Ex Parte Aber et al

Patent Trials and Appeals Board

Feb 22, 2019

14018374 - (D) (P.T.A.B. Feb. 22, 2019)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
14/018,374 09/04/2013
157354 7590 02/26/2019
Morgan, Lewis & Bockius LLP (OC)
600 Anton Boulevard
Suite 1800
Costa Mesa, CA 92626-7653
FIRST NAMED INVENTOR
Greg S. Aber
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.
092750-0030 9051
EXAMINER
SCHALL, MATTHEW WAYNE
ART UNIT PAPER NUMBER
3774
NOTIFICATION DATE DELIVERY MODE
02/26/2019 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):
karen.catalano@morganlewis.com
ocipdocketing@morganlewis.com
judith.troilo@morganlewis.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte GREG S. ABER, NEIL H. AKKERMAN, and
RANDOLPH K. ARMSTRONG 1
Appeal2018---001425
Application 14/018,374
Technology Center 3700
Before WILLIAM A. CAPP, JILL D. HILL, and LEE. L. STEPINA,
Administrative Patent Judges.
HILL, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Greg S. Aber et al. ("Appellants") appeal under 35 U.S.C. § 134(a)
from the Examiner's final decision rejecting claims 34--47, 62-69, and 77-
98.2 We have jurisdiction under 35 U.S.C. § 6(b).
We REVERSE.
1 Appellants identify the real party in interest as the Applicant, Everheart
Systems Inc. Appeal Br. 2.
2 Claims 1-33, 48---61, and 70-76 have been canceled. Appeal Br. 15-17
(Claims App.).
Appeal2018---001425
Application 14/018,374
BACKGROUND
Independent claims 34, 62, 77, and 88 are pending. Independent
claim 34, reproduced below, illustrates the claimed invention, with a
relevant limitation italicized.
34. A cardiac support system comprising:
a rotary blood pump implantable in a human body and
configured to generate an amount of blood flow;
an implantable housing containing (i) a power module
coupled to the rotary blood pump and configured to store
electrical energy utilized to operate the rotary blood pump and
(ii) a receiving coil assembly coupled to the power module; and
a transmitting coil assembly configured to be magnetic
resonance coupled to the receiving coil assembly and
configured to electromagnetically transfer the electrical energy
from the transmitting coil assembly to the receiving coil
assembly.
Appeal Br. 15 (Claims App.).
Independent claim 62 is similarly directed to a cardiac support
system including an implantable housing, and also recites blood flow
being generated with an "energy conversion ratio (ECR) of 1.0 or
greater." Independent claims 77 and 88 are also directed to cardiac
support systems, but do not receive an implantable housing - rather,
claim 77 recites a receiving resonant coil with a "quality factor above
300," and claim 88 recites a transmitting resonant coil with a "quality
factor above 600."
REJECTION
Claims 34--47, 62---69, and 77-98 stand rejected under 35 U.S.C.
§ I03(a) as unpatentable over Yomtov (US 2010/0063347 Al, pub. Mar. 11,
2010) and Ozaki (US 6,547,530 B2, iss. Apr. 15, 2003). Final Act. 2.
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Appeal2018---001425
Application 14/018,374
ANALYSIS
The Examiner finds, inter alia, that Yomtov discloses a blood pump
comprising a housing 102, a power module, a receiving coil 124, and a
transmitting coil 114, the housing containing the power module and the
receiving coil. Final Act. 2 ( citing Y omtov Fig. 1, ,r 7). The Examiner finds
that Y omtov discloses altering power "to alter the flow as required"
(Yomtov ,r 24), but does not disclose a specific quality factor Q or ECR.
Final Act. 3. The Examiner concludes that it would have been obvious to
modify Yomtov's device to have the required ECR or quality factor Q to
alter the blood flow as described in Yomtov's paragraph 24. Id.
Independent Claim 34
Independent claim 34 recites, inter alia, an implantable housing
containing a power module coupled to a rotary blood pump, and a receiving
coil assembly coupled to the power module. Appellants argue that, in
contrast to claim 34, Yomtov's receiving coil 124, and battery (i.e., power
module) 128 re disclosed to be "separate components," rather than being
contained in an implantable housing. Appeal Br. 10.
The Examiner responds that claim 34 does not recite any structure for
its "implantable housing," and Yomtov's receiving coil 124 and battery 128
are "considered to be within 'an implantable housing.' The outer surface or
casing or covering is 'an implantable housing."' Ans. 2.
Appellants reply that the Examiner's finding is in error because
Y omtov does not provide any "outer surface or casing or covering"
containing the implanted battery 128 and the secondary power coil 124.
Reply Br. 2-3.
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Appeal2018---001425
Application 14/018,374
Appellants are correct that Y omtov fails to explicitly disclose an
implantable housing that contains the power module 128 and the receiving
coil 124. The Examiner's finding to the contrary is in error. We therefore
do not sustain the rejection of independent claim 34, or claims 35--47 that
depend directly or indirectly therefrom.
Independent Claim 62
Like claim 34, claim 62 recites a cardiac support system with an
implantable housing containing a power module and a receiving coil. As
explained above, the Examiner erred in finding that Y omtov discloses an
implantable housing containing a power module and a receiving coil. For
this reason, we do not sustain the rejection of independent claim 62, or
claims 63-69 that depend therefrom.
Independent Claims 77 and 88
Independent claims 77 and 88 each recite a cardiac support system
with a rotary blood pump, a power module, a receiving coil assembly, and a
transmitting coil assembly. Claim 77 recites the receiving coil assembly
having "a receiving resonant coil having a quality factor above 300."
Claim 88 recites the transmitting coil assembly having "a transmitting
resonant coil having a quality factor above 600." Appellants' Specification
defines coil quality factor Q as a value expressing the quality of a coil in
terms of its inductance, capacitance, and AC resistance at resonant
frequency. Spec. ,r,r 89-93. Quality factor is directly related to efficiency of
energy transfer to implanted components. Id. ,r 94. Appellants list aspects
of coil design that can affect a coil' s quality factor, such as coil diameter,
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Appeal2018---001425
Application 14/018,374
number of coil turns, conductor thickness, and conductor material. Id.
The Examiner finds that "Y omtov does not disclose a specific quality
factor" for its receiving and transmitting coils, but disclose "altering the
power in order to alter the flow as required," and concludes that it would
have been obvious to modify Yomtov's device to have the recited coil
quality factors of claims 77 and 88 "alter the blood flow." Final Act. 3
(citing Yomtov ,r 24).
Appellants argue that Y omtov is silent regarding a quality factor of
its transmitting (primary) and receiving (secondary) resonant coils, and the
Examiner's reasoning lacks a rational basis because the Examiner provides
no support for the contention that "an alteration of a quality factor of a
receiving resonant coil, which is not discussed in Yomtov, would alter blood
flow." App. Br. 13.
The Examiner responds that "Y omtov specifically discloses altering
the size and shape of the coils for the purpose of increasing efficiency,"
which "will inherently alter the quality factor" of Y omtov' s coils. Ans. 3
(citing Yomtov ,r 33 ("[t]he resonant frequency and size of this inductive
data coil 406 can be set for efficient operation at a frequency between the
relatively low frequency (typically below 300 kHz) ... and a standard
transmission frequency (approximately 400 MHz)")).
Appellants reply that Y omtov only discusses altering the size of its
inductive data coil, which is distinct from its transmitting (primary) coil 114
and its receiving (secondary) coil 124. Reply Br. 6-7. Further, according to
Appellants, "the selection of coil size in Y omtov is based on the desire to
transmit signals within a particular frequency range (i.e., 300 kHz--400
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Appeal2018---001425
Application 14/018,374
MHz)" rather than a desire for efficiency of inductive coil 406, and the
Examiner has not explained how, or established that, the selection of coil
size "described by Y omtov would inherently teach or otherwise suggest the
quality factors recited in Claims 77 and 88." Id. at 7.
The Appellants are correct. Y omtov is silent regarding efficiency of
energy transfer to its receiving (secondary) coil 124, and is also silent
regarding efficiency-related characteristics of its transmitting (primary)
coil 114 and its receiving (secondary) coil 124, such as coil diameter,
number of coil turns, and conductor thickness. While Y omtov states that its
coils 114, 124 can be fabricated from Litz wire to reduce losses due to skin
effect (Y omtov ,r,r 20, 21 ), and its coil 406 can be sized for efficient
operation at a given frequency (Yomtov ,r 33), it remains unclear to us how
one skilled in the art would apply this disclosure from Y omtov to derive a
receiving resonant coil having a quality factor above 300, or a transmitting
resonant coil having a quality factor above 600. For this reason, we do not
sustain the rejection of independent claims 77 and 88, or claims 78-87 and
89-98 that depend directly or indirectly therefrom.
DECISION
We REVERSE the rejection of claims 34--47, 62---69, and 77-98 under
35 U.S.C. § 103 as unpatentable over Yomtov and Ozaki.
REVERSED
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