Ex Parte Williams

Patent Trial and Appeal Board

Jul 27, 2018

13888500 (P.T.A.B. Jul. 27, 2018)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
13/888,500 05/07/2013
50855 7590
Covidien LP
60 Middletown A venue
Mailstop 54, Legal Dept.
North Haven, CT 06473
07/31/2018
FIRST NAMED INVENTOR
Justin Williams
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-03426 (203-8820) 3434
EXAMINER
PALMER, LUCAS EA
ART UNIT PAPER NUMBER
3721
NOTIFICATION DATE DELIVERY MODE
07/31/2018 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 JUSTIN WILLIAMS
Appeal2017-007030 1
Application 13/888,500
Technology Center 3700
Before LYNNE H. BROWNE, ERIC C. JESCHKE, and
BRENT M. DOUGAL, Administrative Patent Judges.
DOUGAL, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Appellant appeals under 35 U.S.C. § 134 from a final rejection of
claims 1-3, 5-7, 14--16, and 18-20. We have jurisdiction under 35 U.S.C.
§ 6(b ).
We affirm.
1 Covidien LP is identified as the real party in interest. Appeal Br. 1.
Appeal2017-007030
Application 13/888,500
CLAIMED SUBJECT MATTER
The claims are directed to a surgical stapling device. Claims 1, 15,
and 16 are independent. Claim 1, reproduced below, is illustrative of the
claimed subject matter:
1. A surgical stapling device for Jommg tissue portions,
compnsmg:
a handle assembly;
an elongate body extending from the handle assembly;
a cartridge assembly supported on a distal end of the
elongate body, the cartridge assembly including a staple
cartridge containing a plurality of surgical staples in an annular
array;
an anvil assembly at a distal end of the surgical stapling
device, the anvil assembly having a shaft for removably coupling
the anvil assembly to the cartridge assembly and a head pivotally
mounted to a distal end of the shaft, the anvil assembly
translatable relative to the cartridge assembly between a first
position, where the anvil assembly is spaced from the cartridge
assembly, and a second position, where the anvil assembly is
approximated relative to the cartridge assembly for clamping
tissue disposed therebetween, the head of the anvil assembly
transitionable between a first condition, where a tissue contacting
surface of the head is substantially perpendicular to the shaft, and
a second condition, where the tissue contacting surface of the
head is tilted relative to the shaft; and
an anvil sleeve including an elongate portion slidably
disposed about the shaft of the anvil assembly and an arm
extending from the elongate portion, the anvil sleeve being
transitionable between a first position, where the elongate
portion of the anvil sleeve is releasably secured to the head of the
anvil assembly to secure the head in the first condition, and a
second position, where the elongate portion of the anvil sleeve is
disengaged and spaced from the head of the anvil assembly to
allow the head to transition to the second condition, the arm
being configured to engage the anvil head when the anvil sleeve
transitions to the second position to transition the anvil head to
the second condition.
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Application 13/888,500
REJECTIONS
Claims 1, 3, 5-7, 14, and 15 are rejected under 35 U.S.C. § I02(b) as
being anticipated by Aranyi (US 2004/0195289 Al, pub. Oct. 7, 2004) or
alternatively under 35 U.S.C. § I03(a) as being unpatentable over Aranyi
and Gresham (US 6,945,444 B2, iss. Sept. 20, 2005).
Claim 2 is rejected under 35 U.S.C. § I03(a) as being unpatentable
over Aranyi and Gresham.
Claims 16 and 18-20 are rejected under 35 U.S.C. § I03(a) as being
unpatentable over Gresham and Aranyi.
OPINION
35 US. C. § 102(b)- Claims 1, 3, 5-7, 14, and 15
Appellant argues that Aranyi does not teach:
the anvil sleeve being transitionable between a first position,
where the elongate portion of the anvil sleeve is releasably
secured to the head of the anvil assembly to secure the head in
the first condition, and a second position, where the elongate
portion of the anvil sleeve is disengaged and spaced from the
head of the anvil assembly to allow the head to transition to the
second condition
as required by independent claim 1 or the similar limitation of claim 15.
Appeal Br. 5. Appellant argues that "[ t ]he outer sleeve 22 of Aranyi
( characterized by the Examiner as the 'anvil sleeve' recited in claim 1 ), is
not 'releasably secured to the head of the anvil assembly."' Id. at 8. Rather,
"the outer sleeve 22 of Aranyi is fixedly secured to the anvil post 12." Id.
The Examiner responds that "a pin is a removable fastener and as such
the elongated portion of anvil sleeve 22 is releasably secured to the anvil
head by the removable fastener the pin." Ans. 2. Though this may be a
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Application 13/888,500
reasonable statement in the abstract, in the context of Aranyi, removing the
fastener pin connecting the outer sleeve 22 to the drive link 52 would
completely destroy the functioning of Aranyi' s stapler. Thus, we determine
that the Examiner's modification and construction is not reasonable.
Removing Aranyi' s pin would not render the device capable of performing
in the manner claimed----contrary to the position of the Examiner. See Final
Act. 5.
For this reason we do not sustain the Examiner's anticipation rejection
of claims 1, 3, 5-7, 14, and 15.
35 USC§ 103(a)-Claims 1, 3, 5-7, 14, and 15
The Examiner determines in the alternative that if "Aranyi does not
disclose [the] anvil sleeve is releasably secured to the head of the anvil
assembly and spaced and disengaged in the second position," this is taught
by Gresham. Final Act. 5 ("Fig[ s]. 66, 67, and 16a element 150 of the anvil
head is releasably secured on the portion of the anvil sleeve element 154a
when move[ d] to the second position it is spaced away and disengaged").
The Examiner determines that "it would have been obvious ... to include
the releasably secured, and spaced and disengaged features of the anvil
sleeve of Gresham with the anvil sleeve of Aranyi to prevent the anvil head
from pivoting unless the engagement is disconnected." Id.
Appellant "disagrees with the Examiner's characterization of
Gresham." Appeal Br. 9. Appellant reproduces certain figures and provides
large block quotes from Gresham, and then discusses how the anvil head
assembly in Gresham pivots from a first position to a second position. Id. at
9-12. However, it is not clear what feature from the claims Appellant is
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Appeal2017-007030
Application 13/888,500
arguing is missing from Gresham, or what distinction Appellant is trying to
make between the claims and the teachings of Gresham.
Appellant states that:
Neither Gresham's top surface 154a of center rod 154 nor the tabs
150 is "transitionable between a first position wherein the
elongate portion of the anvil sleeve is releasably secured to the
head of the anvil assembly to secure the head in the first
condition, and a second position, where the elongate portion of
the anvil sleeve is disengaged and spaced from the head of the
anvil assembly ... " as recited in claim 1.
Id. at 11. Appellant explains that "Gresham's center rod 154 is secured to
the head assembly 120 by a pivot member 164 and the tabs 150, which form
part of the backup plate 126 of the anvil head assembly 120, are supported
on the anvil head 126." Id. at 12. Appellant's explanation, however, does
not identify error. The rejection states that Gresham's tabs 150 are part of
Gresham's anvil head and that Gresham's anvil sleeve element 154a is part
of its anvil sleeve. As clearly shown in Gresham's Figure 16B, Gresham's
top surface 154a is releasably secured to tabs 150 of Gresham's anvil head.
See Gresham, Fig. 16B. This releasable securement is also described in
Gresham. Gresham 13:12-22. Accordingly, Appellant's argument is
unconvmcmg.
Appellant then argues that "there is absolutely no way to incorporate
Gresham's top surface 154a and tabs 150 into Aranyi' s linkage for pivoting
the anvil head. According to Appellant, the two mechanisms described by
Aranyi and Gresham function in completely different ways." Id. The
Examiner correctly responds that:
the test for obviousness is not whether the features of a secondary
reference may be bodily incorporated into the structure of the
primary reference; nor is it that the claimed invention must be
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Application 13/888,500
expressly suggested in any one or all of the references. Rather,
the test is what the combined teachings of the references would
have suggested to those of ordinary skill in the art. See In re
Keller, 642 F.2d 413,208 USPQ 871 (CCPA 1981).
Ans. 3.
For these reasons we are not informed of error in the Examiner's
rejection.
35 US.C. § 103(a)-Claims 2, 16, and 18-20
Appellant does not present separate arguments for these rejections.
Instead, Appellant argues that claims 2, 16, and 18-20 are allowable for the
same or for similar reasons to claims 1 and 15. Appeal Br. 13. Thus, we
sustain the Examiner's rejections of claims 2, 16, and 18-20 for the reasons
discussed above.
DECISION
The Examiner's rejection of claims 1, 3, 5-7, 14, and 15 under 3 5
U.S.C. § 102(b) is reversed.
The Examiner's rejections of claims 1-3, 5-7, 14--16, and 18-20
under 35 U.S.C. § 103(a) are affirmed.
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a). See 37 C.F.R.
§ 1.136(a)(l )(iv).
AFFIRMED
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