Ex Parte Henderson et al

Board of Patent Appeals and Interferences

Mar 15, 2012

11591303 (B.P.A.I. Mar. 15, 2012)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
____________

Ex parte JAMIE HENDERSON, KRZYSZTOF SOWINSKI, and
RONALD RAKOS
____________

Appeal 2010-011729
Application 11/591,303
Technology Center 3700
____________

Before DONALD E. ADAMS, DEMETRA J. MILLS, and
ERICA A. FRANKLIN, Administrative Patent Judges.

ADAMS, Administrative Patent Judge.

DECISION ON APPEAL
This appeal under 35 U.S.C. § 134 involves claims 22-25 and 27-42
(App. Br. 5).
1
We have jurisdiction under 35 U.S.C. § 6(b).

1
We recognize Appellants’ statement that “[c]laims 22, 37, 39 and 40 are
being appealed” (App. Br. 5). Nevertheless, Appellants contend that
Examiner “erred in rejecting claims 22-25 and 27-42” (id. at 10) (emphasis
removed). Accordingly, we interpret Appellants’ statement at page 5 of
their Appeal Brief to mean that claims 22, 37, 39, and 40 are argued
separately. Cf. Manual of Patent Examining Procedure § 1214.05 (Rev. 8,
July 2010).
Appeal 2010-011729
Application 11/591,303

2

STATEMENT OF THE CASE
The claims are directed to a graft. Claims 22, 37, 39, and 40 are
representative and are reproduced in the “Claims appendix” of Appellants’
Brief (App. Br. 19-21).
Claims 22-25 and 27-42 rejected under 35 U.S.C. § 102(b) as
anticipated by or, in the alternative, under 35 U.S.C. § 103 as obvious over
Swanick.
2

We reverse.
ISSUE

Does the preponderance of evidence on this record support
Examiner’s finding that Appellants’ claimed invention is anticipated by or,
in the alternative, obvious over Swanick?

FACTUAL FINDINGS (FF)
FF 1. Swanick teaches a graft comprising a length of tubular expanded
polytetrafluoroethylene (ePTFE) material that is wrapped with additional
ePTFE material (Swanick 3: ¶¶ [0033]-[0034]; see also Ans. 3-4).
FF 2. With reference to Swanick’s FIG. 3B Examiner finds that Swanick
teaches a method of preparing a graft that includes the formation of an
intermediate product that comprises at least one substantially flared end
(Ans. 7).

2
Swanick et al., US 2003/0114923 A1, issued Jun. 19, 2003.
Appeal 2010-011729
Application 11/591,303

3
ANALYSIS
Appellants’ claim 22 requires, inter alia, at least one first branch
comprising a first member and at least one second branch comprising a
second member, wherein at least a portion of the first member overlaps with
at least a portion of the second member to form an overlapping section
(Claim 22).
3
In contrast, Swanick teaches “a single member wrapped by a
second sheet of material. There is no second member present that forms a
branch” or “an overlapping section” (Reply Br. 3-4; see FF 1). We agree.
Notwithstanding Examiner’s assertion to the contrary, Swanick’s wrapping
is not a second branch that comprises a second member as required by
Appellants’ claimed invention. For the same reason we are not persuaded by
the Examiner’s assertion that Swanick teaches or suggests a graft comprising
an inner layer comprising at least one tubular member and an outer layer
comprising at least one tubular member as is required by Appellants’ claim
40.
4

Appellants’ claim 37 requires, inter alia, at least two sheets of ePTFE,
wherein each wrap around the graft with one sheet spanning the crotch area
on the front side of the graft and the other sheet spans the crotch area on the
back side of the graft (Claim 37). Examiner failed to establish that
Swanick’s tubular member is composed of two sheets of ePTFE or that
Swanick teaches or suggests at least two wrapping, wherein one spans the
crotch area on the front side of the graft and the other spans the crotch area
on the back side of the graft (App. Br. 16; see generally Reply Br. 4-5).

3
Claims 23-25 and 27-36 depend directly or indirectly from claim 22.
4
Claims 41 and 42, not listed in the “Claims appendix” of Appellants’ Brief,
depend directly or indirectly from claim 40.
Appeal 2010-011729
Application 11/591,303

4
The graft of Appellants’ claim 39 requires, inter alia, at least one
tubular member having a substantially flared end (Claim 39). Appellants
contend that the Swanick’s intermediate product “does not contain a trunk
portion . . . [and] there is nothing to indicate that Swanick’s device can
function as a graft at this [intermediate] stage” (Reply Br. 5-6). We agree.

CONCLUSION OF LAW
The preponderance of evidence on this record fails to support
Examiner’s finding that Appellants’ claimed invention is anticipated by or,
in the alternative, obvious over Swanick. The rejection of claims 22-25 and
27-42 under 35 U.S.C. § 102(b) as anticipated by or, in the alternative, under
35 U.S.C. § 103 as obvious over Swanick is reversed.

REVERSED

cdc