14134636 (P.T.A.B. Oct. 26, 2018)

Ex Parte Skalla et al

Patent Trial and Appeal BoardOct 26, 2018

14134636 (P.T.A.B. Oct. 26, 2018)

UNITED STA TES p A TENT AND TRADEMARK OFFICE APPLICATION NO. FILING DATE 14/134,636 12/19/2013 50855 7590 10/30/2018 Covidien LP 60 Middletown A venue Mailstop 54, Legal Dept. North Haven, CT 06473 FIRST NAMED INVENTOR Walter Skalla 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. H-US-03437 (203-9351) 6250 EXAMINER LOPEZ, MICHELLE ART UNIT PAPER NUMBER 3731 NOTIFICATION DATE DELIVERY MODE 10/30/2018 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): rs. patents. two@medtronic.com mail@cdfslaw.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte WALTER SKALLA, STEVEN L. BENNETT, and DANYEL RACENET 1 Appeal2017-010581 Application 14/134,636 Technology Center 3700 Before DANIEL S. SONG, MICHELLE R. OSINSKI, and LISA M. GUIJT, Administrative Patent Judges. OSINSKI, Administrative Patent Judge. DECISION ON APPEAL STATEMENT OF THE CASE Appellant appeals under 35 U.S.C. Â§ 134(a) from the Examiner's decision rejecting claims 1-7 and 9-162 under 35 U.S.C. Â§ 103(a) as unpatentable over Hamilton (US 6,325,810 B 1, iss. Dec. 4, 2001) and Henderson (US 2012/0253298 Al, pub. Oct. 4, 2012). Final Act. 2--4. We have jurisdiction under 35 U.S.C. Â§ 6(b ). 1 Covidien LP ("Appellant") is the Applicant as provided in 37 C.F.R. Â§ 1.46 and is identified as the real party in interest. Appeal Br. 1. Appellant notes that "[ t ]he ultimate parent of Covidien LP is Medtronic, plc." Id. 2 Claim 8 is cancelled, and claims 17-19 are withdrawn from consideration. Appeal Br. 9, 11. Appeal2017-010581 Application 14/134,636 We AFFIRM. THE CLAIMED SUBJECT MATTER Claim 1, the sole independent claim, is reproduced below and is representative of the claimed subject matter on appeal. L A surgical stapling apparatus including a releasable surgical buttress, the surgical stapling apparatus comprising: a cartridge assembly including a plurality of staples and a tissue contacting surface defining staple retaining slots; an anvi1 assemblv including a tissue contacting: surface J ~ 0 defining staple pockets fbr forming staples expelled from the staple retaining slots of the cartridge assembly; a surgical buttress disposed on at least one of the tissue contacting surfaces of the cartridge assembly and the anvil assembly; a low molecular weight bioabsorbable adhesive for releasably retaining the surgical buttress on the at least one of the tissue contacting surfaces of the cartridge assernb1y and the anvil assembly; and a knife disposed with in a knife slot formed in the tissue contacting surface of the cartridge assembly, ,vherein the surgical buttress includes a gap to allow free passage of the knife through the knife slot OPINION Appellant argues claims 1-7 and 9-16 as a group. Appeal Br. 3-7. We select claim 1 as the representative claim, and claims 2-7 and 9-16 stand or fall therewith. 37 C.F.R. Â§ 4I.37(c)(l)(iv). The Examiner finds that Hamilton teaches most of the limitations of independent claim 1, "but does not specifically disclose [that] the surgical buttress includes a gap to allow free passage of the knife through the knife slot." Final Act. 2-3. The Examiner finds that Henderson teaches "a buttress (30) comprising a gap (33) to allow free passage of the knife 2 Appeal2017-010581 Application 14/134,636 through the knife slot for the purposes of cutting through tissue that is clamped between the tissue contacting surfaces of the end effector." Id. at 3 ( citing Henderson ,r 528). The Examiner concludes that it would have been obvious "to have modified Hamilton's buttress to provide a gap to allow free passage of the knife through the knife slot as taught by Henderson in order to facilitate cutting of the clamped tissue." Id. at 3--4. Appellant argues that "slot 33 of Henderson's device is in its staple cartridge 30" (Appeal Br. 5), and that Henderson does not "disclose[] or suggest a gap in a buttress to allow free passage of a knife" (id. at 6). The Examiner responds that body 31 of staple cartridge 30 consists of a compressible hemostat material comprising a gap. Ans. 3 ( citing Henderson ,r,r 512-14, 528, Fig. IA). The Examiner asserts that "[t]he fact that Henderson's buttress 30 comprises additional components, such as surgical staples, not claimed is irrelevant." Id. Henderson teaches that "staple cartridge 30 has a body portion 31 that consists of a compressible hemostat material such as, for example, oxidized regenerated cellulose ... or a bio-absorbable foam in which lines of unformed metal staples 32 are supported." Henderson ,r 512. Henderson further teaches that "[ o ]nee the staples 32 have been formed and fastened to the target tissue 'T,' the surgeon will move the anvil 20 to the open position to enable the cartridge body 31 and the staples 32 to remain affixed to the target tissue while the end effector 12 is being withdrawn from the patient" and "[t]he remaining 'crushed' body materials 31 act as a both a hemostat ... and a staple line reinforcement." Id. f 514. Henderson describes that "in addition to the staples, the cartridge body materials that support the staples will also remain in the patient and may eventually be absorbed by the 3 Appeal2017-010581 Application 14/134,636 patient's body" and contrasts that with "prior cartridge arrangements that remain positioned within the end effector in their entirety after they have been fired." Id. Based on this description in Henderson, we do not agree with Appellant that Henderson fails to teach or suggest that its hemostat material includes a gap to allow free passage of a knife. See Reply Br. 3. In particular, in light of the structure and function of cartridge body 31 in Henderson, we agree with the Examiner that it is a surgical buttress (Ans. 3) in that it comprises bio-absorbable foam and remains affixed to target tissue after removal of the stapler to act as a hemostat and provide staple line reinforcement (Henderson ,r,r 512-14). The structure and function of Henderson's cartridge body 3 1 aligns with the description of a buttress for use with surgical stapling apparatus as described in Appellant's Specification. See Spec. ,r 7 ("the surgical buttress includes a foam layer"); id. ,r 29 ("Surgical buttress 24 is fabricated from a biocompatible material which can be any suitable bioabsorbable and/or biodegradable, non- absorbable, natural and/or synthetic material."); id. ,r 21 ("The buttresses described herein may be used to seal a wound by approximating the edges of wound tissue between a staple cartridge assembly and an anvil assembly of a surgical stapling apparatus, and to absorb any blood present at the wound tissue site."); id. ,r 28 ("Surgical buttress ... is provided to reinforce and seal staple lines applied to tissue by surgical stapling apparatus 10."). In short, Henderson's cartridge body 31 acts as a surgical buttress and includes a gap 33 for passage of a knife. Ans. 3; Henderson ,r 528, Fig. IA. Thus, contrary to Appellant's argument (Appeal Br. 3---6; Reply Br. 1- 4 ), Henderson discloses or suggests a buttress material with a gap to allow free passage of a knife. Accordingly, the Examiner's articulated reasoning 4 Appeal2017-010581 Application 14/134,636 for modifying the surgical buttress of Hamilton to include a gap is not based on an erroneous finding as to the scope and content of Henderson and has rational underpinnings. For the foregoing reasons, we do not find that the Examiner erred in concluding that the subject matter of independent claim 1 is rendered obvious by the combination of Hamilton and Henderson. We sustain the rejection of claim 1, and claims 2-7 and 9-16 falling therewith, under 35 U.S.C. Â§ 103(a) as unpatentable over Hamilton and Henderson. DECISION The Examiner's decision to reject claims 1-7 and 9-16 under 35 U.S.C. Â§ 103(a) as unpatentable over Hamilton and Henderson is affirmed. No time period for taking any subsequent action in connection with this appeal may be extended under 37 C.F.R. Â§ 1.136(a). See 37 C.F.R. Â§ 1.136(a)(l )(iv). AFFIRMED 5