Wilcox, Robert L. et al.

Patent Trials and Appeals Board

Dec 27, 2019

13726105 - (D) (P.T.A.B. Dec. 27, 2019)

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.
13/726,105 12/22/2012 Robert L. Wilcox 2001.2125102 2990
11050 7590 12/27/2019
SEAGER, TUFTE & WICKHEM, LLP
100 South 5th Street
Suite 600
Minneapolis, MN 55402
EXAMINER
LEE, BRANDY SCOTT
ART UNIT PAPER NUMBER
3783
NOTIFICATION DATE DELIVERY MODE
12/27/2019 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):
BSC.USPTO@stwiplaw.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte ROBERT L. WILCOX and RONALD L. HAAS
Appeal 2018-004197
Application 13/726,105
Technology Center 3700
BEFORE MICHAEL J. FITZPATICK, MICHELLE R. OSINSKI, and
JEREMY M. PLENZLER, Administrative Patent Judges.
PLENZLER, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Pursuant to 35 U.S.C. § 134(a), Appellant, Ekos Corporation,1 appeals
from the Examiner’s decision to reject claims 10, 12, 15–17, 20, 22, 23, and
30–32. We have jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM.

1 We use the word Appellant to refer to “applicant” as defined in 37 C.F.R.
§ 1.42(a). Appellant identifies itself as the sole real party in interest. Appeal
Br. 3.
Appeal 2018-004197
Application 13/726,105
2
CLAIMED SUBJECT MATTER
The claims are directed to a method for treating a blood clot. Claim
10, reproduced below, is illustrative of the claimed subject matter:
10. A method for treating a blood clot in a patient comprising:
advancing a tubular body comprising a central lumen with
a device configured to provide additional stiffness to the tubular
body positioned within the central lumen through a patient’s
skull and into the blood clot;
removing the device from the central lumen;
advancing an inner core comprising an ultrasound
radiating element into the central lumen of the tubular body;
delivering a therapeutic compound through the tubular
body and to the blood clot positioned outside the tubular body;
transmitting ultrasound energy with the inner core to the
clot; and
removing clot material from the target through the central
lumen.
REFERENCES
The prior art relied upon by the Examiner is:
Name Reference Date
Stiles US 4,692,139 Sept. 8, 1987
Soltani US 2005/0192556 A1 Sept. 1, 2005
Schulz-Stubner US 2007/0083100 A1 Apr. 12, 2007
REJECTIONS
Claims 10, 15, 22, and 30–32 are rejected under § 103(a) as being
unpatentable over Stiles and Schulz-Stubner.
Claims 12, 16, 17, 20, and 23 are rejected under 35 U.S.C. § 103(a) as
being unpatentable over Stiles, Schulz-Stubner, and Soltani.
Appeal 2018-004197
Application 13/726,105
3
OPINION
Appellant argues claims 10, 15, 22, and 30–32 as a group. Appeal Br.
5–6. We select claim 10 as representative. Claims 15, 22, and 30–32 stand
or fall with claim 10. See 37 C.F.R. § 41.37(c)(1)(iv). In addition,
Appellant relies on the arguments presented with respect to claim 10 for the
patentability of claims 12, 16, 17, 20, and 23. Thus, claims 12, 16, 17, 20,
and 23 likewise stand or fall with claim 10.
Appellant contends that “[f]or the reasons stated below, one of
ordinary skill in the art would not be motivated to combine Stiles with the
stylet of Schulz-Stubner as doing so would render the device in Stiles
unsatisfactory for its intended purpose.” Appeal Br. 5–6. Appellant does
not apprise us of Examiner error because the Appeal Brief never provides
the alleged “reasons provided below.” That is, we are left with an
unsupported allegation that the Examiner’s proposed modification would
“render the device in Stiles unsatisfactory for its intended purpose.”
The Appeal Brief proceeds to provide a general summary of Stiles and
Schulz-Stubner, and alleges that “[o]ne of ordinary skill in the art would not
look to a reference regarding a catheter designed specifically for use in a
patient’s biological duct (e.g. an artery) when designing a device for
placement in a patient’s skull.” Appeal Br. 6. Again, however, Appellant
provides no explanation to support this allegation. Rather, Appellant simply
states that “Stiles makes clear that the disclosed catheter device is designed
specifically with features to prevent the spread of ‘fragments and residual
medication’ into the circulatory system.” Appeal Br. 6.
Appellant further contends that “[t]he Office Action has also provided
no explanation why one of ordinary skill would be motivated to combine the
device in Stiles with the device in Schulz-Stubner which is for specifically
Appeal 2018-004197
Application 13/726,105
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positioning a catheter into the brain of a patient” and “the Office Action fails
to provide a motivation why one of skilled in the art would look to a device
for use in a blood vessel in its application for use in a patient’s skull.”
Appeal Br. 6.
Notwithstanding the contentions noted above, the Examiner’s
rejection is essentially unrebutted. Initially, we note that Appellant does not
dispute any finding made by the Examiner. Contrary to Appellant’s
contentions, the Examiner provides a rationale for modifying the teachings
of Stiles based on those of Stubner-Schulz, which is also unrebutted. The
Examiner explains, for example, that “it would have been obvious . . . to use
the burr hole/stylet method taught by Schulz-Stubner with the therapeutic
delivery ultrasonic catheter of Stiles for optimal treatment of blood clots,
and for traversing the patient’s skull.” Non-Final Act. 3. The Examiner
finds that “the stylet (26) of Schulz-Stubner can be used to deliver the
delivery lumen (1) of Stiles through the bone in the skull.” Ans. 6.2 The
Examiner explains that the “catheters [of Stiles and Schulz-Stubner each]
being used for the drainage of unwanted fluid provides motivation to
combine, with the stylet of the secondary reference simply being used to
provide the additional stiffness needed to traverse bone.” Id. at 7.
Because the Examiner’s findings and rationale are unrebutted, we are
not apprised of error.
CONCLUSION
The Examiner’s decision to reject claims 10, 12, 15–17, 20, 22, 23,
and 30–32 is affirmed.

2 No Reply Brief was filed to address the Examiner’s Answer.
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Application 13/726,105
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DECISION SUMMARY
In summary:
Claims
Rejected
35 U.S.C.
§
Reference(s)/Basis Affirmed Reversed
10, 15, 22,
30–32
103 Stiles, Schulz-
Stubner
10, 15, 22,
30–32

12, 16, 17,
20, 23
103 Stiles, Schulz-
Stubner, Soltani
12, 16, 17,
20, 23

Overall
Outcome
10, 12, 15–
17, 20, 22,
23, 30–32

TIME PERIOD FOR RESPONSE
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)(1)(iv).
AFFIRMED