Ex Parte Wong et al

Patent Trial and Appeal Board

Mar 2, 2017

12613591 (P.T.A.B. Mar. 2, 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.
12/613,591 11/06/2009 Wayne S. Wong 27750USO 6642
33357 7590 03/06/2017
ABBOTT MEDICAL OPTICS INC.
1700 E. ST. ANDREW PLACE
SANTA ANA, CA 92705
EXAMINER
STEVENS, THOMAS H
ART UNIT PAPER NUMBER
2126
NOTIFICATION DATE DELIVERY MODE
03/06/2017 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):
PatentMGR@ abbott.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte WAYNE S. WONG, MICHAEL J. CLAUS, TIMOTHY
HUNTER, ABRAHAM HAJISHAH and JEREMY T. LINKS
Appeal 2016-007731
Application 12/613,5911
Technology Center 2100
Before CAROLYN D. THOMAS, JEFFREY S. SMITH, and
TERRENCE W. MCMILLIN, Administrative Patent Judges.
MCMILLIN, Administrative Patent Judge.
DECISION ON APPEAL
This is a decision on appeal under 35 U.S.C. § 134(a) of the Final
Rejection of claims 1—3, 5—15, 17—20, and 24^40. Final Act. 1. We have
jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM.
1 According to Appellants, the real party in interest is Abbott Medical Optics
Inc. (App. Br. 2).
Appeal 2016-007731
Application 12/613,591
REJECTIONS ON APPEAL
Claims 1—3, 5—15, 17—20, and 24-40 stand rejected under pre-AIA 35
U.S.C. § 102(b) as being anticipated by Boukhny (US 2006/0114175 Al,
published June 1, 2006).
THE CLAIMED INVENTION
The present invention generally relates to “medial apparatuses” and
more particularly to “foot-operated controls for surgical apparatuses.” Spec.
11. Independent claims 1, 8, 20, 28, and 39 are directed to methods; and
independent claim 36 is directed to a foot pedal. App. Br. 30, 31, 33, 35—37.
Claim 1 recites
1. A method for programming one or more foot pedal
settings, comprising:
selecting a switch or a directional movement of a treadle
located on a foot pedal;
displaying a plurality of pre-programmed setting
selections for the selected switch or directional movement of
the treadle on a display, wherein the plurality of pre­
programmed setting selections is selected from the group
consisting of irrigation, aspiration, ultrasonic power,
vitrectomy, bottle height, pump speed, pump type, flow rate,
and vacuum level;
toggling through pre-programmed setting selections
displayed on the display to facilitate selection of one of the
plurality of pre-programmed setting selections, wherein the
toggling is performed by moving the treadle; and
selecting one of the pre-programmed setting selections
displayed on the display to represent the selected switch or
directional movement of the treadle; and
repeating said toggling and selecting one of the plurality
of pre-programmed setting selections to be represented by
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Appeal 2016-007731
Application 12/613,591
additional selected switches or directional movements of the
treadle.
ANALYSIS
We have reviewed the Examiner’s rejections in light of Appellants’
arguments that the Examiner erred. We are not persuaded that Appellants
identify reversible error. Upon consideration of the arguments presented in
the Appeal Brief and Reply Brief, we agree with the Examiner that all the
pending claims are unpatentable over the cited combination of references.
We adopt as our own the findings and reasons set forth in the rejection from
which this appeal is taken and in the Examiner’s Answer, We provide the
following explanation to highlight and address specific arguments and
findings primarily for emphasis.
Claims 1—3, 5—15, 17—20, and 24^-27
Appellants contend claim 1 requires establishing settings “using the
toggling capability of the foot pedal,” but Boukhny “only allows the user to
employ foot pedal yaw during a medical procedure according to pre­
programmed settings and does not disclose or suggest initial establishment
of settings using the foot pedal.” App. Br. 22. Specifically, Appellants
argue that Boukhny does not describe “toggling through pre-programmed
setting selections displayed on the display to facilitate selection of one of the
plurality of pre-programmed setting selections, wherein the toggling is
performed by moving the treadle; and selecting one of the pre-programmed
setting selections displayed on the display to represent the selected switch or
directional movement of the treadle,” as recited in claim 1. See App. Br.
23—25 (emphases added). In response, the Examiner finds Boukhny
describes “a user toggling through pre-programmed settings via a foot
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Appeal 2016-007731
Application 12/613,591
pedal” and “said user using said foot pedal to initialize various parameters to
execute said parameter settings.” Ans. 5. The Examiner further finds the
claim does not require initial establishment of settings using the foot pedal
as argued by Appellants. Id. We agree with the Examiner.
As cited by the Examiner, Boukhny discloses:
[0041] Embodiments provide a system and method for
displaying and controlling operation parameters of a
phacoemulsification surgical device. Exemplary parameters
include aspiration flow rate, vacuum limit pressure and various
power level parameters, such as minimum and maximum power
(expressed as a % of maximum power), on time and off time.
One or more representations of parameters are displayed on a
display screen, such as a computer monitor or a screen of an
integrated device or controller (generally, “display screen”),
using a graphical user interface (generally “interface”). The
surgeon controls the surgical device using a controller, such as
a foot pedal or foot switch, which controls the operation of the
surgical devices according to the corresponding operating
parameters and parameter values represented on the display
screen during different stages of a surgical procedure. The
graphic representations can be easily and quickly programmed,
monitored and manipulated by a surgeon. The representations
can be adjusted to customize control over the operation of
surgical devices and to provide specific operating parameter
values or ranges of values during different stages of the
procedure based on, for example, depression of the foot pedal.
More particularly, the value and/or function of the parameters
can change as the foot pedal is pressed to different levels, thus
invoking a programmed set of operating parameters and values
that appear on the display screen, relative to a particular
controller position to control the surgical device. Embodiments
provide these enhancements without the visual and functional
complexities that would otherwise be associated with adding
such capabilities to known interfaces.
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Appeal 2016-007731
Application 12/613,591
[0045] For purposes of initially describing and illustrating the
arrangements and adjustments to representations of surgical
device parameters, FIGS. 1-11 show the foot pedal
representation as being stationary, however, persons skilled in
the art will appreciate that as the foot pedal is pressed to different
positions, the foot pedal representation moves, and different
operating parameters and values of operating parameters are
invoked to control the surgical device. Pressing and releasing
the foot pedal to different levels horizontally displaces the
controller representation 110 along the scale 112 to apply
various parameter values that are displayed on the interface
relative to the foot pedal position. This specification refers to the
foot pedal and foot pedal representation 110 occupying different
positions or ranges of positions, which trigger surgical
parameters depending, as controlled by the first pedal position
actions. Various stages of surgical procedures correspond to
various sets of the parameters. These sets of parameters can be
accessed by pressing corresponding icons in the low row on the
screen...
Boukhny ^ 41, 45 (emphasis added). In other words, Boukhny describes
toggling through pre-determined settings using a foot pedal to select a
setting that is associated with the foot pedal position. As such, Boukhny
describes using a foot pedal to toggle through settings and selecting a setting
that represents a foot pedal position.
Appellants have not provided persuasive evidence that toggling
through pre-programmed setting selections by moving a foot pedal treadle
and selecting one of the setting selections displayed to represent the foot
pedal’s directional movement, as required by claim 1, is not taught or
otherwise suggested by Boukhny’s toggling through pre-programmed setting
selections by moving the foot pedal and selecting one of the settings
associated with the foot pedal position.
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Appeal 2016-007731
Application 12/613,591
Accordingly, we sustain the § 102 rejection of independent claim 1, as
well as the rejection of commensurate independent claims 8 and 20 and
dependent claims 2, 3, 5—7, 9—15, 17—19, and 24—27, not separately argued.
See App. Br. 21, 28.
Claims 28—40
Appellants contend Boukhny does not describe the “switch/mode
related to the switch functionality for perpendicular axes of a foot pedal as
claimed” and “provides no more than a general invitation to provide
different foot pedal functionality with nothing more.” App. Br. 28.
Specifically, Appellants argue Boukhny does not describe “moving a treadle
of the foot pedal to a first location within a directional axis selected from the
group consisting of pitch and yaw, wherein the first location activates a first
pre-programmed memory setting; and moving the treadle within a plane
perpendicular to the directional axis of the first location to activate one or
more control settings of the first pre-programmed memory setting,” as
recited in claim 28. App. Br. 27—28 (emphasis added). In response, the
Examiner finds Boukhny’s foot pedal pressing describes changing the
vertical plane to different levels to a first location representing control
settings. See Ans. 9—10. We agree with the Examiner.
As cited by the Examiner, Boukhny discloses:
...Pressing and releasing the foot pedal to different levels
horizontally displaces the controller representation 110 along
the scale 112 to apply various parameter values that are
displayed on the interface relative to the foot pedal position.
This specification refers to the foot pedal and foot pedal
representation 110 occupying different positions or ranges of
positions, which trigger surgical parameters depending, as
controlled by the first pedal position actions. Various stages of
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surgical procedures correspond to various sets of the parameters.
These sets of parameters can be accessed by pressing
corresponding icons in the low row on the screen....
Boukhny 145 (emphasis added). In other words, Boukhny describes the
foot pedal moving to different positions to trigger surgical parameters as
controlled by the first pedal positions’ actions. As such, Boukhny describes
moving the foot pedal to control settings, and then further moving the foot
pedal to various positions to vary settings.
Appellants have not provided persuasive evidence that moving the
foot pedal to a first location activating a settings and then moving the food
pedal along to activate settings from that first location’s activated setting, as
required by claim 28, is not taught or otherwise suggested by Boukhny’s
moving of the foot pedal to control first pedal position actions and then
moving the foot pedal to various positions to further control the settings.
Accordingly, we sustain the § 102 rejection of independent claim 28,
as well as the rejection of commensurate independent claims 36 and 39 and
dependent claims 29—35, 37, 38, and 49, not separately argued. See App. Br.
21,28.
DECISION
The rejection of claims 1—3, 5—15, 17—20, and 24-40 is affirmed.
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a)(l)(iv).
AFFIRMED
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