Ex Parte Genstler et alDownload PDFPatent Trial and Appeal BoardSep 6, 201813468920 (P.T.A.B. Sep. 6, 2018) Copy Citation UNITED STA TES p A TENT AND TRADEMARK OFFICE APPLICATION NO. FILING DATE 13/468,920 05/10/2012 20995 7590 09/10/2018 KNOBBE MARTENS OLSON & BEAR LLP 2040 MAIN STREET FOURTEENTH FLOOR IRVINE, CA 92614 UNITED ST A TES OF AMERICA FIRST NAMED INVENTOR Curtis Genstler 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 ATTORNEY DOCKET NO. CONFIRMATION NO. EKOS.232A 4036 EXAMINER FLICK, JASON E ART UNIT PAPER NUMBER 3763 NOTIFICATION DATE DELIVERY MODE 09/10/2018 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 following e-mail address(es): j ayna.cartee@knobbe.com efiling@knobbe.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte CURTIS GENSTLER and DOUGLAS R. HANSMANN Appeal2017-009415 Application 13/468,920 1 Technology Center 3700 Before JOHN C. KERINS, JEREMY M. PLENZLER, and ANTHONY KNIGHT, Administrative Patent Judges. PLENZLER, Administrative Patent Judge. DECISION ON APPEAL STATEMENT OF THE CASE Appellants seek our review under 35 U.S.C. § 134 of the Examiner's Final Decision rejecting claims 1--4 as unpatentable under 35 U.S.C. § 103 over Wilcox (US 2008/0319376 Al, published Dec. 25, 2008) and Zhang (US 6,723,063, issued Apr. 20, 2004). We have jurisdiction under 35 U.S.C. § 6(b). We AFFIRM. 1 Appellants identify Ekos Corporation as the real party in interest. Appeal Br. 3. Appeal2017-009415 Application 13/468,920 CLAIMED SUBJECT MATTER Claim 1 is the sole independent claim, with claims 2--4 depending from claim 1. Claim 1 is reproduced below: 1. A catheter system for delivering ultrasonic energy to a treatment site within a body lumen, the catheter comprising: a tubular body having a proximal end, a distal end and an energy delivery section positioned between the proximal end and the distal end; and a plurality of ultrasound radiating members positioned within the energy delivery section, the plurality of ultrasound radiating members being allocated into electrical groups comprising more than one ultrasound radiating member, wherein the ultrasound radiating members of one electrical group are spatially interdigitated with the ultrasound radiating members of another electrical group, and wherein the more than one ultrasound radiating members of each electrical group are electrically connected together such that they can be powered together as a group and each electrical group is configured to be individually powered separately from the other electrical groups. OPINION Appellants argue claims 1--4 as a group. Appeal Br. 4--8. We select claim 1 as representative. Claims 2--4 stand or fall with claim 1. See 37 C.F .R. § 41.3 7 ( c )(1 )(iv). The Examiner finds that Wilcox teaches the majority of limitations recited in claim 1, but "does not specifically disclose the ultrasound radiating members are electrically connected such that each electrical group can be powered individually or simultaneously with every other group." Final Act. 4. For that limitation, the Examiner cites Zhang's teachings, and proposes modifying the teachings of Wilcox accordingly. Id. at 4--5. Appellants do not dispute the majority of the Examiner's findings or rationale for the proposed combination of teachings. Rather, Appellants 2 Appeal2017-009415 Application 13/468,920 contend only that Wilcox fails to teach that "the ultrasound radiating members of one electrical group are spatially interdigitated with the ultrasound radiating members of another electrical group," as recited in claim 1. Appeal Br. 4--7. In support of those contentions, Appellants allege that the Examiner has construed the term "interdigitate" in an overly broad manner. Id. at 7-8. Without proposing its own express construction for that phrase, Appellants point out that "the present specification used the exact Figure cited by the Final Office Action ( e.g. Figure 5) in order to illustrate ultrasound members that were not interdigitated as compared to ultrasound members that were interdigitated ( e.g. Figure 6 and Figure 17B)." Id. at 8. At first blush, these contentions appear to have merit. Upon review of the actual claim limitations, however, the error in Appellants' contentions becomes apparent. In the Answer, the Examiner highlights the main issue with Appellants' contentions. See Ans. 5---6 ( explaining that the real dispute relates to what is required by each "electrical group" in the claim). The Examiner explains that the rejection is based on "'G2' and 'G4' ... be[ing] defined as a singular 'electrical group,' [with] 'GI,' 'G3,' and 'G5' ... be[ing] defined as another 'electrical group"' in Wilcox. Id. at 6. The Examiner provides an annotated version of Figure 5 from Wilcox illustrating that grouping, which is reproduced below for reference. 3 Appeal2017-009415 Application 13/468,920 . '·'''·'" ,-,J,"'/''··"-.._,,,--...,.-, .. ' .. r / . ' The figure shown above is Figure 5 from Wilcox, which is a schematic wiring diagram illustrating ultrasound radiating members of an ultrasound assembly, and includes the Examiner's annotations depicting a first "electrical group" and a second "electrical group." Appellants respond that "the Examiner's self-proclaimed arbitrary interpretation of Wilcox ... is inconsistent with the disclosure in Wilcox." Reply Br. 3. In support of that position, Appellants explain that "in FIG. 5 [of Wilcox], the ultrasound assembly 42 comprises five groups GI, G2, G3, G4, and G5 of ultrasound radiating member 40 that are electrically connected to each other" and "each 'G 1 ' 'G2 ' 'G3 ' 'G4 ' and 'G5' group ' ' ' ' is an individual electrical group." Reply Br. 3--4. We agree that Wilcox, by itself and unmodified, does not teach interdigitated electrical groups, as recited in claim 1. Contrary to 4 Appeal2017-009415 Application 13/468,920 Appellants' contentions, however, the Examiner does not rely solely on Wilcox. Rather, the Examiner proposes modifying the teachings of Wilcox to include two groups. Ans. 6. When G2 and G4 are considered one "electrical group" and G 1, G3, and G5 are considered another "electrical group," which is the basis for the Examiner's rejection, there is no dispute that those groups are interdigitated as required by the claim. There are no specific requirements for elements of a given "electrical group," other than the specific electrical connections recited later in the claim. That is, a group of ultrasound radiating members is defined in claim 1 solely based on the electrical connections for the various ultrasound radiating members. As noted above, the Examiner cites Zhang as teaching individual activation of its ultrasound elements. Final Act. 4 ( citing Zhang, 8:65-9:54, Fig. 7C). Indeed, the cited portion of Zhang states that "[a] particular ultrasound element 40 can be individually activated by closing a switch 64 to complete a circuit between the common wire 61 and the particular ultrasound element's return wire 62." Zhang, 9:36-40. Further, and as also noted above, Appellants do not dispute the Examiner's proposed modification to Wilcox's teachings making "electrical group" G2, G4 powered separate from "electrical group" G 1, G3, G5. For at least these reasons, we are not apprised of Examiner error. DECISION We AFFIRM the Examiner's decision to reject claims 1--4. No time period for taking any subsequent action in connection with this appeal may be extended under 37 C.F.R. § 1.136(a)(l )(iv). AFFIRMED 5 Copy with citationCopy as parenthetical citation