Ex Parte Brannan

Patent Trial and Appeal Board

Jun 23, 2017

13358129 (P.T.A.B. Jun. 23, 2017)

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.
13/358,129 01/25/2012 Joseph D. Brannan H-US-02426 (203-7131) 4083
90039 7590
Covidien LP
Attn: IP Legal
5920 Longbow Drive
Mail Stop A36
Boulder, CO 80301-3299
06/27/2017 EXAMINER
MALAMUD, DEBORAH LESLIE
ART UNIT PAPER NUMBER
3766
NOTIFICATION DATE DELIVERY MODE
06/27/2017 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):
mail @ cdfslaw. com
SurgicalUS@covidien.com
medtronic_mitg-si_docketing@cardinal-ip.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte JOSEPH D. BRANNAN1
Appeal 2016-004988
Application 13/358,129
Technology Center 3700
Before JEFFREY N. FREDMAN, JOHN G. NEW, and
RICHARD J. SMITH, Administrative Patent Judges.
NEW, Administrative Patent Judge.
DECISION ON APPEAL
appellant states the real party-in-interest is Covidien LP. App. Br. 1.
Appeal 2016-004988
Application 13/358,129
SUMMARY
Appellant files this appeal under 35 U.S.C. § 134(a) from the
Examiner’s Final Rejection of claimsl—12 as unpatentable under 35 U.S.C.
§ 102(b) as being anticipated by Dunning et al. (US 2008/0281310 Al,
November 13, 2008) (“Dunning”).
We have jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM.
NATURE OF THE CFAIMED INVENTION
Appellant’s invention is directed to an electrosurgical system
including an electrosurgical generator configured to provide electrosurgical
energy to an electrosurgical device coupled thereto which, in turn, delivers
electrosurgical energy to tissue. Abstract.
REPRESENTATIVE CLAIM
Claim 1 is representative of the claims on appeal and recites:
1. An electrosurgical system, comprising:
an electrosurgical generator configured to provide
electrosurgical energy to an electrosurgical device coupled
thereto which, in turn, delivers electrosurgical energy to tissue,
the electrosurgical device including:
a plurality of sensors configured to detect at least
one tissue property and output a detected tissue property
signal relating thereto;
at least one multiplexer having a plurality of
channels electrically connected to each of the
corresponding plurality of sensors, the at least one
multiplexer configured to receive the detected tissue
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Application 13/358,129
property signal from each sensor of the plurality of sensors
and output at least one output signal along at least one
signal line, wherein said at least one signal line is
configured to connect to the electro surgical generator to
control a power output of the electrosurgical generator;
and
a channel select system configured to select at least
one channel from the plurality of channels as a function of
at least one variable selected from the group consisting of
temperature, impedance, electromagnetic field, fluid
pressure, tissue density, and piezoelectric voltage.
App. Br. 8.
ISSUE AND ANALYSIS
We agree with, and adopt, the Examiner’s findings and conclusions
that the appealed claims are anticipated by the prior art reference cited by the
Examiner. We address the arguments raised by Appellant below.
Issue
Appellant argues the Examiner erred in finding that Dunning discloses
the limitation of claim 1 reciting “a channel select system configured to
select at least one channel from the plurality of channels as a function of at
least one variable selected from the group consisting of temperature,
impedance, electromagnetic field, fluid pressure, tissue density, and
piezoelectric voltage.” App. Br. 4.
Analysis
The Examiner finds Dunning discloses, in relevant part, that the
system includes a plurality of sensors, a multiplexer, and a control circuit.
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Application 13/358,129
Final Act. 4 (citing Dunning || 34, 60, 70, Figs. 2, 8C, 11). The Examiner
finds Dunning discloses that the analog sensor signals from the temperature
circuits may be transmitted to an analog multiplexer, which is coupled to a
counter. Id. (citing Dunning || 14, 65—66, 74). The Examiner finds
Dunning also discloses that these circuit components are configured to
measure the voltage signals corresponding to the temperature readings and
then transmit the processed data to the generator. Id. The Examiner further
finds that, with reference to the embodiment of temperature sensing circuit
shown in Figures 10A and B, Dunning discloses that the multiplexer, or a
similar device suitable for rapid switching of interrogatory signals of the
thermocouple matrix, may also be incorporated into the control circuit. Id.
Appellant argues that Dunning discloses selecting a signal using a
multiplexer, either serially or by using a counter, and is completely silent
with respect to any disclosure of a channel select system that selects a
channel “as a function of a variable.” App. Br. 5. Specifically, Appellant
contends that Dunning discloses that “[t]he temperature sensing circuit
includes a thermocouple matrix ... [formed when e]ach of the first plurality
of wires intersects with each of the second plurality of wires at a plurality of
junctions.” Id. (quoting Dunning | 65) (internal citations omitted).
According to Appellant, Dunning discloses that, in operation a voltage is
passed to each of the junctions. Id. (citing Dunning | 66). Appellant asserts
that Dunning then discloses that “each junction is interrogated individually,
wherein the switching of the interrogation signal is performed by a suitable
multiplexer ... [which] may be performed in a serial fashion.” Id. (quoting
Dunning 166). Therefore, Appellant argues, Dunning discloses that the
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Application 13/358,129
junctions provide signals indicative of the temperature, rather than being
selected based on the temperature or any other variable. Id.
Appellant next points out that paragraph [0065] of Dunning discloses
only that the “return electrode 6 ... [includes] a temperature sensing circuit
100 disposed on top of the return electrode pad 30.” App. Br. 5. Appellant
asserts that there is no disclosure in paragraph [0065], or anywhere else in
Dunning, that the channel is selected “as a function of a variable,” as
required by claim 1. Id. Rather, Appellant argues, paragraph [0066] of
Dunning discloses that: “During operation, a voltage is passed to each of the
junctions 108. Each junction 108 is interrogated individually, wherein the
switching of the interrogation signal is performed by a suitable multiplexer.”
Id. Appellant also notes that Dunning further discloses that: “The
interrogatory polling may be performed in a serial fashion and the polling
data is sent to the generator 20 or a control circuit disposed directed within
the return electrode pad 30.” Id. (quoting Dunning | 66).
Appellant asserts that Dunning in fact discloses that the temperature
signal obtained from the temperature sensing circuit 100 of Dunning has no
bearing on how each temperature sensing channel (or junction 108) is
selected by the multiplexer. App. Br. 6. Rather, Appellant contends, the
selection of each channel is performed only by a counter without reference
to any variable, e.g., a temperature signal. Id. Appellant therefore contends
that Dunning does not disclose “a channel select system configured to select
at least one channel from the plurality of channels as a function of at least
one variable selected from the group consisting of temperature, impedance,
electromagnetic field, fluid pressure, tissue density, and piezoelectric
voltage,” as recited in claim 1. Id.
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Application 13/358,129
The Examiner responds that the invention of Dunning polls each
junction, and deactivates selected junctures based on temperature (e.g.,
sensing a temperature higher than the safe range, from 40° to 45°C). Ans. 3
(citing Dunning || 63—64, 67). The Examiner finds that Dunning discloses
that all of the wires (i.e., “channels,” as recited in Appellant’s claims) are
affected by the local temperature and that the temperature data is converted
from the channel wire impedance, which also satisfies the claim requirement
that the channel is selected as a function of impedance. Id. The Examiner
finds Dunning discloses that the switching elements “switch off, thereby
increasing impedance, at different rates depending on the temperature” and
that the voltage produced at the junction of each wire/channel “changes
directly with temperature” and the wires do not transmit a signal after
achieving a certain temperature threshold. Id. at 4—5 (quoting Dunning ||
63, 65).
Appellant replies that, even if each junction is a channel of a
multiplexer, as the Examiner finds, the Examiner has not particularly
pointed to any passage of Dunning disclosing selecting individual channels
of the multiplexer “as a function of a variable selected form the group
consisting of temperature, impedance, electromagnetic field, fluid pressure,
tissue density, and piezoelectric voltage,” as required by claim 1. Reply Br.
2. Appellant argues that Dunning discloses that, “[ejach junction 108 is
interrogated individually, wherein the switching of the interrogation signal is
performed by a suitable multiplexer ... [which] may be performed in a serial
fashion.” Id. at 3 (quoting Dunning | 66). Appellant also asserts that
Dunning discloses that “the analog sensor signals from the temperature
circuits 40, 90 and 100 may be transmitted to an analog MUX [multiplexer]
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Application 13/358,129
which is coupled to a counter.” Id. (quoting Dunning 174). Therefore,
Appellant contends, the junctions 108 of Dunning are merely interrogated in
a serial fashion, and not as a function of temperature. Id.
Appellant argues that the Examiner has not pointed to any disclosure
of Dunning demonstrating that the junctions are interrogated as a function of
temperature. Reply Br. 3. Rather, Appellant contends, the Examiner has
described only how the switching elements are switched off, which
Appellant contends is due to the switching element itself being sensitive to
changes in temperature. Id. According to Appellant, Dunning discloses
only that the switching element 92 deactivates at a temperature that is a
design criterion of the switching element (i.e., internal to the switching
element), and not as a result of a “channel select system,” as required by
claim 1. Id.
Furthermore, Appellant argues, the analog MUX cited by the
Examiner is coupled to a counter; there is no disclosure of the analog MUX
being coupled to the individual junctions 108 of temperature circuit 100, and
there is no disclosure of the analog MUX selecting each temperature circuit
as a function of temperature. Reply Br. 4. Rather, Appellant asserts, the
signals are received based on the position of the counter. Id.
We are not persuaded by Appellant’s arguments. Claim 1 recites:
“[A] channel select system configured to select at least one channel from the
plurality of channels as a function of at least one variable selected from the
group consisting of temperature, impedance, electromagnetic field, fluid
pressure, tissue density, and piezoelectric voltage.” Dunning discloses:
As appreciated by those skilled in the art, the junctions 108
[which collectively form the thermocouple matrix of the pad]
represent the so-called “hot junctions,” which allow for relative
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Application 13/358,129
temperature measurement of the return electrode pad 30 since
each of the “hot junctions” are operatively connected to a “cold
junction” [...]. During operation, a voltage is passed to each of
the junctions 108. Each junction 108 is interrogated individually,
wherein the switching of the interrogation signal is performed by
a suitable multiplexer [...] or a similar device. The interrogatory
polling may be performed in a serial fashion and the polling data
is sent to the generator 20 or a control circuit disposed directly
within the return electrode pad 30 as shown in FIG. 11 and
discussed in more detail below.
A signal processor monitors the polling data for the junction 108
having the highest temperature. Thereafter, the temperature of
the warmest junction 108 is compared with the maximum safe
temperature, which is from about 40° to about 45°C. Those
skilled in the art will appreciate that if the return electrode pad is
of resistive type, heating thereof is more uneven than heating of
capacitive type electrode pad. Therefore, spacing between
junctions 108 is adjusted to accommodate various types of return
electrode pads.
Dunning H 66—67 (emphasis added); see also Figs. 9 A, 11. Dunning also
discloses: “Further, with reference to the embodiment of temperature
sensing circuit 100 shown in FIGS. 10A—B, the multiplexer or similar device
suitable for rapid switching of interrogatory signals of the thermocouple
matrix 102, may also be incorporated into the control circuit 51.” Dunning
174.
Dunning thus expressly teaches that the various temperature sensors
(i.e., the “hot junctions” are polled via a multiplexer and the data sent to a
control circuit). Dunning further discloses that a signal processor (i.e., a
channel select system) monitors the temperature data arriving from the
interrogated junctions and selects the input sensor reporting the highest
temperature, which is compared to an internal reference temperature, i.e., the
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Application 13/358,129
“maximum safe temperature, which is from about 40° to about 45° C.”
Dunning 142. Dunning thus expressly discloses: “select[ing] at least one
channel from the plurality of channels as a function of [...] temperature,” as
required by claim 1.
We consequently disagree with Appellant’s argument that: “Dunning
merely discloses selecting a signal using a multiplexer either serially or by
using a counter, and is completely [silent with respect to] any disclosure of a
channel select system that selects a channel “as a function of a variable.”
See App. Br. 5. To the contrary, Dunning discloses polling the input from
the junctions to determine which reports the highest temperature, i.e.,
“monitor[ing] the polling data for the junction 108 having the highest
temperature [and] comparing] with the maximum safe temperature.
Dunning | 67.
Moreover, Dunning teaches that it is a signal processor, i.e., “a
channel select system” that determines the sensor reporting the highest
temperature, and that the multiplexer is used to drive the interrogation
signals to the junctions, with the counter being used as a clock to drive the
multiplexing. See, e.g., Dunning 174 (“[T]he analog sensor signals from the
temperature circuits 40, 90 and 100 may be transmitted to an analog MUX
which is coupled to a counter [...]. These circuit components are configured
to measure the voltage signal corresponding to the temperature readings and
transmit the processed data to the generator 20”). Indeed, Appellant’s
Specification teaches an essentially identical arrangement:
Electrosurgical device 201 may also include a channel
select system that includes channel select lines 215, a counter
217, and a clock 219. Clock 219 may be a crystal oscillator that
outputs a signal at a predetermined frequency. The signal
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provided by clock 219 is used to increment counter 217 that
outputs the required binary representation to select one of the
input channels 208 to output a detected tissue property associated
with the selected input channel.
Spec. 143.
Because we find Dunning discloses the limitation of claim 1 disputed
by Appellant, we affirm the Examiner’s rejection of claims 1—12.
DECISION
The Examiner’s rejection of claims 1—12 as unpatentable under 35
U.S.C. § 102(b) is affirmed.
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). See 37 C.F.R.
§ 1.136(a)(l)(iv).
AFFIRMED
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