Levinson, Mitchell et al.

Patent Trials and Appeals Board

Jan 23, 2020

11528189 - (D) (P.T.A.B. Jan. 23, 2020)

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.
11/528,189 09/26/2006 Mitchell Levinson 057968-8006.US00 6240
68981 7590 01/23/2020
Zeltiq Aesthetics, Inc.
Perkins Coie LLP
P.O. BOX 1247
SEATTLE, WA 98111-1247
EXAMINER
KOHARSKI, CHRISTOPHER
ART UNIT PAPER NUMBER
3792
NOTIFICATION DATE DELIVERY MODE
01/23/2020 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):
patentprocurement@perkinscoie.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
____________________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________________

Ex parte MITCHELL LEVINSON and JESSE N. ROSEN
__________________

Appeal 2019-003112
Application 11/528,189
Technology Center 3700
____________________

Before JAMES P. CALVE, WILLIAM A. CAPP, and
BRANDON J. WARNER, Administrative Patent Judges.

CALVE, Administrative Patent Judge.

DECISION ON APPEAL

STATEMENT OF THE CASE
Pursuant to 35 U.S.C. § 134(a), Appellant1 appeals from the decision
of the Examiner to reject claims 1, 2, 4, 6, 7, 9–12, 14–18, 20–22, 31–33,
and 35–53. We have jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM.

1 “Appellant” refers to “applicant” as defined in 37 C.F.R. § 1.42. Appellant
identifies Zeltiq Aesthetics, Inc., a subsidiary of Allergen plc, as the real
party in interest. Appeal Br. 2.
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CLAIMED SUBJECT MATTER
Claims 1, 12, 35, and 45 are independent. Claim 1 is reproduced
below.
1. A device for removing heat from subcutaneous
lipid-rich cells of a subject having skin, comprising:
a cooling device including a heat exchanging
member having a heat transfer surface
configured to form a heat conducting
interface with the subject’s skin such that
the cooling device removes heat from the
lipid-rich cells to substantially affect lipid-
rich cells while non-lipid-rich cells in the
epidermis are not substantially affected; and
a substantially flexible sensing device coupled to
the cooling device such that the cooling
device carries the sensing device, wherein
the sensing device covering most of the heat
transfer surface, wherein the sensing device
includes
a substrate configured to be disposed
in the interface between the
heat exchanging member and
the subject’s skin, and
at least one sensor coupled to the
substrate and configured to be
positioned between the heat
transfer surface and the
subject’s skin to sense a
parameter at the interface,
wherein the at least one sensor
extends across most of a
distance between opposing
ends of the sensing device.

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REJECTIONS2
Claims 1, 2, 4, 6, 7, 9–12, 14, 18, 20–22, 31–33, and 35–53 are
rejected under 35 U.S.C. § 103(a) as unpatentable over Anderson (US 2005/
0251120 A1, pub. Nov. 10, 2005) and Shiono (US 2005/0283144 A1, pub.
Dec. 22, 2005).
Claims 1, 2, 4, 6, 7, 9–12, 14–18, 31–33, and 35–53 are rejected under
35 U.S.C. § 103(a) as unpatentable over Anderson and Guilbeau (US
4,935,345, iss. June 19, 1990).
ANALYSIS
Claims 1, 2, 4, 6, 7, 9–12, 14, 18, 20–22, 31–33, and 35–53
Rejected over Anderson and Shiono
Claims 1, 2, 4, 6, 7, 9, 11, 31–33, and 44
Regarding claim 1, the Examiner finds that Anderson teaches a heat
exchanging device with cooling/heating unit 110 that circulates cooled fluid
to a free-forming heat transfer surface with a flexible substrate (treatment
interface 115) and sensor 120 (e.g., a thermocouple, thermistor, or bimetallic
thermometer) coupled thereto to cover most of the heat transfer surface and
measure temperature, but does not teach a specific sensor structure. Non-
Final Act. 2–3, 4–6. The Examiner finds that Shiono teaches a device with a
thin film substrate and temperature sensor 111 mounted on a heat exchanger.
Id. at 5–6. The Examiner determines it would have been obvious to a skilled
artisan to use this sensor to provide results more accurately due to faster
response times without impeding heat transfer as Shiono teaches. Id. at 6.

2 The Examiner withdrew a rejection of claim 48 under 35 U.S.C. § 112,
second paragraph and fourth paragraph, and a rejection of claims 5 and 48
under 35 U.S.C. § 103(a) following Appellant’s cancellation of those claims.
See Ans. 3; Amendment under 37 C.F.R. § 41.33(a), filed Apr. 25, 2018.
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Appellant argues that Anderson’s treatment interface 115 can be a free
forming membrane, but detector 120 is shown as a dot that does not cover
interface 115 as claimed. Appeal Br. 25. Nor is a thermoprobe conductive
plate described as flexible. Id. Appellant also argues that Anderson teaches
a small, thin thermoprobe with a diameter less than 2 mm that cannot extend
between opposing ends of the sensing device as claimed. Reply Br. 1–2.
The Examiner has the better position. The Examiner correctly points
out that claim 1 does not require the sensor to cover most of the area of the
heat transfer surface of the claimed cooling device. See Ans. 8–9. Instead,
claim 1 recites “a substantially flexible sensing device coupled to the cooling
device . . . the sensing device covering most of the heat transfer surface” and
including (1) “a substrate” disposed between the heat exchanging member of
the cooling device and the subject’s skin and (2) at least one sensor coupled
to the substrate and “extend[ing] across most of a distance between opposing
ends of the sensing device.” Id.; Appeal Br. 43 (Claims App.).
Regarding the claimed “substantially flexible sensing device coupled
to the cooling device . . . [and] covering most of the heat transfer surface,”
Anderson teaches a cooling device having cooling/heating element 110 and
treatment interface 115 covering the heat transfer surface of cooling/heating
element 110 as illustrated in Figures 1A and 1C, reproduced below.

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Figure 1A of Anderson (above left) illustrates system 100 for cooling
a target area with cooling/heating element 110 and treatment interface 115
that is placed against epidermis 160 to treat dermis 165 and fat cells 170.
Anderson ¶¶ 164, 169. Treatment interface 115 includes detector 120 that
may be a thermocouple. Id. ¶¶ 165, 170. Figure 1C (above right) illustrates
a cooling/heating element 110 and its network passages that allow a cooling/
heating fluid to flow therethrough from input 175 to output 180. Id. ¶ 168.
Figures 1A and 1C show treatment interface 115, which corresponds
to the claimed sensing device and substrate, covers the heat transfer surface
of cooling/heating element 110. It covers “most of” the heat transfer surface
consistent with claim 1 and the Specification describing sensor substrate 144
“corresponding to” heat exchange surface 138, 140. Spec. ¶¶ 27–30, Fig. 2.
Anderson’s treatment interface 115 also is a “free-forming membrane
(for a complementary interface with an uneven epidermis)” for maximum
heat transfer between cooling device 110 and epidermis 160. Anderson
¶ 169. The Examiner correctly finds that such a “free-forming membrane”
treatment interface 115 is a flexible sensing device as claimed. It conforms
to an uneven epidermis. See id.; Non-Final Act. 5; Ans. 8. Appellant does
not dispute this finding. See Appeal Br. 25–26.
Instead, Appellant argues that Anderson fails to disclose detector 120,
which may be a thermoprobe conductive plate, as flexible. Appeal Br. 25.
This argument is not commensurate with the scope of claim 1, which does
not require the “at least one sensor” to be flexible. Claim 1 recites “a
substantially flexible sensing device” that includes (1) a substrate and (2) at
least one sensor. Anderson teaches treatment interface 115, which is the
claimed “substrate,” is flexible as Appellant recognizes. Id. at 25–26.
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Appellant is correct that Anderson’s detector 120 may be a thermally-
conductive plate. Anderson ¶ 109. Anderson teaches that this thermoprobe
plate provides temperature gradients between different positions in the plate
to monitor the heat flow at different positions to determine the appropriate
amount of cooling to apply to different areas. Id. ¶ 116. The plate provides
a current temperature profile and gradient of the entire cooling device and/or
treatment surface. See id. ¶¶ 100–116. A skilled artisan would recognize
that such a thermoprobe plate is flexible and covers the heat transfer area to
measure heat transfer across the treatment area as the Examiner finds. Non-
Final Act. 5; Ans. 7–8; see In re Berg, 320 F.3d 1310, 1315 (Fed. Cir. 2003)
(“As persons of scientific competence in the fields in which they work,
examiners and administrative patent judges . . . are responsible for making
findings, informed by their scientific knowledge, as to the meaning of prior
art references to persons of ordinary skill in the art and the motivation those
references would provide to such persons.”). Even if claim 1 were to require
a flexible “sensor,” Anderson teaches such a sensor. Moreover, a flexible
sensor would have been obvious in view of Anderson’s desire to measure
temperatures and heat transfer accurately across an entire uneven area.
Appellant’s argument that Anderson fails to disclose a thermoprobe
conductive plate that is flexible or covers most of the heat transfer surface
does not address these findings or reasoning of the Examiner (see Appeal Br.
25; Reply Br. 2) and thus is not persuasive. See 37 C.F.R. § 41.37(c)(1)(iv)
(the Appeal Brief “shall explain why the examiner erred as to each ground of
rejection contested by appellant.”); In re Jung, 637 F.3d 1356, 1365 (Fed.
Cir. 2011). Citing embodiments of Anderson not relied on by the Examiner
is not persuasive of error in the findings of the Examiner. Ans. 7–8, 11–13.
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Anderson also teaches that flexible treatment interface 115 includes
detector 120 as a thermoprobe plate fixed detachably or permanently to the
surface of the cooling device to cover multiple positions across the device.
Anderson ¶¶ 104–110, 116. A skilled artisan would recognize thermoprobe
plate is flexible when it forms part of flexible interface 115. The flexible
plate and interface 115 form a flexible sensing device coupled to the cooling
device as claimed. Id. ¶ 106 (adhesives); see Spec. ¶¶ 29, 30 (substrate 144
coupled to interface 138 by adhesive, clips 152, screws, pins); Reply Br. 2.
Appellant’s argument that the Examiner lacks motivation to modify
Anderson’s flexible treatment interface 115 with a flexible sensor, as taught
by Shiono, because Anderson already has a flexible sensing device (Appeal
Br. 25–26) proves too much. The Examiner cites Shiono to teach a flexible
sensor exemplary structure used in a sensing device in an application similar
to Anderson’s to illustrate that such sensors can extend “across most of a
distance between opposing ends of the sensing device” as recited in claim 1.
Non-Final Act. 5–6; see Ans. 13.
Shiono teaches to configure a simple, inexpensive, flexible, thin film
temperature sensor 111 that extends between opposing ends of irradiating
window 17 to measure the temperature of tissue over a wider area as it is
being heat treated more accurately without impeding the irradiating and heat
treatment process. See Shiono ¶¶ 171, 179–86, 194–97. These teachings of
the advantages of such a sensor 111 configured in the manner that Shiono
teaches for obtaining accurate, prompt temperature measurements would
provide similar benefits to Anderson’s heating/cooling device, which also is
configured to transfer heat to a treatment site/area. Figure 22 of Shiono is
reproduced below to illustrate this configuration.
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Figure 22 of Shiono above illustrates temperature measuring element
111-1 extending across window 17 of sensing device “from a position near
the upper end of the laser beam irradiating window 17 to a position near the
lower end of the laser beam irradiating window 17.” Shiono ¶ 195; Ans. 10
(finding that this teaching evidences a sensor extending across most of the
distance between the upper and lower ends of the treatment window). This
configuration provides sufficient coverage of the area that is heat treated to
provide an accurate temperature measurement/gradient without interfering
with the heat treating process. See Shiono ¶ 186; see Non-Final Act. 5–6.
These teachings of Shiono provide a rational underpinning to support
the Examiner’s modification of Anderson with these teachings of Shiono for
similar benefits. See KSR Int’l Co. v. Teleflex Inc., 550 U.S. 398, 417 (2007)
(using a known technique in similar devices for similar benefits is obvious
unless its application is beyond the level of ordinary skill in the art); see also
DyStar Textilfarben GmbH & Co. Deutschland KG v. C.H. Patrick Co., 464
F.3d 1356, 1368 (Fed. Cir. 2006) (holding an implicit motivation to combine
exists when an “improvement” makes a product stronger, cheaper, faster,
lighter, smaller, more durable, or more efficient).
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In addition, the Examiner reasons that Shiono’s teachings would
improve Anderson similarly to provide results more accurately and with a
faster response time, as Shiono teaches. Non-Final Act. 6; Shiono ¶¶ 197,
203. Appellant’s arguments do not address this reasoning and thus fail to
apprise us of Examiner error in this regard as well. Because the Examiner’s
reasons are supported by rational underpinnings, there is no hindsight as
Appellant alleges. See Reply Br. 1; In re Cree, Inc., 818 F.3d 694, 702 n.3
(Fed. Cir. 2016) (holding appellant’s hindsight argument was addressed by
showing that a proper motivation to combine the references in fact existed).
The Examiner also reasons correctly that it would have been obvious
to form Anderson’s flexible conductive plate thermoprobe to cover the entire
heat transfer surface of the cooling element, as Anderson teaches in some
embodiments, to provide uniform heat transfer properties across the cooling
device versus having the thermoprobe cover only part of the heat transfer
surface to provide non-uniform heat transfer properties. Ans. 9; Non-Final
Act. 6. Forming a thermoprobe plate coterminous with a cooling device
provides more accurate readings of all heat flow and better control of the
cooling device as Anderson teaches. Anderson ¶¶ 102–110, 116, 121–24.
Shiono also extends sensor 111 across heat transfer window 17, as
claimed, to measure the temperature of the entire area that is treated without
impeding the heat transfer function. Shiono ¶¶ 195 (sensor extends between
upper and lower ends of window); 186 (sensor blocks only 0.15% of laser
beam). These teachings improve Anderson similarly. See KSR, 550 U.S. at
418 (“Often, it will be necessary for a court to look to interrelated teachings
of multiple patents . . . to determine whether there was an apparent reason to
combine the known elements in the fashion claimed by the patent at issue.”).
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Appellant’s argument that Shiono only covers a small area of 9 mm2
misses the point because the size of the coverage area provided by Shiono’s
flexible thermoprobe covers the entire treatment area where heat is applied.
Therefore, Shiono, like Anderson, teaches to configure a temperature sensor
to be at least as large as the heat transfer area of the cooling/heating device
so temperatures and heat transfer can be sensed across the entire treatment
area. See Shiono ¶ 186 (area of temperature measuring region is greater than
the width of the laser beam or greater than diameter of the laser beam spot).
Furthermore, any portion of the laser beam blocked by the sensor 111–1 “is
very small” so “the irradiation of the living tissue with the laser beam is not
substantially inhibited.” Id.; see Anderson ¶ 108 (good thermal conductivity
of thermocouple minimizes inhibition of cooling); Appeal Br. 29.
Claim 2
The Examiner finds that Anderson’s thermocouple has good thermal
conductivity to minimize inhibition of the cooling process and thus teaches a
sensing device configured to sense a parameter at the interface “without
substantially impeding heat transfer between the heat exchanging member
and the subject’s skin” as recited in claim 2. Ans. 11, 14. Arguing that
neither reference teaches this feature (Appeal Br. 30) does not apprise us of
Examiner error. See Ans. 14; 37 C.F.R. § 41.37(c)(1)(iv) (“A statement
which merely points out what a claim recites will not be considered an
argument for separate patentability of the claim.”). Appellant admits that
Anderson avoids inhibiting thermal performance at the energy transfer
interfaces. Appeal Br. 29; Anderson ¶ 169 (interface 115, which includes
detector 120, provides maximum heat transfer). Shiono teaches this feature
for a sensor that covers an entire heat transfer area. Shiono ¶ 186.
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Therefore, both references teach flexible sensing devices that cover
the heat transfer surface and include sensors that extend across most of a
distance between opposing ends of the sensing device without substantially
impeding heat transfer as claimed. Anderson ¶ 108; Shiono ¶ 186. These
teachings provide a rational underpinning for the Examiner’s proposal to
combine their teachings to render obvious the subject matter of claim 2.
Claims 32 and 33
Appellant’s arguments that dependent claims 32 and 33 “recite
particular locations of those sensors” and “[n]either Anderson nor Shiono
disclose temperature sensors as at the recited locations” fail to present
argument for the separate patentability of those claims. See Appeal Br. 30;
37 C.F.R. § 41.37(c)(1)(iv) (“A statement which merely points out what a
claim recites will not be considered an argument for separate patentability of
the claim.”); In re Lovin, 652 F.3d 1349, 1357 (Fed. Cir. 2011) (holding that
the Board reasonably interpreted 37 C.F.R. § 41.37(c)(1)(vii) (predecessor to
§ 41.37(c)(1)(iv)) to require “more substantive arguments in an appeal brief
than a mere recitation of the claim elements and a naked assertion that the
corresponding elements were not found in the prior art.”).
For all the foregoing reasons, we sustain the rejection of claims 1, 2,
31, and 32 and claims 4, 6, 7, 9, 11, 31–33, and 44, which are not argued
separately by Appellant. See Appeal Br. 24–30.
Claims 12, 14, and 20–22
Independent claim 12 recites a system comprising a cooling device
and a sensing device coupled thereto and comprising a substantially flexible
substrate and a substantially flexible sensor disposed on the substrate
without substantially impeding heat transfer. Appeal Br. 45 (Claims App.).
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The Examiner relies on the teachings of Anderson and Shiono to
render obvious the similar features recited in independent claim 12 for the
same reasons as claim 1. See Non-Final Act. 4–7; Ans. 15. Appellant
admits that the subject matter of claim 12 is generally analogous to that of
claim 1 and requires a substantially flexible substrate and sensor configured
to measure temperature without substantially impeding heat transfer. See
Appeal Br. 31. Appellant also argues that Anderson teaches a thermoprobe
sensor with a small width to avoid inhibiting the cooling process, and the
Examiner relies on improper hindsight to modify Anderson’s large surface
area applicator to include a large temperature sensor when Figure 1A of
Anderson illustrates detector 120 as “so small.” Id. at 31–32.
These arguments were addressed in our review of the rejection of
claim 1 discussed above and are equally unpersuasive here for the rejection
of claim 12 for the same reasons. Anderson teaches that detector 120 can
comprise a thermoprobe formed as a thermally-conductive plate that is part
of a free-form (i.e., flexible) substrate 115 to measure temperature at plural
locations on interface 115 to provide broad area coverage as claimed. See
Anderson ¶¶ 108–116, 169. These teachings support the Examiner’s finding
that Anderson teaches and suggests using larger, flexible sensor plates that
conform to uneven treatment surfaces when used with a free-form substrate
115 to measure temperatures at multiple points across the entire heat transfer
area of cooling/heating device unit 110 to facilitate the heat transfer process.
As discussed above, Anderson and Shiono both teach sensors that cover the
entire heat transfer area without inhibiting the heat transfer process.
Thus, we sustain the rejection of claim 12 and claims 14 and 20–22,
which are not argued separately by Appellant. See Appeal Br. 24–32.
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Claims 35 and 37–43
Independent claim 35 recites a cooling system with similar features as
those recited in claim 1 plus a sensing device with a first temperature sensor
positioned on a first surface of the sensing device and a second temperature
sensor positioned on the second surface of the sensing device. Appeal Br.
47 (Claims App.). The Examiner finds that Anderson uses sensors to sense
the temperature of the (1) skin and/or (2) cooling device, and reasons that
this configuration would require sensors to be located on first and second
surfaces of the device. Ans. 14–15. In this regard, Anderson teaches that a
thermoprobe can be attached to the cooling device and/or to the treatment
surface as Appellant recognizes. Anderson ¶¶ 102–110; Reply Br. 3.
Anderson also teaches that thermoprobes can be placed in a variety of
locations such as direct contact with a measurement site/location, i.e., on the
side of interface 115 facing/contacting a treatment site. Anderson ¶ 102.
Further, a thermoprobe can be placed in communication with the surface of a
cooling device but not in thermal contact with a treatment surface. Id. ¶ 104.
A thermoprobe can be attached to a surface of a cooling device and placed in
communication with the skin surface thus teaching or suggesting placement
on opposite sides of interface 115 as claimed. See id. ¶¶ 105, 108, 170–71.
In view of the foregoing teachings of Anderson, we are not persuaded
that placing sensors on opposite sides of Anderson’s free-forming membrane
is in direct opposition to the teachings of Anderson as Appellant argues. See
Appeal Br. 32–33. As the Examiner points out, Anderson teaches many
embodiments including sensors at the treatment surface, separated from the
treatment surface, and on both sides of the sensing device as recited in claim
35 to monitor treatment. Ans. 21; Anderson ¶¶ 102–16, 146–47, 169–71.
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These teachings of Anderson to place thermocouple temperature
sensors in contact with the cooling device and/or the treatment area and at
various other places would motive a skilled artisan to place temperature
sensors on opposite sides of the sensing device to sense a temperature of the
cooling/heating unit 110 as well as a temperature of the treated surface to
determine the heat transfer profiles as Anderson teaches is desirable. See
Anderson ¶¶ 89–116. Placing thermoprobe sensors on opposite sides of a
sensing device would improve the accuracy of measurements of heat transfer
and temperature gradient, which provides an implicit motivation to modify
Anderson to the extent Anderson does not teach this feature expressly. See
DyStar, 464 F.3d at 1368; Ans. 20; Non-Final Act. 5.
For the foregoing reasons, we sustain the rejection of claim 35 and its
dependent claims 37–43, which are not argued separately. See Appeal Br.
33.
Claims 45–47 and 49–53
Independent claim 45 recites a system comprising a cooling device
and “a mechanical fastener coupled to the cooling device and configured to
wrap around the subject such that the heat exchanging member is in thermal
contact with the subject’s skin to remove heat from the subcutaneous lipid-
rich cells . . . and a sensing device coupled to the cooling device.” Appeal
Br. 49 (Claims App.). We agree with the Examiner that Anderson teaches a
“mechanical fastener coupled to the cooling device” in Figures 5A and 5B
and related written description. Ans. 23. A flexible substance (garment) can
wrap around the treatment site as claimed and also is coupled to the cooling
device (cooling/heating element 110) as illustrated in Figures 5A and 5B,
which are reproduced below.
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Figure 5A of Anderson above illustrates treatment system 500 formed
as a band or cylinder around target tissue mass 505. The band is coupled to
cooling/heating element 110 that is formed by an internal vessel or network
of passages such as tubes and the like to transfer heat to target tissue 505 via
treatment interface 115 via input 175 and output 180 as shown in Figure 5B.
Anderson ¶¶ 153–55, 183. Fastening mechanism 510 such as hook and loop
fasteners fastens and wrap the system around tissue mass 505. Id. ¶ 183; see
Spec. ¶¶ 37, 38, Fig. 3. The heat transfer member (treatment interface 115)
contacts a subject’s skin such as an arm, leg, or waist contrary to Appellant’s
arguments. Anderson ¶ 183; Appeal Br. 34. Claim 45 does not require a
particular type of coupling, and we are not permitted to read any unclaimed
features from the Specification into claim 45 or limit claim 45 to particular
embodiments in the Specification when the claim language is broader than
those embodiments. Claim 45 requires “a mechanical fastener coupled to
the cooling device,” and Anderson teaches and illustrates such a coupling as
discussed above.
For the foregoing reasons, we sustain the rejection of claim 45 and of
its dependent claims 46, 47 and 49–53, which are not argued separately. See
Appeal Br. 35.
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Claims 1, 2, 4, 6, 7, 9–12, 14–18, 31–33, and 35–53
Rejected over Anderson and Guilbeau
Claims 1, 2, 4, 6, 7, 9–11, 31–33, and 44
Regarding claim 1, the Examiner relies on Anderson to teach a device
for removing heat as claimed based on the same findings as in the previous
rejection of claim 1. Non-Final Act. 7. The Examiner relies on Guilbeau to
teach the structure of the claimed sensor that extends across most of a
distance between opposing ends of the sensing device as claimed. Id. at 7–8.
Appellant argues that Anderson teaches a spot sensor 120 that is much
smaller than a cooling surface of cooling/heating element 110, and Guilbeau
teaches much smaller sensors than Anderson so the sensors are not suitable
to extend across the ends of the Anderson device. Appeal Br. 36. Appellant
also argues that neither reference teaches measuring temperatures across a
large treatment area using a temperature sensor that covers most of a heat
transfer surface as claimed. Id. at 36–37.
We agree with the Examiner that Guilbeau illustrates its sensor in
Figure 5 as extending most of the distance from the top and bottom and the
two sides of substrate 50. Ans. 27–28. Guilbeau configures the sensing
device and sensor to extend across most of the distance between opposing
ends of the sensing device as claimed. Guilbeau, Figs. 1–5. Thus, Guilbeau
provides motivation to configure a temperature sensor across most of an area
that is subject to treatment. This teaching supports Anderson’s teachings
(discussed above) to use multiple thermocouple sensors at multiple positions
along the sensing device to develop a temperature profile across the entire
sensing device and treated area as claimed. These teachings also provide a
rational underpinning for the Examiner’s proposed combination.
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Again, as with Shiono, Guilbeau’s “smaller” area is not the issue. The
area sensed by Guilbeau’s sensor is coterminous with, or at least of the same
size as, the relevant area. See Guilbeau, 3:7–5:46. Guilbeau, like Anderson,
senses across an area using a thin film thermopile sensor formed on an entire
substrate and configured to extend at least most of the distance between the
opposing ends of the sensing device/substrate as claimed. Anderson and
Guilbeau both teach to configure sensors that span most if not all of the heat
transfer/treatment area. See id. at 4:29–55, 6:26–38, 8:45–68; Ans. 26–28.
The Examiner is not proposing to replace Anderson’s thermocouple
sensors with Guilbeau’s thermopile sensors or modify Anderson’s sensors to
this configuration as Appellant alleges. Appeal Br. 38; Ans. 29. Guilbeau is
relied on to teach the practice of configuring a temperature sensor to extend
most of the length of the sensing device to sense the temperature across the
entire treated area and provide uniform properties. Non-Final Act. 7–8.
For the foregoing reasons, we sustain the rejection of claim 1 and of
claims 2, 4, 6, 7, 9–11, 31–33, and 44, which are not argued separately. See
Appeal Br. 38.
Claims 12, 14, and 20–22
Appellant argues that a skilled artisan would not modify Anderson to
arrive at a sensing device comprising a substantially flexible substrate and a
substantially flexible sensor as recited in claim 12 for the reasons discussed
above for the previous rejection of claim 12, and Guilbeau does not cure this
deficiency of Anderson. Appeal Br. 39. As discussed above, Anderson does
teach a substantially flexible substrate and sensor. Thus, we sustain the
rejection of claim 12 and claims 14 and 20–22, which are not argued
separately. See id.
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Claims 35–43
Appellant argues that a skilled artisan would not be motivated to
modify Anderson to arrive at a sensing device with a first and second
temperature sensor on opposite sides of the sensing device and spaced apart
in a direction substantially perpendicular to the heat transfer surface as
recited in claim 35. Appeal Br. 39. As discussed above, Anderson teaches
and suggests this feature as thermoprobes on opposite sides of interface 115
and at different depths in the sensing device with thermoprobes at different
distances from the heat transfer surface and tissue contact surface and thus
spaced apart as claimed. Non-Final Act. 2–3; Ans. 11; Anderson ¶¶ 102–16.
Appellant’s argument that the Examiner fails to identify a teaching in
Anderson of this feature (Appeal Br. 40) does not apprise us or error in the
Examiner’s findings that Anderson and Guilbeau teach this feature and the
other limitations of claim 35 discussed herein and for the previous rejection
of claim 35 based on Anderson and Shiono. See Ans. 20, 27–29.
Thus, we sustain the rejection of claim 35 and claims 36–43, which
are not argued separately. See Appeal Br. 40.
Claims 45–47 and 49–53
Appellant argues that Anderson does not disclose the features recited
in claim 45 and a skilled artisan would not be motivated to modify Anderson
because Anderson fails to teach a garment or bandage coupled to a cooling
device as claimed. Appeal Br. 40–41. As discussed above in the previous
rejection of claim 45, Anderson teaches and suggests a garment coupled to a
cooling device and the other features recited in claim 45. Anderson ¶¶ 153–
55, 183, Fig. 5A. Thus, we sustain the rejection of claim 45 and claims 46,
47, and 49–53, which are not argued separately. See Appeal Br. 40–41.
Appeal 2019-003112
Application 11/528,189

19
CONCLUSION
Claims
Rejected
35 U.S.C.
§
Reference(s)/Basis Affirmed Reversed
1, 2, 4, 6, 7,
9–12, 14, 18,
20–22, 31–
33, 35–53
103(a) Anderson, Shiono 1, 2, 4, 6,
7, 9–12,
14, 18, 20–
22, 31–33,
35–53

1, 2, 4, 6, 7,
9–12, 14–18,
31–33, 35–
53
103(a) Anderson,
Guilbeau
1, 2, 4, 6,
7, 9–12,
14–18, 31–
33, 35–53

Overall
Outcome
1, 2, 4, 6,
7, 9–12,
14–18, 20–
22, 31–33,
35–53

No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a)(1)(iv).
AFFIRMED