Ex Parte Wang

Patent Trial and Appeal Board

May 23, 2016

12345975 (P.T.A.B. May. 23, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
12/345,975 12/30/2008
67337 7590 05/25/2016
DYKEMA GOSSETT PLLC (STJ)
4000 Wells Fargo Center
90 South Seventh Street
Minneapolis, MN 55402
FIRST NAMED INVENTOR
Huisun Wang
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.
OB-056900US
(065513-0090)
CONFIRMATION NO.
8667
EXAMINER
MEDWAY,SCOTTJ
ART UNIT PAPER NUMBER
3763
NOTIFICATION DATE DELIVERY MODE
05/25/2016 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):
MN_IPMail@dykema.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte HUISUN WANG
Appeal2014-003893
Application 12/345,975
Technology Center 3700
Before JOSEPH A. FISCHETTI, CYNTHIA L. MURPHY, and
AMEE A. SHAH, Administrative Patent Judges.
MURPHY, Administrative Patent Judge.
DECISION ON APPEAL
The Appellant 1 appeals under 35 U.S.C. § 134 from the Examiner's
rejections of claims 1-26. We have jurisdiction over this appeal under
35 U.S.C. § 6(b).
We AFFIRM-IN-PART.
1 The Appellant identifies the real party in interest as "St. Jude Medical,
Atrial Fibrillation Division, Inc." (Appeal Br. 4.)
Appeal2014-003893
Application 12/345,975
STATEMENT OF THE CASE
The Appellant's invention "relates to irrigated catheter assembly
systems and methods for ablating tissue using controlled irrigation flow."
(Spec. if 1.)
Illustrative Claim2
1. An irrigated catheter ablation system comprising:
an irrigated ablation catheter assembly including:
an irrigated electrode having a proximal
portion with a proximal end, a distal portion with a distal end, an
outer body portion including an outer surface, an inner cavity
defined within the outer body portion, and at least one
passageway that extends from the inner cavity to the outer
surface of the electrode, and
a catheter shaft including a proximal end and
a distal end;
a fluid source connected to or in operative
communication with the catheter assembly;
an energy source connected to or m operative
communication with the catheter assembly; and
an irrigation temperature control mechanism in
communication with the fluid source and the energy source,
wherein the irrigation temperature control
mechanism controls or regulates irrigation flow of fluid from the
fluid source in response to temperature measurements received
from a temperature sensor, wherein at least a portion of the
temperature sensor is disposed within the outer body portion of
the electrode,
wherein the flow of fluid during ablation includes
flow that alternates between a maintenance flow rate having a
nonzero flow of fluid and an amplified flow rate having a flow
of fluid that is greater than the maintenance flow rate.
2 This illustrative claim is quoted from the Claims Appendix ("Claims
App.") set forth on pages 15-19 of the Appeal Brief.
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Appeal2014-003893
Application 12/345,975
Moaddeb
Fanton
Webster
References
US 6,405,078 B 1
US 6,391,028 Bl
US 6,210,406 B 1
Rejections3
June 11, 2002
May 21, 2002
Apr. 3, 2001
The Examiner rejects claims 1-26 under 35 U.S.C. § 103(a) as
unpatentable over Webster, Moaddeb, and Fanton. (Final Action 4, 6-7.)
The Examiner rejects claim 26 under 35 U.S.C. § 112, first paragraph,
as failing to comply with the written description requirement. (Id. at 2.)
ANALYSIS
Claims 1, 18, and 26 are the independent claims on appeal, with the
rest of the claims on appeal (i.e., claims 2-17 and 19-25) depending
therefrom. (See Claims App.)
Independent Claim 1
Independent claim 1 is directed to an "irrigated catheter ablation
system" comprising a "catheter assembly," a "fluid source," an "energy
source," and an "irrigation temperature control mechanism." (Claims App.)
The Examiner finds Webster discloses an irrigated catheter ablation system
comprising these components (e.g., a catheter 10, an irrigation pump 9, and
an RF generator 7). (See Final Action 4--5; see also Webster Fig. 1.)
Independent claim 1 recites that "flow of fluid during ablation
includes flow that alternates between a maintenance flow rate having a
nonzero flow of fluid and an amplified flow rate." (Claims App.) The
3 The Examiner's rejection of claim 26 under 35 U.S.C. § 112, second
paragraph (see Final Action 3) has been withdrawn (see Answer 2).
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Appeal2014-003893
Application 12/345,975
Examiner finds that Moaddeb discloses "an ablation irrigation flow rate and
an alternate maintenance flow rate." (Final Action 5.) Moaddeb discloses
that "[i]n addition to irrigation flow during ablation, a maintenance flow,
typically at a lower flow rate, is required throughout the procedure to
prevent backflow of blood flow into the coolant passages." (Moaddeb
col. 2, lines 40-45.)
The Appellant argues that Moaddeb does not disclose using a
maintenance flow rate during ablation. (See Appeal Br. 7-9; see also Reply
Br. 2-3.) The Appellant contends that Moaddeb explicitly teaches that
( 1) irrigation flow is used during ablation, (2) a procedure comprises
separate steps of guidance and ablation, and (3) maintenance flow is used in
addition to, not instead of, irrigation flow during a procedure. (See Reply
Br. 2.) According to the Appellant, "[l]ogically filling in the gaps" of these
three contentions, Moaddeb "teaches maintenance flow during non-ablation
portions of the procedure." (Id.)
We are not persuaded by this argument because, even if the Appellant's
contentions regarding Moaddeb 's explicit teachings are correct, they do not
adequately address the scenario proposed by the Examiner. (See Answer 8.)
In this scenario, maintenance flow is used during ablation in Moaddeb's
procedure when "the ablation level has not reached the threshold to activate
irrigation flow." (Id.) The Appellant's contentions do not conflict with the
Examiner's finding that Moaddeb does not teach that its maintenance flow is
"necessarily or even optimally disabled during the ablation period." (Id.)
And the Appellant's contentions are not contrary to a finding that Moaddeb
does not teach that its irrigation flow is necessarily activated immediately and
continuously during ablation.
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Appeal2014-003893
Application 12/345,975
Furthermore, the Examiner finds that Fanton discloses alternating
"between a lower maintenance flow rate and an amplified flow rate, both
rates occurring during the ablation procedure." (Final Action 6.) The
Appellant argues that Fanton "merely provides a general description of
increasing and decreasing flow rates" and does not teach "flow alternating
between two discrete flow rates." (Appeal Br. 10.) However, the Appellant
does not dispute that Moaddeb teaches two discrete flow rates (namely an
"irrigation flow" rate and a "maintenance flow" rate); and the Appellant
does not dispute that Fanton teaches alternating flow rates during ablation.
(See Reply Br. 2-3.) The Appellant also does not point, with particularity,
to flaws in the Examiner's finding that it would have been obvious "to
implement the features of Fanton within the device of Webster and
Moaddeb." (Final Action 6.)
In view of the foregoing, we are not persuaded that the Examiner errs
in determining that the system recited in independent claim 1 would have
been obvious over Webster, Moaddeb, and Fanton. Thus, we sustain the
Examiner's rejection of independent claim 1under35 U.S.C. § 103(a).
Dependent Claims 2-5 and 9-17
Claims 2-5 and 8-17 depend directly or indirectly from independent
claim 1 (see Claims App) and are not argued separately (see Appeal Br. 9).
Thus, they fall with independent claim 1; and we sustain the Examiner's
rejection of dependent claims 2-5 and 9-17 under 35 U.S.C. § 103(a).
Dependent Claims 6-10
Claims 6-10 each depends directly or indirectly from independent
claim 1 and each requires "[a] delay between the start of the provision of
energy by the energy source and the initial start of the flow of fluid."
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Appeal2014-003893
Application 12/345,975
(Claims App.) The Examiner finds that Webster teaches such a delay and
cites to certain statements in Webster (i.e., column 7, lines 18--44) to support
this finding. (See Final Action 5; see also Answer 9.)
The Appellant argues that Webster "does not teach the claimed
delay." (Appeal Br. 10.) We are persuaded by this argument because the
cited statements in Webster "describe[] simultaneous intermittent operation
of both the irrigation pump and the RF generator." (Id.) As such, the
Examiner does not sufficiently support a finding that Webster teaches a
delay between the start of its RF generator and the start of its irrigation
pump.
Thus, we do not sustain the Examiner's rejection of dependent
claims 6-10 under 35 U.S.C. § 103(a).
Independent Claim 18
The Appellant argues independent claim 18 in conjunction with
independent claim 1. (See Appeal Br. 7-9.) Thus, for the reasons discussed
above in our analysis of independent claim 1, we sustain the Examiner's
rejection of independent claim 18 under 35 U.S.C. § 103(a).
Dependent Claims 19 and 25
Claims 19 and 25 depend directly or indirectly from independent
claim 18 (see Claims App) and are not argued separately (see Appeal Br. 9).
Thus, they fall with independent claim 18; and we sustain the Examiner's
rejection of dependent claims 19 and 25 under 35 U.S.C. § 103(a).
Dependent Claims 20-24
Claims 20-24 each depends directly or indirectly from independent
claim 18 and each requires "a delay between the applying energy step and an
initial iteration of the irrigating step." (Claims App.) The Examiner finds
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Application 12/345,975
that Webster teaches such a delay (see Final Action 5) and the Appellant
argues otherwise (see Appeal Br. 10). As discussed above in our analysis of
dependent claims 6-10, the Examiner does not sufficiently support a finding
that Webster teaches the claimed delay. Thus, we do not sustain the
Examiner's rejection of dependent claims 20-24 under 35 U.S.C. § 103(a).
Independent Claim 26
Independent claim 26 is directed to an irrigated catheter ablation
system "wherein the irrigation temperature control mechanism controls or
regulates irrigation flow of fluid from the fluid source, independent of and
separate from the control or regulation of the amount of energy provided by
the energy source." (Claims App.) The Examiner finds that Webster
teaches such a temperature control mechanism. (See Final Action 5.)
The Appellant argues that Webster teaches "intentional
synchronization," not "independent" or "separate" control of fluid flow and
ablation energy. (Appeal Br. 9.) We are not persuaded by this argument
because Webster's disclosed processor 6 is described and depicted as
communicating with generator 7 and pump 9 via separate control lines. (See
Webster, col. 3, lines 64---67; Fig. 1.) In other words, in Webster, "the
irrigation control mechanism and energy control mechanism appear to be
physically separate." (Answer 9.) Although Webster's processor 6 may be
programmed to activate generator 7 and pump 9 simultaneously (see Appeal
Br. 9), this simultaneous control is achieved via separate control lines.
Thus, we sustain the Examiner's rejection of independent claim 26
under 35 U.S.C. § 103(a.)
The Examiner also determines that the "independent" and "separate"
control recited in independent claim 26 was not described in the original
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Application 12/345,975
Specification in such a way as to convey that the inventors had possession of
this claimed subject matter. (See Final Action 2.) The Appellant argues
otherwise. (See Appeal Br. 12.) We are persuaded by the Appellant's
position because, in the original Specification, controller 56 is described
and/or depicted as communicating with fluid source 52 and energy source 54
via separate control lines. (See Spec. i-f 38, Fig. 5.) Although "the irrigation
temperature control would, at some point in time, be performed
simultaneously with the ablation energy control" (Answer 10), this
simultaneous control would be achieved via separate and independent
control lines.
Thus, we do not sustain the Examiner's rejection of independent
claim 26 under 35 U.S.C. § 112, first paragraph.
DECISION
We AFFIRM the Examiner's rejection of claims 1-5, 11-19, 25,
and 26 under 35 U.S.C. § 103(a).
We REVERSE the Examiner's rejection of claims 6-10 and 20-24
under 35 U.S.C. § 103(a).
We REVERSE the Examiner's rejection of claim 26 under 35 U.S.C.
§ 112, first paragraph.
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-IN-PART
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