Ex Parte MALLIN et al

Patent Trials and Appeals BoardMar 26, 2019

14154747 - (D) (P.T.A.B. Mar. 26, 2019)

UNITED STA TES p A TENT AND TRADEMARK OFFICE APPLICATION NO. FILING DATE FIRST NAMED INVENTOR 14/154,747 01/14/2014 George D. MALLIN 89554 7590 03/28/2019 Christopher & Weisberg, P.A. 1232 N. University Drive Plantation, FL 33322 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. 21819-383U - C00002816.U CONFIRMATION NO. 7546 EXAMINER HUPCZEY, JR, RONALD JAMES ART UNIT PAPER NUMBER 3794 NOTIFICATION DATE DELIVERY MODE 03/28/2019 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): ptomail@cwiplaw.com rs.patents.five@medtronic.com cwdocketing@cardinal-ip. com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte GEORGE D. MALLIN and CLAUDIA LUECKGE Appeal 2018-006668 1 Application 14/154,7472 Technology Center 3700 Before BIBHU R. MOHANTY, KENNETH G. SCHOPPER, and ROBERT J. SILVERMAN, Administrative Patent Judges. SCHOPPER, Administrative Patent Judge. DECISION ON APPEAL This is an appeal under 35 U.S.C. Â§ 134 from the rejection of claims 1-20. We have jurisdiction under 35 U.S.C. Â§ 6(b ). We REVERSE. 1 Our decision references the Appeal Brief ("Appeal Br.," filed Dec. 12, 2017), the Reply Brief ("Reply Br.," filed June 14, 2018), the Examiner's Answer ("Ans.," mailed Apr. 20, 2018), and the Final Office Action ("Final Act.," mailed Aug. 31, 2017). 2 According to Appellants, the real party in interest is Medtronic CryoCath LP. Appeal Br. 3. Appeal 2018-006668 Application 14/154,747 BACKGROUND According to Appellants, "[t]he invention relates to a cryoablation method and system for creating radial-linear lesions to treat atrial fibrillation originating from within or proximate a pulmonary vein." Spec. ,r 3. CLAIMS Claims 1, 12, and 18 are the independent claims on appeal. Claim 1 is illustrative of the appealed claims and recites: 1. A medical device comprising: a first balloon; a second balloon disposed about the first balloon; and one or more splines disposed between the first balloon and second balloon, each spline defining three fluid delivery ports at each of a plurality of locations, the three fluid delivery ports at each of the plurality of locations being radially separated from each other by 120Â°. Appeal Br. 18. REJECTIONS 1. The Examiner rejects claims 1-17 under 35 U.S.C. Â§ 103 as unpatentable over Abboud 3 in view of Babkin, 4 Wittenberger, 5 and Lehman. 6 2. The Examiner rejects claims 18-20 under 35 U.S.C. Â§ 103 as unpatentable over Abboud in view of Babkin, Wittenberger, Lehman, and Lafontaine. 7 3 Abboud et al., US 7,794,455 B2, iss. Sept. 14, 2010. 4 Babkin et al., US 2013/0345688 Al, pub. Dec. 26, 2013. 5 Wittenberger et al., US 6,106,518, iss. Aug. 22, 2000. 6 Lehman et al., US 2002/0062122 Al, pub. May 23, 2002. 7 Lafontaine, US 8,012,147 B2, iss. Sept. 6, 2011. 2 Appeal 2018-006668 Application 14/154,747 DISCUSSION We are persuaded of reversible error in the rejections of each of the independent claims, as discussed below. With respect to each of the independent claims, the Examiner relies on Abboud as disclosing a medical device with a first balloon, a second balloon, and a plurality of splines with a plurality of ports for the injection of fluid into a chamber defined by the first balloon. See, e.g., Final Act. 3. The Examiner acknowledges that Abboud does not teach that each spline includes three ports spaced at 120Â° apart (claim 1) or ports symmetrically radially spaced around the entirety of the circumference of the spline ( claims 12 and 18). Id. The Examiner relies on a combination of teachings from Babkin, Wittenberger, and Lehman to cure this deficiency in Abboud. 8 Id. In relevant part, the Examiner finds that Wittenberger discloses providing for a plurality of fluid ports along a spline and that Lehman discloses varying the number of ports (up to 3) at a given location. Id. at 4 (citing Wittenberger Fig. 19; Lehman Figs. 14--16). The Examiner concludes: Therefore, it is the Examiner's position that it would have been obvious to one of ordinary skill in the art at the time the invention was made to utilize a plurality of ports along the length of the spline in Abboud as taught by Wittenberger so as to provide for increased control and dispersion of cryogenic fluid within each spine (see col. 9; 3-7 ofWittenberger). The Examiner is further of the position that it would have been obvious to include three ports at each location in view of the teaching in Lehman to further provide for even dispersion and cooling of the entirety of each spline. Lehman readily contemplates the varying between a single port at a location to three ports at a location ( as in figures 8 We note that the Examiner's reliance on Lefontaine with respect to claim 18 is not applicable to the issues addressed herein. See Final Act. 13. 3 Appeal 2018-006668 Application 14/154,747 14-16). Furthermore, the provision of 120 degrees between each of the three ports at the location would be an obvious consideration to one in the art to evenly place the three ports about the circumference of the injection tube of the spline of Abboud. Final Act. 4--5. We agree with Appellants that the Examiner has failed to establish that the proposed combination of art would result in a device or method as claimed. See Appeal Br. 10-13. In particular, we agree that the Examiner has not established that the proposed combination of art would result in 3 ports that are 120Â° apart ( claim 1) or ports symmetrically radially spaced around the entirety of the circumference of the spline (claims 12 and 18). The Examiner finds that it would have been obvious to include three ports at each location along the spline "in view of the teaching in Lehman to further provide for even dispersion and cooling of the entirety of each spline." Final Act. 4. Lehman teaches that the ports may be placed to direct cooling fluid at thermally transmissive elements and that the shapes and number of ports can be configured depending on the transmissive elements. See Lehman ,r 65, 67. Thus, Lehman appears to contemplate directing ports around the entire circumference of a single catheter, which may have treatment areas surrounding its entire circumference. However, we disagree that this would have led one of ordinary skill in the art to place ports as required by the claims here. In particular, we fail to see why one of ordinary skill in the art would have had a reason to place ports around the entire circumference of a spline as taught by Abboud. The Examiner asserts that this would allow for even dispersion and cooling of the entirety of each spline. However, the Examiner does not adequately explain why that would be desirable in the combined device. Specifically, the Examiner does not adequately explain 4 Appeal 2018-006668 Application 14/154,747 why one of ordinary skill in the art would have had a reason to space the ports around the entire circumference of each spline in Abboud, where doing so would necessarily direct a significant portion of the cryoablation fluid toward the interior of the balloon and away from potential treatment areas. Put another way, because the entire circumference of each spline would not be surrounded by a treatment area, one of ordinary skill in the art would not have had a reason to direct treatment fluid evenly around the entire circumference of the spline. Based on the foregoing, we are persuaded of error in the rejections of each of independent claims 1, 12, and 18. For the same reasons, we are persuaded of error in the rejections of dependent claims 2-11, 13-17, 19, and 20. Accordingly, we do not sustain the rejections of claims 1-20. CONCLUSION We REVERSE the rejections of claims 1-20. REVERSED 5