Ex Parte Christian

Patent Trial and Appeal Board

Jun 15, 2017

13151750 (P.T.A.B. Jun. 15, 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.
13/151,750 06/02/2011 Steven C. Christian 0B-142601US/065513-000344 5460
67337 7590 06/19/2017
DYKEMA GOSSETT PLLC (STJ)
4000 Wells Fargo Center
90 South Seventh Street
Minneapolis, MN 55402
EXAMINER
GIULIANI, THOMAS ANTHONY
ART UNIT PAPER NUMBER
3739
NOTIFICATION DATE DELIVERY MODE
06/19/2017 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):
MN_IPMail @ dykema. com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte STEVEN C. CHRISTIAN1
Appeal 2016-002388
Application 13/151,750
Technology Center 3700
Before: FRANCISCO C. PRATS, JOHN G. NEW, and
TIMOTHY G. MAJORS, Administrative Patent .Judges.
NEW, Administrative Patent Judge.
DECISION ON APPEAL
appellant states the real party-in-interest is St. Jude Medical, Atrial
Fibrillation Division, Inc. App. Br. 1.
Appeal 2016-002388
Application 13/151,750
SUMMARY
Appellant files this appeal under 35 U.S.C. § 134(a) from the
Examiner’s Final Rejection of claims 1—6, 14—19 and 21—28. Specifically,
claims 1—6 stand rejected as unpatentable under 35 U.S.C. § 112, first
paragraph, as failing to comply with the written description requirement.2
Claims 1—6 and 22 are rejected as unpatentable under 35 U.S.C.
§ 102(b) as being anticipated by Swanson et al. (US 6,579,288 Bl, June 17,
2003) (“Swanson”).
Claims 14—19, 21, and 23—28 stand rejected as unpatentable under 35
U.S.C. § 102(b) as being anticipated by McClurken et al. (US 2005/0090816
Al, Apr. 28, 2005 (“McClurken”).
Claims 1—6, 14—19, and 21—28 stand provisionally rejected as
unpatentable under the nonstatutory doctrine of obviousness-type double
patenting over claims 1—27 of copending Application No. 12/979,803 (the
“’803 Application”).3
We have jurisdiction under 35 U.S.C. § 6(b).
2 The Examiner’s rejection of claims 14—21 and 24 on this ground has been
withdrawn, as has the Examiner’s rejection of claim 4 under 35 U.S.C.
§112, second paragraph. Ans. 2.
3 The Examiner notes that a timely filed terminal disclaimer in compliance
with 37 CFR § 1.321(c) or 1.321(d) may be used to overcome an actual or
provisional rejection. Final Act. 5. Nevertheless, Appellant states:
“Appellant[ ] acknowledge[s] the non-statutory obviousness-type double
patenting rejection and reserve[s] the right, upon an indication of allowable
subject matter, to address the non-statutory obviousness-type double
patenting rejection.” App. Br. 13. Because Appellant presents no argument
concerning the Examiner’s rejection on this ground, we summarily affirm
the rejection.
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Application 13/151,750
We AFFIRM.
NATURE OF THE CLAIMED INVENTION
Appellant’s invention is directed to a system for providing irrigation
fluid during ablation of tissue. The invention includes a catheter, an
electrode assembly adapted to be connected to an ablation generator, at least
one thermal sensor adapted to be connected to the catheter, and a control
system. The thermal sensor is adapted to be operatively connected to an
electronic control unit (ECU), which receives input temperature
measurement data from the thermal sensor; determines a power delivery rate
value for the ablation generator responsive to the temperature measurement
data; and outputs the power delivery rate value. Abstract.
REPRESENTATIVE CLAIM
Claim 1 is representative of the claims on appeal and recites:
1. A system for providing irrigation fluid during cardiac
ablation of targeted tissue, the system comprising:
an irrigated catheter comprising:
a catheter shaft having a fluid lumen;
an electrode assembly adapted to be connected to
the catheter shaft and adapted to be electrically connected
to an ablation generator that is configured to deliver
energy to the electrode assembly; and
at least one thermal sensor adapted to be disposed
within the irrigated catheter and adapted to be operatively
connected to an electronic control unit (ECU) that is also
operatively connected to a source of irrigation fluid and
the ablation generator, wherein the ECU is configured to:
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Application 13/151,750
receive as an input a temperature differential
measured by the at least one thermal sensor, the
temperature differential calculated based at least in part on
a first temperature of an irrigation fluid as it enters the
electrode assembly and a second temperature of the
irrigation fluid as it exits the electrode assembly;
determine a power delivery rate value for the
ablation generator responsive to the temperature
differential; and
output the power delivery rate value; and a control
system configured to receive the power delivery rate value
and to control energy delivery of the ablation generator
based at least in part on the power delivery rate value.
App. Br. 15.
A. Rejection of claims 1—6, and 22 under 35 U.S.C.
$ 112(a), first paragraph
Issue
Appellant argues the Examiner erred in finding that the limitation of
claim 1 reciting: “ECU is configured to: receive as an input a temperature
differential” has insufficient descriptive support in Appellant’s Specification
because the Specification discloses that the ECU receives an input of first
and second temperatures, and outputs the differential after it has been
calculated. App. Br. 5 (citing Final Act. 4).
Analysis
The Examiner finds claim 1 recites that the “ECU is configured to:
receive as an input a temperature differential.” Final Act. 4. The Examiner
finds, however, that Appellant’s Specification discloses that the ECU
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Application 13/151,750
receives an input of first and second temperatures, and outputs the
differential after it has been calculated. Id. Therefore, the Examiner
concludes, there is insufficient support for this claim limitation in the
Specification. Id.
The Examiner also finds claim 5 recites the limitation “at or above 37
degrees Celsius,” but concludes that there is insufficient support for these
specific claim limitations in Appellant’s Specification. Final Act. 4.
Appellant argues that, whereas the ECU receives temperature
measurement data from thermal sensors and calculates the temperature
differential based on those measurements, the ECU then uses that
temperature differential as an internal input in determining a power delivery
rate value, which is an output received by the control system. App. Br. 5—6
(citing Spec. H 71, 90). As such, Appellant asserts, the Specification
sufficiently supports this claim limitation because the Specification discloses
the temperature differential being used to determine the power delivery rate
value. Appellant contends that a person of ordinary skill in the art would
have understood that the temperature differential is an internal input which is
inherent in the disclosure. Id. at 6.
The Examiner responds that, whereas the calculation of the
temperature differential may be performed internally within the ECU,
nevertheless, there is no support for the ECU being configured to “receive
temperature differential as an input.” Ans. 2. The Examiner finds this
language of the claim directly implies that the temperature differential data
is coming from a different source. Id. at 3.
We agree with the Examiner. Appellant points to the following
passage from the Specification:
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Application 13/151,750
The ECU 45 can be further configured to determine a power
delivery rate value for the ablation generator 39. The power
delivery rate value for the ablation generator 39 can be
responsive to the temperature measurement data. The ECU 45
can be further configured to provide an output signal
corresponding to the power delivery rate value. In particular, the
ECU 45 can provide the output signal to the control system 49.
Spec. 190. This passage thus discloses that the ECU can determine a power
delivery rate value that is based upon (i.e., responsive to) the temperature
measurement data. Furthermore, paragraph [0071 ] of the Specification
recites:
A temperature differential value AT is calculated based at
least in part on the first temperature Tin and the second
temperature Tout in Step 414. An electronic control unit (ECU)
45 can be in connection with the thermal sensors 28 and can be
used to calculate the temperature differential value. A display
device 47 can also be used in connection with the ablation
electrode assembly 210, 310 and ECU 45. The ECU 45
preferably comprises a programmable microprocessor or
microcontroller, but can alternatively comprise an application
specific integrated circuit (ASIC).
(emphasis added); see also Spec. 147 (with respect to thermal sensors 28).
Appellant’s Specification thus expressly discloses that it is the ECU that
calculates the temperature differential after receiving the temperatures Tin
and Tout from the thermal sensors.
Appellant does not point to any disclosure of the Specification
describing sufficiently that the ECU receives a temperature differential
signal as an input to the ECU. Appellant contends the ECU receives
temperature measurement data from thermal sensors and calculates the
temperature differential based on those measurements, and then uses that
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Application 13/151,750
temperature differential as an internal input in determining a power delivery
rate value, which is an output received by the control system. See App. Br.
5—6. However, the language of claim 1 expressly requires that:
[T]he ECU is configured to:
receive as an input a temperature differential measured by
the at least one thermal sensor, the temperature differential
calculated based at least in part on a first temperature of an
irrigation fluid as it enters the electrode assembly and a second
temperature of the irrigation fluid as it exits the electrode
assembly.
App. Br. 15 (emphasis added). The claim thus requires that the ECU
receives a differential “calculated based at least in part on a first temperature
of an irrigation fluid as it enters the electrode assembly and a second
temperature of the irrigation fluid as it exits the electrode assembly,” rather
than the ECU calculating the temperature differential from the received
inputs. Id. As such, this requires that the differential be an input signal to
the ECU, and not one calculated by the ECU as an internal signal, as
Appellant contends. We consequently affirm the Examiner’s rejection.
Furthermore, Appellant makes no argument with respect to the
Examiner’s rejection of claim 5. We therefore summarily affirm the
rejection of that claim. See 37 C.F.R. § 41.67(c)(vii) (“Any arguments or
authorities not included in the brief... will be refused consideration by the
Board”); see also Ex parte Borden, 93 USPQ2d 1473, 1474 (BPAI 2010)
(Informative) (Arguments not raised in the Appellate Brief are considered
waived.).
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Application 13/151,750
B. Rejection of claims 1—6 and 22 under 35 U.S.C. $ 102(b) over
Swanson
Issue
Appellant argues the Examiner erred because Swanson does not
disclose the limitations of claim 1 reciting: “configured to receive as an
input a temperature differential measured by the at least one thermal sensor,
the temperature differential calculated based at least in part on a first
temperature of an irrigation fluid as it enters the electrode assembly and a
second temperature of the irrigation fluid as it exits the electrode assembly”
and “determin[ing] a power delivery rate value for the ablation generator
responsive to the temperature differential.” App. Br. 6.
Analysis
The Examiner relies upon Swanson at column 16 at line 56 through
column 17, line 17 as teaching the limitation in question. That passage of
Swanson discloses, in relevant part:
A plurality of temperature sensors (note, for example, sensors
101 in FIGS. 19 and 20), such as thermocouples or thermistors,
may be located on, under, abutting the longitudinal end edges of,
or in between, the electrodes 24. Preferably, the sensors will be
located at or near the location where the fluid exits the respective
transmission regions 48 in order to determine the temperature of
the fluid at its hottest point within each transmission region.
In some embodiments, a reference thermocouple may also be
provided.
(Emphasis added).
The Examiner evidently relies upon the emphasized portion of the
passage as disclosing a thermal sensor that detects “a first temperature of an
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Application 13/151,750
irrigation fluid as it enters the electrode assembly” as the “reference
thermocouple.” See Spec. 147 (“Thermal sensors 28 can be any mechanism
known to one of ordinary skill in the art, including for example and without
limitation, thermocouples and/or thermistors”) (emphasis added).
Appellant argues Swanson discloses temperature sensors 101 located
at or near the location where the fluid exits the respective transmission
regions 48 in order to determine the temperature of the fluid at its hottest
point within each transmission region. App. Br. 7 (citing Swanson col. 16—
17, 1—16). Appellant asserts the passage of Swanson quoted above does not
disclose how such a “reference thermocouple” is used or how its readings
are used, nor does Swanson disclose or suggest where this “reference
thermocouple” would be positioned in the device. Id.
The Examiner responds that Swanson’s disclosure of a reference
thermocouple necessarily discloses the calculation of a temperature
differential. Ans. 3. However, the Examiner finds the location of this
reference thermocouple is not expressly disclosed; the claim only requires
that the temperature differential is “based at least in part on” an exit
temperature (disclosed by Swanson) and an entrance temperature. Id.
We are persuaded by Appellant’s arguments. Claim 1 expressly
requires a: “temperature differential calculated based at least in part on a
first temperature of an irrigation fluid as it enters the electrode assembly
(emphasis added). Claim 1 thus explicitly requires that the first temperature
of the fluid is measured at a point where it enters the electrode assembly.
We are not persuaded by the Examiner’s finding that Swanson’s disclosure
of a “reference thermocouple” expressly or inherently discloses the location
of the first temperature sensor as being located to measure the irrigation
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Application 13/151,750
fluids “as it enters the electrode assembly.” Simply put, the reference
thermocouple could be located at any location where it could provide a
reference temperature to the second temperature measurement. We agree
with Appellant that this disclosure of Swanson does not anticipate, expressly
or inherently, the disputed limitation. We therefore reverse the Examiner’s
rejection of claims 1—6 and 22.
C. Rejection of claims 14—19, 21, and 23—28 under 35 U.S.C. $ 102(b)
over McClurken
Issue 1: claims 14^19 and 21
Appellant argues the Examiner erred in finding McClurken discloses
the limitation of claim 14 reciting a control system:
[Ajdapted to deliver energy at a first power level in a first time
period and at a second power level in a second time period,
wherein the second time period is temporally after the first time
period, and wherein the second power level has a magnitude of
at least about one third of the first power level.
App. Br. 9 .
Analysis
The Examiner relies upon paragraphs [0148], [0194], and [0210] of
McClurken as reciting the limitations of the claims. Final Act. 8.
With respect to clams 14—19 and 21, Appellant argues the Examiner
failed to point to any specific language of McClurken as meeting the
disputed limitations and, instead, merely concluded that “this device [of
McClurken] is capable of meeting all of the functional language limitations.”
App. Br. 9 (quoting Final Act. 9). Appellant also cites the Notice of Panel
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Application 13/151,750
Decision from the Pre-Appeal Brief Review, in which the Examiner
maintained this position and further asserted that the conflicting usage of
“configured to” and “adapted to” within claims 14 and 23 render some of the
controller limitations as “functional language” limitations. Id. Appellant
argues that these limitations should rather be given patentable weight. Id.
Appellant notes that MPEP § 2173.05(g) states that:
There is nothing inherently wrong with defining some part of an
invention in functional terms. Functional language does not, in
and of itself, render a claim improper.... A functional limitation
must be evaluated and considered, just like any other limitation
of the claim, for what it fairly conveys to a person of ordinary
skill in the pertinent art in the context in which it is used.
Appellant also points to our reviewing court’s holding in Asp ex
Eyewear Inc. v. Marchon Eyewear Inc., 672 F.3d 1335 (Fed. Cir. 2012) that
the claim language “adapted to” means that the claimed element is “designed
or configured to accomplish the specified objective,” and not simply that it
“can be made to serve that purpose.” App. Br. 10 (quoting Aspex, 672 F.3d
at 1349).
Appellant argues that the disclosures of the Specification supports the
narrower interpretation of the claim term adapted to, citing paragraphs
[0071], [0075], and [0085],
Appellant argues further that McClurken discloses that: “RF energy
delivery to tissue can be unpredictable and vary with time, even though the
generator has been ‘set’ to a fixed wattage.” App. Br. 11 (quoting
McClurken 1207). Appellant asserts McClurken also discloses that: “the
rate of fluid flow from the fluid source 1 is based upon the amount of RF
power provided from the generator 6 to the electrosurgical device 5.” Id.
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(quoting McClurken 1157). Therefore, argues Appellant, the device of
McClurken is not “adapted to delivery energy at a first power level in a first
time period and at a second power level in a second time period, wherein the
second time period is temporally after the first time period, and wherein the
second power level has a magnitude of at least about one third of the first
power level” as the claim requires. Id. Appellant contends the device of
McClurken only sets the power level, monitors the actual power delivered,
and allegedly decreases fluid flow rate in proportion to the decrease in
power. Id. (citing McClurken || 148, 210). Finally, argues Appellant,
McClurken discloses no magnitudes of power in relation to magnitudes of
fluid flow rate, as required by the claims.
The Examiner responds that McClurken discloses the claims on
appeal as written due to their breadth and unclear scope. Ans. 3^4.
Specifically, the Examiner finds that the mixed usage of “configured” and
“adapted to” leads to a conflicting scope, which renders some of the
controller limitations as “functional language” limitations that are capable of
being met by McClurken. Id. at 4.
The Examiner disagrees with Appellant’s argument concerning the
use of the term “adapted to,” finding that the terms “adapted to,”
“configured to,” and “programmed to” are not always interchangeable. Ans.
4. The Examiner points to Aspex as holding that: “[T]he phrase ‘adapted to’
is frequently used to mean ‘made to,’ ‘designed to,’ or ‘configured to,’ but it
can also be used in a broader sense to mean ‘capable of or ‘suitable for.’”
Id. (quoting Aspex, 672 F.3d at 1349). The Examiner acknowledges that the
Federal Circuit has since extended the meaning of “adapted to,” but the
Examiner maintains that the written description of the instant application
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does not narrow the meaning of “adapted to” to require these particular
limitations, as is required by the Federal Circuit. Id.
Again, we find Appellant’s arguments persuasive. Claim 14 recites,
in relevant part:
[A] control system configured to control energy delivery of the
ablation generator, wherein the control system is adapted to
deliver energy at a first power level in a first time period and at
a second power level in a second time period, wherein the second
time period is temporally after the first time period, and wherein
the second power level has a magnitude of at least about one third
of the first power level....
Thus, as illustrated, the claim uses the phrases “configured to” and
“adapted to” to describe the functionality of the control system. However,
the Examiner finds the phrase “adapted to deliver energy at a first power
level in a first time period and at a second power level in a second time
period, etc.” creates a conflict of scope in the claim that renders the claim
anticipated by the disclosures of McClurken. See App. Br. 3, 9.
We disagree. In Aspex, the Federal Circuit stated that: “In common
parlance, the phrase “adapted to” is frequently used to mean “made to,”
“designed to,” or “configured to,” but it can also be used in a broader sense
to mean “capable of’ or “suitable for.” Aspex, 672 F.3d at 1349 (citations
omitted). The court noted that construing the term “adapted to,” is properly
performed when viewed in light of the patent as a whole. Id. (citing, e.g.,
Sta—Rite Indus., LLC v. ITT Corp., 682 F.Supp.2d 738, 753 (E.D. Tex. 2010)
and Boston Scientific Corp. v. Cordis Corp., No. C 02—01474 JW, 2006 WL
3782840, at *2 (N.D. Cal. Dec. 20, 2006).
In the Appeal before us, we find that the limitation reciting “adapted
to deliver energy at a first power level in a first time period and at a second
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Application 13/151,750
power level in a second time period, etc.” is more properly construed as
“configured to” because the body of the limitation reflects back on the
preceding portion of the same limitation reciting “a control system
configured to control energy delivery of the ablation generator, wherein the
control system is adapted to...In other words, the function for which the
control system is adapted to, i.e., the delivery of successive power regimes
of varying duration and magnitude, is part of the configuration of the control
system. In this regard, Appellant’s Specification discloses: “The control
system is further configured to receive the power delivery rate value and to
control energy delivery of the ablation generator based at least in part on the
power delivery rate value” and that:
The control system delivers energy at a first power level in a first
time period and at a second power level in a second time period.
The second time period is temporally after the first time period,
and the second power level has a magnitude of at least about one
third of the first power level. The first time period can be
between about 10 seconds and about 15 seconds in an
embodiment of the disclosure. The first power level can comprise
between approximately 30 Watts to 40 Watts. The second power
level can comprise between approximately 10 Watts to 15 Watts.
The ablation generator is configured to deliver energy at a
constant power level during the first time period in accordance
with an embodiment of the disclosure.
Spec. ^Hf 12, 16—17. The use of the different terms in parallel settings in the
claims and the Specification supports our conclusion that the two terms were
meant to have the same meaning and thus that “adapted to” was intended to
have the same meaning as “configured to.” See Aspex, 672 F.3d at 1349
(citing Boston Scientific, 2006 WL 3782840, at *2).
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Furthermore, we are not persuaded by the Examiner’s finding that
McClurken discloses the limitation in dispute. Specifically, the Examiner
points to the disclosure of McClurken that:
A flow rate controller 11 preferably includes a selection
switch 12 that can be set to achieve desired levels of percentage
fluid boiling .... The output signal 16 of the flow rate controller
11 is preferably sent to the pump 3 motor to regulate the flow
rate of conductive fluid, and thereby provide an appropriate fluid
flow rate which corresponds to the amount of power being
delivered.
McClurken 1148. This disclosure relates that the flow rate controller
regulates the pump motor, but fails to disclose the successive power regimes
recited in the claims.
Paragraph [0194] of McClurken discloses that: “In essence, when
power P goes up, the flow rate Q will be proportionately increased.
Conversely, when power P goes down, the flow rate Q will be
proportionately decreased.” Again, we find no disclosure here of the
limitation’s requirement of delivering energy at successive durations and
amplitudes as required by the claim.
Finally, the Examiner cites McClurken as disclosing:
According to one exemplary embodiment of the invention, the
control device, such as flow rate controller 11, receives a signal
indicating the drop in actual power delivered to the tissue and
adjusts the flow rate Q of saline to maintain the tissue/electrode
interface at a desired temperature. In a preferred embodiment,
the drop in actual power P delivered is sensed by the power
measurement device 8 (shown in FIG. 1), and the flow rate Q of
saline is decreased by the flow rate controller 11 (also shown in
FIG. 1). Preferably, this reduction in saline flow rate Q allows
the tissue temperature to stay as hot as possible without
desiccation.
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McClurken 1210. We have explained supra why we find the claim terms
“configured to” and “adapted to” to be essentially equivalent when viewed
in the context of Appellant’s application. Nevertheless, the Examiner does
not explain, nor can we discern, how the invention thus disclosed by
McClurken is functionally capable of— much less actually configured to —
delivering the successive power levels of differing magnitudes. We
consequently reverse the Examiner’s rejection of claims 14—19 and 21.
Issue 2: claims 23—28
Appellant argues these claims separately. App. Br. 12. Independent
claim 23 is representative and recites:
A system for delivering power during cardiac ablation of
targeted tissue, the system comprising:
a catheter;
an ablation generator adapted to be electrically connected
to at least a portion of the catheter, the ablation generator
configured to deliver energy to at least the portion of the
catheter;
a source of irrigation fluid; and
a control system configured to:
control energy delivery of the ablation generator; and
control the delivery of irrigation fluid to the catheter,
wherein the control system is adapted to increase one of the
energy from the ablation generator and the irrigation fluid to the
catheter in response to an increase in the other of the energy and
the irrigation fluid.
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Id. at 18. Appellant argues the Examiner erred because McClurken failed to
disclose the limitation of claim 23 reciting: “adapted to increase one of the
energy from the ablation generator and the irrigation fluid to the catheter in
response to an increase in the other of the energy and the irrigation fluid.”
App. Br. 12.
Analysis
The Examiner relies upon Figures 9-16 and paragraphs [0187] and
[0194] of McClurken as disclosing the elements of the claim. Final Act. 9.
Appellant argues that the Examiner failed to point to any specific
language of McClurken as meeting the above-mentioned limitations. App.
Br. 13. Moreover, Appellant repeats the prior argument regarding the
alleged conflict of scope between the claim language of “configured to” and
“adapted to.” Id.
Appellant argues further that, although no finding was made by the
Examiner as to how McClurken specifically discloses the claim limitations,
McClurken fails to meet the claim limitations because the device of
McClurken merely sets the power level, monitors the actual power
delivered, and decreases fluid flow rate in proportion to the decrease in
power. App. Br. 13 (citing McClurken || 148, 210). As such, Appellant
contends, McClurken’s device is not adapted to increase one of energy and
irrigation fluid in response to an increase in the other of energy and fluid, as
required by claim 23. Id.
The Examiner “maintains that these claims are met as they are
currently written in view of the previously cited portions of McClurken
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(especially paragraph [0] 194 [of McClurken]) and the “adapted to”
arguments presented supra. Ans. 4.
In this instance, we are not persuaded by Appellant’s arguments. We
have explained, and incorporate here by reference, why we agree with
Appellant that the term “adapted to” can be considered equivalent to
“configured to” when viewed in light of the entire application.
However, McClurken discloses: “[Pjower P, or the rate of energy
delivery .... may be measured in watts (joules/sec).” McClurken 1140.
McClurken further discloses that its control unit is configured so that: “In
essence, when power P goes up, the flow rate Q will be proportionately
increased. Conversely, when power P goes down, the flow rate Q will be
proportionately decreased.” Id. at 1194. Therefore, and in contrast to
Appellant’s argument, McClurken expressly discloses that an increase power
(P) to the electrodes results in a concomitant proportional increase in flow
rate (Q). We agree with the Examiner that McClurken thus discloses:
“delivery of irrigation fluid to the catheter, wherein the control system is
adapted to increase one of the energy from the ablation generator and the
irrigation fluid to the catheter in response to an increase in the other of the
energy and the irrigation fluid.” See Final Act. 10. We consequently affirm
the Examiner’s rejection of claims 23—28.
DECISION
The Examiner’s provisional rejection of claims 1—6, 14—19, and 21—
28 under the nonstatutory doctrine of obviousness-type double patenting is
affirmed. (See fh.3 supra).
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The Examiner’s rejection of claims 1—6, and 22 as unpatentable under
35 U.S.C. § 112, first paragraph, is affirmed.
The Examiner’s rejection of claims 1—6, 14—19, 21, and 22 as
unpatentable under 35 U.S.C. § 102(b) is reversed.
The Examiner’s rejection of claims 23—28 as unpatentable under 35
U.S.C. § 102(b) 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)(1). See 37 C.F.R.
§ 1.136(a)(l)(iv).
AFFIRMED
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