Ex Parte Ladtkow

Patent Trials and Appeals Board

Mar 27, 2019

13477307 - (D) (P.T.A.B. Mar. 27, 2019)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
13/477,307
90039 7590
Covidien LP
Attn: IP Legal
5920 Longbow Drive
Mail Stop A36
05/22/2012
03/29/2019
Boulder, CO 80301-3299
FIRST NAMED INVENTOR
Casey M. Ladtkow
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-EB-00121CIP(l544-187CIP 2323
EXAMINER
KIM,EUNHWA
ART UNIT PAPER NUMBER
3794
NOTIFICATION DATE DELIVERY MODE
03/29/2019 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
docket@carterdeluca.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte CASEY M. LADTKOW
Appeal2018-000836
Application 13/477,307
Technology Center 3700
Before JAMES P. CAL VE, MICHELLE R. OSINSKI, and
JEREMY M. PLENZLER, Administrative Patent Judges.
OSINSKI, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Casey M. Ladtkow ("Appellant") 1 appeals under 35 U.S.C. § 134(a)
from the Examiner's decision rejecting claims 1, 2, 7, 12-14, 17, 22, 24, and
262 under 35 U.S.C. § 112, first paragraph, as failing to comply with the
written description requirement. Final Act. 3. 3 We have jurisdiction over
the appeal under 35 U.S.C. § 6(b).
1 According to Appellant, "[t]he real party in interest is the assignee of the
entire interest in this patent application, Covidien LP, which is a wholly-
owned subsidiary of Medtronic PLC." Br. 1.
2 Claims 3---6, 8-11, 18-21, 23, and 25 are cancelled. Br. 13-16 (Claims
App.).
3 The rejections, under 35 U.S.C. § 103(a) of (i) claims 1, 2, 7, 12-14, and
Appeal2018-000836
Application 13/477,307
We AFFIRM.
THE CLAIMED SUBJECT MATTER
Claims 1, 7, and 17 are independent. Claim 1, reproduced below, is
illustrative of the subject matter on appeal.
1. A system for determining completeness of an ablation
procedure on a target tissue, the system comprising:
an electrosurgical energy source;
an electrode probe assembly connected to the
electrosurgical energy source, the electrode probe assembly
including a needle configured to deliver electrosurgical energy
to the target tissue;
a thermal feedback assembly disposed at an offset location
offset from the electrode probe assembly and connected to the
electrosurgical energy source, the thermal feedback assembly
including a temperature sensor assembly; and
a computer configured to:
(1) measure a time of energy delivered to the target
tissue,
(2) receive a temperature reading from the thermal
feedback assembly,
(3) calculate as a function of the temperature
reading and a distance from the temperature sensor
assembly an inner boundary condition associated with an
inner location and an outer boundary condition associated
with an outer location, the offset location being disposed
between the inner and outer location;
17 as unpatentable over Buysse (US 2008/0183165 Al; pub. July 31, 2008)
and Mc Rury (Ian D. Mc Rury et al., Nonuniform Heating During
Radiofrequency Catheter Ablation With Long Electrodes, Circulation,
96:4057-64 (1997)); and (ii) claims 22, 24, and 26 as unpatentable over
Buysse, McRury, and Johnson (US 2002/0077627 Al, pub. June 20, 2002)
(Final Act. 4--11) have been withdrawn and are not before us on appeal
(Examiner's Answer filed August 10, 2017 ("Ans."), 2-3).
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Appeal2018-000836
Application 13/477,307
( 4) interpolate at least one temperature value based
on the received temperature reading and the inner and
outer boundary conditions;
( 5) calculate a time integral for the at least one
interpolated temperature value to obtain a damage integral
value; and
( 6) determine the size of the ablation based on a
comparison of the obtained damage integral value to a
threshold damage integral value.
OPINION
Independent claim 1 recites, in relevant part, "calculate as a function
of the temperature reading and a distance from the temperature sensor
assembly an inner boundary condition associated with an inner location and
an outer boundary condition associated with an outer location, the offset
location [ of a thermal feedback assembly relative to the electrode probe
assembly] being disposed between the inner and outer location." Br. 12
(Claims App.). Independent claims 7 and 17 recite similar limitations. Id. at
13, 15 (Claims App.). The Examiner finds that "there is no support in the
[S]pecification regarding that boundary conditions are calculated as a
function of the measured temperature and a distance from the electrode
probe assembly." Final Act. 3. The Examiner finds that "[r]ather, [the]
[S]pecification discloses predetermined values as boundary conditions, for
example, lOOQC at about 0.5 cm from the electrode assembly and about
37.5QC at about 3 cm." Id. (citing Spec. ,r 75).
Appellant argues that "[a]ll the points that make up plot 600,
including the boundary conditions 620, 630 are interpolated using a single
temperature measurement 610 at a known distance." Br. 5 ( citing Spec.
Fig. 6A). Appellant continues that "the boundary conditions 620, 630 are
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Application 13/477,307
clearly determined as a function of both temperature and distance from the
electrode." Id. (citing Spec. Fig. 6A). Figure 6A of the Specification is
reproduced below.
Distance From Electrode
Figure 6A is a plot of temperature measured by a temperature sensor
assembly with respect to distance of the temperature sensor assembly from
an electrode probe assembly. Spec. ,r 35. According to the Specification,
"[p ]lot 600 shows a temperature graph with boundary conditions 620, 630
applied to the temperature measurements" and "[g]enerally, the plot 600 can
be interpolated with a single temperature measurement 610 at a known
distance." Id. ,r 75.
Appellant also points to the description in the Specification that "[t]he
plots 600, 640 and 660 visualize the method for correlating the temperature
with distance from electrodes and utilize a logarithmic fit to approximate the
temperature field based on a single measured temperature 610." Br. 6
( quoting Spec. ,r 77). Appellant argues that the "[S]pecification merely
discloses exemplary values for the boundary conditions that are interpolated
based on the single measured temperature 610." Id. According to
Appellant, the computer first calculates inner and outer boundary conditions
"based on a known temperature reading and distance from the temperature
assembly" and then "[ o ]nee the boundary conditions are determined, the
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Appeal2018-000836
Application 13/477,307
computer 'interpolate[ s] at least one temperature value based on the received
temperature reading and the inner and outer boundary conditions' as recited
in claim 1." Id. at 6-7.
The Examiner responds that nowhere does the Specification
"explicitly state[] or implicitly suggest[] in any way that the boundary
conditions 620 and 630 in [F]igure 6A are indeed calculated ( or interpolated)
based upon a single temperature measurement 610 measured by the
temperature measuring probe 222." Ans. 5. In addition to the previously
identified paragraph 7 5 of the Specification, the Examiner further points to
"[F]igure 7 labeling a method step of block 720 as 'Apply Assumptions"' in
support of the position. Id. More particularly, the Examiner states that
"Apply Assumptions" means
apply [pre-determined] boundary conditions so that there are
three data points (inner boundary condition data point, outer
boundary condition data point, and temperature measured 610)
to interpolate a relationship between temperature and distance
from electrode. As such, the original specification discloses that
with the use of inner and outer boundary conditions that are pre-
determined values, the relationship between the temperature and
distance from electrode or plot 600 can be derived with only a
single measured temperature 610.
Id. (bracketing in original).
We agree with the Examiner that nothing in the Specification supports
"calulat[ing]" inner and outer boundary conditions based on a known
temperature measured by a temperature sensor assembly and a known
distance of the temperature sensor assembly from an electrode probe
assembly, as claimed. Although we acknowledge that boundary conditions
have a specific temperature and distance value associated with them (Spec.
Fig. 6A), we do not see where the Specification describes calculating the
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Appeal2018-000836
Application 13/477,307
boundary conditions based on temperature and distance. The Specification
describes only the use of the boundary conditions to interpolate
temperatures. Spec. ,r,r 14, 17, 25, 76. As to how the boundary conditions
themselves are arrived at or determined, the Specification is silent, except
for providing exemplary values in paragraph 75, i.e., that "[t]he boundary
conditions 620, 630 may be about lOOQC at about 0.5 cm from the electrode
assembly and about 37.5QC (about average body temperature or average
temperature of a particular organ) at about 3 cm, respectively." Id. ,r 75.
The provision of the exemplary values, coupled with Figure 7 identified by
the Examiner, support that the boundary conditions are predetermined values
as found by the Examiner, rather than that the boundary conditions are
calculated or interpolated using the single temperature measurement 610, as
asserted by Appellant. Block 720 of Figure 7 states "Use Multiple
Temperatures or Apply Assumptions," and the Specification describes that
"[t]he temperature measured [at block 715 of Figure 7] may be a single
temperature with boundary conditions applied or a plurality of temperatures
measured at block 720." Spec. ,r 78. The use of the word "apply" (or a
variant thereof) with "assumptions" in Figure 7 and with "boundary
conditions" in paragraph 78 supports the Examiner's determination that the
boundary conditions are assumed, pre-determined values, such as those
exemplary values set forth in the Specification, that are used, along with the
single measured temperature 610, to interpolate temperature values 650.
The Specification also refers to "boundary conditions 620, 630 applied to the
temperature measurements" (Spec. ,r 7 5), which further supports that the
boundary conditions are assumed, pre-determined values, as opposed to
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Application 13/477,307
being calculated along with the remainder of temperature values 650 as
illustrated in Figure 6B.
Thus, Appellant does not apprise us of error in the Examiner's finding
that the original disclosure of the present application fails to reasonably
convey to those skilled in the art that Appellant had possession of the
claimed subject matter as of the filing date. See Ariad Pharm., Inc. v. Eli
Lilly & Co., 598 F.3d 1336, 1351 (Fed. Cir. 2010) (en bane).
Accordingly, we sustain the rejection of claims 1, 2, 7, 12-14, 17, 22,
24, and 26 under 35 U.S.C. § 112, first paragraph, as failing to comply with
the written description requirement.
DECISION
The Examiner's decision to reject claims 1, 2, 7, 12-14, 17, 22, 24,
and 26 under 35 U.S.C. § 112, first paragraph, as failing to comply with the
written description requirement is 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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