Ex Parte Wilson et al

Patent Trial and Appeal Board

Mar 22, 2018

13450432 (P.T.A.B. Mar. 22, 2018)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR
13/450,432 04/18/2012 Fletcher T. Wilson
84561 7590 03/26/2018
Vista IP Law Group, LLP
2160 Lundy Avenue, Suite 230
San Jose, CA 95131
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.
Sl0-210-US3 8339
EXAMINER
SIMPSON, SARAH A
ART UNIT PAPER NUMBER
3731
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):
docketing@viplawgroup.com
ttn@viplawgroup.com
ev@viplawgroup.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte FLETCHER T. WILSON, RHUNJA Y J. YU,
and BEN CLINE 1
Appeal2017-003279
Application 13/450,432
Technology Center 3700
Before RICHARD M. LEBOVITZ, ULRIKE W. JENKS, and
JOHN G. NEW, Administrative Patent Judges.
NEW, Administrative Patent Judge.
DECISION ON APPEAL
1Appellants state that the real party-in-interest is Intervene, Inc. App. Br. 2.
Appeal2017-003279
Application 13/450,432
SUMMARY
Appellants file this appeal under 35 U.S.C. § 134(a) from the
Examiner's Final Rejection of claims 1-17. Specifically, claims 1-14 stand
rejected as unpatentable under 35 U.S.C. § 103(a) as being obvious over the
combination of Flaherty et al. (US 6,685,648 B2, February 3, 2004)
("Flaherty"), Selmon et al. (US 6,514,217 Bl, February 4, 2003)
("Selmon"), and Mauch et al. (US 2010/0152843 Al, June 17, 2010)
("Mauch").
Claims 15-17 stand rejected as unpatentable under 35 U.S.C. § 103(a)
as being obvious over the combination of Flaherty, Selmon, Mauch, and
Evans et al. (US 7,517,352 B2, April 14, 2009) ("Evans").
We have jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM.
NATURE OF THE CLAIMED INVENTION
Appellants' invention is directed medical systems and methods for
creation of autologous tissue valves within a mammalian body. Abstract.
REPRESENTATIVE CLAIM
Claim 1 is representative of the claims on appeal and recites:
1. A system for creating an endoluminal valve from a blood
vessel wall of a blood vessel, the system comprising:
a tubular assembly having a longitudinal axis, a proximal
end, a distal portion with a distal end, and a first lumen extending
from the proximal end to a distal port located proximate to the
distal portion, the distal port located along the longitudinal axis,
the distal portion having a supporting surface on a same side of
the tubular assembly as the distal port, the supporting surface
extending in a longitudinal direction and offset from a surface of
2
Appeal2017-003279
Application 13/450,432
the tubular assembly proximal the distal port and configured to
contact the blood vessel wall; and
a tissue dissection probe disposed within the first lumen,
the tissue dissection probe having a fluid delivery lumen
extending to a fluid delivery port located at a distal end of the
tissue dissection probe, the tissue dissection probe configured to
be inserted into the blood vessel wall;
wherein the blood vessel wall includes one or more tissue
layer(s), and wherein the tissue dissection probe is configured to
travel within the one or more tissue layer(s) in the blood vessel
wall while the tissue dissection probe is being advanced distally
in a direction that corresponds with a longitudinal axis of the
blood vessel.
App. Br. 36.
ISSUES AND ANALYSES
A. Independent claim 1
Issue 1
Appellants argue that the Examiner erred because modifying the
invention taught by Flaherty according to the teachings of Selmon would
render Flaherty's catheter unsatisfactory for its intended purpose. App. Br.
17.
Analysis
The Examiner finds Flaherty teaches all of the recited limitations of
claim 1 except a distal port located along the longitudinal axis, in which the
tissue dissection probe is capable of extending out of the distal port in an
orientation that is substantially parallel to a flat supporting surface. Final
Act. 3--4. The Examiner finds Selmon teaches a catheter with a distal port
located along the longitudinal axis, in which a tissue dissection probe is
3
Appeal2017-003279
Application 13/450,432
capable of extending out of the distal port in an orientation that is
substantially parallel to the supporting surface or at an angle from the
supporting surface. Id. at 4.
The Examiner finds that the combination of Flaherty and Selmon fails
to teach or suggest a tissue dissection probe configured to travel within one
or more tissue layer( s) in the blood vessel wall while the tissue dissection
probe is being advanced distally in a direction that corresponds with the
longitudinal axis of the blood vessel. Final Act. 5. However, the Examiner
finds that Mauch teaches a tubular assembly with a first lumen and a distal
port through which a tissue dissection probe is advanced, in which the tissue
dissection probe is configured to travel within one or more tissue layers in
the blood vessel wall while the tissue dissection probe is being advanced
distally in a direction that corresponds to the longitudinal axis of the blood
vessel. Id.
The Examiner concludes that it would have been obvious to one of
ordinary skill in the art at the time of the invention to modify the device of
Flaherty so that a tissue dissection probe is capable of extending out of the
distal port in an orientation that is substantially parallel to the supporting
surface. Final Act. 4. The Examiner concludes that claim 1 would have
been obvious because the substitution of one known element for another
would have yielded predictable results to one of ordinary skill in the art at
the time of the invention. Id. Similarly, the Examiner finds it would have
been obvious to one of ordinary skill in the art at the time of the invention to
modify the invention of Flaherty and Selmon with the teachings of Mauch to
allow the tissue dissection probe to be maneuvered around a blocked vessel.
Id. at 5.
4
Appeal2017-003279
Application I3/450,432
Referring to Figure ID of Flaherty, Appellants argue that because
modifying the port 34 of Flaherty's needle lumen 36 to be along the
longitudinal axis 22 in the manner that Selmon's distal orifice 302 is along
its lumen would render Flaherty's catheter I2 inoperable for its intended
purpose of delivering a drug across the vessel wall. App. Br. I 7. Figure ID
of Flaherty is reproduced below:
FIG. 1 D
Figure ID of Flaherty depicts a lateral a cross-sectional view of
the distal portion of a catheter for the transvascular catheter
system
Figures I 8B and I 8C of Selmon are reproduced below:
FIG. 18B
. ' . .---300
/305 r