Ex Parte Govari et al

Patent Trial and Appeal BoardOct 30, 2017

11624280 (P.T.A.B. Oct. 30, 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. 11/624,280 01/18/2007 Assaf Govari BI05146USNP 6322 27777 7590 11/01/2017 JOSEPH F. SHIRTZ JOHNSON & JOHNSON ONE JOHNSON & JOHNSON PLAZA NEW BRUNSWICK, NJ 08933-7003 EXAMINER HUPCZEY, JR, RONALD JAMES ART UNIT PAPER NUMBER 3739 NOTIFICATION DATE DELIVERY MODE 11/01/2017 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): j nju spatent @ corn s .j nj. com lhowd@its.jnj.com pair_jnj @ firsttofile.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte ASSAF GOVARI, YARON EPHRATH, ANDRES CLAUDIO ALTMANN, YITZHACK SCHWARTZ, and MODEL DIMITRI Appeal 2016-000089 Application 11/624,2801 Technology Center 3700 Before MICHAEL C. ASTORINO, PHILIP J. HOFFMANN, and ALYSSA A. FINAMORE, Administrative Patent Judges. HOFFMANN, Administrative Patent Judge. DECISION ON APPEAL STATEMENT OF THE CASE Appellants appeal under 35 U.S.C. § 134(a) from the final rejection of claims 1 and 3—15. We have jurisdiction under 35 U.S.C. § 6(b). We AFFIRM. According to Appellants, their invention relates “to the use of audio sensors in probes, such as catheters, [which] are inserted into the body of a patient.” Spec. 1. Claims 1, 6, and 11 are the independent claims on appeal. 1 According to Appellants, the real party in interest is “Biosense Webster, Inc.” Appeal Br. 1. Appeal 2016-000089 Application 11/624,280 Below, we reproduce claim 1, with formatting added, as illustrative of the appealed claims. 1. An invasive medical probe, comprising: a catheter including an insertion tube, having a distal end for insertion in a heart of a patient, the distal end terminating in a distal tip having a distal-most end; a tip electrode formed by metallic material disposed over the distal end of the insertion tube and extending from the distal- most tip so as to cover the distal-most end, the metallic material forming the tip electrode configured for carrying electrical energy to tissue in the heart for an ablating of the tissue; an acoustic sensor, contained entirely within the metallic material forming the tip electrode, the metallic material filtering out ambient sound generated by normal action of the heart, the acoustic sensor being used to generate an acoustic signal to monitor sound caused by the ablating of the tissue without requiring sound analysis to remove ambient sound; and an acoustic processor for amplification, filtering and processing of the acoustic signal from the acoustic sensor. REJECTIONS AND PRIOR ART The Examiner rejects claims 1, 3—9, 11, 13, and 14 under 35 U.S.C. § 103(a) as unpatentable over Ferek-Patric (US 6,709,432 B2, iss. Mar. 23, 2004). The Examiner rejects claims 10 and 15 under 35 U.S.C. § 103(a) as unpatentable over Ferek-Patric andNardella (US 5,733,281, iss. Mar. 31, 1998). The Examiner rejects claim 12 under 35 U.S.C. § 103(a) as unpatentable over Ferek-Patric and Castellano (US 5,606,974, iss. Mar. 4, 1997). 2 Appeal 2016-000089 Application 11/624,280 ANALYSIS Obviousness rejection of claims 1, 3—9, 11, 13, and 14 Based on our review of the record, including the Examiner’s Final Office Action and Answer, and Appellants’ Appeal Brief, Appellants do not persuade us that the Examiner errs in rejecting claims 1, 3—9, 11, 13, and 14 based on Ferek-Patric. Thus, we sustain the rejection. As set forth above, independent claim 1 recites, among other recitations, a tip electrode formed by metallic material disposed over the distal end of the [catheter’s] insertion tube and extending from the distal-most tip so as to cover the distal-most end, the metallic material forming the tip electrode configured for carrying electrical energy to tissue in the heart for an ablating of the tissue; [and] an acoustic sensor, contained entirely within the metallic material forming the tip electrode. Br., Claims App. Independent claims 6 and 11 recite similar recitations. Id. Consistent with Appellants’ Specification, we interpret the claim recitation that the “acoustic sensor [is] contained entirely within the metallic material forming the tip electrode” to mean that the acoustic sensor is contained entirely within the distal-most end of the insertion tube which is covered by the metallic material forming the tip electrode. See, e.g., Spec. 3, 4, 5, 9. Ferek-Patric discloses an embodiment with metallic tip electrode 120 disposed at the distal-most end of an insertion tube, and detection sensor 130, although the detection sensor is not contained within the distal- most end of the insertion tube which is covered by the metallic tip electrode. Final Action 3; see also Ferek-Patric Fig. 2. Ferek-Patric “discloses an alternative embodiment where the acoustic sensor 230 is disposed 3 Appeal 2016-000089 Application 11/624,280 entirely within the metallic material forming the [ring] electrode 220,” although the ring electrode is not disposed at the distal-most end of the insertion tube. Id. at 4 (emphases omitted); see also Ferek-Patric Fig. 3. “Ferek[-Patric] readily contemplates that. . . sensor 130 can also be placed at the tip of the device.” Id., citing Ferek-Patric col. 7,11. 28—33. Thus, according to the Examiner, based on the above teachings in Ferek-Patric, “it would have been . . . obvious ... to provide . . . acoustic sensor 130 [at the insertion tube tip and so as to be] within the [tip] electrode 120” as claimed. Id. Based on our review of the record, we agree with the Examiner. The Examiner adequately supports the factual findings, and the Examiner draws reasonable conclusions. Conversely, despite our having considered all of Appellants’ arguments, Appellants do not persuade us of error, and, thus, we sustain the Examiner’s obviousness rejection of claims 1, 3—9, 11, 13, and 14. See Br. 4—8. Below, we highlight and discuss certain of Appellants’ arguments only for emphasis. Appellants argue that Ferek-Patric’s “detection sensor [130] is shown mounted on or embedded within an exterior wall of the catheter, and not within the catheter[:] i.e., within the lumen of the catheter” (Br. 5), and that “Ferek-Patric does teach that the location of the ablation electrode 120 may be at other locations on the catheter (not within the catheter [lumen])” {id. at 6). Appellants’ arguments exceed the scope of the claim, as claim 1 does not recite that the acoustic sensor is within the catheter lumen. See Br., Claims App. Further, we disagree with Appellants that because Ferek-Patric’s “detection sensor 130 is described as a contact sensor,” Ferek-Patric cannot 4 Appeal 2016-000089 Application 11/624,280 teach an acoustic sensor “within” the distal-most end of the insertion tube which is covered by the metallic material, as recited by claim 1. Br. 6 (emphasis added). Notwithstanding that Ferek-Patric states that “[preferably, the detection sensor is a contact microphone” (Ferek-Patric col. 7,1. 51) (emphasis added), Ferek-Patric describes microphone 432, which Figure 4 shows as within a catheter lumen, also as “preferably a contact microphone.” Ferek-Patric Fig. 4, col. 8,1. 41. Thus, even assuming that Ferek-Patric’s detection sensor 130 must be a contact microphone, we are not persuaded that a contact microphone is not or may not be located within a catheter, as claimed. Therefore, the Examiner’s proposed modification of Ferek-Patric, which would result in an acoustic sensor within the distal-most end of the insertion tube which is covered by the metallic material, as claimed, is not inconsistent with Ferek-Patric’s disclosure. Obviousness rejections of claims 10, 12, and 15 Appellants argue that the Examiner’s obviousness rejections of dependent claims 10, 12, and 15 are erroneous because no secondary reference remedies the deficiencies in the rejection of independent claims 6 and 11. See Br. 8. Inasmuch as we do not agree with Appellants that there are deficiencies in the independent claims’ rejection, we sustain the rejections of claims 10, 12, and 15. DECISION We AFFIRM the Examiner’s obviousness rejections of claims 1 and 3—15. 5 Appeal 2016-000089 Application 11/624,280 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 6