Ex Parte Lopez

Patent Trial and Appeal Board

May 12, 2016

13491031 (P.T.A.B. May. 12, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
13/491,031 06/07/2012
50638 7590 05/13/2016
Boston Scientific Neuromodulation Corp.
c/o Lowe Graham Jones
701 Fifth Avenue
Suite 4800
Seattle, WA 98104
FIRST NAMED INVENTOR
Thomas P. Lopez
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.
BSNC-1-455.1 6425
EXAMINER
HANKINS, LINDSEY G
ART UNIT PAPER NUMBER
3762
MAILDATE DELIVERY MODE
05/13/2016 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 THOMAS P. LOPEZ
Appeal2014-004387
Application 13/491,031
Technology Center 3700
Before LINDA E. HORNER, ERIC C. JESCHKE, and GORDON D.
KINDER, Administrative Patent Judges.
KINDER, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF CASE
Appellant appeals under 35 U.S.C. § 134 from a rejection of claims 1-
15. We have jurisdiction under 35 U.S.C. § 6(b).
We REVERSE.
CLAIMED SUBJECT MATTER
The claims are directed to strain relieved lead routing in a burr hole
plug for deep brain stimulation. Claim 1, reproduced below, is illustrative of
the claimed subject matter:
Appeal2014-004387
Application 13/491,031
1. A method of performing a medical procedure on a
patient, comprising:
introducing an elongated medical device through a cranial
burr hole of the patient and into the brain tissue of the patient;
mounting a plug base around a cranial burr hole, such that
the medical device extends through an aperture of the plug base,
the plug base having at least three grooves formed in a top
surface of the plug base;
securing the medical device within the aperture of the plug
base;
seating a proximal end of the medical device within a first
one of the at least three grooves, such that the proximal end of
the medical device exits the aperture of the plug base through the
first groove;
looping the proximal end of the medical device around an
outer circumference of the plug base from the first groove to a
second one of the at least three grooves;
seating the proximal end of the medical device within the
second groove, such that the proximal end of the medical device
extends across the aperture of the plug base from the second
groove; and
seating the proximal end of the medical device within a
third one of the at least three grooves, such that the proximal end
of the medical device exits the aperture of the plug base through
the third groove.
REFERENCES
The prior art relied upon by the Examiner in rejecting the claims on
appeal is:
Lane
Schorn
US 2009/0112327 Al
US 2009/0157157 Al
REJECTIONS
The Examiner made the following rejections:
Apr. 30, 2009
June 18, 2009
Claims 1-3, 6, and 13 stand rejected under 35 U.S.C § 102(b) as being
anticipated by Schorn.
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Application 13/491,031
Claims 4, 5, 8-10, and 15 stand rejected under 35 U.S.C § 103(a) as
being unpatentable over Schorn and Lane.
Claims 7, 11, 12, and 14 stand rejected under 35 U.S.C § 103(a) as
being unpatentable over Schorn in view of In re Aller, 105 USPQ 233
(CCPA 1955).
OPINION
Claims 1-15 are pending and subject to appeal. Claim 1 is the only
independent claim. Our disposition of claim 1 also disposes of the rejections
of claims 2-15.
The Examiner relies on Schorn in rejecting claim 1. The Examiner
finds Schorn discloses a method of securing a medical device using a plug
base as called for in claim 1. Final Act. 2. Schorn shows a device that
includes a plug base that can be mounted in a cranial burr hole. Figs. 1--4.
A lead 11 extends through a centrally located bore 18 in the plug base, and
then turns radially outward. In use, the lead is extended under bridge 32 and
through a passageway 36 formed in anchor sleeve 34. After emerging from
the anchor sleeve 34, the lead is pressed into channel 28, which extends
around half of the upper end portion of the plug base, and then finally
through another passage 36 in another anchor sleeve 34, before connecting
to another medical device.
The Examiner finds that in Schorn the closed passageways 36 in the
anchor sleeves 34 and the passage under the arch of bridge 32 are "grooves
formed in a top surface of the plug base." Final Act. 2, 7. The Examiner
finds that the two anchor sleeves 34 have internal passages 36 that are
formed in a top surface of the device, Ans. 3--4, and the Examiner finds that
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Appeal2014-004387
Application 13/491,031
lead 11, which wraps around the slot formed in the rim of the Schorn device,
extends "across" central bore 18. Final Act. 8.
Appellant contends that the Examiner has misconstrued "top surface
of the plug base" (Appeal Br. 5-6) and "seating the proximal end of the
medical device within the second groove such that the proximal end of the
medical device extends across the aperture of the plug base from the second
groove" (Appeal Br. 6-8) (emphasis added). The Examiner makes all his
findings based on the purported broadest reasonable interpretation of the
claim terms. We do not sustain the Examiner concerning these limitations.
Grooves
The claimed method requires using a plug base "having at least three
grooves." We are aware of no definition of "groove" that would encompass
a closed passageway such as passages 36 through sleeves 34 or the passage
under arched bridge 32 of Schorn. Merriam-Webster has the following
definition of groove: "a long narrow cut or low area in a surface." Merriam-
W ebster, http://www.merriam-webster.com/ dictionary/groove (last viewed
May 2, 2016). Schorn describes the function of the anchor sleeves as
follows:
Anchor sleeves 34 prevent any tension of lead 11 from forcing
the captured portion of lead 11 to dislodge itself from the
friction hold a passage 26 through side slit 28.
Schorn i-f 38. The Examiner's own definition of "groove" as being "some
kind of channel or depression" (Final Act. 7) does not fit Schorn. The
principal definition of a "channel" is a bed where a natural stream of water
runs. 1 Although "channel" also has a secondary definition as a "usually
1 channel: 1 a : the bed where a natural stream of water runs; b : the deeper
part of a river, harbor, or strait; c: a strait or narrow sea between two close
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Appeal2014-004387
Application 13/491,031
tubular enclosed passage," we think it unreasonable, in light of the
Specification that only shows open top grooves, to apply the secondary, less
common definition. A channel or depression has an open top, and so even
under the Examiner's construction, Schorn does not have "grooves." In
contrast to the closed passages through which Schorn' s lead must be
threaded, Appellant's groove is open on top. Passages 36 of Schorn are not
"grooves" as that term is reasonably interpreted, and accordingly, we do not
sustain the Examiner's findings in this regard.
Top surface
Claim 1 also calls for the grooves to be formed "in a top surface of the
plug base." The Examiner finds that the "top surface" "includes features
which are included in an upper portion of a device." Ans. 4. We find this
interpretation inconsistent with accepted usage of the phrase "top surface,"
and so do not sustain the Examiner's finding that the anchor sleeves 34 of
Schorn are formed in a top surface of the plug base. Instead, the anchor
sleeves 34 are formed in a side surface of the plug base. A conventional
dictionary definition of "top" is:
a (1) : the highest point, level, or part of
something: summit, crown (2) : the head or top of the head-
used especially in the phrase top to toe (3) : the head of a plant;
especially : the aboveground part of a plant having edible
roots (4): a garment worn on the upper body
b (1) : the highest or uppermost region or part (2) : the upper
end, edge, or surface.
landmasses. 2 a : a usually tubular enclosed passage. Merriam-Webster,
http://www.merriam-webster.com/dictionary/channel (last viewed May 5,
2016).
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Appeal2014-004387
Application 13/491,031
Merriam-Webster, http://www.merriam-webster.com/dictionary/top (last
viewed May 2, 2016).
In the face of these definitions, the Examiner's finding that "a top
surface" is so broad that "a bottom surface of a tabletop is a feature of the
'tabletop' and would read on a 'top surface of a table"' cannot stand. Ans.
4. The broadest reasonable interpretation must be reasonable in light of the
specification. In re NTP, Inc., 654 F.3d 1279, 1288 (Fed. Cir. 2011). Here,
the Specification shows only grooves, vide supra, that open upward from the
uppermost surface of the plug base. There is no indication that the
Specification uses the term as broadly as the Examiner suggests. When the
Specification is read against the common understanding of what a top
surface is, the Examiner's finding that the term encompasses any part of the
upper part of the device is unreasonably broad.
Extends across
The Examiner finds that the lead in Schorn, which is placed under
bridge 32, through first anchor sleeve 34 and then through slit 28 into
passage 26 around the perimeter of the device, and finally through second
anchor sleeve 34, is placed so that it "extends across the aperture of the plug
base from the second groove." The Appellant argues that the path of the
lead in Schorn travels around the aperture, but not across it. We are
persuaded that the Examiner's position is incorrect. We rely on the
following dictionary definition of "across": 1: in a position reaching from
one side to the other: crosswise; 2: to or on the opposite side. Merriam-
W ebster, http://www.merriam-webster.com/dictionary/across (last viewed
May 2, 2016). Both of these meanings require reference to some other
structure: from one side to the other of something; to or on the opposite side
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Application 13/491,031
of something. In the case of the claimed subject matter that something is
the centrally located aperture in the plug base. The Examiner's construction
does not take into account the role of the central aperture in defining that
which the lead extends across. By analogy, while watching an athletic event
one might walk from behind the home team's bench to behind the visitors'
bench, and after making the trip one could look "across" to where one
started, but the trip was around the field, not across it. We think it clear that
the lead in Schorn goes around the central aperture, but does not extend
across it. We are persuaded that the Examiner's position is not supported by
the record before us.
Claims 2-15 depend directly or indirectly from claim 1. The
additional reference and reasoning relied upon by the Examiner do not cure
the deficiency of Schorn. We need not address the arguments made in
connection with claim 13 in view of our disposition of the rejection of claim
1.
DECISION
For the above reasons, the Examiner's rejection of claims 1-15 is
reversed.
REVERSED
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