HOLZER, Asher

Patent Trials and Appeals Board

Apr 16, 2020

14426766 - (D) (P.T.A.B. Apr. 16, 2020)

UNITED STATES PATENT AND TRADEMARK OFFICE
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
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR ATTORNEY DOCKET NO. CONFIRMATION NO.
14/426,766 03/09/2015 Asher Holzer 1148-1002.2 3414
82253 7590 04/16/2020
KLIGLER & ASSOCIATES PATENT ATTORNEYS LTD.
P.O. Box 57651
Tel Aviv, 61576
ISRAEL
EXAMINER
WATTS, TEZITA Z
ART UNIT PAPER NUMBER
3783
NOTIFICATION DATE DELIVERY MODE
04/16/2020 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):
alon@dkpat.co.il
daniel@dkpat.co.il
info@dkpat.co.il
PTOL-90A (Rev. 04/07)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________

Ex parte ASHER HOLZER

Appeal 2019-005391
Application 14/426,766
Technology Center 3700
____________

Before BIBHU R. MOHANTY, JAMES A. WORTH, and
KENNETH G. SCHOPFER, Administrative Patent Judges.

SCHOPFER, Administrative Patent Judge.

DECISION ON APPEAL
Pursuant to 35 U.S.C. § 134(a), Appellant1 appeals from the
Examiner’s decision to reject claims 1–12. We have jurisdiction under
35 U.S.C. § 6(b).
We AFFIRM IN PART.

1 We use the word “Appellant” to refer to “applicant” as defined in 37
C.F.R. § 1.42. Appellant identifies the real party in interest as Asher Holzer.
Appeal Br. 1.
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BACKGROUND
“The present invention relates generally to interventional cardiology,
and particularly to implements that may be used in such procedures to
facilitate insertion of intravascular devices into blood vessels.” Spec. 1, ll.
8–11.
ILLUSTRATIVE CLAIM
Claim 1 is the only independent claim on appeal and recites:
1. A device guide, comprising a distal portion configured for
insertion through a guide catheter into a blood vessel and having
a semi-tubular shape chosen so as to guide an intravascular
device inserted through the guide catheter into the blood vessel.
Appeal Br. 19.
REJECTIONS
1. The Examiner rejects claims 1, 3–6, 8, 10, and 11 under 35 U.S.C.
§ 102(b) as anticipated by Fussman.2
2. The Examiner rejects claims 1, 3, 4, 6, and 10 under 35 U.S.C. § 102(b)
as anticipated by Pal.3
3. The Examiner rejects claim 2 under 35 U.S.C. § 103(a) as unpatentable
over Fussman in view of Roemer.4
4. The Examiner rejects claim 7 under 35 U.S.C. § 103(a) as unpatentable
over Fussman in view of Chin.5
5. The Examiner rejects claim 9 under 35 U.S.C. § 103(a) as unpatentable
over Fussman.

2 Fussman, US 5,713,868, iss. Feb. 3, 1998.
3 Pal et al., US 2006/0259118 A1, pub. Nov. 16, 2006.
4 Roemer, US 4,957,479, iss. Sept. 18, 1990.
5 Chin et al., US 2008/0097293 A1, pub. Apr. 24, 2008.
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6. The Examiner rejects claim 12 under 35 U.S.C. § 103(a) as unpatentable
over Fussman in view of Kaufman.6
DISCUSSION
Anticipation by Fussman
Independent claim 1 recites a device guide that is configured for
insertion through a guide catheter and has a semi-tubular shape for guiding
an intravascular device through guide catheter into the blood vessel. The
Examiner finds that Fussman’s element 14 is a device guide as claimed.
Non-Final Act. 3. Appellant argues, inter alia, that Fussman’s cover 14 is
not configured for insertion through dilator member 12. Appeal Br. 8. We
agree.
Fussman discloses a cover member 14 that slides along a dilator
member 12 and includes a flexible forward end that is flexed for receipt into
a recess 52. See Fussman col. 4, ll. 32–34. The Examiner does not explain
adequately how Fussman’s cover member includes a distal portion that is
configured to be “inserted through the guide catheter” as claimed. The
Examiner finds that the cover member 14 is shown “sliding into recess 52 of
dilator member,” and thus, the Examiner finds that “the distal portion of
cover member 14 (claimed device guide) is inserted through the dilator 12
(claimed guide catheter).” Ans. 5. Yet, the claim requires “insertion
through a guide catheter into a blood vessel,” which requires not only entry
of the distal portion of the device guide into the catheter but also that the
device guide exits the other end of the catheter and into a blood vessel. The
Examiner does not explain adequately how this claim limitation reads on

6 Kaufman et al., US 2003/0120267 A1, pub. June 26, 2003.
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only a distal portion of the cover member being inserted into a recess of the
dilator.
Based on the foregoing, we do not sustain the rejection of claim 1 as
anticipated by Fussman. We also do not sustain the rejection of dependent
claims 3–6, 8, 10, and 11, for which the Examiner does not provide
additional reasoning or evidence that cures the deficiency in the rejection of
claim 1.
Anticipation by Pal
Appellant first argues that Pal’s device guide, element 70, is not
inserted through the guide catheter into a blood vessel, and rather, the guide
catheter is withdrawn from around the device guide. Appeal Br. 14.
However, we agree with the Examiner that Pal discloses a guide member 70
that “is configured to be slidably nested, fitted, secured, or otherwise
positioned within the outer guide channel member 80,” which explains that
element 70 “is configured for insertion through an outer guide channel
member 90 (claimed guide catheter).” Ans. 8 (citing Pal ¶ 188). Further, to
the extent that Appellant argues that withdrawing the catheter 80 from
around element 70 within a blood vessel is different from inserting element
70 through catheter 80 and into a blood vessel, we disagree. The claim
requires device guide with a distal portion that is “configured for insertion
through a guide catheter into a blood vessel” and one of ordinary skill in the
art would understand that the result of the process described by Appellant is
that the device guide has been inserted through the guide catheter into the
blood vessel.
Appellant also argues that Pal’s device guide does not have a semi-
tubular shape. Appeal Br. 15. Pal discloses that the guide channel member
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“may assume numerous configurations to ensure a low profile at the distal
end,” and “[t]hese configurations include but are not limited to spherical,
elliptical, crescent, saddle, slit, or wishbone shapes” including the “semi-
circular” shapes depicted in Figure 14E. Pal ¶ 250. We agree with the
Examiner that Pal thus discloses a semi-tubular shape at a distal portion of
element 70. To the extent Appellant argues the distal end of the device
guide in Pal is element 171, which has a circular shape, we note that the
claim requires only that “a distal portion [of the device guide has] a semi-
tubular shape” and does not require that the distal end has this shape.
Because Pal expressly discloses that a distal portion of element 70 has a
semi-circular cross-section, we are not persuaded of error by this argument.
Appellant also argues that Pal’s device guide is not capable of guiding
the identified intravascular device into a blood vessel. Appeal Br. 16. In
support, Appellant asserts that Pal’s guide wire is first inserted into a blood
vessel, then the inner and outer guide channel members are inserted over the
guide wire, and then the guide wire is withdrawn through the inner guide
member. Id. We are not persuaded. Although Pal discloses a “back-loading
procedure” in which the guide wire is withdrawn from the device, Pal
alternatively discloses that a front-loading procedure could be used, which is
the converse of the back-loading procedure and thus indicates that the device
is configured such that the guide wire could be inserted into the proximal
end of the device and through the distal end of the device. Pal ¶ 201.
Based on the foregoing, we are not persuaded of any error in the
rejection by Appellant’s arguments. Accordingly, we sustain the rejection of
claim 1 as anticipated by Pal. Appellant does not provide separate
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arguments regarding the rejection of dependent claims 4 and 6 as anticipated
by Pal, and thus, we also sustain the rejection of these claims.
Claim 3
Claim 3 depends from claim 1 and requires “the distal portion
comprises a tube, which has a longitudinal cut and is configured to open
along the longitudinal cut.” Appeal Br. 19. The Examiner finds that Pal’s
element 70 has a distal portion that is a tube and includes a longitudinal cut
that is configured to open as claimed because the “opening in lumen of guide
channel 70 [is] considered a longitudinal cut.” Non-Final Act. 5 (citing Pal
Figs. 8, 14D, 14E). The Examiner does not explain adequately which
portion of Pal’s element 70 is considered to be a tube with a longitudinal cut
therein. The Examiner references Figures 14D and 14E as having a
longitudinal cut in the form of an opening. Yet, to the extent these figures
depict element 70 as having an opening, the Examiner has not identified any
distal portion of element 70 that is tubular. And to the extent the Examiner
reference Figure 8, this figure may show that element 70 is tubular, but the
Examiner has not identified any longitudinal cut therein. Accordingly, we
do not sustain the Examiner’s rejection of claim 3 as anticipated by Pal.
Claim 10
Claim 10 depends from claim 1 and requires “the distal portion has a
slit in a distal end thereof.” Appeal Br. 20. The Examiner finds that Pal’s
device guide 70 includes a slit that “is the longitudinal lumen opening of
70.” Non-Final Act. 6. Appellant argues that a slit is a “narrow cut or
opening” and that “the Examiner’s usage of the term ‘slit’ falls far outside
the bounds of the broadest reasonable interpretation.” Appeal Br. 10. We
are not persuaded. As discussed above, Pal discloses that a distal portion of
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guide 70 and guide channel 71 may be provided in various configurations
including “spherical, elliptical, crescent, saddle, slit, or wishbone shapes”;
semi-circular, or in the form of a groove. Pal ¶ 250. Further, Pal indicates
that this configuration extends to the distal end of element 71. Id. Thus,
even under Appellant’s proposed interpretation of the term “slit,” we find
that Pal discloses a slit at the distal end of element 70, which has been
identified as the claimed device guide. Accordingly, we sustain the rejection
of claim 10 as anticipated by Pal.
Obviousness
With respect to the obviousness rejections of claims 2, 7, 9, and 12,
the Examiner does not provide additional findings or reasoning that cures the
deficiency in the rejection of independent claim 1 as anticipated by
Fussman. Accordingly, we also do not sustain the rejections of claims 2, 7,
9, and 12.

CONCLUSION
We AFFIRM the rejection of claims 1, 4, 6, and 10 as anticipated by
Pal. We REVERSE the remaining rejections.

In summary:
Claims
Rejected
35 U.S.C. § Reference(s)/Basis Affirmed Reversed
1, 3–6, 8, 10,
11
102(b) Fussman 1, 3–6, 8,
10, 11
1, 3, 4, 6, 10 102(b) Pal 1, 4, 6, 10 3
2 103(a) Fussman, Roemer 2
7 103(a) Fussman, Chin 7
9 103(a) Fussman 9
12 103(a) Fussman, Kaufman 12
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Application 14/426,766

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Claims
Rejected
35 U.S.C. § Reference(s)/Basis Affirmed Reversed
Overall
Outcome
1, 4, 6, 10 2, 3, 5,
7–9, 11,
12

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 IN PART