Ex Parte Martin et al

Patent Trial and Appeal Board

Oct 10, 2017

11970005 (P.T.A.B. Oct. 10, 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.
11/970,005 01/07/2008 Keith Edward Martin 4013301-196075 2188
23570 7590 10/12/2017
PORTER WRIGHT MORRIS & ARTHUR, LLP
INTELLECTUAL PROPERTY GROUP
41 SOUTH HIGH STREET
29TH FLOOR
COLUMBUS, OH 43215
EXAMINER
HUPCZEY, JR, RONALD JAMES
ART UNIT PAPER NUMBER
3739
NOTIFICATION DATE DELIVERY MODE
10/12/2017 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):
ipdocket @ porterwright .com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte KEITH EDWARD MARTIN and SALVOTORE PRIVITERA
Appeal 2016-007709
Application 11/970,005
Technology Center 3700
Before JEFFREY N. FREDMAN, TAWEN CHANG, and RYAN H. FLAX,
Administrative Patent Judges.
FREDMAN, Administrative Patent Judge.
DECISION ON APPEAL
This is an appeal1 under 35 U.S.C. § 134(a) involving claims to a
tissue ablation system. The Examiner rejected the claims as anticipated and
as obvious. We have jurisdiction under 35 U.S.C. § 6(b). We reverse.
Statement of the Case
Background
It is known to use bipolar RF energy devices that clamp tissue
between opposed electrodes and apply RF energy to heat tissue
to form . . . strategically located lines of ablation in cardiac
tissue to block spurious electrical signals to the heart, which has
been particularly beneficial in the treatment of atrial fibrillation.
(Spec. 13).
1 Appellants identify the Real Party in Interest as AtriCure, Inc. (see App.
Br. 5).
Appeal 2016-007709
Application 11/970,005
“As the moisture in the tissue conducts the RF energy, the tissue
begins to desiccate. As the tissue desiccates it becomes more resistive” (id.
14). “Surface desiccation increases resistance in the tissue and can make it
more difficult to achieve good depth of penetration in underlying tissue
without creating a larger than desired area of ablated tissue or excessive
surface heating adjacent to the electrodes” (id. ).
The Claims
Claims 38—71 are on appeal. Independent claim 38 is representative
and reads as follows:
38. A tissue ablation system comprising:
an energy generator;
a plurality of ablation energy sources adapted to be
positioned in proximity to tissue to be ablated, each energy
source being in operative communication with the generator,
each source when activated generating an energy field, the
sources being relatively positioned so that the energy fields of
the sources partially overlap;
a control system operatively associated with the
generator and sources, and configured to alternately activate
and deactivate the sources so that a substantially constant
energy field is created in the area of overlap.
The Issues2
A. The Examiner rejected claims 38, 40-42, 45—50, 56—60, 63, and 68—
71 under 35 U.S.C. § 102(b) as anticipated by Ryan3 (Final Act. 3—10).
2 The Examiner withdrew a rejection under 35 U.S.C. § 112, second
paragraph, and claim 74 was solely rejected on this ground and is, therefore,
no longer on appeal. (See Ans. 3).
3 Ryan, US 6,152,923, issued Nov. 28, 2000.
2
Appeal 2016-007709
Application 11/970,005
B. The Examiner rejected claims 43, 44, 61, and 62 under 35 U.S.C.
§ 103(a) as obvious over Ryan and Hooven4 (Final Act. 11).
C. The Examiner rejected claim 67 under 35 U.S.C. § 103(a) as obvious
over Ryan (Final Act. 12).
D. The Examiner rejected claims 39, 51—53, and 64—66 under 35 U.S.C.
§ 103(a) as obvious over Ryan and Stem5 (Final Act. 12—14).
E. The Examiner rejected claims 54 and 55 under 35 U.S.C. § 103(a) as
obvious over Ryan and Schechter6 (Final Act. 14).
A. 35 U.S.C. § 102(b) over Ryan
The Examiner finds:
Ryan discloses a tissue ablation system comprising ... an
energy generator (generator 70), a plurality of ablation energy
sources adapted to be positioned in proximity to tissue to be
ablated (electrodes 41a-c, 43a-c), each energy source being in
operative communication with the generator (via the individual
lines for each electrode 45a-c, 46a-c), each source when
activated generating an energy field (via the connection to the
generator 70), the sources being relatively positioned so that the
energy fields of the sources partially overlap (via the relative
location of each of the sources of 41a-c and 43a-c adjacent one
another as displayed in the figures with the capability of
overlap shown in the later activation patterns of the electrodes
such as in figure 1 IB), a control system operatively associated
with the generator and sources (switch 71 associated with the
generator 70), and configured to alternately activate and
deactivate the sources so that a substantially constant energy
field is created in the area of overlap (the functionality of the
switch 71 to activate the various sources as disclosed in col. 6;
4 Hooven, US 2004/0068274 Al, published Apr. 8, 2004.
5 Stem et al., US 5,443,463, issued Aug. 22, 1995.
6 Schechter et al., US 2004/0143263 Al, published July 22, 2004.
3
Appeal 2016-007709
Application 11/970,005
5-22 and 56-67 in “various combinations” and such that “other
activation sequences can be easily employed by selectively
controlling switch 71”).
(Final Act. 3—4).
The issue with respect to this rejection is: Does the evidence of
record support the Examiner’s conclusion that Ryan teaches a control system
that is either “configured to alternately activate and deactivate the sources so
that a substantially constant energy field is created in the area of overlap” as
required by claim 38 or to “create at least one flux zone of primary heating”
as required by claim 57?
Findings of Fact
1. Figure 2 of Ryan is reproduced below:
As best seen in FIG. 2, each electrode 41 a, 41 b, 41 c and 43a,
43b, 43c is electrically coupled to a switch 71 by a cable 45a,
45b, 45c and 46a, 46b, 46c, respectively. The switch 71 is
electrically coupled to an electrosurgical generator 70 by cable
4
Appeal 2016-007709
Application 11/970,005
73. Preferably, switch 71 selectively imparts different electrical
potentials to specific electrodes 41 a, 41 b, 41 c and 43a, 43b,
43c, respectively.
(Ryan 5:1—7).
2. Ryan teaches “switch 71 (FIG. 2) selectively controls each
individual electrode and can activate the electrodes 41 a, 41 b, 41 c, 43a, 43b,
43c simultaneously, sequentially, in pairs, and/or in various combinations”
(Ryan 6:5—8).
3. Ryan teaches “several electrode activation schemes for sealing,
cauterizing, coagulating and/or cutting tissue 51” (Ryan 6:9—10).
4. Figure 1 IB of Ryan is reproduced below:
.441%
A-Aua fflcAg
- : I 4$Qb
440c. 44QK. ,44?& 440ttI1—y
4436 4426 E442a
FIG. 9A
U2c'
448c,. 4406 ,44/5 ,440b
44?c£g3 ^ £3^441 a
i _i
/M t=fx'443tt 4426
443c -^Ed ) l
4436442c'
FIG. 9B
440c. 4406 ,4446 r4jQa
441 ^ F^---44/a
(Zl . j| j-y& ... j
443c'"£3 \==^-443a
442c' 4436 4426 W
FIG. 9C
540c x 5406. 54 f6 J40a
s4?c-/o A:/! EH«»
S^o- &-84/b
3\ /lift, __3 I T E643c
643c ■
842c
c8m 3
843a r<
8436 8426 lg4ga
FIG. 13A
FIG. 11B
840c. 8406. 84/6 g^a
84