Patent of Selection – What’s That?

February 15, 2009 at 6:04 pm Leave a comment

Soooo, let’s say you find a fiber that has a diameter that is significantly smaller than the diameter of an endothelial cell. The endothelial cell will adhere better to the tissue on the blood vessel wall on either side of the fiber. Endothelial cells that adhere better to the artery wall don’t break away easily from the polymer fibers.

No break aways – no embolism.

In other words, your stents gets rid of those streaks in the skies – meteorites that burn up on hitting the atmosphere; at least those that might have been generated by the old type jacketed stent.

Specifically, you found that a polymer fiber having a diameter of between 5 and 10 microns completely eliminates instability in endothelial cells. Eliminate endothelial instability! Hmmm – Great idea.

In fact, this thinner fiber thickness allows all the patients with your jacketed stent to live without ANY Plavix for whatever life time is left after the roto-rooter cleans out the cardiac arteries and the NEW jacketed stent is in place.

Now there are plenty of patents out there that deal with stents that have jackets. Some patents claim that the jackets have a certain fiber diameter.

To be on the safe side, such patents give plenty of leeway as to the diameter of fiber.

So now you go take a look at some of the patents out there. Or maybe even a patent you wrote some time ago.


You find that some patents claim stent jackets made with polymer fibers having a diameter of between 2 and 40 microns in diameter.

Now “between 2 and 40 microns in diameter” includes your new discovery of between 5 and 10 microns. You know, like the math formulas we wrote a few years back (a few?):

2< (5-10) <40

Our middle set of numbers, (5 to 10), is greater than 2, but less than 40.

This creates a problem because your smaller-ranged fiber diameters have already been included in patents claiming broader-ranged fiber diameters.

Important: You gotta “think or thwim” or you won’t have nothin’, no matter how thwell the invention thounds.

And you find out that you still have an IP option — file a Patent of Selection.

Patent of Selection

Hmmmm. Patent of Selection. What’s that?

Glad you asked.

In our case, a Patent of Selection means that you have found that a limited range of numbers are patentable for a very special reason — even though they’re contained within a broader range of numbers in claims of a another patent.

The description of your Patent of Selection revolves around the totally unexpected novel results of no embolism generation by using polymer stent jackets with fibers between 5 and 10 microns in diameter.

Your Patent of Selection acknowledges that there are patents that claim jackets with fibers between 2 and 40 microns in diameter, but you carefully describe your invention, and include experimental data, that only this specific range of 5 to 10 micron fiber sizes results in stable endothelial cells.

After writing your description and including a section devoted to experiments that prove your thesis, you write a claim in your Patent of Selection that might read:

“A method of stenting, comprising implanting a stent assembly in a vessel of a subject, the stent assembly, including a stent jacket, comprising an expansible mesh structure, formed of fibers of a diameter between about 5 microns and about 10 microns, the diameter having a property of forming a substantially stable layer of endothelial cells, covering the fibers, thus reducing platelet aggregation…”

And guess what? You might just have a patentable new stent jacket.

And you can buy an island in the Bahamas and wait for a martini served by a French waiter coming in on a surfboard.

Of course the above-noted claim is not the only claim in your patent. In a future Blog, we may explore ways to expand the claims (and description) to get stronger protection.

OK, so this is Rabbi, Dr. Yosef Freedland, Surgeon, and Patent Attorney signing off with one last sentence about a new flag invented by a newly-named banana republic, comprising:

A white stripe on a white background.


Entry filed under: Medical Device Patents, Patent Drafting Lessons. Tags: , .

Jacketed Cardiac Stent – Suggested Invention KSR and Medical Patents – Explaining Obviousness

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