Ex Parte Luebcke

Patent Trials and Appeals Board

Apr 9, 2019

13137043 - (D) (P.T.A.B. Apr. 9, 2019)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
13/137,043 07/18/2011
27910 7590 04/11/2019
STINSON LEONARD STREET LLP
ATTN: PATENT GROUP
1201 WALNUT STREET, SUITE 2900
KANSAS CITY, MO 64106-2150
FIRST NAMED INVENTOR
Peter Luebcke
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
ATTORNEY DOCKET NO. CONFIRMATION NO.
0810460. 0031 4585
EXAMINER
IP,JASONM
ART UNIT PAPER NUMBER
3793
NOTIFICATION DATE DELIVERY MODE
04/11/2019 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):
patent@stinson.com
USpatent2@stinson.com
PTOL-90A (Rev. 04/07)
UNITED ST ATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte PETERLUEBCKE1
Appeal2018-006108
Application 13/137,043
Technology Center 3700
Before JAMES P. CALVE,MICHAELJ. FITZPATRICK,and
JEREMY M. PLENZLER, Administrative Patent Judges.
CAL VE, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Appellant appeals under 35 U.S.C. § 134(a) from the Office Action
fmally rejecting claims 22--47, 49, and 50. See Appeal Br. 7. We have
jurisdiction under35 U.S.C. § 6(b).
We REVERSE.
1 Carewear Corp. is identified as the real party in interest. Appeal Br. 3.
Appeal 2018-006108
Application 13/137,043
CLAIMED SUBJECT MATTER
Claims 22 and 32 are independent. Claim 22 is reproduced below.
22. A method for the application of ultrasound to the
skin for the treatment of a dermatologic skin condition,
compnsmg:
applying to the skin a gel pad, gel cartridge or free
flowing gel comprising a composition that includes one or more
hyaluronan; and
applying ultrasound directly or indirectly to an area of the
skin where the gel pad, gel cartridge or free flowing gel has
been applied, or as a pre-treatment to an area of the skin to
which the gel pad, gel cartridge or free flowing gel is to be
applied, wherein the ultrasound is applied using a plurality of
dual frequency transducers each of which comprises a low
frequency transducer element that delivers low frequency
ultrasound in the range of 20 kHz to 500 kHz and a high
frequency transducer element that is different from the low
frequency transducer element and delivers high frequency
ultrasound in the range of0.5 MHz to 3.5 MHz, wherein the
spatial average power density of the low frequency ultrasound
energy is from 20 to 500 m W/cm2, wherein the dual frequency
transducers are driven in accordance with a treatment protocol
for a dermatologic skin condition so as to deliver a desired
sequence oflow and high frequency ultrasound to the skin
under treatment whereby an ultrasound field moves across the
ultrasound transducer elements in a preset pattern and at a
preset speed to treat the dermatologic skin condition.
REJECTIONS
Claims 22-28, 30-35, 37--47, 49, and 50 are rejected under 35 U.S.C.
§ 103(a) as unpatentable over Nunomura(US 2004/0010222 Al, pub. Jan.
15, 2004), Shokrollahi (US 6,200,266 Bl, iss. Mar. 13, 2001), and Azuma,
"Dual Frequency Array Transducer for Ultrasonic-Enhanced Transcranial
Thrombolysis," IEEE Ultrasonics Symposium, vol. 1, 680-83, Oct. 2003.
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Appeal 2018-006108
Application 13/137,043
Claims 29 and 36 are rejected under 35 U.S.C. § 103(a) as
unpatentable over Nunomura, Shokrollahi, Azuma, and Gott (US 2003/
0206940 Al, pub. Nov. 6, 2003).
ANALYSIS
Claims 22-28, 30-35, 37--47, 49, and 50
As Unpatentable Over Nunomura, Shokrollahi, and Azuma
Regarding independent claims 22 and 32, the Examiner finds that
Nunomura teaches a method of treating a dermotologic skin condition by
applying a gel ofhyaluronan to the skin and applying ultrasound directly to
an area of the skin where the gel is applied. Final Act. 2-3. The Examiner
fmds that Nunomura does not teach the use of a plurality of transducers to
deliver ultrasound in a preset pattern and at a preset speed, but Shokrollahi
teaches to use a phased array of ultrasound transducers to deliver ultrasound.
Id. at 3 ( citing Shokrollahi, 22 :4--7). The Examiner determines that it would
have been obvious to "apply the phased array of Shokrollahi to the device of
Nunomura, as to provide an array of transducers." Id.; see Ans. 7-8.
The Examiner fmds that neither Nunomura nor Shokrollahi use dual
frequency transducers to deliver sequenced ultrasound in a high frequency
range of 0. 5-3. 5 MHz and a low frequency range of 20-500 kHz with spatial
average power density of20-500mW/cm2 forthe low frequencyrange. Id.
The Examiner fmds that Azuma teaches a tunable dual frequency transducer
with one element emitting low frequency ultrasound and another element
emitting a higher frequency ultrasound. Id. The Examiner determines that it
would have been obvious to apply the dual-frequency transducer of Azuma
to Nunomura "to provide application of dual frequencies" where Nunomura
is tuned to a specific frequency and power range to optimize therapy. Id.
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Appeal 2018-006108
Application 13/137,043
Appellant argues that the Examiner did not provide any rationale as to
why a skilled artisan would apply an array of Shokrollahi' s imaging system
to the Nunomura device, which does not require imaging capability. Appeal
Br. 12, 15. Appellant argues that Shokrollahi's ultrasound imaging system
uses transducers to produce high-resolution images of anatomical structures
for medical imaging, not for therapeutic purposes as in Nunomura. Id. at 12.
Obviousness rejections cannot be "sustained by mere conclusory
statements; instead, there must be some articulated reasoning with some
rational underpinning to support the legal conclusion of obviousness." KSR
Int 'l Co. v. Teleflex Inc., 550 U.S. 398, 418 (2007) ( quoting In re Kahn, 441
F.3d 977,988 (Fed. Cir. 2006)). Here, the Examiner determines it would
have been obvious to one of ordinary skill in the art "to apply the phased
array of Shokrollahi to the device ofNunomura, as to provide an array of
transducers." Final Act. 3 ( emphasis added). This reasoning is conclusory.
It lacks a rational underpinning, i.e., evidence or technical reasoning that
explains why a skilled artisan would have been motivated to include an array
of ultrasound transducers on the handheld device ofNunomura, particularly
when Shokrollahi teaches the use of such an array for imaging, and claim 22
and Nunomura apply ultrasound for medical treatment as Appellant argues.
Appellant also argues that the Examiner does not articulate a reason to
apply the dual frequencies of Azuma to Nunomura and Skokrollahi because
Azuma teaches a probe with one array of transducers at a low frequency to
treat transcranial thrombolysis (not to treat a dermatologic skin condition as
Nunomura does) overlaid with an imaging array of transducers for medical
imaging (not for therapeutic purposes as Nunomura does). Appeal Br. 13.
Appellant argues that Nunomura does not require imaging. Id. at 13, 15.
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Appeal 2018-006108
Application 13/137,043
The Examiner's reason for combining Azuma's dual frequency
transducer with the system of Nunomura and Shokrollahi "as to provide
application of dual frequencies" (Final Act. 3) is conclusory and therefore
lacks a rational underpinning. The fact that Nunomura is tuned to a specific
frequency and power range to optimize the effectiveness of its therapy does
not explain why a skilled artisan would have been motivated to use a dual
frequency of Azuma, which is used to treat transcranial thrombolysis and
provide imaging capability, on the modified device ofNunomura, which
does neither. Appeal Br. 13, 15. Thus, we do not sustain the rejection of
independent claims 22 and 32 or claims 23-28, 30, 31, 33-35, 37--47, 49,
and 50, which depend therefrom.
Claims 29 and 36
As Unpatentable Over Nunomura, Shokrollahi, Azuma, and Gott
The Examiner's reliance on Gott to teach features recited in claims 29
and 36 (Final Act. 7) does not cure deficiencies ofNunomura, Shokrollahi,
and Azuma as to claims 22 and 32, from which claims 29 and 36 depend
respectively. Accordingly, we do not sustain the rejection of these claims.
DECISION
We reverse the rejections of claims 22--47, 49, and 50.
REVERSED
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