Ex Parte Hertweck

Patent Trial and Appeal BoardNov 30, 2012

12275875 (P.T.A.B. Nov. 30, 2012)

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. 12/275,875 11/21/2008 David Hertweck P04612 (6639-000164/US) 2914 7590 11/30/2012 Bausch & Lomb Incorporated One Bausch & Lomb Place Rochester, NY 14604-2701 EXAMINER LEE, WENG WAH ART UNIT PAPER NUMBER 3763 MAIL DATE DELIVERY MODE 11/30/2012 PAPER 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. PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE __________ BEFORE THE PATENT TRIAL AND APPEAL BOARD __________ Ex parte DAVID HERTWECK __________ Appeal 2011-013569 Application 12/275,875 Technology Center 3700 __________ Before TONI R. SCHEINER, ERIC GRIMES, and SHERIDAN K. SNEDDEN, Administrative Patent Judges. GRIMES, Administrative Patent Judge. DECISION ON APPEAL This is an appeal under 35 U.S.C. § 134 involving claims relating to an ophthalmic microsurgical system. The claims have been rejected as anticipated. We have jurisdiction under 35 U.S.C. § 6(b). We affirm-in- part. STATEMENT OF THE CASE The Specification discloses “an aspiration flow control system … for regulating the rate of aspirated fluid flow from a surgical site” (Spec. 2, ¶ 0004). The Specification discloses that the system includes a vacuum Appeal 2011-013569 Application 12/275,875 2 device and “a flow controller that monitors both [a] vacuum sensor and [a] flow measurement device” (id.). The flow controller can adjust the vacuum requested from the vacuum device based on the sensed vacuum level or on the sensed aspiration flow rate (id.). Claims 1-10 are on appeal. Claim 1, the only independent claim, reads as follows: 1. An aspiration flow control system for an ophthalmic microsurgical system comprising: a vacuum device configured to control the level of a vacuum applied for establishing the flow of aspirated fluid from a surgical site; a vacuum sensor configured to communicate a signal representative of the sensed level of the vacuum being applied for establishing aspirated fluid flow; a flow measurement device configured to generate a signal indicative of the rate at which fluid flow is aspirated; and a flow controller that monitors the vacuum sensor and the flow measurement device, and communicates a requested vacuum level to the vacuum device to establish a desired vacuum level, the flow controller being configured to implement a first feed back loop that compares the requested vacuum level with the actual sensed vacuum level and adjusts the requested vacuum to achieve the desired vacuum level, the flow controller being further configured to implement a second feedback loop that compares the sensed aspiration flow rate with a desired aspiration flow rate and adjusts the requested vacuum communicated to the vacuum device to achieve the desired aspirated fluid flow rate. Issue The Examiner has rejected claims 1-10 under 35 U.S.C. § 102(b) as anticipated by Hopkins. 1 The Examiner finds that Hopkins “discloses an aspiration flow control system (10) for an ophthalmic microsurgical system 1 Hopkins et al., US 7,524,299 B2, issued Apr. 28, 2009. Appeal 2011-013569 Application 12/275,875 3 comprising: a vacuum device (22) … which can control the level [of] a vacuum to establish a flow … [and] a vacuum sensor (24)” (Answer 4). The Examiner finds that the Hopkins system further comprises “a flow measurement device (28) configured to generate a signal indicative of the rate at which fluid flow is aspirated … and a flow controller (38) that monitors the vacuum sensor and the flow measurement device” (id.). The Examiner finds that Hopkins‟ flow controller is configured to implement the feedback loops recited in claim 1 and adjust the requested vacuum based on the sensed vacuum level or the sensed aspiration flow rate (id.). Appellant contends that element 28 of Hopkins is a fluid level sensor, not “a flow measurement device configured to generate a signal indicative of the rate at which fluid flow is aspirated,” as required by claim 1 (Appeal Br. 3-4). Appellant also contends that Hopkins discloses using a peristaltic pump to control fluid flow rate and “does not teach adjusting a vacuum of the vacuum device to achieve a desired flow rate, as claimed” (id. at 5). The issue presented is: Does the evidence of record support the Examiner‟s finding that Hopkins discloses an aspiration flow control system comprising a flow measurement device and a flow controller configured to adjust a vacuum to achieve a desired aspiration flow rate? Findings of Fact 1. The Specification discloses an aspiration system that includes “a flow sensor or flow measurement device 202, which is configured to generate a signal indicative of the rate of aspirated fluid flow…. It is noted that the flow sensor 202 may be a flow sensor device of the type shown in Appeal 2011-013569 Application 12/275,875 4 Figures 1 or 2, or alternatively, the device may be a simple analogue output flow sensing component.” (Spec. 7, ¶ 18.) 2. The Specification discloses that, [a]s shown in Figure 1, the aspirated fluid flow measurement device comprises … an electrode terminal chamber 102 having … first and second electrode terminals 130 and 140 … in a spaced-apart relationship. The electrode terminals provide for generating at least one electrical signal indicative of the flow rate of the aspirated fluid flowing through the electrode terminal chamber 102.… The flow of fluids through terminal chamber of housing 100 can be detected by, for example, a hall-effect sensor. (Id. at 5, ¶ 13-14.) 3. Hopkins discloses “a microsurgical system capable of controlling aspiration via a vacuum control mode, a suction control mode, or a flow control mode” (Hopkins, col. 2, ll. 3-5). 4. Hopkins discloses that when the system is in a flow control mode “a desired suction flow rate is created in an aspiration chamber using a pressurized gas source, a vacuum generator, and a pump” (id. at col. 2, ll. 16-18). 5. Hopkins discloses that in the flow control mode, [f]luid is aspirated from a surgical device into the aspiration chamber. An actual level of fluid is determined in the aspiration chamber. A suction flow rate is calculated in response to the actual level of fluid of the determining step. A pressure generated by the pressurized gas source and a vacuum generated by the vacuum generator are modified to maintain the suction flow rate proximate the desired suction flow rate. (Id. at col. 2, ll. 19-25.) Appeal 2011-013569 Application 12/275,875 5 6. Figure 1 of Hopkins is shown below: Figure 1 shows a “schematic diagram illustrating aspiration control in a microsurgical system” (id. at col. 2, ll. 32-34). 7. Hopkins discloses that “[m]icrosurgical system 10 includes a pressurized gas source 12, … a vacuum generator 22, a pressure transducer 24, an aspiration chamber 26, a fluid level sensor 28, a pump 30, a collection bag 32, an aspiration port 34, a surgical device 36, [and] a computer or microprocessor 38” (id. at col. 2, ll. 41-47). 8. Hopkins discloses that “[v]acuum generator 22 … generates vacuum when … gas from pressurized gas source 12 is passed through vacuum generator 22” (id. at col. 2, ll. 54-58). 9. Hopkins discloses that “[p]ressure transducer 24 may be any suitable device for directly or indirectly measuring pressure and vacuum” (id. at col. 2, ll. 59-60). Appeal 2011-013569 Application 12/275,875 6 10. Hopkins discloses that “[f]luid level sensor 28 may be any suitable device for measuring the level of a fluid 42 within aspiration chamber 26 but is preferably capable of measuring fluid levels in a continuous manner” (id. at col. 2, ll. 60-63). 11. Hopkins discloses that “[p]ump 30 may be any suitable device for generating vacuum but is preferably a peristaltic pump, a scroll pump, or a vane pump” (id. at col. 2, ll. 64-66). 12. Hopkins discloses that in vacuum control mode, “pressure transducer 24 measures the actual vacuum in aspiration chamber 26 and provides a corresponding signal to microprocessor 38 … [which] in turn provides feedback signals to valves 16 and 18 … to maintain the vacuum at the desired level” (id. at col. 3, ll. 18-23). Principles of Law [A]s an initial matter, the PTO applies to the verbiage of the proposed claims the broadest reasonable meaning of the words in their ordinary usage as they would be understood by one of ordinary skill in the art, taking into account whatever enlightenment by way of definitions or otherwise that may be afforded by the written description contained in the applicant's specification. In re Morris, 127 F.3d 1048, 1054 (Fed. Cir. 1997). Analysis Hopkins discloses a microsurgical system capable of controlling aspiration that comprises a vacuum device and a vacuum sensor (pressure transducer, FF 9), as required by claim 1. Hopkins discloses that its system includes a flow controller (microprocessor 38) that, in vacuum control mode, Appeal 2011-013569 Application 12/275,875 7 adjusts the requested vacuum level based on the actual sensed vacuum level (FF 12). Hopkins also discloses that its system can control aspiration via a flow control mode (FF 3). Hopkins discloses that in flow control mode, the level of fluid in the aspiration chamber is determined and a suction flow rate is calculated based on the level of fluid (FF 5). Hopkins discloses that the pressure generated by the pressurized gas source and the vacuum generated by the vacuum generator are then modified to maintain the desired suction flow rate. Appellant argues that the Hopkins system does not include “a flow measurement device” because Hopkins‟ element 28 “is a fluid level sensor and not … a flow measurement device” (Appeal Br. 3). Appellant argues that “Hopkins does not and cannot measure flow, but rather must calculate an approximate estimate of a flow rate based on several different data points obtained and then plugged into an equation” (id. at 4). This argument is not persuasive. In accord with In re Morris, claim terms are given their broadest reasonable interpretation consistent with the Specification. Here, the Specification does not define the term “flow measurement device,” although it describes embodiments that comprise either a pair of electrodes in the path of fluid flow or a simple analogue output flow sensing component. Hopkins states that the output of the fluid level sensor is used to determine the rate of fluid flow (“[a] suction flow rate is calculated in response to the actual level of fluid,” FF 5). Thus, the fluid level in the aspiration chamber of Hopkins‟ system is indicative of the fluid flow rate, and Hopkins‟ fluid level sensor is within the broadest reasonable Appeal 2011-013569 Application 12/275,875 8 interpretation of “a flow measurement device configured to generate a signal indicative of the rate at which fluid flow is aspirated” (claim 1). Appellant also argues that Hopkins “requires the use of at least two pumps, 22 and 30 to generate and control fluid flow based on a desired vacuum level or a desired flow rate. Vacuum generator 22 is used to generate a vacuum level … but to control fluid flow rate, a peristaltic pump 30 is required to be used in conjunction with a pressure transducer, a fluid level sensor, and a microprocessor.” (Appeal Br. 5.) Appellant argues that “[t]he claimed invention in contrast, only claims one vacuum device and provides two different feedback loops to control the vacuum level or the flow rate using the same vacuum device” (id.). This argument is unpersuasive because claim 1 uses the transition term “comprising” and is therefore open to other system components, such as a peristaltic pump. See CIAS, Inc. v. Alliance Gaming Corp., 504 F.3d 1356, 1360 (Fed. Cir. 2007) (“In the patent claim context the term „comprising‟ is well understood to mean „including but not limited to‟.”). Hopkins discloses that a desired suction flow rate is created in an aspiration chamber using a vacuum generator, among other things, and that the vacuum generator is modified to maintain the desired suction flow rate (FF 5). Thus, Hopkins‟ system includes the vacuum device required by claim 1. Appellant also argues that Hopkins “does not teach adjusting a vacuum of the vacuum device to achieve a desired flow rate, as claimed” (Appeal Br. 5). This argument is not persuasive. Hopkins expressly discloses that, in the flow control mode, a “pressure generated by the pressurized gas source Appeal 2011-013569 Application 12/275,875 9 and a vacuum generated by the vacuum generator are modified to maintain the suction flow rate proximate the desired suction flow rate” (FF 5). Thus, we affirm the rejection of claim 1 as anticipated by Hopkins. Claims 2, 3, 5 and 7-10 have not been argued separately and therefore fall with claim 1. 37 C.F.R. § 41.37(c)(1)(vii). Appellant also argues that dependent claims 4 and 6 are not anticipated by Hopkins because “Hopkins only mentions obtaining vacuum and calculated flow data, and then adjusting accordingly without any mention of time averaging such data,” as required by claims 4 and 6 (Appeal Br. 5). We agree with Appellant that the Examiner has not adequately shown that Hopkins discloses a “time averaged vacuum signal” (claim 4) or a “a time averaged flow rate signal” (claim 6). The Examiner reasons that Hopkins provides “a disclosure of a fluid level sensor suitable for measuring the level [of] fluid within an aspiration chamber” (Answer 8) and that Hopkins “strongly indicates that flow rate is monitored over a period of time to determine a time averaged vacuum signal or flow rate signal” (id.). Thus, the Examiner appears to rely on a theory of inherency in finding that Hopkins discloses time-averaged signals, but “[i]nherency … may not be established by probabilities or possibilities. The mere fact that a certain thing may result from a given set of circumstances is not sufficient.” In re Oelrich, 666 F.2d 578, 581 (CCPA 1981). The Examiner has not adequately shown that Hopkins inherently – that is, necessarily – discloses the use of time- averaged signals, as required by claims 4 and 6. Appeal 2011-013569 Application 12/275,875 10 Conclusion of Law The evidence of record supports the Examiner‟s finding that Hopkins discloses an aspiration flow control system that comprises a flow measurement device and a flow rate controller configured to adjust a vacuum to achieve a desired aspiration flow rate, as required by claim 1. The evidence of record does not support the Examiner‟s finding that Hopkins discloses the time-averaged signals required by claims 4 and 6. SUMMARY We affirm the rejection of claims 1-3, 5, and 7-10 under 35 U.S.C. § 102(b). However, we reverse the rejection of claims 4 and 6. TIME PERIOD FOR RESPONSE No time period for taking any subsequent action in connection with this appeal may be extended under 37 C.F.R. § 1.136(a). AFFIRMED-IN-PART alw