Ex Parte Thompson et al

Patent Trial and Appeal Board

Dec 21, 2018

14258373 (P.T.A.B. Dec. 21, 2018)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
14/258,373 04/22/2014
94678 7590 12/26/2018
Armstrong Teasdale LLP (32736)
7700 Forsyth Boulevard
Suite 1800
St. Louis, MO 63105
FIRST NAMED INVENTOR
Sara A. Thompson
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.
CD-811US2 2649
EXAMINER
FOWLER, DANIEL WAYNE
ART UNIT PAPER NUMBER
3794
NOTIFICATION DATE DELIVERY MODE
12/26/2018 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):
USpatents@armstrongteasdale.com
ASJM_Patents@abbott.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte SARA A. THOMPSON, JOHN B. BLIX,
SUKANYA VARADHARAJAN, and MARK ALLEN CATRON
Appeal 2018-002496
Application 14/258,373 1
Technology Center 3700
Before EDWARD A. BROWN, BEYERL Y M. BUNTING, and
LEE L. STEPINA, Administrative Patent Judges.
BROWN, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Appellant seeks review under 35 U.S.C. § 134(a) of the Examiner's
decision rejecting claims 1, 3-7, and 9-17, which are the pending claims.
We have jurisdiction under 35 U.S.C. § 6(b ).
We AFFIRM.
1 St. Jude Medical, Cardiology Division, Inc. ("Appellant") is the applicant,
under 37 C.F.R. § 1.46, and is identified as the real party in interest. Appeal
Br. 1.
Appeal2018-002496
Application 14/258,373
CLAIMED SUBJECT MATTER
Claims 1, 7, and 13 are independent claims. Claim 1 is illustrative,
and reads:
1. A multi-electrode ablation system comprising:
a power supply configured to be coupled to a plurality of
electrodes; and
a controller including a touchscreen display configured to
display at least a graphical representation of each electrode of the
ablation system wherein the graphical representation includes an
electrode icon configured to indicate that a respective electrode
is selected or deselected for activation, wherein a selected
electrode icon indicates an activated electrode coupled to the
power supply and a deselected electrode icon indicates a
deactivated electrode decoupled from the power supply, the
selected electrode icon is different from the deselected electrode
icon and is determined based on whether the respective electrode
is activated or deactivated, the controller being configured to
receive an interactive input for each respective electrode for
activation, during which power may be supplied thereto, by
touching the electrode icon of the respective electrode on the
touchscreen display.
Appeal Br. 10 (Claims App.).
REJECTIONS
The Final Office Action includes the following rejections under 35
U.S.C. § 103:
Claims 1, 3-5, 7, and 9-11 are rejected as unpatentable over Wemeth
(US 2007/0083193 Al, published Apr. 12, 2007) and Sampson (US
2006/0247614 Al, published Nov. 2, 2006).
Claims 6 and 12 are rejected as unpatentable over Wemeth, Sampson,
and Danek (US 2006/0247683 Al, published Nov. 2, 2006).
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Application 14/258,373
Claims 13-15 are rejected as unpatentable over Steinke (US
2008/0262489 Al, published Oct. 23, 2008), Wemeth, and Sampson.
Claims 16 and 17 are rejected as unpatentable over Steinke, Wemeth,
Sampson, and Danek.
ANALYSIS
Claims 1, 3-5, 7, and 9-11 over Werneth and Sampson
Appellant relies on the same argument for independent claims 1 and 7
(see Appeal Br. 4---6), and does not present separate argument for dependent
claims 3-5 and 9-11 (id.). We select claim 1 as representative, and claims
3-5, 7, and 9-11 stand or fall with claim 1. See 37 C.F.R. § 4I.37(c)(l)(iv).
Claim 1 recites, in pertinent part, "the graphical representation
includes an electrode icon configured to indicate that a respective electrode
is selected or deselected for activation"; "wherein a selected electrode icon
indicates an activated electrode coupled to the power supply and a
deselected electrode icon indicates a deactivated electrode decoupled from
the power supply"; and "the controller being configured to receive an
interactive input for each respective electrode for activation, during which
power may be supplied thereto, by touching the electrode icon of the
respective electrode on the touchscreen display. Appeal Br. 10 (Claims
App. (emphasis added)).
The Examiner finds that Wemeth discloses a multi-electrode ablation
system comprising a power supply coupled to electrodes, and a controller
including a touchscreen display (visual display 220a and/or 220b) which
displays a graphical representation of each electrode ( electrodes 1-8). Final
Act. 2 (citing Wemeth ,r,r 64, 118, Fig. 4). The Examiner finds that
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Application 14/258,373
Wemeth's interface permits an operator to select icons by pressing on the
touchscreen display (Ans. 3), and allows starting and stopping the supply of
power to the individual electrodes (id. at 4 (citing Wemeth ,r 64 ("selecting
electrodes to receive energy" and "initiating and ceasing power delivery")).
The Examiner determines that W emeth only fails to disclose that the
graphical representation includes an electrode icon indicating an electrode is
selected or deselected (i.e., activated or deactivated). Final Act. 3.
The Examiner relies on Sampson for disclosing a device comprising
individually-controllable electrodes and a touchscreen display, wherein a
user can select/deselect individual electrodes, which connects/disconnects
the electrodes from the power source, as indicated with icons on the
touchscreen display. Final Act. 3 (citing Sampson ,r 32). The Examiner
concludes that it would have been obvious to modify the system of Wemeth
to include the features taught by Sampson to allow electrode icons to
indicate whether energy is being delivered to the electrode, "to produce the
predictable result of allowing a user to control and know which electrodes
are delivering energy and which are not during a procedure." Id.
Appellant contends that, as recited in claim 1, "activation of an
electrode is defined by the supply of power thereto" and "is in response to
selection of a respective electrode icon by touching the icon." Appeal Br. 6.
Appellant contends that the deficiency in Wemeth is not only whether the
status of the selected/deselected electrode is indicated on the user interface,
but is "whether a particular icon on a user interface has the claimed
functionality of allowing simultaneous selection and activation (i.e., power
supply)." Id. Appellant contends that Sampson fails to cure the deficiency
in W emeth of not describing or suggesting "touching an electrode icon to
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Application 14/258,373
both select a corresponding electrode for activation and activate that
electrode simultaneously." Id. Appellant contends that the claimed
functionality is also not disclosed by the combination. Id.
Appellant's contentions are not persuasive. First, claim 1 does not
recite that "touching the electrode icon of the respective electrode on the
touchscreen display," by itself, causes power to be supplied simultaneously
to the respective electrode that is selected by touching the electrode icon.
Instead, claim 1 recites, "during which [i.e., during activation] power may be
supplied thereto." Second, the Examiner's position is that Wemeth discloses
touching a graphical representation of an electrode on a display to activate
the electrode. Ans. 5. Appellant acknowledges that Wemeth discloses that
user interface 201 allows a user to select particular electrodes that receive
energy and also initiate power delivery, and can provide information
including the specific electrode selected for energy delivery. Appeal Br. 5
( citing W emeth ,r 64 ). The Examiner explains that Sampson teaches the
benefits of a system indicating an electrode selection has occurred by
changing the graphical representation of the electrode on a display. Ans. 5.
We are not persuaded that the applied combination fails to disclose or
suggest the claimed functionality of electrode selection and activation
(during which power may be supplied to a selected electrode). Paragraph 32
of Sampson discloses:
In the embodiment shown, the user input device 146
includes a touch screen display 148. A visual representation of
the hemostasis device 100 is shown on the touch screen display
148. Each electrode carrier on the hemostasis device 100 is
represented by a corresponding graphic representation on the
touch screen display 148. Once touched, the electrode carrier
graphic becomes highlighted, indicating it has been selected,
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Application 14/258,373
and by touching the graphic a second time, the electrode carrier
is deselected. For example, by touching an area of the touch
screen display 148 representing the palm electrode carrier 102,
the RF generator, when activated (e.g., by depressing a foot pedal
144), is instructed to transmit RF energy to the palm electrode
carrier 102.
Sampson ,r 32 ( emphasis added), Fig. 4; Final Act. 3.
Paragraph 33 of Sampson discloses:
Selecting a certain electrode carrier on the touch screen display
148 instructs the RF generator to close the switch to the pin of
the corresponding electrode carrier on the hemostasis device
100. In this manner, once RF energy is initiated, the RF energy
flows to only those electrode carriers that have been selected on
the touch screen display 148.
Sampson ,r 33 (emphasis added). Sampson describes, "[t]he RF generator
140 can be connected to a user input device 146 to receive instructions from
a user as to which electrode carriers to activate." Id. ,r 31 (emphasis added).
Sampson explains that "the electrode carriers to be activated can be selected
by the user or an assistant selectively touching the corresponding areas on
the touch screen display 148" and "[t]he RF generator 140 receives the input
from the user input device 146 and transmits RF energy to the selected
electrode carrier 102." Id. ,r 34 (emphasis added). Accordingly, Sampson
discloses that an electrode carrier is selected and activated by a user
touching a corresponding graphic representation on the touch screen display.
Appellant contends Sampson discloses that "[a] touchscreen display
allows a user to highlight an electrode carrier graphic which activates a foot
pedal. Ablation energy is provided to the respective electrode carrier of the
highlighted graphic upon depression of the foot pedal." Appeal Br. 5 ( citing
Sampson, Abstract, ,r,r 30-34). Appellant asserts that Sampson "clearly
teaches the advantage of separate ( and thus the drawback of simultaneous)
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Application 14/258,373
activation via foot pedal 'to allow an operator of the hemostasis device 100
to keep both hands free to work with the bleeding tissue."' Reply Br. 2. We
note, however, that the preceding portion of the sentence in Sampson quoted
by Appellant indicates that "[i]n one embodiment, as shown, the vacuum
source 142 can be activated by a foot pedal 144." See Sampson ,r 30
( emphasis added). Accordingly, this sentence does not indicate that the foot
pedal is required in this or any other embodiment for activating selected
electrode carriers. This understanding is supported by paragraph 32 of
Sampson, which describes, "the RF generator, when activated ( e.g., by
depressing/oat pedal 144)." See Sampson ,r 33 (emphasis added).
Appellant also contends that "Sampson provides no change of
graphical representation upon activation of the electrode." Reply Br. 2. We
disagree. Sampson describes, "[ o ]nee touched, the electrode carrier graphic
becomes highlighted, indicating it has been selected, and by touching the
graphic a second time, the electrode carrier is deselected." See Sampson
,r 32 (emphasis added). Thus, Sampson provides a visual indication upon
selection of the electrode, where the electrode carrier is selected and
activated by a user touching a corresponding graphic representation on the
touch screen display.
Thus, we sustain the rejection of claim 1, and of claims 3-5, 7, and 9-
11 which fall with claim 1, as unpatentable over Wemeth and Sampson.
Claims 6 and 12 over Werneth, Sampson, and Danek
Appellant relies solely on the dependency of claims 6 and 12 from
claim 1 or 7 for patentability. Appeal Br. 6. Accordingly, we sustain the
rejection of claims 6 and 12 as unpatentable over Wemeth, Sampson, and
Danek for the same reasons as for claims 1 and 7.
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Application 14/258,373
Claims 13-15 over Steinke, Werneth, and Sampson
Appellant contends that Steinke fails to disclose or suggest various
limitations recited in claim 13 that are merely quoted by Appellant. Appeal
Br. 7. We note these limitations are similar to those recited in claim 1 that
Appellant contends are not disclosed or suggested by Wemeth and Sampson
and which are discussed above. However, "[a] statement which merely
points out what a claim recites will not be considered an argument for
separate patentability of the claim." See 37 C.F.R. § 4I.37(c)(l)(iv). And,
for reasons similar to those discussed above for claim 1, we are not
persuaded that W emeth and Sampson fail to cure the purported deficiency in
Steinke as to the quoted similar limitations in claim 13. Accordingly, we
sustain the rejection of claim 13, and of claims 14 and 15 depending
therefrom, as unpatentable over Steinke, W emeth, and Sampson.
Claims 16 and 17 over Steinke, Werneth, Sampson, and Danek
Appellant relies solely on the dependency of claims 16 and 17 from
claim 13 for patentability. Appeal Br. 8. Accordingly, we sustain the
rejection of claims 16 and 17 as unpatentable over Steinke, Wemeth,
Sampson, and Danek for the same reasons as for claim 13.
DECISION
We affirm the rejections of claims 1, 3-7, and 9-17.
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a)(l )(iv).
AFFIRMED
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