-22 are on appeal, and can be found in the
Claims Appendix of the Appeal Brief (App. Br. 10-14). Claims 1, 11, and
21 are independent claims. Claim 1 is representative of the claims on
appeal, and reads as follows (emphasis added):
1. An integral fluid-regulating endoscopic device for dissecting and/or
harvesting a vessel from a body comprising:

a sheath configured to be at least partially inserted in a body
through a cut skin portion and configured for one or more of: i)
forming a subcutaneous area in the body at least partially
around the vessel, ii) dissecting the vessel from the body, and
iii) harvesting the vessel from the body;

an integrally adjustable insufflation device configured to supply
an insufflation fluid to the subcutaneous area; the integrally
adjustable insufflation device including one or more fluid
control mechanisms configured to regulate at least one of a
pressure and flow rate of the insufflation fluid being supplied to
the subcutaneous area from within a sterile field surrounding
the cut skin portion of the body.

The following grounds of rejection are before us for review:
The Examiner has rejected claims 1, 4-11, and 14-22 under 35 U.S.C.
§ 102(b) as being anticipated by Moll.
1

1
Moll et al., US 5,575,759, issued November 19, 1996.
Appeal 2011-007218
Application 11/998,692

3
PRINCIPLES OF LAW
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, 1477 (Fed. Cir. 1997). To
anticipate, every element and limitation of the claimed invention must be
found in a single prior art reference, arranged as in the claim. Karsten Mfg.
Corp. v. Cleveland Golf Co., 242 F.3d 1376, 1383 (Fed. Cir. 2001).

ANALYSIS
The Examiner takes the position that Moll discloses an “integral fluid-
regulating endoscopic device and method for dissecting and harvesting a
vessel from a body” using the device. (Ans. 4.) The Examiner finds that
Moll’s device includes “an integrally adjustable insufflation fluid regulating
device (58 and 54) configured to supply an insufflation fluid to the
subcutaneous area.” (Ans. 5) “[T]he integrally adjustable insufflation
device includ[es] one or more fluid control mechanisms (54 and 56)
configured to regulate a pressure and a flow rate of the insufflation fluid
being supplied to the subcutaneous area from within a sterile field (the
surgical environment) surrounding the cut skin portion of the body.” (Ans.
5.)
Appellants assert that Moll does not teach every limitation as set out
in the claims, and “does not even disclose the use of the over-pressure relief
feature of valve 54 in conjunction with insufflation.” (Reply Br. 2.)
Appellants assert that
[t]he duckbill valve's purpose . . . is to function as a one-way valve.
In other words, it allows inflation fluid to flow through the valve 54
Appeal 2011-007218
Application 11/998,692

4
unencumbered, into the retraction device. Then, after the inflation
fluid supply hose is decoupled from valve 54, it prevents inflation
fluid from flowing out of the pressurized chamber which would
otherwise cause the chamber to deflate.

(App. Br. 5-6.) Appellants argue that “Moll does not disclose any feature
whatsoever whereby a clinician operator can self-regulate the insufflation
fluid supply pressure and/or flow rate from within the sterile field.” (App.
Br. 7.)
We agree with the Appellants. Claim 1 requires an “integrally
adjustable insufflation device including one or more fluid control
mechanisms configured to regulate at least one of a pressure and flow rate of
the insufflation fluid being supplied.” “Insufflation” is defined as “an act or
action of blowing on, into, or in: as the act of blowing something (as a gas,
powder, or vapor) into a body cavity.” (Merriam-Webster’s Dictionary,
http://www.merriam-webster.com/dictionary/insufflation, last visited August
8, 2012.) The Specification’s use of the term is consistent with this
definition (see Spec. 2, ¶ 6: “The harvesting of blood vessels also includes
the use of insufflators in order to create an open area around the vessel being
dissected and harvested. The insufflators are attached to supplies of air or
CO2.”). We interpret the limitation “insufflation” to require that fluid is
blowing into the body cavity. The claim requires that the fluid flows into the
body cavity through an adjustable control mechanism that regulates the flow
or pressure of the fluid blowing into body cavity.
Moll discloses an inflatable retraction device for laparoscopic surgery.
Moll discloses the specific procedures of repairing a hernia (Moll, col. 20, l.
41 to col. 23, l. 47) and removing a gall bladder (Moll, col. 23, l. 48 to col.
Appeal 2011-007218
Application 11/998,692

5
25, l. 65). The laparoscopic device of Moll uses an inflation device with two
chambers to gain access to the tissue or injury of interest. (Moll, col. 8,
ll. 46-49.) The device contains a port (56) that comprises a pressure control
valve (54) and a one way valve (58). (Moll, Fig. 1A; col. 16, ll. 52-54.) The
pressure control valve and one-way valve are both duck-bill valves. (Moll,
Fig. 8.; col. 17, ll. 1-2, 18-25.) The pressure control valve contains “the
female luer lock 224 to which the source of inflation pressure may be
attached.” (Moll, col. 17, ll. 21-23.) The valve is attached to the port in
such a way that the flow of the fluid into the device is not encumbered, and
when the fluid source is removed from the valve the valve does not release
fluid unless the pressure of the fluid inside the chamber is too great. (Moll,
col. 17, ll. 40-64.) When fluid enters into the device, “the pressure inside the
main chamber is exclusively determined by the pressure of the source of
inflation fluid.” (Moll, col. 17, ll. 35-39.) The function of the pressure
control valve is to “prevent[ ] the pressure of the main chamber from rising
above a level that would impair the reliability of the main chamber.” (Moll,
col. 17, ll. 55-57.)
We find that Moll does not use the disclosed valves to regulate the
pressure of the fluid entering into the chamber. Thus, the valves do not
serve the purpose of controlling the pressure or flow rate of an insufflation
fluid; i.e., fluid going into the body cavity. An anticipatory reference, must
disclose every limitation of the claimed invention. See In re Schreiber,
at 1477. Because Moll does not meet all the claim limitations, specifically it
is missing the limitation of “the integrally adjustable insufflation device
including one or more fluid control mechanisms configured to regulate at
Appeal 2011-007218
Application 11/998,692

6
least one of a pressure and flow rate of the insufflation fluid being supplied,”
it cannot anticipate the claims. We reverse.

CONCLUSION OF LAW
The evidence on this record fails to support Examiner's finding that
Moll disclosed Appellants' claimed invention directed to an integrally
adjustable insufflation device. The rejection of claims 1, 4-11, and 14-22
under 35 U.S.C. § 102(b) as being anticipated by Moll is reversed.

SUMMARY
We reverse the rejection of claims 1, 4-11, and 14-22 under 35 U.S.C.
§102(b) as anticipated by Moll.

REVERSED

alw