Ex Parte Gindele et al

Patent Trial and Appeal Board

Mar 14, 2016

13167541 (P.T.A.B. Mar. 14, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
13/167,541 06/23/2011
103552 7590 03/15/2016
Astora Women's Health, LLC
C/O Westman, Champlin & Koehler, P.A.
900 Second A venue South
Suite 1400
Minneapolis, MN 55402-3244
FIRST NAMED INVENTOR
Paul J. Gindele
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.
Al94.0015US1/AMS-3013C-US 8285
EXAMINER
HOLMES,REXR
ART UNIT PAPER NUMBER
3762
MAILDATE DELIVERY MODE
03/15/2016 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 PAUL J. GINDELE, SHIV AP. MOOS AI,
JOHN JASON BUYSMAN, and KAREN PILNEY MONTPETIT
Appeal2014-001294
Application 13/167,541
Technology Center 3700
Before CYNTHIA L. MURPHY, BRUCE T. WIEDER, and
TARA L. HUTCHINGS, Administrative Patent Judges.
MURPHY, Administrative Patent Judge.
DECISION ON APPEAL
The Appellants 1 appeal under 35 U.S.C. § 134 from the Examiner's
rejection of claims 1-9 and 13-20.2 We have jurisdiction over this appeal
under 35 U.S.C. § 6(b ).
We AFFIRM-IN-PART.
1 "AMS Research Corporation" is identified as the real party in interest.
(Appeal Br. 3.)
2 Claims 10-12 have been cancelled. (Appeal Br. 3.)
Appeal2014-001294
Application 13/167,541
STATEMENT OF THE CASE
The Appellants' invention relates "to a deployable anchor that
facilitates securing an electrode lead to internal tissue of a patient and
preventing migration of the electrode lead relative to the tissue of the
patient." (Spec. 1, lines 17-19.)
Independent Claims on Appeal3
1. An electrode lead comprising:
a lead body having a tubular side wall;
at least one electrode at a distal end of the lead body;
an actuatable member within a lumen of the lead body; and
at least one anchor wire having a proximal end attached to
the actuatable member;
wherein movement of the actuatable member relative to the
lead body moves the at least one anchor wire through
at least one opening in the sidewall of the lead body.
13. A method comprising:
providing an electrode lead comprising a lead body, at least
one electrode at a distal end of the lead body and at
least one anchor wire having a proximal end
connected to the lead body;
positioning the distal end of the lead body within tissue of
a patient;
moving a distal end of the at least one anchor wire radially
from the lead body relative to a longitudinal axis of
the lead body; and
piercing the tissue with the distal end of the anchor wire
responsive to moving a distal end to anchor the distal
end of the lead body to the tissue.
3 These claims are quoted from the Claims Appendix ("Claims App.") set
forth on pages 12-15 of the Appeal Brief.
2
Appeal2014-001294
Application 13/167,541
Rejections
I. The Examiner rejects claims 1--4, 8, 9, and 13-16 under
35 U.S.C. § 102(b) as anticipated by Sommer.4 (Final Action 2.)
II. The Examiner rejects claims 5-7 under 35 U.S.C. § 103(a) as
unpatentable over Sommer and Lokhoff. 5 (Id. at 3.)
III. The Examiner rejects claims 17-20 under 35 U.S.C. § 103(a) as
unpatentable over Sommer and Zheng.6 (Id. at 4.)
ANALYSIS
Independent Claim 1
Independent claim 1 is directed to an electrode lead comprising a
"lead body" and an "anchor wire" that moves "through at least one opening
in the sidewall of the lead body." (Claims App.) The Examiner finds
Sommer discloses an electrode lead 10 comprising a lead body (elongated
body 20) and an anchor wire (fixation helix 24) that moves through an
opening (window 46) in a tubular side wall of the lead body. (See Final
Action 2; see also Sommer i-fi-f 16, 23, 26, 27, Figs. 2--4.) We are not
persuaded by the Appellants' position that this finding by the Examiner is
flawed. (See Appeal Br. 7-8.)
The Appellants argue that Sommer's fixation helix 24 rotates within
window 46 and such rotation does not satisfy the plain meaning of the word
"through." (See Appeal Br. 7.) To support this argument, the Appellants
4 US 2007/0156219 Al, published July 5, 2007.
5 US 2002/0161423 Al, published October 31, 2002.
6 US 6,662,045 B2, issued December 9, 2003.
3
Appeal2014-001294
Application 13/167,541
provide a dictionary definition of the claim term "through" which requires
movement with respect to "side[s]" or "point[s]. (Id.) According to the
Appellants' cited source, "through" is a function word used "to indicate
movement into at one side or point and out at another and especially the
opposite side."7
We note, however, that even the definition provided by the Appellants
does not require the sides or points to be "interior" and "exterior" locations.
In other words, independent claim 1 "only requires the anchor wire to move
through the opening," it does not recite "that the anchor wire has to extend a
distance past the tubular sidewall." (Answer 5---6.) As such, using the
Appellants' definition, the claim term "through" could also pertain to points
in a space between the longitudinal edges of Sommer's window 46. The
Appellants do not adequately address why Sommer's fixation helix 24 does
not move "through" points in this space when, for example, it is being
advanced or retracted within the central lumen of elongated body 20. (See
Sommer i-f 16.)
Thus, we sustain the Examiner' rejection of independent claim 1
under 35 U.S.C. § 102(b) as anticipated by Sommer (Rejection I).
Dependent Claim 2
Claim 2 depends from independent claim 1, and further requires a
distal end of the anchor wire to "move[] radially from the lead body relative
to a longitudinal axis of the lead body." (Claims App.) As discussed in
more detail below with respect to independent claim 13, we are persuaded
by the Appellants' arguments that Sommer does not disclose that a distal end
7 http://www.merriam-webster.com/dictionary/through.
4
Appeal2014-001294
Application 13/167,541
of its anchor wire (fixation helix 24) moves in this manner. (See Appeal
Br. 8-9.) Thus, we do not sustain the Examiner's rejection of dependent
claim 2 under 35 U.S.C. § 102(b) as anticipated by Sommer (Rejection I).
Dependent Claims 3-9
Claims 3-9 depend from independent claim 1. (See Claims App.)
The Appellants do not argue these dependent claims separately from
independent claim 1 (see Appeal Br. 8), so they fall therewith. Thus, we
sustain the Examiner's rejection of dependent claims 3---6, 8, and 9 under
35 U.S.C. § 102(b) as anticipated by Sommer (Rejection I); and we sustain
the Examiner's rejection of dependent claims 5-7 under 35 U.S.C. § 103(a)
as unpatentable over Sommer and Lokhoff (Rejection II).
Independent Claim 13
Independent claim 13 is directed to a method including the step of
moving a distal end of an anchor wire "radially from [a] lead body relative
to a longitudinal axis of the lead body." (Claims App.) The Examiner finds
that the distal end (tip 30) of Sommer's fixation helix 24 moves radially
from elongated body 20 when it rotates about its longitudinal axis. (See
Answer 6.) We are persuaded by the Appellants' arguments that this finding
by the Examiner is flawed. (See Appeal Br. 8-9.)
The Examiner explains that tip 30 of Sommer's fixation helix 24
"rotates about the central longitudinal axis of the lead at a fixed distance
(radius)." (Answer 6.) However, this establishes at most that tip 30 moves
radially about or around an axis of Sommer's elongated body 20. Although
independent claim 13 may not "state that the movement is outward or even
along a radius" (id.), independent claim 13 does require the movement to be
5
Appeal2014-001294
Application 13/167,541
"radially from the lead body" (Claims App., emphasis added). In the context
of physical movement, a dictionary definition of the claim term "from," is a
function word that is used "to indicate a starting point of physical
movement. "8 The Examiner does not point with particularity to, and we do
not find, disclosure in Sommer indicating that elongated body 20 (not its
longitudinal axis) is a starting point of physical movement for tip 30 of
fixation helix 24.
Thus, we do not sustain the Examiner's rejection of independent
claim 13 under 35 U.S.C. § 102(b) as anticipated by Sommer (Rejection I.)
Dependent Claims 14-20
Claims 14--20 depend from independent claim 13 and therefore
likewise require movement of the distal end of the anchor wire radially from
the lead body. (See Claims App.) The Examiner's further findings with
respect to these dependent claims; and the Examiner's further findings
regarding the teachings of Zheng (see Final Action 2, 4--5) do not
compensate for Sommer' s failure to disclose such movement of the distal
end (tip 30) of fixation helix 24 relative to elongated body 20. Thus, we do
not sustain the Examiner's rejection of dependent claims 14--16 under
35 U.S.C. § 102(b) as anticipated by Sommer (Rejection I); and we do not
sustain the Examiner's rejection of dependent claims 17-20 under
35 U.S.C. § 103(a) as unpatentable over Sommer and Zheng (Rejection III).
8 http://www.merriam-webster.com/dictionary/from. In contrast, a
dictionary definition of "about" in the context of physical movement is "on
all sides," or "around the outside." http://www.merriam-
webster.com/dictionary/about.
6
Appeal2014-001294
Application 13/167,541
DECISION
We AFFIRM the Examiner's rejections of claims 1 and 3-9.
We REVERSE the Examiner's rejections of claims 2 and 13-20.
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a)(l )(iv).
AFFIRMED IN PART
7