B-K Medical Aps

Patent Trials and Appeals Board

Dec 14, 2021

2021002693 (P.T.A.B. Dec. 14, 2021)

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. 15/303,654 10/12/2016 Niels-Christian SASADY ANA1230WOUS_BKM107606 3259 23266 7590 12/14/2021 Dept. GEN DAUGHERTY & DEL ZOPPO CO., L.P.A. P.O. Box 431 Mentor, OH 44061 EXAMINER SIRIPURAPU, RAJEEV P ART UNIT PAPER NUMBER 3793 NOTIFICATION DATE DELIVERY MODE 12/14/2021 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): adelzoppo@dd-iplaw.com info@dd-iplaw.com pdaugherty@dd-iplaw.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte NIELS-CHRISTIAN SASADY, PER EHRENREICH NYGAARD, and JOHN ANTOL Appeal 2021-002693 Application 15/303,654 Technology Center 3700 Before MICHAEL J. FITZPATRICK, JEREMY M. PLENZLER, and LISA M. GUIJT, Administrative Patent Judges. PLENZLER, Administrative Patent Judge. DECISION ON APPEAL STATEMENT OF THE CASE Pursuant to 35 U.S.C. § 134(a), Appellant1 appeals from the Examiner’s decision to reject claims 1-14, 32-38, 41, and 42. We have jurisdiction under 35 U.S.C. § 6(b). We REVERSE. 1 We use the word Appellant to refer to “applicant” as defined in 37 C.F.R. § 1.42(a). Appellant identifies the real party in interest as BK Medical Holding Company, Inc. Appeal Br. 2. Appeal 2021-002693 Application 15/303,654 2 CLAIMED SUBJECT MATTER The claims relate to an instrument guide. Claim 1, reproduced below, is illustrative of the claimed subject matter: 1. An instrument guide for a probe head of an ultrasound imaging probe that includes a transducer array with a plurality of transducer elements that produces an image plane, the instrument guide, comprising: a probe support region having a long axis, a short axis, a depth, a first side at one end of the long axis, and a second side at one end of the short axis, wherein the short axis is transverse to the long axis and the depth, and configured to receive the probe head; a first guide bracket extending from the first side of the probe support region in a direction of the long axis; a first guide disposed in the first guide bracket; a second guide bracket on the second side of the probe support region and protruding out of and up from the second side in a direction of the short axis and the depth, wherein the second guide bracket includes: a slot, including: a protrusion protruding up from a top of the second side in a direction of the depth; a cut out of the protrusion; and a recess of the protrusion; and an arc shaped tab that extends from a top of the protrusion away from the probe support region along the short axis and including a free end with a portion extending from the arc shaped tab along the depth; and a second guide disposed in the second guide bracket, wherein the second guide includes: a body with a first end and a second end, which opposes the first end, along the short axis, Appeal 2021-002693 Application 15/303,654 3 a member protruding out of the body at the first end along the depth, a tap at the second end; an arc shaped surface extending between the first end and the second end along the short axis and the depth and disposed partially under the arc shaped tab; and a plurality of fixed slots in the surface arranged along the arc shaped surface and in the direction of the short axis, wherein each of the plurality of slots corresponds to a different fixed insertion angle with respect to the image plane, wherein the member of the second guide is disposed in the slot of the second guide bracket and the portion of the free end of the second guide bracket is disposed in the tap of the second guide. REFERENCES The prior art relied upon by the Examiner is: Name Reference Date Imling US 6,203,499 B1 Mar. 20, 2001 Cermak US 2009/0143684 A1 June 4, 2009 Kosaku US 7,691,066 B2 Apr. 6, 2010 Whitmore, III US 2011/0028847 A1 Feb. 3, 2011 Boezaart US 2014/0200445 A1 July 17, 2014 REJECTION Claim 1-14, 32-38, 41, and 42 are rejected under 35 U.S.C. § 103 as being unpatentable over Boezaart, Cermak, Kosaku, Whitmore, and Imling. OPINION Each claim requires a “second guide bracket includ[ing]: a slot, including: a protrusion.” Appeal 2021-002693 Application 15/303,654 4 In the Final Action, the Examiner finds that Kosaku discloses a similar needle guide, comprising a second protrusion protruding out of and from the second side, wherein the second protrusion is part of the probe support region and is a second guide bracket on the second side of the probe support region and protruding out of and up from the second side in a direction of the short axis and the depth, wherein the second guide bracket includes: a slot, including: a protrusion protruding up from a top of the second side in a direction of the depth, a cut out of the protrusion, and a recess of the protrusion; and a tab that extends from the protrusion away from the probe support region along the short axis and including a free end with a portion extending along the depth; and a second guide disposed in the second guide bracket, wherein the second guide includes: a body with a first end and a second end, which oppose the first end along the short axis, and a member protruding out of the body at the first end along the depth; and a plurality of fixed slots arranged in the direction transverse to the long axis, and wherein each of the plurality of slots corresponds to a different fixed insertion angle with respect to the image plane, wherein the member of the second guide is disposed in the slot of the second guide bracket (see Figs. 2, 3, 10, and 11 and abstract, noting that the hinge 33 reads on the slot and member and so elements 314, 328, and 328a in alternate interpretations of the broadly defined claim language). Final Act. 3-4 (emphasis added). As seen above, the only explanation as to where Kosaku’s disclosure teaches the features noted by the Examiner is found at the end of the passage. There is no explanation, for example, as to where the recited “protrusion” is found in Kosaku. The Advisory Action provides an annotated version of Kosaku’s Figure 10 identifying the “slot,” but also fails to identify any protrusion in that “slot.” See Advisory Act. 2. The Examiner provides two alternative annotated versions of Kosaku’s Figure 11 in the Answer. See Ans. 4, 6. Both annotated figures also provide Appeal 2021-002693 Application 15/303,654 5 an indication of what is considered a “slot” in Kosaku. Again, however, there is no indication of where the Examiner finds the recited “protrusion” to be in either of those “slots.” Appellant disputes the Examiner’s finding on this issue. See, e.g., Reply Br. 3. Because there is no finding from the Examiner as to how Kosaku teaches the recited protrusion in the slot of the second guide bracket, we do not sustain the Examiner’s decision to reject the claims. CONCLUSION The Examiner’s decision to reject claims 1-14, 32-38, 41, and 42 is reversed. DECISION SUMMARY In summary: Claim(s) Rejected 35 U.S.C. § Reference(s)/Basis Affirmed Reversed 1-14, 32-38, 41, 42 103 Boezaart, Cermak, Kosaku, Whitmore, Imling 1-14, 32-38, 41, 42 REVERSED