Joseph D. Brannan

Patent Trials and Appeals BoardAug 5, 2019

13957087 - (D) (P.T.A.B. Aug. 5, 2019)

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. 13/957,087 08/01/2013 JOSEPH D. BRANNAN H- US-00896CON(1544-39CON 8339 90039 7590 08/05/2019 Covidien LP Attn: IP Legal 5920 Longbow Drive Mail Stop A36 Boulder, CO 80301-3299 EXAMINER OUYANG, BO ART UNIT PAPER NUMBER 3794 NOTIFICATION DATE DELIVERY MODE 08/05/2019 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): docket@carterdeluca.com rs.patents.two@medtronic.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE ____________________ BEFORE THE PATENT TRIAL AND APPEAL BOARD ____________________ Ex parte JOSEPH D. BRANNAN ____________________ Appeal 2019-000219 Application 13/957,087 Technology Center 3700 ____________________ Before JOHN C. KERINS, MICHAEL J. FITZPATRICK, and JEREMY M. PLENZLER, Administrative Patent Judges. PLENZLER, Administrative Patent Judge. DECISION ON APPEAL STATEMENT OF THE CASE Appellant seeks our review under 35 U.S.C. § 134 of the Examiner’s Final Decision rejecting claims 11, 12, 14–18, 20, and 22–33. We have jurisdiction under 35 U.S.C. § 6(b). We AFFIRM. Appeal 2019-000219 Application 13/957,087 2 CLAIMED SUBJECT MATTER Claims 11 and 18 are independent. Claims 12, 14–17, 20, and 22–33 depend from claim 11 or 18. Claim 11 is illustrative of the claims on appeal, and is reproduced below. 11. A microwave ablation probe for providing microwave energy to tissue, the probe comprising: a housing defining a cavity therein; a feedline disposed within the cavity and including an inner conductor, an insulating spacer and an outer conductor; a radiation portion disposed within the cavity and including a folded-dipole antenna constructed from at least a portion of the inner conductor and a first outer arm having a proximal portion coupled to the outer conductor and a distal portion coupled to the inner conductor, the proximal portion of the first outer arm defining a longitudinal axis that is aligned with the outer conductor such that the proximal and distal portions of the first outer arm are disposed perpendicular relative to one another; and a dielectric material disposed within the cavity such that the outer conductor of the feedline and the first outer arm of the folded-dipole antenna are in contact with the dielectric material. REJECTIONS 1. Claims 11, 12, 17, 18, 20, 25, and 27–29 are rejected under 35 U.S.C. § 103 as being unpatentable over Prakash (US 6,878,147 B2, issued Apr. 12, 2005) and Konishi (US 2007/0233057 A1, published Oct. 4, 2007). 2. Claims 14, 15, 22, and 23 are rejected under 35 U.S.C. § 103 as being unpatentable over Prakash, Konishi, and Mawhinney (US 6,230,060 B1, issued May 8, 2001). Appeal 2019-000219 Application 13/957,087 3 3. Claims 30–33 are rejected under 35 U.S.C. § 103 as being unpatentable over Prakash, Konishi, and Appling (US 2007/0185554 A1, published Aug. 9, 2007). 4. Claims 16 and 24 are rejected under 35 U.S.C. § 103 as being unpatentable over Prakash, Konishi, Mawhinney, and Turovskiy (US 2005/0015081 A1, published Jan. 20, 2005). 5. Claim 26 is rejected under 35 U.S.C. § 103 as being unpatentable over Prakash, Konishi, and Rawat (US 2007/0100385 A1, published May 3, 2007). OPINION Claim 11 recites “a folded-dipole antenna” including “an inner conductor” and “an outer conductor” with “a first outer arm having a proximal portion coupled to the outer conductor and a distal portion coupled to the inner conductor.” Claim 18 similarly recites that “a distal portion [of the first outer arm is] coupled to the distal portion of the inner conductor and a proximal portion [of the first outer arm is] coupled to the distal portion of the outer conductor.” The sole dispute between Appellant and the Examiner is whether “coupled to,” recited in claims 11 and 18, requires a direct coupling or allows for an indirect coupling. Appellant contends that “coupled to” requires a direct coupling (i.e., no intervening structure). See Appeal Br. 4–8; Reply Br. 2–6. The Examiner determines that “coupled to” allows for an indirect coupling (see Advisory Act. 2; Ans. 3–4). The Examiner has the better position. Appellant contends that “F[igure] 6 of the present application . . . clearly shows ‘a folded-dipole antenna that is constructed from at least a Appeal 2019-000219 Application 13/957,087 4 portion of the inner conductor and a first outer arm having a proximal portion coupled to the outer conductor and a distal portion coupled to the inner conductor,’ as recited in claim 11” and reproduces Figure 6 and page 9, line 19 through page 10, line 2 of the Specification. Appeal Br. 7. Appellant then concludes, without further explanation, that [i]n view of the clear recitation in claim 11 defining the connection between a folded-dipole antenna and inner and outer conductors, the [S]pecification, as well as F[igure] 6 describing the same, the Appellant submits that the Examiner has given the term “coupled to” an unreasonably broad interpretation “as to [not] require direct contact between two elements.” Id. These conclusory assertions do nothing to explain why Appellant’s narrower proposed construction is mandated by its Specification. The Examiner, on the other hand, explains that “[i]n the instant case, page 5, lines 3–5 of [Appellant’s] [S]pecification discuss ‘a microwave ablation probe 12 coupled to a microwave generator 14 via a flexible coaxial cable 16.’” Ans. 3. The Examiner uses this disclosure as context for understanding how Appellant intended to use the phrase “coupled to,” explaining that “there can be some kind of linking element, such as the flexible coaxial cable” in the example discussed on page 5 of the Specification. Id. The Examiner proceeds to address the portions of the Specification cited, generally, by Appellant. Id. at 3–4. The Examiner notes that on “page 9, line 19 to page 10, line 2 of the Specification discussing Fig[ure] 6 as discussed by Appellant in page 7 of the Appeal Brief, ‘coupled to’ in this instance is modified by soldering or other methods for ‘conductive coupling.’” Id. at 3. Based on this disclosure, the Examiner explains that it is reasonable to conclude that “coupling[,] alone[,] as defined by Appeal 2019-000219 Application 13/957,087 5 Appellant[,] does not require either the direct contact or some conductive connection between the elements.” Id. Appellant responds by accusing the Examiner of failing to read the claim in view of the Specification. Reply Br. 5. But this is not true, as evidenced by our summary of the Examiner’s discussion of the claim language relative to the Specification, which Appellant acknowledges. See id. at 3–4. Appellant contends that “[a] person having ordinary skill in the art reading Appellant’s [S]pecification would not interpret a probe having ‘a proximal portion coupled to the outer conductor and a distal portion coupled to the inner conductor’ of claim [11] as being indirectly coupled, e.g., where those conductive components are separated by an insulating collar.” Reply Br. 5. Notably missing, however, is any evidence to support Appellant’s conclusion regarding how one skilled in the art would understand “coupled to” in the recited arrangement. The mere presence of a direct coupling in an illustrated embodiment from Appellant’s Specification does not compel the more restrictive construction proposed by Appellant. Based on the record before us, we determine that the broadest reasonable construction of “coupled to” includes indirect coupling, and does not require the direct coupling alleged by Appellant. Appellant’s Specification uses the phrase “coupled to” in this broader sense (Spec. 5:3– 5), and when requiring something more specific regarding the coupling of outer arms 52 to inner and outer conductors 20, 24, it specifies, for example, “conductive coupling” (id. at 9:14–20). Because there is no dispute as to the Examiner’s findings under this reading of the claim, and there is no dispute regarding the Examiner’s rationale for combining the teachings of the Appeal 2019-000219 Application 13/957,087 6 various references, we are not apprised of error in the rejection of claims 11, 12, 14–18, 20, and 22–33. For at least these reasons, we sustain the Examiner’s decision to reject claims 11, 12, 14–18, 20, and 22–33. DECISION We AFFIRM the Examiner’s decision to reject claims 11, 12, 14–18, 20, and 22–33. No time period for taking any subsequent action in connection with this appeal may be extended under 37 C.F.R. § 1.136(a). See 37 C.F.R. § 1.136(a)(l)(iv). AFFIRMED