St. Jude Medical, Atrial Fibrillation Division, Inc.

Patent Trials and Appeals Board

Jun 1, 2020

2019006265 (P.T.A.B. Jun. 1, 2020)

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.
14/496,153 09/25/2014 Gleb V. Klimovitch 0E-0438USC1/065513-001107 1082
67337 7590 06/01/2020
DYKEMA GOSSETT PLLC (STJ)
4000 Wells Fargo Center
90 South Seventh Street
Minneapolis, MN 55402
EXAMINER
NGUYEN, HUONG Q
ART UNIT PAPER NUMBER
3791
NOTIFICATION DATE DELIVERY MODE
06/01/2020 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):
ASJM_Patents@abbott.com
MN-IPMail@dykema.com
Patents@dykema.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte GLEB V. KLIMOVITCH and JOHN W. SLIWA
Appeal 2019-006265
Application 14/496,153
Technology Center 3700
Before DANIEL S. SONG, SUSAN L. C. MITCHELL, and
LEE L. STEPINA, Administrative Patent Judges.

STEPINA, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Pursuant to 35 U.S.C. § 134(a), Appellant1 appeals from the
Examiner’s decision to reject claims 67–69, 71–80, and 82–86.2 We have
jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM.

1 We use the word Appellant to refer to “applicant” as defined in 37 C.F.R.
§ 1.42. Appellant identifies the real party in interest as St. Jude Medical.
Appeal Br. 1.
2 Claims 1–66, 70, and 81 have been cancelled. Corrected Claims App. 2, 4
(filed April 24, 2019).
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CLAIMED SUBJECT MATTER
The claims are directed to a system for measuring force and torque
applied to a catheter electrode tip.
Claim 67, reproduced below, is illustrative of the claimed subject
matter.
67. A catheter, comprising:
an elongate body;
an electrode; and
a contact sensing assembly operatively connected to the
elongate body and the electrode, wherein the contact sensing
assembly comprises a force sensor located within a gap between
the elongate body and the electrode, and wherein the gap is
located within a hermetic neck.
Corrected Claims App. 2.
REFERENCES
The prior art relied upon by the Examiner is:
Name Reference Date
Khatib US 2007/0142749 A1 June 21, 2007
Cao US 2008/0161796 A1 July 3, 2008
Goldenberg US 8,083,691 B2 Dec. 27, 2011
Kyle US 4,220,814 Sept. 2, 1980
Lovec US 6,621,005 B1 Sept. 16, 2003
Sherman US 2003/0204185 A1 Oct. 30, 2003

REJECTIONS
I. Claims 67–69, 71–77, and 83–86 are rejected under 35 U.S.C.
§ 103(a) as unpatentable over Goldenberg and Cao.
II. Claims 78–80 and 82 are rejected under 35 U.S.C. § 103(a) as
unpatentable over Goldenberg, Cao, and Khatib.
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OPINION
Rejection I–Goldenberg and Cao
The Examiner finds that Goldenberg discloses many3 of the elements
recited in claim 67, including a force sensor located within a hermetic neck.
Final Act. 3. Specifically, with respect to the recitation of a hermetic neck,
the Examiner refers to flexible section 704 of Goldenberg. Id. As a
supplemental finding regarding the recited hermetic neck, the Examiner
determines that “Figure 12 also discloses neck 202 as a seal, with similar
function [to that of flexible section 70].” Id. (citing Goldenberg 13:1–32);
see also Goldenberg Figs. 6–7.
Appellant argues, “[t]he primary issue with regard to the outstanding
35 U.S.C. 103(a) rejection of independent claim 67 is the interpretation of
the word ‘hermetic.’” Appeal Br. 5. Appellant contends “the word
‘hermetic,’ as recited in independent claim 67, means ‘airtight’ or ‘not
affected by outward influence or power,’ in accordance with its standard
dictionary definition.” Id. at 6–7 (quoting https://www.dictionary.com)
(emphasis added). Appellant then states, “the specification, plain meaning,
and understanding of one of ordinary skill in the art all indicate that the
hermetic neck recited in claim 67 is an airtight seal that limits or prevents
influence by outside forces.”
Addressing the prior art, Appellant contends “Goldenberg provides
absolutely no disclosure, teaching, or suggestion that the axially flexible

3 The Examiner relies on Cao to teach force sensors located within a gap
between an elongated portion of a catheter and an electrode. Final Act. 3–4.
4 Goldenberg describes flexible section 70 as taking the form of a bellows
that “can axially elongate and contract in much the same way as an
accordion.” Goldenberg 8:22–25.
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section 70 is, or is located within, a hermetic (i.e., airtight) neck.” Id. at 9.
Appellant also addresses the Examiner’s supplemental finding regarding seal
202 of Goldenberg, stating, “the embodiment described with respect to
Fig. 12 of Goldenberg, where a seal 202 replaces the flexible bellows section
70 and ‘prevents bodily fluids, such as blood, from entering the working
catheter,’ also fails to disclose, teach, or suggest that the seal 202 is hermetic
(i.e., airtight).” Id. Appellant contends that, “[a]lthough the seal 202
prevents bodily fluids from entering the catheter, it may very well allow
outside force and torque to affect the catheter and/or its components.” Id.
Appellant also notes that, earlier in prosecution, the Examiner agreed that
the term “hermetic” requires air-tight structure. Id. at 7 (citing Non-Final
Office Action dated June 13, 2018, p. 7).
The Examiner disagrees with Appellant’s interpretation of the term
hermetic. Specifically, the Examiner states:
While it is agreed that a broad reasonable interpretation
of the term “hermetic” is “not affected by outward influence or
power” and that this definition is consistent with its use in
appellant's specification and drawings, it is submitted that the
interpretation of the term defined as specifically “airtight” is not
supported by [A]ppellant’s disclosure and thus cannot be used as
the sole basis for arguments against the references above.
Ans. 4 (emphasis added). Thus, the Examiner accepts a portion of
Appellant’s proposed interpretation of “hermetic” in claim 67, but does not
accept that the term requires air-tightness. The Examiner finds that the
Specification uses the term “hermetic” only twice and provides no indication
of the neck being air-tight. Id. (citing Spec. ¶ 475). Further, the Examiner

5 The Examiner refers to this as paragraph 42 of Appellant’s “publication”
(US 20150073245 A1).
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takes the position that, because catheters are inserted into the human body,
the relevant type of sealing prohibits fluid entry, i.e., the relevant type of
neck in such a device is fluid-tight, not necessarily air-tight. Id. at 6. In
support of this position, the Examiner refers to Sherman, Kyle, and Lovec as
providing examples of the use of the term “hermetic seal” in similar medical
devices where this term is described as meaning “fluid-tight” and no
mention is made of the seal being “air-tight.” Ans. 7 (citing Sherman ¶¶ 10–
11; Kyle 2:10–20; Lovec, Abstract).
According to the Examiner, a structure that prevents the ingress of
bodily fluid, such as blood, amounts to a hermetic structure under the
broadest reasonable interpretation of this term in light of the Specification.
See id. at 5. The Examiner then reiterates that, in Goldenberg, flexible
element 70 and seal 202 are both “hermetic necks” under this interpretation.
Id.
In reply, Appellant reiterates that the Examiner previously agreed that
the term “hermetic” describes an air-tight seal and that the plain meaning of
this term requires such a seal. See Reply Br. 3–4.
The Examiner has the better position. Appellant’s Specification does
not describe the hermetic neck as being sealed against the intrusion of air.
See Spec. ¶ 47. Indeed, the Specification uses this term in only the
following sentence, “[r]eferring to Fig. 4, electrode 14 and body 22 may
optionally be connected by an elastic hermetic neck, with elastic hermetic
neck 38 further allowing only predetermined relative movement of electrode
14 and body 22, and thus force and torque determination by sensors 28, 30,
32.” Spec. ¶ 47. This sentence describes hermetic neck 38 in terms of its
restriction of movement of electrode 14 relative to body 22, not in terms of
the restriction of any flow of air.
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Nor does Appellant’s reliance on dictionary definitions (see Appeal
Br. 6–7) support Appellant’s proposed interpretation of the term “hermetic.”
Rather, Dictionary.com® defines “hermetic” as (i) “made airtight by fusion
or sealing,” or (ii) “not affected by outward influence or power; isolated.”
https://www.dictionary.com/browse/hermetic (last visited May 6, 2020).
Appellant correctly repeats both of these definitions on page 6 of the Appeal
Brief, but then, on page 7 of the Appeal Brief, proposes a narrower claim
interpretation by combining them, stating, “the specification, plain meaning,
and understanding of one of ordinary skill in the art all indicate that the
hermetic neck recited in claim 67 is an airtight seal that limits or prevents
influence by outside forces.” Thus, Appellant’s proposed interpretation does
not correspond to either of the definitions from Dictionary.com® relied upon
by Appellant.
We agree with the Examiner that a person of ordinary skill in the art
would understand that a neck that seals against the intrusion of fluids, i.e., a
neck that isolates what it surrounds, meets the requirements of a “hermetic
neck” as recited in claim 67. See Ans. 6. Specifically, Appellant’s
Specification describes the insertion of the claimed catheter into the human
body. See, e.g., Spec. ¶¶ 2–4, 10. The Examiner is on solid ground in
finding that the concern in such a situation is the ingress of fluids. The
Examiner’s reference to the use of the term “hermetic seal” in each of
Sherman, Kyle, and Lovec demonstrates how the term “hermetic” is used in
descriptions of similar devices and further supports the Examiner’s
interpretation. See Ans. 7 (citing Sherman ¶¶ 10–11; Kyle 2:10–20; Lovec,
Abstract).
As for the fact that, in a previous office action, the Examiner took the
position that the term “hermetic” “is known to one of ordinary skill in the art
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as a descriptive limitation indicating an air tight seal” (see June 13, 2018,
Office Action, p. 7), the Examiner states, “the rejection was withdrawn
because there was no longer an issue of how the neck disclosed in the
specification was ‘hermetic’ in a general sense, especially since the
amendment no longer required interpretation of the structure under 35 USC
112 sixth paragraph.” Ans. 4. Thus, the Examiner has adopted a more
general interpretation of the term “hermetic,” specifically, the second
definition set forth in Dictionary.com®. As the Examiner supports this
interpretation with reference to the Specification and prior art, Appellant
does not apprise us of Examiner error on this point.
As the broadest reasonable interpretation of the term “hermetic neck”
in claim 67 is satisfied by a neck that isolates what it surrounds, a
preponderance of the evidence supports the Examiner’s finding that flexible
section 70 of Goldenberg meets this limitation. We reproduce Figure 6 of
Goldenberg below.

Figure 6 of Goldenberg depicts a catheter with elongated catheter
body 60 that includes proximal end 62 and distal end 64, wherein catheter
body 60 is divided into three sections (proximal section 66, distal section 68,
and axially flexible section 70 between proximal and distal sections 66, 68).
Goldenberg 8:1–6. Goldenberg discloses that flexible section 70 takes the
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form of a bellows. Id. at 8:22–25. Goldenberg discloses that this bellows
structure can be replaced with other types of translatable sections, including
a section that uses seal 202, which prevents bodily fluid from entering the
catheter. See Goldenberg 8:64–13:32. From this, and from Figures 6, 7, and
12 of Goldenberg, a person of ordinary skill in the art would understand that
each of flexible section 70 and seal 202 of Goldenberg isolates the structure
it surrounds, and, therefore, qualifies as a “hermetic neck” as recited in claim
67. Accordingly, we sustain the rejection of claim 67 as unpatentable over
Goldenberg and Cao. Appellant makes no separate arguments in support of
claims 68, 69, 71–77, and 83–86, and these claims fall with claim 67, from
which they depend.
Rejection II—Goldenberg, Cao, and Khatib
Appellant does not make arguments for the patentability of claims 78–
80 and 82 aside from those discussed above regarding claim 67. See Appeal
Br. 4. Accordingly, for the same reasons, we sustain the rejection of claims
78–80 and 82 as unpatentable over Goldenberg, Cao, and Khatib.
CONCLUSION
The Examiner’s rejections are affirmed.

DECISION SUMMARY

Claims
Rejected
35 U.S.C. § Basis Affirmed Reversed
67–69, 71–
77, 83–86
103(a) Goldenberg, Cao 67–69, 71–
77, 83–86

78–80, 82 103(a) Goldenberg, Cao,
Khatib
78–80, 82
Overall
Outcome
67–69, 71–
80, 82–86

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Application 14/496,153
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No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a).
AFFIRMED