Ex Parte Khan et al

Board of Patent Appeals and Interferences

Nov 17, 2010

10812380 (B.P.A.I. Nov. 17, 2010)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________________

BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
____________________

Ex parte IFTIKHAR KHAN and NAZIR KHAN
____________________

Appeal 2010-003194
Application 10/812,380
Technology Center 3700
____________________

Before WILLIAM F. PATE III, STEVEN D.A. McCARTHY and
MICHAEL W. O’NEILL, Administrative Patent Judges.

McCARTHY, Administrative Patent Judge.

DECISION ON REQUEST FOR REHEARING1

1 The two-month time period for filing an appeal or commencing a civil
action, as recited in 37 C.F.R. § 1.304, or for filing a request for rehearing,
as recited in 37 C.F.R. § 41.52, begins to run from the “MAIL DATE”
(paper delivery mode) or the “NOTIFICATION DATE” (electronic delivery
mode) shown on the PTOL-90A cover letter attached to this decision.
Appeal 2010-003194
Application 10/812,380

2
The Appellants have filed a request for rehearing under 37 C.F.R. 1
41.52(a)(1)” [“Request”]. The Request seeks reconsideration of our 2
Decision of August 24, 2010 [“Decision”] affirming the rejection of claim 3
17 under 35 U.S.C. § 103(a) as being unpatentable over Squitieri (US 4
6,102,884, issued Aug. 15, 2000), Parks (US 5,399,173, issued Mar. 21, 5
1995) and Twardowski (US 5,509,897, issued Apr. 23, 1996). We have 6
jurisdiction under 35 U.S.C. § 6(b). 7
The Appellants present ten points for our reconsideration. The first 8
nine points presented by the Appellants do not identify any point 9
misapprehended or overlooked by the Board in deciding the appeal. The 10
purpose of a rehearing is to provide the Appellants an opportunity to identify 11
“points believed to have been misapprehended or overlooked by the Board,” 12
37 C.F.R. § 41.52(a)(1), not to provide the Appellants a second appeal. 13
Although the Appellants contend in point 3 that the Board overlooked the 14
state of the law (see Request 1), we responded to the Appellants’ contention 15
indirectly in the Principles of Law section on page 9 of the Decision and in 16
the Analysis section on pages 10-11 of the Decision. We deny the Request 17
as to the Appellants’ points 1-9. 18
We grant the request as to point 10 to the extent that we recognize that 19
the Appellants filed an executed “Declaration in Support of Application” 20
(“Declaration”) on April 16, 2009.2 We vacate FF 17 on page 8 of the 21

2 Although the Declaration was filed after the Notice of Appeal, the
Examiner promised the Appellants during an interview that the Examiner
would “consider the declaration and issue separate correspondence relating
to the declaration.” (Interview Summary mailed April 23, 2009,
Continuation Sheet). Therefore, the executed Declaration was entered for
purposes of this appeal.
Appeal 2010-003194
Application 10/812,380

3
Decision. We modify FF 14 on page 8 of the Decision as follows: 1
14. The Appellants present an executed declaration to which the 2
results of two studies are attached. Each involved “HeRO” vascular access 3
devices, which the Appellants’ executed declaration identifies as 4
hemodialysis arteriovenous shunts “identical to the applicants claimed 5
invention.” 6
In the Declaration, the Appellants declare that: 7
the HERO™ (Hemodialysis Reliable Outflow) 8
vascular access device, manufactured by 9
Hemisphere Inc. company is a hemodialysis 10
arteriovenous shunt identical to the applicants 11
claimed invention. Clinical studies revealed new 12
and unexpected results. 13
These results are a marked decrease in bacteremia 14
rate versus currently used cuff tunneled dialysis 15
catheters and current arteriovenous graft literature. 16
Improved adequacy of dialysis and patency versus 17
currently used cuffed tunneled dialysis catheters. 18
(Id.) 19
Nevertheless, we agree with the Examiner that the Examiner’s 20
evidence of obviousness, including the disclosures of Squitieri, Parks and 21
Twardowski, outweighs the Appellants’ evidence of non-obviousness, 22
including the Appellants’ executed Declaration and the two exhibits to the 23
Declaration. Although the Declaration and its Exhibit 1 provide some 24
evidence supportive of a finding that the subject matter of claim 17 provides 25
unexpectedly reduced bacteremia as compared to rates reported in current 26
arteriovenous graft literature, the Declaration fails to provide comparative 27
data showing substantially improved results viv-a-vis the disclosure of the 28
closest prior art, Squitieri.. The Declaration and its Exhibit 1 provide no 29
Appeal 2010-003194
Application 10/812,380

4
persuasive evidence of improved patency as compared to patency reported in 1
current arteriovenous graft literature, since Exhibit 1 reports that the two 2
patencies were found to be equivalent. The Declaration and its Exhibit 2 3
provide no persuasive evidence of improved dialysis, since Exhibit 2 4
provides raw results with no comparison to results for arteriovenous grafts. 5
We give little weight to comparisons against cuffed tunneled dialysis 6
catheters because the closest prior art, Squitieri, does not disclose a cuffed 7
tunneled dialysis catheter. 8
On the other hand, the Examiner has provided strong evidence of 9
obviousness, including an apparent reason for modifying Squitieri’s device 10
in the fashion claimed in claim 17 independent of bacteremial properties 11
such as those described in Exhibit 1. While we give some weight to the 12
evidence offered by the Appellants in an effort to prove unexpected results, 13
we conclude that the Examiner’s evidence of obviousness outweighs the 14
Appellants’ evidence of nonobviousness. 15
16
DECISION 17
We deny the Request as to points 1 through 9. We grant the Request 18
to the extent that we have considered the arguments relating to point 10 and 19
weighed the evidence of obviousness and non-obviousness anew, but 20
otherwise deny the Request. 21
22
DENIED 23
24
Klh 25
26
NAZIR A. KHAN, MD 27
150 GLENMORA DRIVE 28
BURR RIDGE, IL 60527 29