| European Case Law Identifier: | ECLI:EP:BA:2008:T164707.20081113 | ||||||||
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| Date of decision: | 13 November 2008 | ||||||||
| Case number: | T 1647/07 | ||||||||
| Application number: | 98932867.9 | ||||||||
| IPC class: | A61B 17/10 | ||||||||
| Language of proceedings: | EN | ||||||||
| Distribution: | D | ||||||||
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| Title of application: | Method and apparatus for circulatory valve repair | ||||||||
| Applicant name: | The Trustees of Columbia University in the City of New York | ||||||||
| Opponent name: | - | ||||||||
| Board: | 3.2.02 | ||||||||
| Headnote: | - | ||||||||
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| Keywords: | Inventive step (yes, after amendments) | ||||||||
| Catchwords: |
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Summary of Facts and Submissions
I. The appellant (applicant) lodged an appeal on 11 June 2007 against the decision of the examining division posted on 5 April 2007 to reject the application. The fee for the appeal was paid simultaneously and the statement setting out the grounds for appeal was received on 10 August 2007.
II. The application was rejected for lack of inventive step having regard to documents:
D4 = US - A - 5 049 153.
D8 = WO - A - 96/21489 and
D9 = WO - A - 96/26672.
Additionally the following documents have been cited in the decision under appeal:
D1 = US - A - 5 571 215
D2 = US - A - 5 571 137
D3 = US - A - 5 403 326
D5 = US - A - 4 809 695
D6 = US - A - 5 542 949
D7 = US - A - 3 378 010.
III. Oral proceedings took place on 13 November 2008.
The appellant requested that the decision under appeal be set aside and that a patent be granted on the basis of claims 1 to 5 as filed during the oral proceedings.
IV. Claim 1 reads as follows:
"An apparatus, which can be inserted percutaneously, for the repair of a cardiovascular valve having leaflets, comprising a grasper capable of grabbing and coapting the leaflets of the valve, a deployable fastening device integrally attached to the grasper, means for operating the fastening device independently of the grasper means and at least one control wire capable of actuating the grasper."
Claims 2 to 5 are dependent on claim 1.
Reasons for the Decision
1. The appeal is admissible.
2. Amendments
Claim 1 is based on claims 1 and 13, on the paragraph bridging pages 11 and 12 and on Figures 8 to 20 according to WO-A-99/00059. Claim 2 is based on claim 14 and on the description on page 9, lines 21 to 29, and claims 3 to 5 on the disclosure on page 15, last paragraph of the published application.
3. Inventive step
D4 discloses (see in particular Figures 16 to 19) an apparatus, which can be inserted percutaneously, and which is suitable for the repair of a cardiovascular valve having leaflets, comprising a grasper 158, 160 capable of grabbing and coapting the leaflets of the valve, a deployable fastening device 170, 172 integrally attached to the grasper, and at least one control wire 142 capable of actuating the grasper.
Starting from D4, the object underlying the present invention has to be seen in the provision of an apparatus for the repair of a cardiovascular valve having leaflets which after an initial grabbing allows a re-grabbing of the leaflets in a different location before the leaflets are fastened together (see description, paragraph bridging pages 3 and 4).
According to claim 1, this object is achieved by the provision of means for operating the fastening device independently of the grasper means.
Such means are not known or suggested by the available prior art.
D1 concerns a device for an intracardiac procedure (removing the mitral valve) and it does not address an apparatus having independently operating grasping and fastening devices.
D2 discloses and endoscopic instrument with a grasper. However, the instrument does not comprise a fastening device.
D3 relates to a method for performing a gastric wrap of the esophagus.
D5 concerns a suturing assembly having a fastening device. However, the assembly does not comprise a grasper.
D6 discloses a clip applier instrument which can be used for grasping and manipulating tissue when no clips are placed in the jaws. It does not disclose, however, that the means for operating the fastening device operates independently of the grasper means.
D7 relates to a surgical clip which is not suitable to be operated percutaneously.
D8 discloses a grasper 71 (Figure 5) and a fastener 77 (Figure 7). However, the fastener and the grasper are independent tools and not combined in a single apparatus.
D9 concerns a biopsy catheter.
With respect to the above findings, the subject-matter of the sole request on file involves an inventive step.
ORDER
For these reasons it is decided that:
1. The decision under appeal is set aside.
2. The case is remitted to the first instance with the order to grant a patent on the basis of:
Claims: 1 to 5 filed during the oral proceedings, and a description and drawings to be adapted to these claims.
