Ex Parte Diamantopoulos

Board of Patent Appeals and Interferences

Jul 21, 2010

10506744 (B.P.A.I. Jul. 21, 2010)

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.
10/506,744 03/08/2005 Leonidas Diamantopoulos 2667/108 7059
2101 7590 07/21/2010
Sunstein Kann Murphy & Timbers LLP
125 SUMMER STREET
BOSTON, MA 02110-1618
EXAMINER
HAND, MELANIE JO
ART UNIT PAPER NUMBER
3761
MAIL DATE DELIVERY MODE
07/21/2010 PAPER
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.
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
____________

Ex parte LEONIDAS DIAMANTOPOULOS
____________

Appeal 2009-010660
Application 10/506,744
Technology Center 3700
____________

Before LINDA E. HORNER, JOHN C. KERINS, and STEVEN D.A.
McCARTHY, Administrative Patent Judges.

KERINS, Administrative Patent Judge.
DECISION ON APPEAL1

1 The two-month time period for filing an appeal or commencing a civil
action, as recited in 37 C.F.R. § 1.304, or for filing a request for rehearing,
as recited in 37 C.F.R. § 41.52, begins to run from the “MAIL DATE”
(paper delivery mode) or the “NOTIFICATION DATE” (electronic delivery
mode) shown on the PTOL-90A cover letter attached to this decision.
Appeal 2009-010660
Application 10/506,744

2
STATEMENT OF THE CASE
Leonidas Diamantopoulos (Appellant) seeks our review under 35
U.S.C. § 134 of the Examiner’s final rejection of claims 15-29, the only
claims pending in the application. We have jurisdiction under 35 U.S.C.
§ 6(b) (2002). We REVERSE.

THE INVENTION
Claim 15, reproduced below, is illustrative of Appellant’s invention:
15. A catheter comprising at least one resiliently
biased projection and at least one displacement
detector which generates a signal which varies as a
function of radial displacement of the at least one
resiliently biased projection relative to the
longitudinal axis of the catheter.

THE REJECTIONS
The Examiner has rejected claims 15-17, 19, 20, and 24-29 under 35
U.S.C. § 102(a) as being anticipated by Diamantopoulos (WO 01/74263 A1,
published October 11, 2001). The Examiner has also rejected claims 18 and
20 under 35 U.S.C. § 103(a) as being unpatentable over Diamantopoulos,
and claims 21-23 as being unpatentable over Diamantopoulos in view of
Acker (US 5,833,608, issued November 10, 1998).

ISSUES
Does the Diamantopoulos reference disclose a displacement detector
that generates a signal which varies as a function of radial displacement of a
resiliently biased projection?

Appeal 2009-010660
Application 10/506,744

3
ANALYSIS
The Examiner found, with respect to claim 15, that Diamantopoulos
discloses “at least one detector in the form of thermal sensors 10 that
generate a signal that creates temperature data and varies as a function of
radial displacement (e.g. due to the presence of a plaque on the vessel
wall)…” (Ans. 3). Appellant counters that the signal constituting
temperature data in Diamantopoulos does not vary as a function of the radial
displacement of the resiliently biased projections, but rather it is merely
temperature data that is included in the signal without regard to the radial
displacement of the projections. (Appeal Br. 7). In response, the Examiner
appears to be taking the position that different temperature readings will be
obtained and transmitted at different radial coordinates, and thus the signal
containing the data from the temperature reading will vary as a function of
the radial displacement of the sensor. (Ans. 7-8).
The Examiner’s position would be sustainable only if there were also
a direct correlation between measured temperature (which is all that the
Diamantopoulos device measures) and the size (diameter) of the opening
through the blood vessel (which will dictate the radial displacement of the
projection). While the Examiner noted that Diamantopoulos discloses that
elevated temperatures may be present in areas in which plaque is attached to
the wall of a blood vessel (Ans. 7), Diamantopoulos does not disclose that
the temperature of the artery wall varies in any particular and defined
manner with the thickness of the plaque. Appellant correctly states that,
“while the sensor in Diamantopoulos may generate a signal that varies with
radial displacement, [the signal] certainly does not vary as a function of
radial displacement.” (App. Br. 5).
Appeal 2009-010660
Application 10/506,744

4
The additional findings and rationale employed by the Examiner in
rejecting dependent claims 18 and 20 as unpatentable over Diamantopoulos,
and in rejecting dependent claims 21-23 over Diamantopoulos and Acker, do
not address the absence of a disclosure in Diamantopoulos of a displacement
detector that generates a signal that varies as a function of the radial
displacement of the resiliently biased projections employed in that device.
The rejections of claims 15-29 will thus not be sustained.

CONCLUSIONS
The Diamantopoulos reference does not disclose or render obvious a
displacement detector that generates a signal which varies as a function of
the radial displacement of at least one resiliently biased detector. The Acker
patent does not, in combination with the teachings of Diamantopoulos,
render obvious such a displacement detector.

DECISION
The decision of the Examiner to reject claims 15-29 is reversed.

REVERSED

mls

SUNSTEIN KANN MURPHY & TIMBERS LLP
125 SUMMER STREET
BOSTON, MASSACHUSETTS 02110-1618