Ex Parte Injev et al

Board of Patent Appeals and Interferences

Mar 19, 2012

11746685 (B.P.A.I. Mar. 19, 2012)

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.
11/746,685 05/10/2007 Valentine P. Injev 3314 US 3105
26356 7590 03/19/2012
ALCON
IP LEGAL, TB4-8
6201 SOUTH FREEWAY
FORT WORTH, TX 76134
EXAMINER
CHANDER, DIVA KAKAR
ART UNIT PAPER NUMBER
3763
MAIL DATE DELIVERY MODE
03/19/2012 PAPER
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.
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
__________

BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
__________

Ex parte VALENTINE P. INJEV and ROBERT J. CIONNI
__________

Appeal 2011-000824
Application 11/746,685
Technology Center 3700
__________

Before LORA M. GREEN, STEPHEN WALSH, and
ERICA A. FRANKLIN, Administrative Patent Judges.

GREEN, Administrative Patent Judge.

DECISION ON APPEAL
This is a decision on appeal under 35 U.S.C. § 134 from the
Examiner’s rejection of claims 1-11. We have jurisdiction under 35 U.S.C.
§ 6(b).
Appeal 2011-000824
Application 11/746,685

2
STATEMENT OF THE CASE
Claims 1 and 6 are representative of the claims on appeal, and read as
follows:
1. A method of operating an ultrasonic handpiece, comprising:
a) providing an ultrasound handpiece having a handpiece shell, a
plurality of piezoelectric elements connected to an ultrasound horn, the
piezoelectric elements and the horn held within the shell, and an aspiration
line;
b) subjecting the piezoelectric elements to a drive signal having a first
frequency, the first frequency producing torsional movement in the horn;
c) sensing a vacuum in the aspiration line; and
d) subjecting the piezoelectric elements to a drive signal having a
second frequency when the sensed vacuum in the aspiration line exceeds a
predetermined threshold, the second frequency producing longitudinal
movement in the horn, the longitudinal movement sufficient to clear an
occlusion.

6. A method of operating an ultrasonic handpiece, comprising:
a) providing an ultrasound handpiece having a handpiece shell, a
plurality of piezoelectric elements connected to an ultrasound horn, a tip
connected to the horn, the piezoelectric elements and the horn held within
the shell, and an aspiration line;
b) subjecting the piezoelectric elements to a primary drive signal, the
primary drive signal producing a first movement of the tip;
c) sensing a vacuum in the aspiration line; and
d) subjecting the piezoelectric elements to a secondary drive signal
when the sensed vacuum in the aspiration line exceeds a predetermined
threshold, wherein the secondary drive signal produces a second movement
of the tip sufficient to clear and occlusion.

Appeal 2011-000824
Application 11/746,685

3
The following ground of rejection is before us for review:
Claims 1-11 stand rejected under 35 U.S.C. § 103(a) as being
rendered obvious by the combination of Boukhny1 and Barwick, Jr.2
We reverse.
ANALYSIS
The Examiner finds that Boukhny teaches a method of operating an
ultrasonic handpiece, wherein the handpiece has a plurality of piezoelectric
elements connected to an ultrasound horn, such that the piezoelectric
elements may be subjected to a drive signal having two different drive
frequencies that may be alternated to create a torsional movement and a
longitudinal movement (Ans. 3). The Examiner finds that the “longitudinal
movement of Boukhny is capable of clearing an occlusion” (id. at 4). The
Examiner notes that Boukhny does not teach sensing a vacuum in the
aspiration line, such that when the vacuum exceeds a predetermined
threshold, a second drive signal at a second frequency is produced (id. at 3).
The Examiner finds that “Barwick discloses a vacuum sensor that
provides an input to the computer that varies the speed of the functioning
device by means of a control unit which is used in order to optimize surgical
procedures” (id. at 3-4). The Examiner concludes that it would have been
obvious to the skilled artisan “to use a sensing vacuum in the aspiration line
in order to provide justification for alternating between torsional and
longitudinal drive signals and to optimize surgical procedures” (id. at 4).

1Boukhny, US 2005/0277869 A1, published Dec. 15, 2005.
2 Barwick, Jr. et al., US 5,591,127, issued Jan. 7, 1997.
Appeal 2011-000824
Application 11/746,685

4
Appellants argue that neither Boukhny nor Barwick teaches or
suggests switching the motion of a tip in response to a sensed vacuum,
which is an indication of an occlusion (App. Br. 9). Appellants assert that
while the Examiner finds that the longitudinal movement of Boukhny is
capable of clearing an occlusion, that is not supported by the disclosure of
Boukhny (id. at 11). That is, according to Appellants, “there is no
appreciation in Boukhny of the effect of different tip motions on clearing an
occlusion” (id.).
The Examiner points to paragraph 24 of Boukhny for support of the
finding that Boukhny teaches that the longitudinal movement of Boukhny is
capable of clearing an occlusion (Ans. 5). Specifically, Boukhny teaches:
The pause or gap between drive signals can serve various
purposes. One purpose is to allow for the ultrasound movement
of piezoelectric elements 14 and horn 12 to attenuate or stop so
that lens fragments can once again be suctioned to tip 20 and an
occlusion reestablished, thereby increasing the holding force on
the lens fragment. Reestablishing the occlusion will increase
cutting efficiency of the following pulse of ultrasound, whether
longitudinal or torsional.

(Boukhny, ¶ 24.)
We agree with Appellants that paragraph 24 does not teach or suggest
that a longitudinal movement of the tip may be used to clear an occlusion.
Rather, as paragraph 24 of Boukhny teaches that the ultrasonic movements
are stopped or attenuated to allow reestablishment of an occlusion, the
ordinary artisan would understand from that teaching that neither a torsional
movement or longitudinal movement would allow an occlusion to occur.
The Examiner has not set forth any scientific reasoning or evidence that
Appeal 2011-000824
Application 11/746,685

5
occlusions occur during the torsional movement or longitudinal movement
of the tip of Boukhny, nor that the ordinary artisan would understand from
the teachings of Boukhny or Barwick, Jr., that a change in the type of
movement would clear any such occlusion that did occur. We are thus
compelled to reverse the rejection.

SUMMARY
The rejection of claims 1-11 under 35 U.S.C. § 103(a) as being
rendered obvious by the combination of Boukhny and Barwick, Jr., is
reversed.

REVERSED

cdc