Ex Parte Clendenen et al

Patent Trial and Appeal Board

Mar 5, 2018

14128694 (P.T.A.B. Mar. 5, 2018)

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APPLICATION NO. FILING DATE FIRST NAMED INVENTOR ATTORNEY DOCKET NO. CONFIRMATION NO.
14/128,694 02/25/2014 Steven R. Clendenen 451185.000018 9016
43548 7590 03/07/2018
FAEGRE BAKER DANIELS LLP
PATENT DOCKETING - INTELLECTUAL PROPERTY
2200 WELLS FARGO CENTER
90 SOUTH SEVENTH STREET
MINNEAPOLIS, MN 55402-3901
EXAMINER
MEHL, PATRICK M
ART UNIT PAPER NUMBER
3777
NOTIFICATION DATE DELIVERY MODE
03/07/2018 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
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PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte STEVEN R. CLENDENEN, CLIFTON R. HAIDER,
BARRY K. GILBERT, and OLIVER WILLIAM SPEES
Appeal 2017-010864
Application 14/128,694
Technology Center 3700
Before: JEFFREY N. FREDMAN, ULRIKE W. JENKS, and
RYAN H. FLAX, Administrative Patent Judges.
FLAX, Administrative Patent Judge.
DECISION ON REQUEST FOR REHEARING
Appellants requested rehearing of the Board’s Decision entered
December 18, 2017, to the extent it affirmed the obviousness rejection of the
claims over a combination of prior art including Nagpal.1 Appellants’
request is GRANTED and the aforementioned rejection is REVERSED.
Appellants argue the Board has misapprehended the disclosure of
Nagpal and contend Nagpal does not teach the claimed pulse sequences or
1 Manish Nagpal, Combined Fluorescein, Indocyanine Angiography and
Optical Coherent Tomography Using Spectralis, Rajasthan Journal of
Opthamology, Ophthalmological Society, Retina Foundation,
(2011), http://www.rostimes.com/2011RJO/-RJ020110101.htm, (last visited
May 17, 2016) (8 pages, numbered as printed from online source)
(“Nagpal”).
Appeal 2017-010864
Application 14/128,694
the related correlation of pulse sequences of detected light with the
predetermined excitation pulse sequence. See Req. Reh’g 4.
We reproduce claim 1 below for convenience (emphasis added to
identify language relevant to the request for rehearing):
1. A method, comprising:
applying light from one or more sources to tissue of a patient,
wherein the light has multiple wavelengths and includes pulses
of light having an excitation wavelength and a predetermined
excitation pulse sequence',
detecting the light by a light detector after the light has passed
through the tissue of the patient, including detecting light having
an emission wavelength that is different than the excitation
wavelength;
processing the detected light by a processing system, including:
correlating pulse sequences of detected light having the
emission wavelength with the predetermined excitation
pulse sequence to identify the recovery of light having the
emission wavelength, wherein the recovery of light
having the emission wavelength is representative of the
presence of fluorescing dye-marked anesthetic in the
patient’s bloodstream; and
processing the detected light to determine the blood
oxygen saturation level of the patient; and
displaying concurrently the patient’s blood oxygen saturation
level, and information representative of the presence of dye-
marked anesthetic in the patient’s bloodstream based on the
recovery of the light having the emission wavelength.
App. Br. 18 (Claims App.).
In the Decision, we affirmed the Examiner’s obviousness rejection
based, in part, on the Examiner’s determination that Nagpal disclosed the
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Appeal 2017-010864
Application 14/128,694
disputed claim limitations (see emphasis above) by teaching a two-laser
excitation system, where the two respective illumination beams are
switched, or pulsed, using a scanning mirror at a rate of 0.1 ms and the
related emissions of the fluorescing molecules in the illuminated tissues are
collected at a photodetector such that there is time sequence correlation of
that two-source fluorescence data. Upon reconsideration of Nagpal in view
of Appellants’ arguments, we conclude Nagpal falls short of teaching or
suggesting the disputed claim limitations.
While we agree with the Examiner’s determination that Nagpal
teaches the claimed “pulses of light having an excitation wavelength and a
predetermined excitation pulse sequence” by way of Nagpal’s disclosure of
“quasi-simultaneous” illumination using a switching mirror and two light
emitters (Answer 16), we conclude that Nagpal does not disclose that the
sequences of light produced by the lasers for exciting fluorescing molecules
is necessarily correlated with the detected emitted light sequences from the
fluorescing molecules. Nagpal is ambiguous regarding such specific
correlation and, while such correlation may be possible and potentially
useful, it is unclear on the record before us that such correlation is required
in the Nagpal system.
DECISION
Appellants’ request for rehearing is granted and the obviousness
rejection is reversed.
GRANTED
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