Ex Parte Lorenzo

Patent Trial and Appeal Board

Mar 22, 2018

13795127 (P.T.A.B. Mar. 22, 2018)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR
131795, 127 03/12/2013 Juan A. Lorenzo
124541 7590 03/26/2018
Mintz Levin/Cadman & Shurtleff
One Financial Center
Boston, MA 02111
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.
47077-043F01US
(COD5282US
CONFIRMATION NO.
2771
EXAMINER
BARIA, DINAH N
ART UNIT PAPER NUMBER
3774
NOTIFICATION DATE DELIVERY MODE
03/26/2018 ELECTRONIC
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.
Notice of the Office communication was sent electronically on above-indicated "Notification Date" to the
following e-mail address( es):
ipdocketingbos@mintz.com
ipfileroombos@mintz.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte JUAN A. LORENZO. 1
Appeal2017-002193
Application 13/795,127
Technology Center 3700
Before JEFFREY N. FRED MAN, JOHN E. SCHNEIDER, and
RYAN H. FLAX, Administrative Patent Judges.
SCHNEIDER, Administrative Patent Judge.
DECISION ON APPEAL
This is an appeal under 35 U.S.C. § 134(a) involving claims to
vascular occlusion devices which have been rejected as obvious. We have
jurisdiction under 35 U.S.C. § 6(b ).
We AFFIRM.
STATEMENT OF THE CASE
"Vascular disorders and defects such as aneurysms and other
arteriovenous malformations often occur near the junction of large arteries,
for instance at the base of the brain in the Circle of Willis." Spec.i-f 2.
1 Appellant identifies the Real Party in Interest as DePuy Synthes Products,
Inc. Appeal Br. 1.
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Application 13/795, 127
"Aneurysms and other malformations are especially difficult to treat when
located near critical tissue or where ready access to the malformation is not
available." Spec. i-f 4. One method for treating aneurisms involves
"endovascular delivery of an implantable device, such as a stent-like device
or embolic coil, through a microcatheter delivery device." Spec. i-f 5. Most
stents have a uniform porosity. Spec. i-f 6. "This homogenous structure can
be disadvantageous in that such stents not only occlude or block blood flow
to the aneurysm, but they also block blood pressure and flow along the entire
length of the stent, which often impedes flow into surrounding joined
vessels." Spec. i-f 7. The use of such stents can cause harm to patients by
blocking opening in the perforator vessels. Id.
The Specification describes a vascular occlusion device "for
effectively occluding blood flow and pressure to a vascular defect while
simultaneously not occluding blood flow and pressure to adjacent
vasculature is provided." Spec. i-f 10.
Claims 1-8 and 10-21 are on appeal. 2 Claim 1 is representative and
reads as follows:
1. A vascular occlusion device, comprising:
a tubular member formed from a plurality of braided
filaments that define an outer surface having a mesh pattern
with mesh openings defined by the braided filaments, the
tubular member having a first porosity region along a first
length portion of the tubular member and a second porosity
region along a second length portion of the tubular member,
wherein a selected number of the braided filaments in the
first porosity region are of a flattened shape relative to a
remainder of the braided filaments in the first porosity region
2 Claims 9 and 22-25 are pending in the application but have been
withdrawn from consideration. Final Act. 1.
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Application 13/795, 127
and relative to the braided filaments in the second porosity
region along the second length portion of the tubular member,
wherein the porosity of the first porosity region being less than
the porosity of the second porosity region, the tubular member
having a constant pick count throughout its length.
The claims stand rejected3 as follows:
Claims 1-8, 11-14, 16, 17, 20, and 21 have been rejected under
35 U.S.C. § 103(a) as unpatentable over Garcia. 4
Claims 10 and 15 have been rejected under 35 U.S.C. § 103(a) as
unpatentable over Garcia in view of Bashiri. 5
Claims 18 and 19 have been rejected under 35 U.S.C. § 103(a) as
unpatentable over Garcia in view of Wulfman. 6
DISCUSSION
Issue
All of the rejection are based on the teachings of Garcia, whether
alone or in combination with Bashiri or Wulfman. Appellant does not
present any arguments regarding claims 10, 15, 18, and 19 other than to
argue that the secondary references do not address the deficiencies of
Garcia. Appeal Br. 9. Therefore we shall address the rejections together.
3 Claims 1-8 and 10-21 were rejected under 35 U.S.C. § 112, second
paragraph as indefinite. Final Act. 2. This rejection has been withdrawn.
Advisory Act. 1.
4 Garcia et al. US 2006/0206200 Al, published Sept. 14, 2006 ("Garcia").
5 Bashiri et al., US 2011/0054589 Al, published Mar. 3 2011 ("Bashiri").
6 Wulfman et al., US 2003/0139802 Al, published July 24, 2003
("Wulfman").
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Appeal2017-002193
Application 13/795, 127
The issue before us is whether a preponderance of the evidence
supports the Examiner's conclusion that the claims would have been obvious
over Garcia, either alone or in combination with Bashiri or Wulfman.
The Examiner finds that Garcia discloses a vascular occlusion device
having at least two regions with different porosities. Final Act. 3. The
Examiner finds that although Garcia does not teach that the filaments in one
region have a deformed shape relative to the filaments in the second region,
the Examiner finds that this parameter would have been a matter of design
choice. Final Act. 4. The Examiner finds that Garcia teaches having
filaments of different shapes in different regions. Id. The Examiner also
finds that Garcia teaches that "there are many parameters which can enhance
cell size and surface coverage (i.e.[,] lattice density/porosity), including
varying the width of the strand material, increasing the number of strands in
the braid and/ or increasing the pick count." Id. The Examiner concludes,
Therefore, it would have been obvious to one having ordinary
skill in the art at the time of the invention to vary/increase the
width of the strand material in the first porosity region (in order
to reduce the porosity/increase the lattice density), while
keeping the pick count constant throughout the length of the
device, since doing so is a mere substitution of known
parameters used to enhance/change cell size/surface coverage
(thereby controlling porosity) of a braided device.
Final Act. 5.
Appellant contends that Garcia does not teach or suggest a region of
the occlusion device where a portion of the filaments are flattened and a
portion of the same filaments in the same region are not. Appeal Br. 4.
Appellant also argues that the Examiner impermissibly relies on hindsight.
Id.
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Application 13/795, 127
Findings of Fact
We adopt the Examiner's findings as our own, including with regard
to the scope and content of, and motivation to modify or combine, the prior
art. The following findings are included for emphasis and reference
purposes.
FFI. Garcia discloses "[a] vascular occluding device for modifying
blood flow in a vessel, while maintaining blood flow to the surrounding
tissue." Garcia Abstract.
FF2. The occluding device of Garcia can have varying lattice
densities along the length of the device and can have different lattice
densities for surfaces on the same radial plane. Id.
FF3. Garcia teaches that
Cell size may be determined as the maximum length
defining a cell opening. Braiding patterns that increase surface
coverage while decreasing cell size may have an increased
effect on disrupting or impeding the flow through the braid or
lattice. Each of the parameters of surface coverage and cell size
may further be enhanced by varying the width of the strand
material (e.g., the ribbons), increasing the number of strands of
strand material defining the braid, and/ or increasing the PPI
(i.e., Picks Per Inch).
Garcia i-f 66.
FF4. Garcia teaches that the ribbon used as the braiding material can
have a rectangular cross section. Garcia i-f 92.
FF5. Garcia teaches that
While the illustrated embodiment discloses a ribbon
having a rectangular cross section in which the length is greater
than its thickness, the ribbon for an alternative embodiment of
the disclosed occluding devices may include a square cross
section. In another alternative embodiment, a first portion of
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Appeal2017-002193
Application 13/795, 127
the ribbon may include a first form of rectangular cross section
and a second portion 39 of the ribbon (FIG. 4B) may include a
round, elliptical, oval[,] or alternative form of rectangular cross
section. For example, end sections of the ribbons may have
substantially circular or oval cross section and the middle
section of the ribbons could have a rectangular cross section.
Garcia i193.
FF6. Garcia teaches that the occluding device can be constructed such
that only a portion of the inner section has a higher lattice density than the
rest of the center region. Garcia i-f 103 and Figure 14 reproduced below.
Figure 14 of Garcia "shows an embodiment of the vascular occluding device
where the lattice density is asymmetrical about the longitudinal axis near the
aneurysm neck." Garcia i1 42.
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Appeal2017-002193
Application 13/795, 127
Principles of Law
[T]he examiner bears the initial burden, on review of the
prior art or on any other ground, of presenting a prima facie
case ofunpatentability. If that burden is met, the burden of
coming forward with evidence or argument shifts to the
applicant. After evidence or argument is submitted by the
applicant in response, patentability is determined on the totality
of the record, by a preponderance of evidence with due
consideration to persuasiveness of argument.
In re Oetiker, 977 F.2d 1443, 1445 (Fed. Cir. 1992) (citations omitted).
Analysis
We agree with the Examiner that the subject matter of claim 1 would
have been obvious to one skilled in the art at the time the invention was
made. Garcia discloses an occluding device which can have regions with
different porosities. FFl and FF2. Garcia teaches that the porosity can be
controlled by varying the width and/or shape of the braiding material. FF3.
Garcia teaches that using a flat or rectangular material will result in a
different porosity than achieved using a round braiding material. FF4.
Garcia teaches that porosity can be altered by selectively adding additional
braid only to subregion of a section of the device. FF6. We find that it
would have been obvious to one skilled in the art to modify the vessel
disclosed in Garcia to achieve the claimed device by selectively using wider
stands in lieu of the addition braiding material to alter the porosity in one
reg10n.
Appellant contends that Garcia does not teach using ribbon of
different cross section shapes in the same region. Appeal Br. 4. Appellant
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Appeal2017-002193
Application 13/795, 127
contends that the Examiner has admitted as such. Appeal Br. 5. We are
unpersuaded.
As discussed above, Garcia teaches adjusting the porosity of the
device in a selected portion of the center region by increasing the pick count.
FF6. Garcia also teaches that using rectangular shaped braids and by
widening the braids, the porosity can be controlled. FF3-FF5. One skilled
in the art would understand from the teaching of Garcia that in lieu of using
an increased number of braids in the center portion, one could use flat braids
for at least some of the braids in the center region and achieve the same
change in porosity.
Appellant contends that the Examiner has impermissibly used
hindsight in making the rejection. Appeal Br. 4. We remain unpersuaded.
Although it appears that the Examiner has referred to Appellant's
disclosure in finding a reason to modify the device of Garcia. The Examiner
also points out that the motivation to modify the device also arises from the
teachings of Garcia. Ans. 11. Garcia teaches modifying the porosity in only
a portion of the central region of the device to limit the reduced porosity to
the area of the aneurism, (Garcia i-f 102), and that using a rectangular braid
and/or widening the braid are alternatives to increasing the PPL We agree
with the Examiner that this would lead one skilled in the art to customize the
vessel to meet the specific needs of the patient.
We conclude that a preponderance of the evidence supports the
Examiner's conclusion that claim 1 would have been obvious over Garcia.
Claims 2-8, 11-14, 16, 17, 20, and 21 have not been argued separately and
therefore fall with claim 1. 37 C.F.R. § 41.37(c)(iv).
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Appeal2017-002193
Application 13/795, 127
With respect to claims 10, 15, 18, and 19, as noted above, the only
argument presented by Appellant is that the secondary references do not sure
the deficiencies of Garcia. As discussed above, we do not find Garcia
deficient. Therefore, we affirm the rejection of those claims.
SUMMARY
We affirm the rejections under 35 U.S.C. § 103(a).
TIME PERIOD FOR RESPONSE
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
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