11580602 (B.P.A.I. May. 21, 2012)

Ex Parte Taylor

Board of Patent Appeals and InterferencesMay 21, 2012

11580602 (B.P.A.I. May. 21, 2012)

UNITED STATES PATENT AND TRADEMARK OFFICE ____________ BEFORE THE BOARD OF PATENT APPEALS AND INTERFERENCES ____________ Ex parte ERIC J. TAYLOR ____________ Appeal 2010-007323 Application 11/580,602 Technology Center 3700 ____________ Before LINDA E. HORNER, PHILLIP J. KAUFFMAN, and CHARLES N. GREENHUT, Administrative Patent Judges. HORNER, Administrative Patent Judge. DECISION ON APPEAL STATEMENT OF THE CASE Eric J. Taylor (Appellant) seeks our review under 35 U.S.C. § 134 of the Examiner’s decision rejecting claims 1, 2, and 4-23 under 35 U.S.C. § 103(a) as unpatentable over Green (US 5,318,221; iss. Jun. 7, 1994) and McMillen (US 5,897,119; iss. Apr. 27, 1999). We have jurisdiction under 35 U.S.C. § 6(b). We REVERSE. Appeal 2010-007323 Application 11/580,602 2 THE INVENTION Appellant’s claimed invention relates to “an endoscopic or laparoscopic stapling apparatus.” Spec. 1. Claim 1, reproduced below, is representative of the subject matter on appeal. 1. A surgical apparatus for laparoscopic or endoscopic procedures comprising: a frame; an endoscopic portion defining a longitudinal axis and extending distally from the frame; a tool assembly supported on the distal end of the endoscopic portion, the tool assembly including a first jaw pivotably supported in relation to a second jaw, wherein the first jaw is movable in relation to the second jaw between open and closed positions; a first mechanism extending between the tool assembly and the frame, the first mechanism including a clamp tube positioned at least partially within the frame, the clamp tube being movable from a retracted position to an advanced position to move the first jaw in relation to the second jaw from the open position to the closed position; a second mechanism extending between the frame and the tool assembly, the second mechanism including an extension tube, the extension tube being movable from a retracted position to an advanced position to actuate the tool assembly; and a bellows seal having a distal end and a proximal end and a central bellows portion, the bellows seal defining a throughbore, the distal end of the bellows seal being positioned to sealingly engage an outer surface of the extension tube and the proximal end of the bellows seal being positioned to sealingly engage the clamp tube, wherein as the clamp tube is moved from the retracted position to the advanced position, the bellows seal is compressed and expanded outwardly to seal against an internal surface of the frame. Appeal 2010-007323 Application 11/580,602 3 Independent claims 11 and 14 are also directed to a surgical apparatus and recite “a bellows seal” that is capable of being compressed and “expanded outwardly to seal against an internal surface of the frame” when the clamp tube is moved to from the retracted position to the advanced position. ISSUE The issue presented by this appeal is whether McMillen discloses a “bellows seal” as called for in the claims. ANALYSIS The Examiner found that “McMillen teaches a bellows seal 10 that seals against an internal surface of a frame 12 when a tube 14 is moved from a retracted to an advanced position (see Figs. 1, 3, and 4).” Ans. 3. The Examiner explained that McMillen’s seal 10 is a bellows seal because “each ring 32, 34 can be considered a pleat and each ring has internal surfaces (the surfaces facing the body portion 30) that move closer to each other as the seal moves” and because it “has a bellows shape (see Fig. 1), is capable of expanding and contracting . . ., and is designed to provide a seal.” Ans. 5. We disagree with the Examiner’s finding that each ring has internal surfaces facing the body portion 30 that move closer to each other as the seal moves. McMillen’s annular sealing rings 32 and 34 are formed integral with the seal body 30. Col. 4, ll. 16-17; fig. 3. We also disagree with the Examiner’s finding that McMillen’s seal 10 has a bellows shape. As shown in Figure 3 of McMillen, the annular sealing rings 32 and 34 are solid rings Appeal 2010-007323 Application 11/580,602 4 formed integral with the seal body 30 and do not form pleats as in a bellows.1 See Reply Br. 4. Further, the Examiner has failed to show a sound basis for finding that the seal 10 of McMillen, if used in the device of Green, would be capable of being compressed and expanded outwardly as the clamp tube is moved from the retracted position to the advanced position. McMillen discloses that “seal assembly 10 includes a generally cylindrical body 30 formed from an elastomeric material, and preferably, a hard plastic material such as polyurethane which exhibits high wear resistance during service.” Col. 4, ll. 12-16. McMillen describes: The elastomeric material from which the body 30 and sealing rings 32 and 34 are formed is specially designed to compress radially upon eccentric or cycloidal rotational movements of the reciprocating shaft 14, as shown, for example in FIGS. 5 and 6 to maintain sealing engagement with interior surface 26 of reception bore 20 and promote an effective oil seal. Col. 4, ll. 25-31. “Upon relief of the shaft eccentricity, the elastomeric nature of the seal body 30 and fins 32 and 34 cause the seal 10 to return to 1 An ordinary meaning of “bellows” is: 1. A flexible, accordion-sided device designed for pumping air, consisting of a chamber that expands to draw in air through a vale and contracts to expel it through a tube. 2. Any device resembling or incorporating an air bellows, especially one designed to allow for expansion and contraction. Thus, bellows expansion joint, bellows gas meter, bellows gauge, bellows seal. ACADEMIC PRESS DICTIONARY OF SCIENCE AND TECHNOLOGY (1992), retrieved from http://www.credoreference.com/ entry/apdst/bellows. Appeal 2010-007323 Application 11/580,602 5 its initial static condition illustrated, for example, in FIG. 3.” Col. 4, ll. 31- 34. Because McMillen’s seal assembly 10 does not undergo compression along its longitudinal axis, McMillen does not describe whether the material of seal assembly 10 is capable of expanding outwardly as the seal member is compressed. While canting of the reciprocating shaft 14 may cause the rings to compress radially, that fact alone is insufficient to find that McMillen’s seal assembly 10 would necessarily be capable of being expanded outwardly when the assembly is compressed along its longitudinal axis. See App. Br. 11-12. As such, we cannot sustain the rejection of independent claims 1, 11, and 14 and their dependent claims 2, 4-10, 12, 13, and 15-23 as unpatentable over Green and McMillen. CONCLUSION McMillen does not disclose a bellows seal as called for in the claims. DECISION The decision of the Examiner to reject claims 1, 2, and 4-23 is REVERSED. REVERSED mls