Ex Parte Jenson et al

Board of Patent Appeals and Interferences

Jan 24, 2012

10877340 (B.P.A.I. Jan. 24, 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.
10/877,340 06/24/2004 Mark L. Jenson 1001.1767101 4594
11050 7590 01/24/2012
SEAGER, TUFTE & WICKHEM, LLC
1221 Nicollet Avenue
Suite 800
Minneapolis, MN 55403
EXAMINER
MANAHAN, TODD E
ART UNIT PAPER NUMBER
3776
MAIL DATE DELIVERY MODE
01/24/2012 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 MARK L. JENSON, WILLIAM J. DRASLER,
and DANIEL M. LAFONTAINE
__________

Appeal 2010-008916
Application 10/877,340
Technology Center 3700
__________

Before DONALD E. ADAMS, STEPHEN WALSH, and
ERICA A. FRANKLIN, Administrative Patent Judges.

FRANKLIN, Administrative Patent Judge.

DECISION ON APPEAL
This is an appeal under 35 U.S.C. § 134(a) involving claims to a
method of traversing a vascular occlusion and a recanalization assembly.
The Patent Examiner rejected the claims as obvious. We have jurisdiction
under 35 U.S.C. § 6(b). We affirm-in-part.

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STATEMENT OF THE CASE
The Specification states that “[t]he invention is directed to apparatus
and methods for recanalizing occluded vasculature such as occluded arterial
vasculature. The invention provides a device that includes structure that is
configured to penetrate an occlusion while limiting a distance that the
penetration structure can extend in order to limit inadvertent vascular
damage.” (Spec. 2, ll. 4-7.)
Claims 26-31 and 33-43 are on appeal. Claims 26, 33, and 35 are
representative and read as follows:
26. A recanalization assembly, comprising:
a catheter having a distal region, a proximal region and a lumen
extending therebetween;
an elongate sheath slidably disposed within the catheter lumen, the
elongate sheath having a distal region, a proximal region and an inner
surface defining a lumen extending therebetween; and
a stylet disposed within the elongate sheath, the stylet having a distal
region comprising a cutting surface, a proximal region and a lumen
extending therebetween, the stylet having an exterior surface;
wherein the elongate sheath and the stylet in combination include an
engagement section configured to limit relative axial movement between the
elongate sheath and the stylet, the stylet proximal region have a width in a
lateral direction that is greater than three-quarters of the width
of the sheath lumen.

33. A method of traversing a vascular occlusion using an apparatus
comprising an elongate sheath and a stylet captively disposed within the
elongate sheath such that relative movement between the sheath and the
stylet is limited in both a proximal and a distal direction, the apparatus
having a distal region and a proximal region, the stylet having a distal region
comprising a cutting surface, the method comprising steps of:
positioning the apparatus such that its distal region is proximate an
occlusion;
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advancing the stylet distally such that its distal region extends distally
beyond the distal region of the elongate sheath and contacts a surface of the
occlusion; and
moving the stylet such that its cutting surface contacts and penetrates
the occlusion.

35. The method of claim 33, wherein moving the stylet comprises
rotational motion.

The Examiner rejected the claims as follows:
• claims 26, 29-32,
1
and 42 under 35 U.S.C. § 103(a) as unpatentable
over Ellis;
2

• claims 26-31 and 42 under 35 U.S.C. § 103(a) as unpatentable over
Rizik,
3
Katoh,
4
and Scarfone;
5

• claims 33, 35-37, 40, and 43 under 35 U.S.C. § 103(a) as
unpatentable over Rizik, Katoh, and Ellis; and
• claims 33, 34, 36, 38, 39, 41 and 43 under 35 U.S.C. § 103(a) as
unpatentable over Katoh and Ellis.

OBVIOUSNESS
The Issues
I. The Rejection of Claims 26, 29-31 and 42 over Ellis
The Examiner‟s position is that Ellis disclosed
a recanalization assembly, comprising: a catheter (16) having a
distal region, a proximal region, and a lumen extending

1
Claim 32 was cancelled from the application. (See App. Br. 4.)
2
Patent No. US 6, 290,709 B1 issued to Louis Ellis et al., Sep. 18, 2001.
3
US Patent No. 5,628,761 issued to David G. Rizik, May 13, 1997.
4
US Patent No. 5,935,108 issued to Osamu Katoh et al., Aug. 10, 1999.
5
US Patent No. 5,906,594 issued to Frank A. Scarfone et al., May 25, 1999.
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therebetween; an elongate sheath (317) slidably disposed within
the catheter lumen, the elongate sheath having a distal region, a
proximal region, and a lumen extending therebetween; and a
stylet (322) disposed within the elongated sheath lumen, the
stylet having a distal region comprising a cutting surface, a
proximal region, and a lumen extending therebetween, the stylet
having an exterior surface wherein the elongate sheath and the
stylet in combination include an engagement section configured
to limit relative axial movement between the elongate sheath
and the stylet (col. 5, ln. 10-25; Fig. 7).

(Ans. 3.) According to the Examiner, Ellis‟ “frame (366) which is attached
to the outer shaft [i.e., elongate sheath] (317) … and the motor and the set
screw (372) [which] are attached to the inner sheath… in combination limit
proximal and distal motion of the stylet relative to the sheath.” (Id. at 9.)
The Examiner‟s position is that “[t]he limitation „elongate sheath and stylet
in combination include an engagement section‟ does not require that the
structure of the engagement section is an integral element of either the
sheath or the stylet.” (Id.) According to the Examiner, “if the elements
forming an engagement section are attached to a sheath and a stylet, then the
engagement section can be said to be included on the sheath and the stylet.”
(Id.)
Appellants contend that Ellis did “not disclose an elongate sheath and
stylet in combination including an engagement section configured to limit[]
relative axial movement between the sheath and the stylet.” (App. Br. 9-10.)
According to Appellants, contrary to the Examiner‟s position, Ellis‟ frame
366 and set screw 372 do not meet this “engagement section” limitation
because these elements are not part of the sheath 317 and stylet 322. (See id.
at 10-11.) In particular, Appellants assert that, contrary to the Examiner‟s
position, “the set screw is not attached to the inner sheath…[ but rather] is
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threadably attached to frame 366….” (Id. at 10.) Additionally, Appellants
assert that a skilled artisan would not have considered “frame 366 to be a
component of outer shaft 317” just because frame 366 is attached to the
proximal end of the outer shaft. (Id. at 12.) Appellants assert that Ellis
described the frame or housing as being “connected” to the outer shaft rather
than describing the frame “as part” of or as “including” the housing. (Id. at
12.) According to Appellants, “the mere attachment of a component to an
object does not make it part of the object.” (Id. at 11.)
The issue is whether the preponderance of the evidence supports the
Examiner‟s finding that Ellis‟ sheath 317 and stylet 322 “in combination
include” frame 366 and set screw 372.
II. The Rejection of Claims 26-31 and 42 over Rizik, Katoh and Scarfone
Examiner found that Rizik disclosed a recanalization assembly,
including:
a catheter (41) having a distal region, a proximal region and a
lumen (47) extending there between; an elongate sheath
disposed within the catheter lumen, the elongate sheath having
a distal region, a proximal region and an inner surface defining
a lumen (57) extending there between; a guidewire passage
creation means (59) disposed within the elongate sheath, the
guidewire passage creation means having a distal region
comprising a cutting surface, a proximal region and a lumen
extending there between, the guidewire passage creation means
having an exterior surface.

(Ans. 4.) The Examiner found that Rizik did not disclose a stylet. (Id.)
However, the Examiner found that Katoh disclosed a stylet for penetrating a
vascular occlusion. (Id.) According to the Examiner, it would have been
obvious to a person of ordinary skill in the art at the time the invention was
made to replace Rizik‟s guidewire passage creation means with a stylet to
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achieve the predictable result of penetrating a vascular occlusion as
suggested by Katoh. (Id.)
The Examiner additionally found that Rizik disclosed that the motion
of the guidewire passage creation means is limited by a conventional stop
mechanism at the proximal end of the catheter. (Id.) However, the
Examiner found that Rizik did not disclose that the elongate sheath and the
guidewire passage creation means in combination include an engagement
section to limit relative axial movement between the elongate sheath and the
guidewire passage creation means. (Id.) Turning to Scarfone, the Examiner
found that the reference disclosed an elongate sheath and a guidewire
passage creation means in combination include an engagement section to
limit the relative axial movement of a stylet. (Id.) According to the
Examiner, it would have been obvious to a person of ordinary skill in the art
at the time the invention was made to use Scarfone‟s engagement section in
the device of Rizik because such an engagement section was a well known
feature for limiting axial movement within a sheath, as disclosed by
Scarfone. (Id.)
Appellants contend that the Examiner‟s proposed modification of
Rizik to include Scarfone‟s engagement section would render Rizik unfit for
its intended purpose. (Id. at 14.) Appellants assert that Rizik features a
“retractable cutting head or laser” that “allows a guidewire to be introduced
down a catheter lumen that is already aligned with the newly created
guidewire passage.” (Id.) According to Appellants, “[t]his feature would be
destroyed if Rizik were modified in view of Scarfone” because the addition
of such engagement section would “not allow the withdrawal of the cutting
member.” (Id.) Appellants further assert that Scarfone does “not suggest
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any reasons why one might want to modify the guidewire passage creation
device of Rizik in view of the endoscopic infusion need of Scarfone.” (Id.)
The issue is whether Appellants have established with persuasive
evidence that modifying Rizik to include Scarfone‟s engagement section
would render Rizik unfit for its intended purpose.
III. The Rejection of Claims 33, 35-37, 40 and 43 over Rizik, Katoh and
Ellis
The Examiner‟s position is that Rizik disclosed “a method of
traversing a vascular occlusion using an apparatus including an elongate
sheath (57) and a guidewire passage creation means…captively disposed
within the elongate sheath, the apparatus having a distal region and a
proximal region, the guidewire passage creation means (59) having a region
comprising a cutting surface….” (Ans. 6.) The Examiner found that Rizik
did not disclose a stylet. (Id.) However, the Examiner found that Katoh
disclosed a stylet for penetrating a vascular occlusion and concluded that it
would have been obvious to a person of ordinary skill in the art at the time
the invention was made to replace Rizik‟s guidewire passage creation means
with such a stylet to achieve the predictable result of penetrating a vascular
occlusion as suggested by Katoh. (Id.)
The Examiner additionally found that the combination of Rizik and
Katoh did not disclose that relative movement between the sheath and the
stylet is limited in both a proximal and a distal direction. (Id.) However, the
Examiner found that Ellis disclosed “a stylet slidably (322) disposed in an
elongate sheath (317) where the movement of the stylet relative to the sheath
is limited in both the proximal and distal directions.” (Id.) According to the
Examiner, it would have been obvious to a person of ordinary skill in the art
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at the time the invention was made to modify the device of Rizik and Katoh
to limit the relative movement of the stylet in the proximal and distal
directions to safely maintain the stylet within the sheath during delivery to
the lumen and to prevent the stylet from extending too far out of the sheath
during operation. (Id. at 6-7.)
Regarding claim 35, the Examiner further found that the combination
of Rizik, Katoh and Ellis disclosed moving the stylet comprises rotational
motion. (Id. at 7.)
Appellants assert that the Examiner‟s proposed modification
“modifying Rizik [in view of Ellis] to limit relative movement of the stylet
with respect to the sheath in both proximal and distal directions renders
Rizik unsatisfactory for its primary purpose.” (App. Br. 15.) According to
Appellants, for the same reasons discussed with respect to the modification
involved in the rejection over Rizik, Katoh and Scarfone, the Examiner‟s
proposed modification here would also result in “the inability to retract the
stylet from the elongate sheath.” (Id.)
Regarding claim 35, Appellants assert that Examiner‟s proposed
modification to replace Rizik‟s guidewire passage creation means with
Katoh‟s stylet would not yield the claimed invention because “Rizik
disclose[d] rotational motion with respect to a rotating burr, and the stylet of
Katoh et al. is vibrated but not rotated.” (Id. at 16.) Appellants further
assert that Katoh‟s cannula has an angled distal tip and “[s]o far as
Appellants know, such angled needle tip devices are not rotated as their
cutting edges are used.” (Id.) According to Appellants, replacing the
rotating burr of Rizik with the angled needle tip cannula of Katoh would also
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require also using Katoh‟s method of advancing the cannula which did not
involve rotation. (Id.)
The issues are: whether Appellants have established with persuasive
evidence that modifying Rizik in view of Ellis to limit relative movement of
the stylet with respect to the sheath in both proximal and distal directions
would render Rizik unfit for its intended purpose; and whether the
preponderance of the evidence supports the Examiner‟s finding that
substituting Rizik‟s guidewire passage creation means with Katoh‟s stylet
yields a method wherein moving the stylet comprises rotational motion.
Appellants have established with persuasive evidence that modifying
Katoh to limit relative movement between the sheath and the stylet in both a
proximal and distal direction would render Katoh unsatisfactory for its
intended purpose.
IV. The Rejection of Claims 33, 34, 36, 38, 39, 41, and 43 over Katoh and
Ellis
The Examiner‟s position is that Katoh disclosed the method of
traversing a vascular occlusion, as recited in claim 33, except that Katoh did
not disclose relative movement between the sheath and the stylet is limited
in both a proximal and a distal direction. (Ans. 8.) The Examiner found that
Ellis disclosed “a stylet slidably (322) disposed in an elongate sheath (317)
where the movement of the stylet relative to the sheath is limited in both the
proximal and distal directions.” (Id.) According to the Examiner, it would
have been obvious to a person of ordinary skill in the art at the time the
invention was made to modify Katoh‟s device “to limit the relative
movement of the stylet in the proximal and distal directions in order to
safely maintain the stylet within the sheath during delivery to the lumen and
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to prevent the stylet from extending too far out of the sheath during
operation.” (Id.)
Appellants contend that modifying Katoh to limit relative movement
between the sheath and the stylet in both a proximal and distal direction
would render Katoh unsatisfactory for its intended purpose which involves:
advancing the needle cannula through the guiding sheath; advancing the
guiding sheath through the lesion over the cannula; removing the cannula
and replacing it with a conventional guidewire; and removing the guiding
sheath so that a procedure such as a balloon angioplasty may be performed.
(App. Br. 17.) According to Appellants, “[t]hese procedures would not be
possible if the guiding sheath and cannula of Katoh et al. were fixed together
with the frame of Ellis et al.” (Id. at 17.)
The issue is whether Appellants have established with persuasive
evidence that modifying Katoh to limit relative movement between the
sheath and the stylet in both a proximal and distal direction would render
Katoh unsatisfactory for its intended purpose.
Findings of Fact
1. The Examiner‟s findings regarding Ellis may be found at Ans. 3-4.
2. The Examiner relies on Figure 7 of Ellis, reproduced below:

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Figure 7 depicts a longitudinal, cross-sectional view of Ellis‟
transmyocardial revascularization (TMR) advance and catheter assembly
300. (Ellis col. 4, l. 52- col. 5, l. 27.)
3. Ellis disclosed that its “[a]ssembly 300 includes a catheter assembly
310 having an outer shaft 317, an inner shaft 319 extending therethrough,
and an advancer apparatus 302.” (Id. at col. 4, ll. 53-56.)
4. Ellis disclosed that “[o]uter shaft 317 includes a longitudinal lumen
therethrough and a cutting tip 322….” (Id. at col. 4, ll. 57-58.)
5. Ellis disclosed that “[a]dvancer assembly 302 can include a frame or
housing 366 connected to outer shaft 317, to hold outer shaft 317 against
rotation.” (Id. at col. 5, ll. 10-12.)
6. Ellis disclosed “[a] motor 330 is interconnected to inner shaft 319 and
mounted on frame 366 for longitudinal movement between a first position I
and a second position J… [and a] set screw 372 is provided to limit distally
position J.” (Id. at col. 5, ll. 12-14, 20-21.)
7. Ellis disclosed that “[m]otor 330 rotates inner shaft 319 relative to
outer shaft 319 which is held against rotation by housing 366.” (Id. at col. 5,
ll. 26-27.)
8. The Examiner‟s findings regarding Rizik, Katoh, and Scarfone may
be found at Ans. 4-8.
Principles of Law
The conclusion that the claimed subject matter is prima facie obvious
must be supported by a preponderance of evidence, as shown by some
objective teaching in the prior art or by knowledge generally available to one
of ordinary skill in the art that would have led that individual to arrive at the
claimed invention. See In re Fine, 837 F.2d 1071, 1074 (Fed. Cir. 1988).
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“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’l Co. v. Teleflex Inc., 550 U.S. 398, 416 (2007). “If a person of
ordinary skill can implement a predictable variation, § 103 likely bars its
patentability.” Id. at 417.
If an Examiner‟s proposed modification would render the prior art
invention unsatisfactory for its intended purpose, then there is no suggestion
or motivation to make the proposed modification. In re Gordon, 733 F.2d
900, 902 (Fed. Cir 1984).
Analysis
I. The Rejection of Claims 26, 29-31 and 42 over Ellis
We agree with Appellants that Ellis did not teach that its outer shaft
317, i.e., elongate sheath, and stylet 322 “in combination include” housing
366 and set screw 372, i.e., an engagement section. The Examiner‟s position
is that “if the elements forming an engagement section are attached to a
sheath and a stylet, then the engagement section can be said to be included
on the sheath and the stylet.” (Ans. 9.) However, independent claim 26 does
not recite that “the engagement section is included on the sheath and the
stylet.” Rather, claim 26 recites that “the elongate sheath and the stylet in
combination include an engagement section….” (App. Br. 20, Claims
App‟x.)(emphasis added). We agree with Appellants that a skilled artisan
would understand that this claim language requires the elements comprising
the “engagement section,” i.e., the housing and set screw to not merely be
attached to the sheath and stylet, but to be included as an integral part of the
combined sheath and stylet. In other words, the claim requires the
combination of the elongate sheath and the stylet to include an engagement
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section. As illustrated in Figure 7 of Ellis, housing 366 and set screw 372
are not included in the combination of sheath 317 and stylet 322. (See FF-2-
7.) Consequently, we conclude that the preponderance of the evidence does
not support the Examiner‟s finding that Ellis taught a recanalization
assembly “wherein the elongate sheath and the stylet in combination include
an engagement section configured to limit relative axial movement between
the elongate sheath and the stylet,” as claimed. See Fine, 837 F.2d at 1074.
Accordingly, we reverse the rejection claims 26, 29-31 and 42 over
Ellis.
II. The Rejection of Claims 26-31 and 42 over Rizik, Katoh and Scarfone
After considering all the evidence and arguments, we conclude that
the preponderance of evidence supports a conclusion of prima facie
obviousness. Specifically, we are not persuaded of nonobviousness by
Appellants‟ assertion that modifying Rizik to include Scarfone‟s
engagement section would render Rizik unfit for its intended purpose. (See
App. Br. 14.) As the Examiner correctly explained, Rizik did not teach
retracting the guidewire passage creation means from the lumen and then
passing the guidewire through that same lumen. Rather, Rizik disclosed two
adjacent lumens, wherein a first lumen (57) is provided for passage of the
guidewire creation means (59) and a second lumen (53) is provided for
passage of the guidewire. (Ans. 10.) Moreover, we agree with the Examiner
that Rizik‟s guidewire passage means is retractable back into the device and
not necessarily out of the proximal end of the device. (Id.)
We are also unpersuaded of nonobviousness by Appellants‟ assertion
that “[o]ne does not use an alternative merely because it is „well known‟ if it
results in a device that has fewer features, especially if there are no
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countervailing advantages.” (App. Br. 14.) The Examiner‟s modification of
Rizik did not result in fewer features, but rather a different feature, i.e., an
engagement section for limiting axial movement within a sheath. (See Ans.
5.) Moreover, as Appellants have acknowledged, this modification merely
involved the selection of one known element/alternative for another which
amounts to a predictable variation. See KSR, 550 U.S. at 416-417.
Accordingly, we affirm the rejection of independent claim 26 over
Rizik, Katoh and Scarfone. Appellants have not argued dependent claims
27-31 and 42 separately, therefore these claims fall with independent claim
26. 37 C.F.R. § 41.37(c)(1)(vii).
III. The Rejection of Claims 33, 35-37, 40 and 43 over Rizik, Katoh and
Ellis
Appellants assert that the Examiner‟s proposed modification renders
Rizik unsatisfactory for its primary purpose for the same reasons discussed
with respect to the modification of Rizik involved in the rejection over
Rizik, Katoh and Scarfone, i.e., “the inability to retract the stylet from the
elongate sheath.” (App. Br. 15.) Consequently, we are not persuaded of
nonobviousness by this argument for the same reasons discussed supra.
Accordingly, we affirm the rejection of independent claim 33 over
Rizik, Katoh and Ellis. Appellants have not argued dependent claims 36-37,
40 and 43 separately (see App. Br. 16) therefore these claims fall with
independent claim 33.
Regarding claim 35, Appellants‟ assert that replacing Rizik‟s
guidewire passage creation means with Katoh‟s stylet would not yield a
method wherein moving the stylet comprises rotational motion because
Katoh‟s stylet is vibrated rather than rotated. (Id. at 16.) According to
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Appellants, such angled needle tip devices as Katoh‟s “are not rotated as
their cutting edges are used.” (Id.) We are not persuaded by this contention
as it is attorney argument and not evidence. See In re Pearson, 494 F.2d
1399, 1405 (CCPA 1974). Moreover, the Examiner relied on a combination
of references including Ellis which taught that it was well known to rotate
angled needle tips. (FF-2, 4, 7; Ans. 11.) Therefore, the Examiner‟s
modification merely involved a combination of familiar elements that
amounted to a predictable variation achievable with ordinary skill. See KSR,
550 U.S. at 416-417.
Accordingly, we also affirm the rejection of claim 35 over Rizik,
Katoh and Ellis.
IV. The Rejection of Claims 33, 34, 36, 38, 39, 41, and 43over Katoh and
Ellis
Appellants assert that the Examiner‟s proposed modification of Katoh
to limit relative movement between the sheath and the stylet in both a
proximal and distal direction would render Katoh unsatisfactory for its
intended purpose of: advancing the needle cannula through the guiding
sheath; advancing the guiding sheath through the lesion over the cannula;
removing the cannula and replacing it with a conventional guidewire; and
removing the guiding sheath so that a procedure such as a balloon
angioplasty may be performed. (See App. Br. 17.) While the Examiner
explained that the proposed modification did not include the frame of Ellis
(Ans. 11) the Examiner has not explained how Katoh‟s method may be
accomplished once the proximal movement of its device is limited. Instead,
the Examiner has only responded, without supporting evidence, that “one of
ordinary skill would have recognized that the limiting mechanism could be
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made to be removable if it was desired to maintain the ability to withdraw
the stylet from the sheath.” (Id. at 11-12.) However, the Examiner‟s
modification of Katoh did not include this additional step. Consequently, we
agree with Appellants that the proposed modification would render Katoh
unfit for its intended purpose. See Gordon, 733 F.2d at 902.
Accordingly, we reverse the rejection of claim independent claim 33,
and dependent claims 34, 36, 38, 39, 41, and 43 over Katoh and Ellis.

CONCLUSIONS OF LAW
The preponderance of the evidence does not support the Examiner‟s
finding that Ellis‟ sheath 317 and stylet 322 “in combination include” frame
366 and set screw 372.
Appellants have not established with persuasive evidence that
modifying Rizik to include Scarfone‟s engagement section would render
Rizik unfit for its intended purpose.
Appellants have not established with persuasive evidence that
modifying Rizik in view of Ellis to limit relative movement of the stylet with
respect to the sheath in both proximal and distal directions would render
Rizik unfit for its intended purpose.
The preponderance of the evidence supports the Examiner‟s finding
that substituting Rizik‟s guidewire passage creation means with Katoh‟s
stylet would yield a method wherein moving the stylet comprises rotational
motion.
Appellants have established with persuasive evidence that modifying
Katoh to limit relative movement between the sheath and the stylet in both a
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proximal and distal direction would render Katoh unsatisfactory for its
intended purpose.

SUMMARY
We reverse the rejection of claims 26, 29-31, and 42 under 35 U.S.C.
§ 103(a) as unpatentable over Ellis;
we affirm the rejection of claims 26-31 and 42 under 35 U.S.C. §
103(a) as unpatentable over Rizik, Katoh, and Scarfone;
we affirm the rejection of claims 33, 35-37, 40, and 43 under 35
U.S.C. § 103(a) as unpatentable over Rizik, Katoh, and Ellis;
we reverse the rejection of claims 33, 34, 36, 38, 39, 41 and 43 under
35 U.S.C. § 103(a) as unpatentable over Katoh and Ellis.

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

AFFIRMED-IN-PART

alw