Ex Parte Gordon et al

Board of Patent Appeals and Interferences

Jun 24, 2009

10742742 (B.P.A.I. Jun. 24, 2009)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________________

BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
____________________

Ex parte LUCAS GORDON et al.
____________________

Appeal 2009-003234
Application 10/742,742
Technology Center 3700
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Decided:1 June 24, 2009
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Before JAMESON LEE, SALLY G. LANE and MICHAEL P. TIERNEY,
Administrative Patent Judges.

TIERNEY, Administrative Patent Judge.

DECISION ON APPEAL

1 The two-month time period for filing an appeal or commencing a civil
action, as recited in 37 C.F.R. § 1.304, begins to run from the decided date
shown on this page of the decision. The time period does not run from the
Mail Date (paper delivery) or Notification Date (electronic delivery).
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A. STATEMENT OF THE CASE
This is a decision on appeal by the real party in interest, Cardiac
Dimensions, Inc., under 35 U.S.C. § 134(a) from a final rejection of claims
1-9. Appellants request reversal of the Examiner’s rejection of those claims.
We have jurisdiction under 35 U.S.C. § 6(b). We affirm.

References Relied on by the Examiner
Wilson 6,569,198 May 27, 2003

The Rejections on Appeal
The Examiner rejected claims 1-9 under 35 U.S.C. § 102(e) as
anticipated by Wilson. Claims 1 and 3 are independent claims. The
Appellants argue the patentability of claims 1, 2 and 6, 3 and 7, 4 and 8, and
5 and 9, separately.

The Invention
The invention relates to a tissue shaping vessel having first and
second anchors and a connector that is integral with at least a portion of the
first anchor. (Spec. ¶ 0008).2 The anchors generally contain a flexible wire
and a crimp holding a portion of the wire. (Id. at ¶ 0009).
Claim 1, is illustrative of the claimed invention and is reproduced
below:
1. A tissue shaping device adapted to be deployed in a vessel to
reshape tissue adjacent to the vessel, the device comprising first and
second anchors and a connector disposed between the first and second

2 References to the specification are to U.S. Publication 2005/0137451.
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anchors, the connector being integral with at least a portion of the first
anchor.
(Br. Claims App’x, p. 9). Claim 2 depends from claim 1 and further requires
that the first anchor comprise a flexible wire and a crimp holding a portion
of the flexible wire. (Id.).

B. ISSUE
Have Appellants demonstrated that the Examiner incorrectly
determined that Wilson describes first and second anchors connected via a
connector that is integral with at least a portion of the first anchor?
Have Appellants demonstrated that the Examiner incorrectly
determined that Wilson describes an anchor comprising a flexible wire and
crimp holding a portion of the wire?

C. FINDINGS OF FACT
Appellants’ Device
1. Appellants’ invention is directed towards a tissue shaping device that
is inserted into the cardiac sinus to aid in the closure of the mitral valve.
(Spec. ¶ 0004).
2. Appellants’ tissue shaping device comprises among other things a
connector and first and second anchors. (Id. at ¶¶ 0009 and 0112-0114).
3. Appellants’ specification describe first and second anchor crimps that
may be integral with the connector. (Id.).
4. Appellants Figures 22 and 23 depict an “alternative embodiment”
having integral anchor crimps 562 and 564 that secure respective self-
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expanding wire anchors 566 and 572. (Id. at ¶¶ 0112, 0114-15; Figs. 22-
23).
Wilson (Prior-Art)
5. Wilson teaches a tissue shaping device that is inserted into the cardiac
sinus to aid in the closure of the mitral valve. (Wilson, col. 3, ll. 35-44).
6. Wilson teaches two segments 14 and 16 separated by a connector 18
that secure respective self-expanding coil-spring anchors 72 and 86. (Id. at
col. 5, ll. 28-33 and ll. 41-44).

Comparison of Appellants’ Device and Wilson
7. Wilson Figure 2 as annotated by the Examiner (top) and Appellants’
Figure 23 (bottom) are depicted below and show similarities between
Wilson’s coil spring anchor 72 and 86 system and Appellants’ wire anchors
566 and 572.
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Wilson Figure 2 as annotated by the Examiner and Appellants’ Figure
23 depicted above show Wilson’s coil spring anchor 72 and 86 system
and Appellants’ wire anchors 566 and 572.
8. Both Wilson’s coil-spring anchors 72 and 86 and Appellants’ wire
anchors 566 and 572 serve to the same function, to secure the respective
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devices to the wall of the coronary sinus. (Spec. ¶¶ 0050-54 and Wilson,
col. 5, ll. 35-38 and ll. 47-49).

D. PRINCIPLES OF LAW
A claim is anticipated when each and every element as set forth in the
claim is found, either expressly or inherently described in a single prior art
reference. Verdegaal Bros., Inc. v. Union Oil Co., 814 F.2d 628, 631 (Fed.
Cir. 1987).

E. ANALYSIS
The Examiner found that Wilson taught a tissue shaping device
having all of the limitations of claims 1-9. (Ans., pp. 3-4). Specifically, the
Examiner determined that the plain and ordinary meaning of the term
integral requires that one part be “formed as a unit with another part.” (Id. at
p. 5). The Examiner concluded that this definition represented the broadest
reasonable construction taken in light of Appellants’ specification.
Applying this definition the Examiner found that Wilson met the integral
limitation as the connector and anchors form a single unit to be implanted in
the body. (Id.). Appellants disagree.

1. Claim 1
Appellants contend that the Examiner failed to properly interpret the
claim in light of the specification. (Br., p. 5). According to Appellants,
paragraphs 112-115 of their specification describe what is meant by a
connector integral with at least a first portion of the anchor. Appellants state
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that this section of the specification describes a connector that is formed by
cutting away a section of a blank such as a nitinol (or other suitable material
such as stainless steel) cylinder or tube, leaving the crimp tube portions
intact. (Id.).
We give claims their broadest reasonable interpretation consistent
with the specification. In re Zletz, 893 F.2d 319, 321 (Fed. Cir. 1989). An
applicant may act as its own lexicographer giving a term a meaning that is
different from its plain meaning so long as the different meaning is clearly
stated in the specification. Vitronics Corp. v. Conceptronic, Inc., 90 F.3d
1576, 1582 (Fed. Cir. 1996).
Appellants’ specification does not clearly state a definition for the
term connector “integral” with an anchor. Appellants’ specification
generally teaches that the anchor crimps “may be” integral with the
connector. (See, e.g., Spec. ¶ 9). Paragraphs 112-115 of Appellants’
specification are directed to a particular “alternative” embodiment having an
integral connector formed by cutting away a portion of a tube. (See Spec. ¶
112). The specification however, does not clearly state that the embodiment
of paragraphs 112-115 provides a special definition for the term integral.
Additionally, Appellants stated in an amendment prior to this appeal that the
definition relied upon by Examiner was consistent with the way the term
integral is used in the specification.3 (Amendment, 6/7/2007, p. 4).

3 “Moreover, while dictionaries are not the primary tool for interpreting the
meaning of a claim term, Applicants' use of the word ‘integral’ to describe
the relationship of the connector and anchor is consistent with other
definitions of the word and would be understood by those skilled in the art.
For example, the Merriam-Webster dictionary defines ‘integral’ as ‘formed
as a unit with another part.’” (Amendment, 6/7/2007, p. 4).
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We hold that the broadest reasonable interpretation of the term
integral as claimed by Appellants is formed as a unit with another part. As
identified by the Examiner, Wilson describes and depicts anchors connected
by a connector, where the connector and anchors together form a single unit.
(Ans., p. 5 and see Wilson Fig. 2). Accordingly, we hold that the Examiner
did not err in finding that Wilson anticipated claim 1, which requires a
connector integral with at least a portion of the first anchor.

2. Claims 2 and 6
Claims 2 and 6 are similar to claim 1, but further require that one
(claim 2) or both (claim 6) anchors comprise a flexible wire and a crimp
holding a portion of the flexible wire. The Examiner found that Wilson
taught anchors having both first and second crimps 14 and 16 (distal and
proximal segments) and flexible wires 72 and 86 (self-expanding coil-spring
anchors). (Ans., pp. 5-6). The Examiner, relying upon a dictionary,
reasoned that the distal 14 and proximal 16 segments are crimps, under the
plain and ordinary meaning of the term, because the segments inhibit
movement of flexible wires 72 and 86, by holding a plurality of regions of
each wire. (Ans., p. 5).
Appellants contend that the Examiner failed to point out where
Wilson shows a crimp and further states that Wilson does not describe a
crimp. (Br., p. 6.).
Appellants’ specification does not clearly define what is meant by the
term “crimp.” Accordingly, we give this term the broadest reasonable
meaning as understood by one of ordinary skill in the art. The dictionary
utilized by the Examiner defined a crimp as “something that cramps or
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inhibits.” (Ans., p. 5). Appellants have failed to demonstrate that the
Examiner erred in construing the term “crimp” consistent with its plain and
ordinary meaning. Accordingly, we hold that the Examiner did not err in
finding that Wilson anticipated claims 2 and 6 as Wilson’s distal and
proximal segments inhibit the movement of flexible wires 76 and 86.

3. Claim 3 and 7
Claims 3 and 7 are similar to claims 1, 2, and 6, but require that one
(claim 3) or both (claim 7) anchor crimps are integral with the connector.
The Examiner found that the anchors were integral with the connector and
that the anchors comprised both crimps and flexible wires. (Ans., pp. 3 and
5).
Appellants disagree. Particularly, Appellants contend that Wilson
does not disclose crimps and furthermore Wilson does not disclose crimps
that are integral with the connector. (Br., p. 6).
As discussed above, we held that Wilson taught anchors that are
integral with the connector. Similarly, we held that the Examiner did not
incorrectly determine that the anchors comprised crimps holding a portion of
flexible wires. Thus, since Wilson teaches anchors integral with the
connector and since these anchors include crimps, we hold that the Examiner
has not incorrectly determined that Wilson taught crimps that are integral
with the connector.

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4. Claims 4 and 8
Claims 4 and 8 depend from claims 1 and 3 respectively and further
require that the connector has a semicircular cross-section. With respect to
claims 4 and 8, the Examiner found Wilson taught a connector with a
semicircular cross-section in the plan view as shown in Figure 2. (Ans., p.
6). Appellants contend that the claims require a connector formed by cutting
away a section of a tubular blank leaving a semi-circular cross-section
connector that has the same radii of the two crimp tubes. (Br., p. 7). We
give claims their broadest reasonable interpretation in light of the
specification. The claims do not recite either a tubular blank nor do they
mention the plane in which the semi-circular cross-section is to be observed.
Accordingly, under the broadest reasonable interpretation standard of claim
construction we agree with the Examiner that Wilson discloses a
semicircular cross-section, based on the plan view.

5. Claims 5 and 9
Claims 5 and 9 depend from claims 4 and 8 respectively and further
require that the connector has a radius substantially equal to the radius of an
anchor crimp. Regarding claims 5 and 9, the Examiner found that Wilson
Figure 2 taught a connector having a radius that is substantially equal to a
crimp radius, in the plan view. (Ans., p. 6). Appellants disagree and again
refers to the embodiment made by cutting away a section of a tubular blank
leaving a semi-circular cross-section connector that has the same radii of the
two crimp tubes. As discussed above, we give claims their broadest
reasonable interpretation in light of the specification. The claims do not
recite either a tubular blank nor do they mention the plane in which the
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semi-circular cross-section is to be observed. Accordingly, under the
broadest reasonable interpretation standard of claim construction we agree
with the Examiner that Wilson teaches a connector having a radius
substantially equal to the radius of an anchor crimp.

F. CONCLUSION
Appellants have not shown that the Examiner incorrectly determined
that Wilson describes first and second anchor connected via a connector that
is integral with at least a portion of the first anchor. Further, Appellants
have not shown that the Examiner incorrectly determined that Wilson
describes an anchor comprising a flexible wire and a crimp holding a portion
of the wire.
H. ORDER
The rejection of claims 1-9 under 35 U.S.C. § 102(e) as anticipated by
Wilson is affirmed.

No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a)(1)(iv).

AFFIRMED

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