Ex Parte McNeela et al

Patent Trial and Appeal BoardJan 4, 2019

14096083 (P.T.A.B. Jan. 4, 2019)

UNITED STA TES p A TENT AND TRADEMARK OFFICE APPLICATION NO. FILING DATE 14/096,083 12/04/2013 26356 7590 01/08/2019 ALCON IP LEGAL 6201 SOUTH FREEWAY FORT WORTH, TX 76134 FIRST NAMED INVENTOR Martin Anthony McNeela 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. PAT903830-US-NP 2244 EXAMINER DAVID, SHAUN L ART UNIT PAPER NUMBER 3771 NOTIFICATION DATE DELIVERY MODE 01/08/2019 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. docketing@alcon.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte MARTIN ANTHONY McNEELA, MIKHAIL BOUKHNY, and KURT D. LEUKANECH Appeal2017-009220 Application 14/096,083 1 Technology Center 3700 Before ERIC B. GRIMES, JOHN G. NEW, and ELIZABETH A. LA VIER, Administrative Patent Judges. LA VIER, Administrative Patent Judge. DECISION ON APPEAL Pursuant to 35 U.S.C. Â§ 134(a), Appellants seek review of the Examiner's rejections of claims 1-20. We have jurisdiction under 35 U.S.C. Â§ 6(b ). For the reasons set forth below, we AFFIRM. BACKGROUND The Specification relates to "control systems and methods for automated intraocular lens injectors for use in ophthalmic treatments." Spec. ,r 1. Claim 1 is illustrative, and recites: 1 Appellants identify the real party in interest as Novartis AG. Appeal Br. 2. Appeal2017-009220 Application 14/096,083 1. A system for implanting an intraocular lens in a lens capsule of an eye to treat an ocular condition, the system comprising: a housing having a primary axis extending between front and rear ends of the housing; a plunger longitudinally disposed within the housing and having first and second ends, the first end being disposed towards the front end of the housing; an electric motor configured to cause longitudinal translation of the plunger along the primary axis of the housing; a cartridge mount at or near the front end of the housing and configured to accommodate a removable insertion cartridge in alignment with the plunger so that an intraocular lens disposed in the insertion cartridge is displaced from the insertion cartridge as the plunger is translated towards the front end of the housing; and a control circuit comprising a controller electrically communicating with the electric motor and configured to power the electric motor to translate the plunger and displace the intraocular lens, the controller configured to detect motor current feedback in the control circuit and configured to compare the detected motor current feedback to a stored current profile and to modify translation of the plunger when a level of the motor current feedback deviates from the stored current profile by a pre-stored amount. Appeal Br. 10 (Claims Appendix) (emphasis added). REJECTIONS MAINTAINED ON APPEAL 1. Claims 1, 2, 7-13, 19, and 20 stand rejected under pre-AIA 35 U.S.C. Â§ I02(a) or I02(e) as anticipated by Cole. 2 Ans. 2. 2 Cole et al., US 2011/0264102 Al, published Oct. 27, 2011. 2 Appeal2017-009220 Application 14/096,083 2. Claims 3-6 and 14--18 stand rejected under pre-AIA 35 U.S.C. Â§ I03(a) as unpatentable over Cole and Chechelski. 3 Ans. 2. DISCUSSION A. Re} ection 1 Appellants focus their arguments on disputing the Examiner's findings that Cole teaches the "motor current feedback" and "stored current profile" recited in claim 1. Appeal Br. 7. Appellants assert that Cole's recitation of voltage4 sensors (see Cole ,r 80) does not include a description of the voltage sensors' location or function, nor an explanation of what voltage the sensors are measuring. Appeal Br. 7. Appellants argue: For example, these voltage sensors could be associated with the components in the system that provide the vacuum and temperature measurements. If Cole doesn't teach the location/function of the voltage sensors then if follows that Cole does not teach that these voltage sensors are used to detect "motor current feedback" for the electric motor delivering the IOL.[ 5] Id. We are not persuaded. This interpretation of Cole is overly restrictive insofar as Cole expressly contemplates electrical power sources among the types of pressure sources for its IOL delivery device. See, e.g., Cole ,r 71- 72. Accordingly, we find that Cole's reference to voltage sensors (see id. at ,r 80), when taken in context, encompasses a voltage sensor used to measure output from an electrical power source. 3 Chechelski et al., US 2007/0225615 Al, published Sept. 27, 2007. 4 Appellants do not dispute the Examiner's finding (see Final Action 4) that a voltage sensor is necessarily also a current sensor, per Ohm's law. 5 IOL = intraocular lens. 3 Appeal2017-009220 Application 14/096,083 Cole's inclusion of electrical power sources and their associated sensors likewise undermines Appellants' related argument that "there is no apparent need in Cole for a voltage reading from the IOL delivery motor" because "Cole's IOL delivery embodiments focus on monitoring pressure via pressure sensor 502." Appeal Br. 7 (citing Cole ,r,r 58, 63). As Cole makes clear, its devices "may include one, two, or all three of the pressure sources," which Cole describes as "pressure,"6 "fluidics," and "electric." Cole ,r 71. Appellants' undue focus on the pressure sensor embodiments of Cole (see Appeal Br. 8) likewise renders unpersuasive their argument that Cole fails to teach claim 1 's "stored current profile." Because Cole also teaches voltage sensors and electrical power sources, Cole's discussion regarding the use of sensor feedback and the comparison with stored parameters (see Cole ,r 81) likewise supports the Examiner's finding that "detecting voltage and adjusting parameters would be analogous to detecting current and adjusting parameters" and "is inherent in Cole's disclosure" (Final Action 4 ). Having considered each of Appellants' arguments in favor of the patentability of claim 1, we are not persuaded of any reversible error by the Examiner in rejecting claim 1. Therefore, for the reasons discussed above and those already of record in the Final Action (see id. at 3-5), we affirm the rejection under Â§ 102 of claim 1 as anticipated by Cole. Appellants offer no separate arguments for claims 2, 7-13, 19, and 20; these fall with claim 1. See 37 C.F.R. Â§ 4I.37(c)(l)(iv). 6 For context as to Cole's "pressure source" providing "pressure" ( Cole ,r 71 ), we note that Cole previously describes the pressure source 510 as configurable to supply hydraulic or pneumatic pressure (id. ,r 70). 4 Appeal2017-009220 Application 14/096,083 B. Rejection 2 Appellants argue Rejection 2 only by way of reference back to arguments made regarding Rejection 1. These arguments are equally unpersuasive as applied to Rejection 2, and thus we affirm the rejection of claims 3---6 and 14--18 under Â§ 103. CONCLUSION The rejections of claims 1-20 are affirmed. No time period for taking any subsequent action in connection with this appeal may be extended under 37 C.F.R. Â§ 1.136(a)(l )(iv). AFFIRMED 5